BZAFI v Minister for Immigration

[2014] FCCA 2262

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFI v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2262

Catchwords:
MIGRATION – Protection visa – judicial review of a decision of the Refugee Review Tribunal.

Legislation:

Migration Act 1958 (Cth), s.36

Craig v South Australia (1995) 184 CLR 163
Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105
Minister for Immigration and Citizenship v SZRKT & Refugee Review Tribunal [2013] FCA 317
Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Applicant: BZAFI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 706 of 2013

Judgment of: Judge Howard

Hearing date: 9 September 2014

Date of Last Submission: 9 September 2014

Delivered at: Brisbane

Delivered on: 2 October 2014

REPRESENTATION

Solicitors for the Applicant: Rasan T Seliah & Associates

Counsel for the First and Second Respondents: Mr McLeod

Solicitors for the First and Second Respondents: Sparke Helmore

ORDERS

1. That upon the delivery of the Judgment the Court will hear submissions in relation to the wording of the final orders and the Court will also hear submissions in relation to costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 706 of 2013

BZAFI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant was born on 17 October 1985 in Sri Lanka.  He is a citizen of Sri Lanka with Tamil ethnicity.

2. The applicant departed Sri Lanka illegally by boat in 2012 and arrived in Australia on 29 May 2012.

3. On 31 August 2012 the applicant lodged an application for a Protection Visa.

4. The applicant’s application for a Protection Visa was refused on 12 December 2012.

5. The applicant lodged an application for a review of the Delegate’s decision.  That application for a review to the Refugee Review Tribunal was lodged on 18 December 2012.

6. The hearing for the Refugee Review Tribunal took place on 4 April 2013.  At that hearing the applicant attended and was assisted by an interpreter in the Tamil and English languages.  The applicant was in fact represented by his Migration Agent at the hearing.

7. After the hearing the applicant provided a written submission and further documentation to the Tribunal.  This was received by the Tribunal on 22 April 2013.

8. The Tribunal’s decision was delivered on 16 July 2013.  The Tribunal decided to affirm the Delegate’s decision not to grant the applicant a Protection Visa.  I consider it helpful to include here the findings and reasons of the Refugee Review Tribunal contained in the Court Book (exhibit 1) from page 248.  It is stated there:-

   “FINDINGS AND REASONS

   68. The applicant travelled to Australia by boat and sought asylum.  The Tribunal accepts that the applicant is a 27 year old Tamil male from Sri Lanka and has assessed his claims against Sri Lanka as his country of nationality.

   69. The Tribunal finds that the applicant is outside his country of nationality as required by Article 1A(2). There is nothing in the evidence before the Tribunal to suggest that the applicant has a legally enforceable right to enter and reside in any country other than Sri Lanka. Therefore the Tribunal finds that the applicant is not excluded from Australia’s protection by subsection 36(3) of the Act.

   70. The Tribunal has to assess whether or not there is a “real chance” that the applicant will suffer “persecution” in the reasonably foreseeable future in Sri Lanka.  The applicant states that he fears that if he had to return to Sri Lanka he would be detained and tortured or killed by the Sri Lankan authorities because of he is suspected of being associated with the LTTE and suspected of involvement in the killing of a government Minister, Jeyaraj Fernando Pullai, in April 2008.  He states that his cousin and a friend were abducted, detained and tortured in January 2008 by the police and accused of spying on the government Minister and giving information about the Minister to the LTTE.  The Minister was subsequently killed by a suicide bomber in April 2008.  The applicant’s cousin and friend have not been released from detention.  The police required the applicant to attend at the police station for questioning in January 2008 and he did not do this.  The police have been searching for him ever since.  The police questioned many of the applicant’s cousins and friends and they detained and questioned his father twice when they could not find the applicant.  His father was released after two days after his mother was assisted by a senior police officer to secure his release.  The applicant claims to have received anonymous and threatening phone calls four or five times a month until about five months before he came to Australia.  The calls stopped when he changed his phone number.

