BZAEA v Minister for Immigration

[2013] FCCA 1239

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAEA v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1239

Catchwords:
MIGRATION – Application for a protection visa – review of a decision of a refugee review tribunal – impermissible merits review – no reviewable error disclosed – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2)(aa), 46A(2), 420(2)(a), 425(1), 426A

Abebe v The Commonwealth (1999) 197 CLR 510
Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287
Martin v Osborne (1936) 55 CLR 367
Minister for Immigration and Citizenship v Le [2007] FCA 1318
Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration &  Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Plaintiff M61/2010E v Commonwealth of Australia (2012) 243 CLR 319
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592
SZQGC v Minister for Immigration and Citizenship [2012] FCA 598
VAO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 31
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104
VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291
VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29

Applicant: BZAEA

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 245 of 2013

Judgment of: Judge Jarrett

Hearing date: 8 July 2013

Date of Last Submission: 8 July 2013

Delivered at: Brisbane

Delivered on: 3 September 2013

REPRESENTATION

Counsel for the Applicant: Mr Barataraj

Solicitors for the Applicant: Directly instructed

Counsel for the Respondents: Mr Alderton

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application filed 3 June, 2013 be dismissed.

2. The applicant pay the first respondents costs of and incidental to the application fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 245 of 2013

BZAEA

Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an amended application filed on 3 June, 2013 the applicant seeks judicial review of a decision of a refugee review tribunal made on 25 February, 2013.  By that decision, the tribunal affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa   

2. In his amended application, the applicant sets out the relief he seeks and his grounds of review as follows:

   Final orders sought by applicant/s:

   An order that the decision of the tribunal or Minister be quashed.

   A writ of mandamus directed to the tribunal or Minister, requiring them to determine the applicant’s application according to law.

   An injunction restraining the Minister, by himself or by his Department, officers, delegates or agents, from relying upon the recommendation of the Independent Protection Assessment Reviewer.

   An order declaring that the Applicant meets s32(2) of the Migration Regulations 1994.

   Costs to this and incident to this Application

   Such further orders as this Honourable Court deems fit.

   Grounds of application

   1.  The Member made procedural errors in considering the application by   

   a) erred in law by failure to take relevant considerations in making the decision.

   b) erred in law by taking irrelevant considerations in making the decision.

   c)  placed too much weight on irrelevant considerations to make the adverse decision and less weight on relevant information.

   2.  Failure to consider relevant information resulted in denial of natural justice.

   3.  The Member was in procedural error in considering only partial information regarding the fear of the applicant returning to Sri Lanka, leading to the adverse decision.

   4.  The Member failed to apply the consider fairly the application of the Applicant under the Complementary Protection criterion and thereby denied the Applicant natural justice.

   5.  The member has considered outdated and biased country information in making the decision resulting in the denial of natural justice.

3. Both parties have delivered written submissions in support of their respective arguments. The applicant’s written submissions do not address in terms the grounds of review set out in his amended application.  Those of the first respondent attempt to do so, but with the difficulty that arises from attempting to address the very general grounds of review in the amended application.

4. The applicant’s written submissions provide:

   4. RRT has a duty under the ADJR Act (Cth) 1977 to make decisions judiciously from facts available and to make inquiries to enable an appropriate and fair decision based upon those facts. While it is accepted that there is no error in law in making a wrong decision of fact, this does not mean that the RRT has carte blanche in making wrong decisions in all the facts available, simply because this will defeat the intentions of the law, where it is implied that the Delegate or RRT must make decisions judiciously.

5. As the first respondent points out, contrary to what is asserted in that extracted paragraph, this is not a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) applies. The tribunal was under no duty imposed upon it by the AD(JR) Act as alleged by the applicant.

6. The applicant further submits that:

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

   7.  M61 in (2010)272ALR establishes that in· undertaking the review the RRT 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   Using the wrong or outdated country information to make a decision is a breach of procedural fairness.

7. I have no difficulty with the statement set out in paragraph 6 (extracted above). However, 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.

Background

1. The first respondent and the applicant both set out the background facts in their written submissions, the first respondent a little more fulsomely. No issue was taken by either party about the accuracy of what was recorded in the written submissions.

2. The submissions are consistent with my own review of the background material and the tribunal’s reasons for decision.  What follows, in terms of the background to this application, I have in part adopted from the parties’ written submissions.