   71. Prior to 2008 the applicant claims to have been harassed by Sinhalese people when he was going to school.  They would take his belongings and on one occasion he was beaten up by them.  They also harassed his sister.  He complained to the police however the police did nothing to help him.  In 2004 the applicant hit a Sinhalese boy back after the boy hit the applicant.  The police came looking for him as a result.  The matter was resolved after intervention by village elders.

   72. In 2007 the applicant and other Tamils were detained by police when they were travelling on a bus to a Red Cross meeting.  The applicant was sexually abused by a senior police officer who threatened that he could kill the applicant and throw his body in the river and claim that the applicant was shot while trying to escape.

   73. The applicant claims that he is unable to lead a normal life and cannot relocate to other parts of Sri Lanka because his National Identification Document says he is a Tamil from Jaffna.  He has been so scared that he has moved constantly to different jobs in different towns.  He has used forged identification papers to be able to do this.  The applicant claims the authorities have gone to his family home in search of the applicant several times after the applicant arrived in Australia.  His father has sent them away by bribing them.  His father has now gone into hiding due to the continued harassment by the authorities.

   74. The Tribunal has considered whether or not there is a real chance that the harm feared by the applicant will occur in the reasonably foreseeable future should he return to Sri Lanka; whether the harm feared involves serious harm; whether the harm would involve systematic and discriminatory conduct, essentially and significantly for a Convention reason; and whether or not the government in Sri Lanka would fail in its duty to protect the applicant from the harm feared.  In so doing, the Tribunal has, in accordance with Ministerial Direction No.56, considered PAM3: Refugee and Humanitarian – Refugee Law Guidelines.

   75. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   76. The Tribunal has significant concerns regarding the credibility of several aspects of the applicant’s claims.  However the Tribunal accepts the following claims made by the applicant.

   77. It is accepted that the applicant was born in Jaffna and relocated with his family to Negombo in 1991 when he was six years of age.  The Tribunal accepts that the applicant was subjected to discrimination and harassment on his way to school and was involved in a fight on two occasions with a Sinhalese boy.  The Tribunal accepts that the police did not intervene to assist the applicant however they did come looking for the applicant when the Sinhalese boy complained to them.  The Tribunal accepts that the matter was resolved through intervention from village elders.

   78. It is noted that irrespective of these problems and difficulties the applicant managed to successfully complete his “A” levels. After this the applicant studied the English language and he was able to find employment in various capacities in the following years. The Tribunal finds therefore that the harassment and discrimination suffered by the applicant when he was a school student were not such that the applicant was denied an education and were not such that it affected his capacity or ability to find employment. It did not affect his ability to subsist. Accordingly the Tribunal finds that the applicant’s claims in this regard do not amount to serious harm and the treatment he suffered cannot be regarded as persecution as defined in s.91R(1) of the Act.

   79. The Tribunal also accepts that the applicant and other Tamils were taken by police from a bus when travelling to a Red Cross meeting.  It is accepted that they were detained overnight.  The Tribunal is also prepared to accept that the applicant was sexually abused and threatened and bashed by a senior police officer and this left him with a damaged ear drum.  This was during the civil war and country information reports confirm that Tamils were subjected to arbitrary detention under the security provisions in force at the time.  That they were subjected to mistreatment, including sexual abuse, is also confirmed in the independent country information reports.  The Tribunal therefore accepts that the applicant was subjected to serious harm in 2007 and this has left him with some specific health problems.

   80. However the Tribunal has to determine whether the applicant’s fears of persecution in the reasonably foreseeable future are well-founded.  The Tribunal found that it had significant concerns regarding aspects of the applicant’s claims and these led it to conclude that his claims of fearing serious harm in the future in Sri Lanka are not well-founded.

   81. The Tribunal accepts that the applicant’s cousin [Mr A] and his friend [Mr R] may have been detained in January 2008 on suspicion of assisting the LTTE.  The Tribunal accepts that other members of [Mr A]’s extended family may also have been questioned.  However the Tribunal does not accept that the Sri Lankan authorities continued to search for the applicant from January 2008 onwards and that he remains a person who they wish to question or detain or a person they will subject to serious harm if he returns to Sri Lanka.

   82. The applicant’s claims in this regard are undermined by the following.  The applicant was able to obtain a passport issued in his own name.  The delegate’s decision (provided by the applicant with his review application) indicates that the applicant confirmed that he thought he obtained his passport in 2008 or 2009.  The Tribunal does not accept that in 2008 or 2009 the applicant would be issued a passport without any difficulty by the government of Sri Lanka, during the civil war between the Sri Lankan government and the LTTE, if he was suspected of assisting the LTTE and being associated with two people who were arrested and detained in January 2008 on suspicion of plotting to harm a Sri Lankan government Minister who was subsequently killed by a suicide bomber in April 2008.

   83. The Tribunal notes that at the hearing the applicant indicated that he thought his passport was issued in 2010.  If this was when his passport was issued, the applicant claims to still have been wanted for questioning by the Sri Lankan authorities at this time because of his association with his cousin [Mr A] and friend [Mr R] and their involvement in the killing of a Sri Lankan government Minister in April 2008.  The issuing of the passport to the applicant in his own name undermines the credibility of the applicant’s claim that he was wanted by the Sri Lankan authorities as he was suspected of assisting or having links with the LTTE.  Given the serious nature of the offence the applicant claims to be suspected of being involved in, the Tribunal does not accept as credible the applicant’s explanation that he engaged an agent to obtain the passport and the agent paid a bribe and the passport was issue with no problem.  Even if the Tribunal were to accept that the applicant’s uncle paid an agent so that the applicant would be issued with a passport in his own name, the Tribunal does not accept that the applicant would have been issued a passport in these circumstances without there being any action taken to arrest him when he collected the passport from the agent or on or about that time.  The Sri Lankan government has a sophisticated intelligence capacity and in the Tribunal’s view, once the applicant was issued with a passport in his identity, it would have led to his being detained and questioned if he was genuinely thought to be involved in a terrorist activity.

   84. The applicant’s claims are further undermined by the fact that he travelled to India to visit his grandmother (grandmother’s sister) on a visa issued by the Indian government from 30 July 2010 until 29 October 2010.  The applicant departed Sri Lanka and returned to Sri Lanka through immigration and customs and security checking without any difficulty.  The Tribunal does not accept the applicant’s claim that he had no difficulty with the authorities because this travel was organised by his uncle who lives in France and who had arranged everything for him.  The Tribunal does not accept this as a credible explanation if the applicant was a person suspected of involvement with two people who the authorities kept in detention because of their suspected involvement with the LTTE and the killing of a government Minister by a suicide bomber.  In the Tribunal’s view, even if bribes were paid, the applicant would have been detained at this time.

   85. The applicant claims that he received anonymous phone calls four or five times a month up until about five months before he left Sri Lanka for Australia and that the calls stopped when he changed his phone number.  In the Tribunal’s view, if these phone calls were from the Sri Lankan authorities, or paramilitaries associated with the Sri Lankan government as claimed by the applicant, they would have resulted in the apprehension of the applicant or at the very least some direct contact with the applicant.  The Tribunal does not accept as credible that these calls were made so frequently for such a prolonged period of time by a person or group who were genuinely intent on detaining or harming the applicant because he was suspected of being associated with the LTTE and the killing of a government Minister.

   86. In the Tribunal’s view, if the applicant had a genuine fear of serious harm from the Sri Lankan authorities he would not have returned to Sri Lanka from India in October 2010.  India, although not a signatory to the Refugees’ Convention in 2009 was reported to be accommodating more than 100,000 refugees from Sri Lanka.  Also, the UNHCR has an office for determining refugee status in New Delhi.  The Tribunal notes the applicant’s response that he did not want to be detained by the “Q” Branch of the Indian police as a suspected LTTE member.  However the Tribunal notes that the applicant was not detained by the Indian authorities as a suspected LTTE member when he entered and departed India on his Sri Lankan government passport issued in his own name, a fact which further undermines the applicant’s claim to be wanted by the Sri Lankan authorities due to suspected involvement with the LTTE.