3. The applicant was found by the tribunal to be a citizen of Sri Lanka who arrived in Australia on 11 May, 2012 as an irregular maritime arrival.In the past he had worked as an electrician in Sri Lanka and his Counsel described him as having a “good job”.

4. He participated in an entry interview held on 22 June, 2012 and outlined his claims to fear harm in Sri Lanka.

5. On 8 August, 2012 the Minister exercised his power to “lift the bar” under s.46A(2) of the Migration Act1958 (Cth) and the applicant lodged an application for a protection visa the same day. He also appointed a migration agent to assist him in this process.

6. The applicant’s written claims were set out in a statutory declaration accompanying his protection visa application.  He claimed to be an ethnic Tamil who was detained and physically mistreated by the Sri Lankan Army in 1998 and released after two days because of suspected involvement in a grenade attack.  He also claimed he was subjected to similar abuse on about 30 other occasions.

7. In 2000, he was detained overnight by the SLA and interrogated.  The applicant claimed that as a member of the Auto Drivers Association he was forced to attend Liberation Tigers of Tamil Eelam training for two days in 2002. He feared that because of his participation in the training, the SLA would view him as an LTTE member or supporter.

8. The applicant went to Colombo in February, 2007 for 10 days  He then travelled by plane to India for medical treatment for the injuries he claimed to have received as a result of being tortured. He claimed that he was mistreated by the Indian authorities but survived in India as a displaced Tamil despite not having any family support.   

9. On 27 April, 2012 he paid a smuggler 50,000 Indian Rupee and travelled to Australia by boat. He feared harm if he returned to Sri Lanka from the SLA, the police and various paramilitary groups because of his Tamil ethnicity and the incidents which had occurred in his past.

10. The applicant attended an interview with a delegate of the first respondent on 14 August, 2012 and essentially submitted the same claims as outlined in his entry interview and his statutory declaration.  The delegate refused to grant the applicant a protection visa on 18 October, 2012.

11. On 29 November, 2012 the applicant lodged an application for a review of the delegate’s decision by a refugee review tribunal He appointed the same agent to represent him before the tribunal.

12. On 7 January, 2013, the tribunal contacted the applicant’s representative to confirm the applicant’s correct residential address and to discuss options for him and the applicant to appear at the hearing given that the applicant resided in Rockhampton and the agent was located in Melbourne.

13. By a letter dated 23 January, 2013, the tribunal invited the applicant to attend a hearing scheduled for 15 February, 2013. He was advised that the tribunal had considered all the material before it but was unable to make a favourable decision on the basis of this information alone. He was informed that if he did not attend, the tribunal may make a decision on his review application without further notice.

14. On 24 January, 2013 the tribunal again telephoned the applicant’s agent to determine if he would appear at the hearing with the applicant in Rockhampton but was informed that the agent would attend from Sydney.

15. The tribunal rang the agent again on 24 January, 2013 to confirm that the applicant could bring a support person with him to the hearing so he did not feel isolated and this was acknowledged by staff of the agent.

16. On 8 February, 2013, the applicant’s representative emailed the tribunal to request that the hearing be postponed because of claimed difficulties in contacting the applicant.   

17. In letters faxed to the applicant and his representative on 12 February, 2013, however, the tribunal refused the request to postpone the hearing and confirmed that it would proceed on 15 February, 2013, with the applicant appearing by video-link from Rockhampton.

18. On 13 February, 2013 the tribunal obtained from the Department, copies of the applicant’s national identity card, a Sri Lankan government identity card issued during the civil war, driver’s license and birth certificate.

19. Neither the applicant nor his representative attended the hearing on 15 February 2013.

20. The tribunal made repeated but unsuccessful attempts to telephone the applicant’s representative on the day of the hearing to determine whether the applicant would be attending but the line was either engaged or was disconnected soon after speaking with the agent.  A voicemail was also left on the agent’s mobile number but no further response was received by the tribunal from the applicant or his agent.

21. In these circumstances, the tribunal proceeded pursuant to s.426A of the Migration Act and made a decision on the review without taking further steps to enable the applicant to appear before it.

22. In its decision dated 25 February, 2013 and notified to the applicant through his agent on the same date, the tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.