   87. The Tribunal considered the documents submitted in support of the applicant’s claims.  The letter from his uncle in France states in part, that the uncle gave an agent a sufficient amount of money to safeguard the applicant’s life.  The Tribunal is not convinced by this letter.  It does not contain any detail as to who the agent was, how the uncle knew the agent, what the agent did with the money, how the agent was able to safeguard the applicant’s life with the money given to him by the uncle.  The Tribunal is not able to place any significant weight on the letter as evidence supporting the applicant’s claim to have avoided arrest when applying for a passport in his own name; avoided arrest when departing Sri Lanka and entering India; and avoided arrest when departing India and returning to Sri Lanka, through the security checks at both the Indian and Sri Lankan ports.

   88. The letter from the Attorney-At-Law, Notary Public and Commissioner for Oaths in Negombo, states that the applicant is known to the writer and then sets out the applicant’s claims as they relate to his cousin [Mr A] and friend [Mr R].  The Tribunal was not able to verify the existence of an Attorney, Notary Public and Commissioner of Oaths by that name.  Irrespective of this, the Tribunal was not satisfied that this letter outweighed the Tribunal’s concerns regarding these claims as outlined in the preceding paragraphs.

   89. Included are two letters from employers.  The letter from [W] states in part that the applicant worked as a cashier in their hardware shop in Colombo from the middle of 2010 to 2012 “to save his life due to the suspicion of terrorist activities enforced by the Sri Lankan government”.  This contradicts with information provided by the applicant in his protection visa application in which he indicates that he took on casual labouring jobs from 2008 until 2011.  In 2011 he worked as a cashier again.  Then in January and February 2012 he worked on his uncle’s vegetable farm in Jaffna.

   90. The Tribunal has considered the letter from the applicant’s mother in which she outlines the applicant’s reasons for seeking protection.  The content of the letter is consistent with the applicant’s claims.  However the Tribunal does not regard this letter as objective or impartial evidence.  The letter does not outweigh the Tribunal’s concerns, as outlined in the preceding pages, regarding the applicant’s claims to be wanted by the Sri Lankan authorities in connection with the killing of a government Minister by a suicide bomber.

   91. The Tribunal has considered the documents purporting to be a Detention Order and an Extension of Period of Detention Order issued by the Additional Secretary of the Ministry of Defence, Public Security, Law and Order in January and October 2008.  If these documents are genuine, they refer to the detention of the applicant’s cousin.  Even if the Tribunal were to accept that the applicant’s cousin was detained as alleged, the Tribunal’s concerns regarding the applicant’s claims to be wanted in relating to the same offence as his cousin remain.

   92. The letter from the applicant’s employer and friend, the owner of a [omitted] company, states in part that the applicant worked and boarded in his factory from 2008-2010 and after that he sent him to Colombo to work in one of his friend’s father’s shops.  This contradicts with information provided by the applicant in his protection visa application in which he indicates that he took on casual labouring jobs from 2008 until 2011.  This discrepancy undermines the veracity of the applicant’s claims regarding where and when he worked and contributes to the Tribunal’s concerns regarding the weight it can place on documents provided by the applicant in support of his claims for protection.

   93. The applicant submitted a photocopy of a letter in Tamil dated 15 February 2009 and an English translation purporting to be from the applicant’s cousin [Mr A].  The Tribunal considered the letter and its contents but is unable to be satisfied that the letter was written by a person in detention warning the applicant that he was suspected of being involved in illegal activities.

   94. The applicant submitted an English translation of a document which was not attached.  The translation indicates that the document (undated) is purporting to be from the Director of the Terrorist Investigation Unit, Colombo, regarding the suspect, [Mr A] and indicates that he is retained under the emergency Regulations.  The Tribunal is unable to place any weight on this English translation of an unsighted document.

   95. After assessing all the evidence before it the Tribunal does not accept that the applicant is a person in whom the Sri Lankan authorities have an interest as they suspect him of being associated with the LTTE and associated with two people detained in connection with the killing of a Sri Lankan Government Minister in April 2008.  This claim is central to the applicant’s claims of fearing serious harm for a Convention reason on return to Sri Lanka.  As the Tribunal does not accept this claim, it follows that the Tribunal also does not accept that the authorities asked the applicant to attend the police station in January 2008; that his cousin is in jail and warned that the applicant was suspected of being connected with the LTTE and would be detained and tortured if captured; and that the authorities searched for the applicant everywhere and questioned relatives and friends about his whereabouts.

   96. It also follows that the Tribunal does not accept that the authorities have been to the applicant’s home looking for him after he departed Sri Lanka or that his father has had to pay bribes to avoid being detained by the authorities in lieu of the applicant, or that the applicant’s father has subsequently disappeared because he could not tolerate the harassment any longer.  It follows also that the Tribunal does not accept that the applicant used forge documents each time he had to register when he moved location from Negombo, Chilaw, Colombo and Jaffna.

   97. After assessing all the evidence the Tribunal finds that the applicant does not face serious harm because of imputed political opinion, or his Tamil ethnicity, or his membership of a particular social group in the reasonably foreseeable future in Sri Lanka. The Tribunal finds the applicant does not have a well-founded fear of persecution in Sri Lanka for a Convention reason and does not satisfy the refugee criterion at s.36(2)(a) of the Act.

   98. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

   99. In this regard, the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, Sri Lanka, there is a real risk he will suffer significant harm.

   100. The applicant claims that should he be returned to Sri Lanka he would be at risk of being detained, tortured and/or killed by the Sri Lankan authorities.  He claims he is unable to lead a normal life because he constantly has to move in order to avoid being detained by the authorities.  He claims he cannot live anywhere in Sri Lanka because his National Identification Card says he is a Tamil from Jaffna.  He fears he can be accused of anything, including smuggling weapons.

   101. As stated previously, the Tribunal does not accept the applicant’s claims that he is wanted by the Sri Lankan authorities because he is suspected of associating with the LTTE and of being involved in the killing of a Sri Lankan Government Minister.  The Tribunal therefore finds that there is no real risk that the applicant will be abducted, harmed or killed by the Sri Lankan authorities as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka.

   102. The Tribunal does not accept that the applicant will be imputed with a pro-LTTE or anti-government political profile by the Sri Lankan authorities.  The Tribunal therefore finds that there are not substantial grounds for believing the applicant faces a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka.

   103. The Tribunal considered the consequences relevant to the applicant having departed Sri Lanka illegally. The Tribunal notes that the applicant will be detained for questioning and security and character checks will be undertaken when he returns to Sri Lanka. He will be remanded and charged with an offence under the Immigration and Emigration Act because he departed Sri Lanka illegally. Information from the Department of Foreign Affairs and Trade (DFAT) dated 28 February 2013 states that under Sri Lankan law people who depart from any place other than an approved port of departure (such as an airport or seaport) and/or depart without valid travel documents can be charged with an offence under the Immigration and Emigration Act of 1948 (I&E Act). Section 45(1) of the I&E Act lists the relevant offences. Section 45(1)(b) refers to the offence of leaves Sri Lanka in contravention of any provision of this Act or of any order or regulation made thereunder.

   104. The information from DFAT indicates that all persons in this situation are released on bail, with a family member as surety, and will likely be fined after facing court at a future date. This will occur because he departed Sri Lanka illegally and is therefore in breach of sections of the Immigration and Emigration Act, as referred to above. The Tribunal does not accept that this amounts to torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment, and therefore does not amount to significant harm.

   105. The Tribunal has considered the applicant’s claims singularly and cumulatively but is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to a receiving country, namely Sri Lanka, that there is a real risk he will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

   106. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   107. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicant does not satisfy the criterion in s.36(2).