23. Despite having doubts about the applicant’s nationality, the tribunal accepted that he was a Sri Lankan national.  It was also prepared to accept that he had been detained by the SLA in 1998 and was forced to undergo LTTE training in 2002. 

24. The tribunal was not satisfied that the applicant had been detained on about “30 other occasions” given the lack of detail for this claim and found there was insufficient evidence for it to be satisfied that he was detained overnight in 2000.

25. The tribunal found that the applicant was granted a genuine passport issued by the Sri Lankan authorities and departed Sri Lanka legally during the civil war. It found this indicated he was not of adverse interest to the Sri Lankan authorities at the time he departed the country and did not accept he faced a real chance of harm on this basis in the future.  Nor was the tribunal satisfied, on the limited evidence before it, that the applicant had the assistance of a smuggler to obtain a passport or depart the country. 

26. The tribunal found that many of the applicant’s claims concerning his past experiences were “minimal and vague” and noted that it had been deprived of the opportunity to discuss the claims with the applicant because he did not attend the hearing.

27. On the basis of accepted country information, the tribunal was not satisfied that the applicant had a profile that would bring him to the adverse attention of the authorities if he returned to Sri Lanka. It also found that his written claims to fear harm from paramilitary groups were “vague and unsubstantiated” and “lacked credibility”.   Accordingly, the tribunal did not accept there was a real chance that he would face harm from paramilitary groups if he returned to Sri Lanka.

28. In addition, the tribunal found that there was no evidence before it to indicate that the applicant had any outstanding criminal matters and was not satisfied given the accepted country information about the treatment of returnees that he faced a real chance of persecution as a failed asylum seeker.

29. For these reasons the tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution for a Convention reason.

30. Having found that the applicant worked in India for five years and lawfully exited Sri Lanka on a valid passport, the tribunal was similarly not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm pursuant to s.36(2)(aa) of the Act. The tribunal was not satisfied on the evidence before it that the applicant was of interest to the Sri Lankan authorities when he left the country or presently. Nor did it accept that any general processing, criminal checks or delay to which he might be subject on his return amounted to “significant harm” for the purposes of ss.36(2)(aa) and 5 of the Migration Act.

The applicant’s arguments

1. It is, with respect, difficult to grasp the thrust of the applicant’s arguments beyond that he is dissatisfied with the outcome of the review by the tribunal.  As the applicant acknowledges, the Court has no jurisdiction to enter into a review of the merits of the tribunal’s decision.  The enquiry is limited to determining whether the tribunal’s decision is affected by jurisdictional error.

2. However, having regard to the applicant’s written and oral submissions (made by his Counsel) it appears to me that his arguments are:

   a)Having regard to “the information easily available for the Reviewer” and the way in which other tribunal members have decided cases using that information concerning putative refugees from Sri Lanka, the tribunal here failed to make an obvious inquiry about a critical fact, the existence of which was easily ascertained’

   b)The tribunal did not pay attention to the UNHCR Guidelines on the Assessment of Credibility (August, 2008) when it determined the review application before it:

   c)The tribunal did not take into account certain information, best described as country information, that demonstrated that the applicant’s fears of persecution should he be returned to Sri Lanka were well-founded; and

   d)The tribunal did not correctly consider the application of the complementary protection provisions of the Migration Act.

3. Before dealing with each of these matters separately, it is as well to record some propositions about which there is no doubt.

4. First, in circumstances where the elements or integers of the claim for asylum are addressed, a failure to expressly mention or grapple with part of the competing body of evidence before the tribunal relevant to a finding made by the tribunal is not an error: Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79] per Allsop J; SZQGC v Minister for Immigration and Citizenship [2012] FCA 598.

5. Second, the tribunal was not obliged to accept the applicant’s claims at face value and the weight to be given to his claims and evidence was a matter for the tribunal to assess as part of its fact-finding function: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281 – 282.

6. Third, it will be difficult to achieve the requisite degree of satisfaction if an applicant does not provide sufficient information, such as by not attending a hearing.  In the absence of a positive finding of satisfaction, a visa application must be rejected: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5]; NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208; Minister for Immigration &  Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.

7. Fourth, 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 [l l]-[13]; Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR I at [8] per Gleeson CJ; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [8l]-[84].

8. Fifth, it “is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons”: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46].

9. Sixth, the tribunal is not required to consider a claim not made or one which cannot be said to clearly arise on the material before it:  Htun v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287.

10. Seventh, 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.

11. Eighth, the tribunal was not obliged to make the applicant’s case for him: Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.

1. Ninth, if the tribunal cannot be satisfied on the basis of the material presented that his claims are genuine, it does not have any duty to make further inquiries: Minister for Immigration and Multicultural Affairs v SGLB (2004) 207 ALR 12; cf Minister for Immigration and Citizenship v Le [2007] FCA 1318, SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592.

2. Tenth, the tribunal was not obliged to inquire into more recent country information than what was before it: VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 at [41]; VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29; VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104; VAO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 31 at [25].

Information “easily available” and other tribunal decisions

1. The tribunal was unable to reach the requisite degree of satisfaction about the applicant’s claims on the basis of the material before it. The tribunal invited the applicant to a hearing so that his claims could be considered further. The tribunal discharged the obligation cast upon it by s.425(1) of the Migration Act to make further inquiries concerning the applicant’s claims by inviting him to attend a hearing and provide more information about his claims. He failed to do so and, as pointed out above, the tribunal was bound to reject his application for review.

2. Whilst the High Court might have said: “The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional  error.” here the tribunal sought to make the obvious enquires by inviting the applicant to attend a hearing.  Neither he, nor his advisor, attended.

3. Inferentially at least, the applicant argues that the tribunal ought to have looked beyond the country information referred to by it and recorded in the reasons for decision.  But the tribunal’s reasons for decision demonstrate that it had regard to a wide range of country information from various sources, including the UNHCR and the Canadian, British and Australian governments.  The country reports referred to by the tribunal ranged from reports in 2010 to reports as late as December, 2012.

4. Of that country information, the applicant says that it is “mainly circumstantial evidence, evidence gathered from the experiences of others directly or indirectly.”  The applicant argues that: “If an issue is to be proved by circumstantial evidence, the facts that support the evidence or facts provided by the applicant must be established from which a conclusion follows as a rational inference. Sir Owen Dixen has explained this in (1936)55CLR367 “the circumstances which may be taken into account in the process of reasoning includes all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued ... But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed ...”

5. The authority to which the applicant has drawn my attention is Martin v Osborne (1936) 55 CLR 367 at 375. It is still authority for the propositions stated in it concerning the use of evidence of similar facts and course of conduct to assist proof of the facts in issue in a particular case. But Martin v Osborne has nothing to say about the circumstances of the present case or the way in which the tribunal was obliged to consider the country information before it.  Martin v Osborne dealt with the admissibility of evidence in a criminal or quasi-criminal prosecution. A refugee review tribunal constituted under the Migration Act in reviewing a decision, “is not bound by technicalities, legal forms or rules of evidence”: s.420(2)(a) of the Migration Act. The rules of evidence and their application have little, if anything, to do with the way in which a refugee review tribunal discharges its function.

6. The applicant argues that because there was no opportunity for the tribunal to interview him to ascertain his credibility and given that he “has provided the facts which is anything but circumstantial and relating to his experience while in Sri Lanka including his detention, torture and escape and has stated his intrinsic fear for re arrest, detention and torture upon return to Sri Lanka” the truth of his claims can only be verified by reference to events generally known to have “occurred or be occurring from the evidence of the Country Information”.  That is to say only from the country information identified by the applicant. 

7. The applicant argues that:

   …It is therefore crucial and critical that the tribunal consider the information and decide if the facts stated by him co relate with the information available. 

   10.    Where the fear is real or just illusionary depends upon the Applicant’s own experience and barring his lack of credibility (which has not been established) and form the circumstantial evidence available it is not improbable that the applicant does have real fear.” 

8. This passage, however, illustrates the misconception in the applicant’s argument.  It is not just that the applicant has a real fear of persecution for a Convention reason should he be returned to Sri Lanka.  There must be an objective basis for his fear – it must be well-founded, that is important.  The tribunal considered the applicant’s claims of fear of harm as well as the country information before it to determine that his expressed fears, if he held them, were not well-founded.

9. The tribunal is not bound by the decisions of other refugee review tribunals concerning claims relating to the same country of origin.  Each application must be decided according to its own facts and circumstances.  Circumstances and conditions change which, no doubt, is why a tribunal will always consider up-to-date country information.