   DECISION

   108. The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.”       

1. Therefore the Tribunal accepted a number of claims made by the applicant.

2. Firstly, that the applicant was subjected to discrimination and harassment on his way to school and was involved in the fight on two occasions with a Sinhalese boy.  The Tribunal also accepted that the police failed to intervene to assist the applicant.  On the contrary, the police went looking for the applicant when the Sinhalese boy complained to them.  The Tribunal did accept that the matter was resolved through the intervention of the Elders of the village.

3. Secondly, the Tribunal also accepted that the applicant (along with other Tamils) were taken by police from a bus when they were on their way to a Red Cross meeting.  The applicant and the other Tamils were detained overnight.  The Tribunal accepted that the applicant was sexually abused.  In that respect I infer from that finding by the Tribunal that the Tribunal accepted the applicant’s assertion that a senior member of the Sri Lankan police had attempted to put his genitals inside the applicant’s mouth. 

4. Thirdly, the Tribunal accepted that the applicant’s cousin [Mr A] and his friend [Mr R] may have been detained in January 2008 on suspicion of assisting the LTTE.  The LTTE are in fact the “Liberation Tigers of Tamil Eelam”.  This group are known colloquially as the “Tamil Tigers”.  The Tribunal also accepted that other members of [Mr A]’s extended family may also have been questioned.

5. In paragraph 79 of the Tribunal’s decision it is actually stated that, “the Tribunal is also prepared to accept that the applicant was sexually abused and threatened and bashed by a senior police officer and this left him a damaged ear drum.”  The sexual abuse referred to in that paragraph related to the attempt by a senior member of the Sri Lankan police force to place his genitals inside the applicant’s mouth.  The applicant was “bashed” by a senior police officer to such a significant extent that he was left with a damaged ear drum.  Further, the Tribunal accepted that the applicant had been threatened by the senior police officer.  This must relate to the threat referred to at page 76 of the Court Book where it was stated by the applicant in his “Statement of Claims” taken on 31 August 2012:

   “Because I spoke back to the police officer he went and complained to his boss, the boss came and took me separately in another room and threatened me telling me he could kill me at any time and tell people that I was trying to escape so he killed me, he told me not to answer back or this was going to happen to me.  The whole time he questioned me I was forced to stay on my knees.  He also expected sexual pleasure from me, he took his private parts out and tried to force me to put it in my mouth and I pulled away and he beat me up on my head.  I was bashed badly and I had to go and seek medical attention for a problem with my ear after my release and I was told my ear drum was damaged.”

6. I note the statement of the applicant contained at page 76 of the Court Book.

7. This information/evidence from the applicant was accepted by the Tribunal as having occurred in 2007. 

8. Notwithstanding the findings that were made by the Tribunal – the Tribunal came to the conclusion that it had significant concerns about the “credibility of several aspects of the applicant’s claims”.  The Tribunal did not accept that the Sri Lankan authorities continued to search for the applicant from January 2008 onwards or that he remained a person who they wished to question, detain or who would be subjected to serious harm if he returned to Sri Lanka.

9. Further, the Tribunal noted that the applicant had been able to obtain a passport in his own name in 2008, 2009 or 2010.  It is unclear as to which year the applicant obtained his passport.  But the Tribunal concluded that the applicant could not have obtained a passport if he was suspected of assisting the LTTE or if he was suspected of being associated with people who were arrested and detained in January 2008 on suspicion of plotting to harm a Sri Lankan Minister who was subsequently killed by a suicide bomber in April 2008.

10. Further, the Tribunal felt that the applicant’s credibility was further undermined by the fact that he had travelled to India between 30 July 2010 and 29 October 2010.  In order to have undertaken that travel the Tribunal noted that the applicant must have passed through immigration, customs and security checking.

11. Indeed the essence of the Tribunal’s finding that parts of the applicant’s claim lacked credibility revolves around the fact that he was able to obtain a passport and to travel to India and back to Sri Lanka without being detained or questioned.  If the applicant was genuinely thought to be involved in a terrorist activity or genuinely thought to be connected with people who were involved in a terrorist activity then, the Tribunal reasoned, that it would not have been possible for the applicant to depart Sri Lanka and travel to and from India in 2010.

12. On 19 August 2013 the applicant filed an application in the Federal Circuit Court of Australia for Judicial Review of the decision of the Refugee Review Tribunal.  Subsequently, on 12 March 2014 the applicant filed an amended application for a Judicial Review.  The grounds for a review are set in that document and have also been referred to in a written submission filed 29 August 2014.  

Ground One

1. The first ground of review is stated as follows:

   “1. The Second Respondent committed jurisdictional error by failing to consider relevant material (Minister for Immigration and Citizenship v SZRKT and Another [2013] FCA 317 per Robertson J).

   Particulars:

   1.1 The applicant submitted a “True extract from the Information Book of Negombo Police Station” (CB 228) and a certified English translation of the document (CB 229), which was cogent and central to an issue to be determined in the proceedings.

   1.2 The Tribunal did not consider these documents.”

2. The hearing before the Tribunal took place on 4 April 2013.  The Tribunal gave to the applicant an opportunity to forward further documents. 

3. On 22 April 2013 eight supporting documents were forwarded to the Tribunal including a “True Extract from the Information Book of Negombo Police Station”.  In this regard I note page 224 of the Court Book (which is exhibit 1) at pages 228 and 229 of the Court Book there is contained a copy of the information book from the Negombo Police Station and then (on page 229) an English translation of the original document – which was written in Sinhalese.  The document refers to the applicant [BZAFI].  It also refers to the applicant’s father – [Mr B].  The document is dated 3 June 2008 and states:-

   “[Mr B], age 42 years, Tamil Hindu, occupation: horoscope-reading, married, permanent address: [omitted], Jaffna.  Temporary address: [omitted], Negombo, [BZAFI], the son of the above addressee, is wanted by the police on suspicion of terrorism.  He was not found when the Negombo police searched the house today.  Therefore [Mr B] was taken into custody on 03-06-2008 and released on 04-06-2008 after recording a statement from him.  On 20-06-2008 (the police) visited the house in search of [BZAFI] but he was not found in the house.  Instead his father [Mr B] was taken into custody by Negombo Police on suspicion on 20-06-2008 and released on 21-06-2008 after recording a statement from him.  As [BZAFI] is absent, [[Mr B]] must attend the Negombo police whenever he is summonsed.”

4. Of particular note are the following words contained in the above mentioned document namely:-

   “[BZAFI], the son of the above addressee is wanted by the police on suspicion of terrorism…”

5. It is submitted on behalf of the applicant that the second respondent (the Tribunal) fell into jurisdictional error by failing to consider that document.

6. It is submitted by counsel on behalf of the first respondent, Mr McLeod, inter alia, that the Tribunal, in its reasons, at paragraph 67 (Court Book page 248) specifically referred to the “Extract from the Information Book dated 3 June 2008 in support of claim that the applicant’s father was detained and questioned by the Sri Lankan authorities.”

7. The first respondent also notes that the covering letter to the Tribunal dated 22 April 2013 (Court Book page 224) refers to the Extract from Information Book of the Negombo Police Station dated 3 June 2008 and the covering letter says further:-

   “7. [BZAFI] provides this document in support of his statements that his father was detained and questioned by the Sri Lankan authorities.”

8. In the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated at paragraph 82:-

   “82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error.  As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-

   “falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.

   “Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.  Those different kinds of error may well overlap.  The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material.  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.  Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”

9. The above quoted passage from the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 – has been referred to and relied upon in countless cases since.

10. Robertson J in Minister for Immigration and Citizenship v SZRKT & Refugee Review Tribunal [2013] FCA 317 when discussing the topic of “ignoring relevant material” went on to state from paragraph 24:-

    “24. The error of ‘ignoring relevant material’ is related to the jurisdictional error of ‘failing to take into account a relevant consideration’, which was explained by Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39 and following. However, as their Honours in Yusuf suggested at [74], the latter is more concerned with how a decision-maker has identified legal and factual issues which were required to be addressed when the relevant legislation is applied to the particular matter for decision, than with “the process of making the particular findings of fact upon which the decision-maker acts”.