10. Here, the applicant argues that the present tribunal’s decision is inconsistent with 12 other decisions of refugee review tribunals concerning Sri Lankans.  However, those decisions all pre-date the most recent country information (and in particular the UNHCR report titled “Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka” dated 21 December, 2012) relied upon by the tribunal.  In my view, reference to the decisions of other tribunals will almost always be of little utility.  That the tribunal here did not consider those other decisions or make its decision the same as those other tribunals does not reveal any error on its part.

The assessment of credibility

1. Whilst the applicant argues that the tribunal ought to have borne more firmly in mind the UNHCR Guidelines on the Assessment of Credibility (August, 2008), the submission is difficult to understand given that the tribunal indicated that it could not make a favourable decision on the applicant’s application as presented on the papers, invited him to attend a hearing and the applicant failed to attend. 

2. The decision record reveals that the tribunal carefully considered each of the applicant’s claims.  Some of them were accepted and some were not.  Those that were not accepted were invariably rejected because they were “vague and unsubstantiated”.  As the tribunal noted at p.50: “The tribunal had planned to question the applicant about the other occasions at hearing however as mentioned elsewhere the applicant did not attend.”

3. In my view, there is nothing to suggest that the tribunal made any error when it determined to reject some of the applicant’s claims.

Country Information

1. The country information considered by the tribunal was clearly set out in the reasons for decision.  It covered a clearly relevant time period (from 2010 to as late as 21 December, 2012).  It came from a wide range of sources, including the UNHCR and the Australian Government.  The applicant did not suggest that the information considered by the tribunal was irrelevant or inappropriate.

2. However, the applicant argues that on the basis of that information, and other information to which he pointed in the course of the application before me, the tribunal ought to have concluded that his fear of persecution for a convention reason was well-founded.  For the purposes of the application before me, the applicant sought to rely upon an affidavit deposed by him in which he refers to what might be described as “country information” concerning Sri Lanka.  Some of that information was considered by the tribunal and some was not.  On the basis of that information, the applicant invited me to conclude that the tribunal had committed jurisdictional error by not taking that information into account.

3. That argument should be rejected because the tribunal was entitled to act upon the information before it and to give that information whatever weight the tribunal thought was appropriate.  The selection and weight to be given to country information is a matter for the tribunal. 

4. No jurisdictional error is revealed by this ground.

Complementary Protection

1. The tribunal set out the relevant statutory provisions relating to the complementary protection criteria. I accept the first respondent’s submission that the tribunal’s findings and reasons plainly reveal that it understood the application of the particular requirements of s.36(2)(aa) of the Migration Act.

2. The tribunal found that it had no evidence to enable it to find that the applicant was of interest to the Sri Lankan authorities either when he left Sri Lanka, or at the time of the review.  The tribunal considered the applicant’s claim separately and cumulatively and accepted that he may be subject to general processing and criminal checks upon his return to Sri Lanka.  However, given the tribunal’s finding that he was of no particular interest to the Sri Lankan authorities, the tribunal concluded that there were no substantial grounds for believing that, as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm.

3. Those findings by the tribunal and its conclusions based upon them were clearly open to it.  The applicant’s argument reveals that what in fact he seeks is an impermissible review of the merits of the tribunal’s decision:

   14.    The Reviewer does not believe the applicant about his fear of return based on information from DFAT cable of 12 October 2012 quotes penalties exist for returnees or deportees who have departed Sri Lanka (SL) unlawfully but SL considers these people as victims, and given only monetary fines (para (b) page 288 of green book).  However he says that the penalty is seldom imposed. He presents no evidence for this statement other than relying on the DFAT cable that itself relies heavily on submissions of the SL Government denying all the allegations against the it.  To rely on such information in making the decision is totally unjustifiable. Where the accusation of detention, abuse and torture is made against the Sri Lankan Government, it would be naive to accept that SL will agree such statement is the truth, let alone from DFAT cable which relies on their assertions.

4. In my view, this ground does not reveal any jurisdictional error on the part of the tribunal.

Conclusion

1. The application does not reveal any jurisdictional error on the part of the tribunal.  The application must be dismissed with costs.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 3 September 2013

Associate:

Date:     3 September 2013