11. In the present case – in relation to this particular extract from the Information Book from the Negombo Police Station – the first respondent in written submissions stated:-

    “21. Following the hearing on 4 April 2013, the applicant’s representative provided to the Tribunal, on 22 April 2013, a short submission and various documentation.

    22. One such document was headed “True Extract from the Information Book of Negombo Police Station” dated 3 June 2008.  It is important to observe that the said document was provided in support of the applicant’s statements that his father was detained and questioned by the Sri Lankan authorities.

    23. The applicant contends that the Tribunal made no reference to the said document in the course of the hearing, in written communications or in the Tribunal’s reasons.  This contention is wrong and should be rejected.  First, the document was provided to the Tribunal after the hearing on 4 April 2013 (although it is self-evident), it was impossible for the Tribunal to make any reference to it during the course of the actual hearing itself.  Secondly, it is not apparent what is meant by the Tribunal making no reference to the document “in written communications”.  Thirdly, the Tribunal expressly refers to the document in its reasons by describing it in the following terms: “Extract from Information Book dated 3 June 2008 in support of claim that the applicant’s father was detained and questioned by the Sri Lankan authorities”.  The information contained in the document accords with what the applicant had stated to the Tribunal during the course of the hearing.  In addition, the Tribunal recorded this event in its findings.  Accordingly, there is no foundation in the applicant’s submissions that “there is not a skerrick of specific evidence that the Tribunal had given consideration to the document” nor do the observations of Robertson J in the Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [71] assist the applicant.

    24. Finally, the applicant relies on an extract from the document that “[BZAFI] … is wanted by the police on suspicion of terrorism…” and contends that being “suspected of terrorism involvement” was a claim central to his application.  As stated, the Tribunal did not fail to consider the document and was cognisant of the applicant’s claim.  This is demonstrated by the fact that the Tribunal considered the claims, but ultimately rejected them.  Significantly, the Tribunal had regard to the fact that the applicant had been issued with a passport in either 2008/2009 or 2010.  The Tribunal reasoned, correctly with respect, that the issuing of the passport to the applicant in his own name undermined the credibility of his claims that he was wanted by the Sri Lankan authorities because he was suspected of assisting or having links with the LTTE.  Moreover, the Tribunal concluded:

    “83… The Sri Lankan government has a sophisticated intelligence capacity and in the Tribunal’s view, once the applicant was issued with a passport in his identity, it would have led to his being detained and questioned if he was genuinely thought to be involved in a terrorist activity”.

    25. As set out above, the Tribunal rejected any basis that the applicant was suspected of any terrorism involvement.  This ground of review reveals no error in the approach or reasoning of the Tribunal.”

12. I have come to the conclusion that the submissions made on behalf of the first respondent are correct.  I will elaborate further in these Reasons for Judgment to explain why I have reached that conclusion.

13. But before doing so I want to make reference to the recent decision of Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 the Full Court of the Federal Court stated at paragraph 65:-

    “65. The visa applicant submitted that the argument advanced in the Minister’s submissions must fail. The Minister sought to distinguish SZSRS at [55]–[56]; SZRKT at [113]; and MZYTS at [49]–[50] on the basis that, in those cases, the Tribunal overlooked a document or claim in the sense that it was not conscious of it or did not consider it at all. In this way, the Minister’s submissions set up a false dichotomy between whether evidence or a claim was “considered” or whether it was “overlooked”. That argument did not grapple with the ratio of the cases. The cases revealed that the proper inquiry was whether the evidence or claims were addressed in the Tribunal’s decision-making process. So, SZRKT spoke of a failure to “deal with” claims or evidence: at [111]. A Tribunal may be conscious of evidence or a submission but not “deal with” it. Likewise, in MZYTS, the Court focused upon whether the Tribunal had “miscarried” in its statutory “task”, namely to form for itself, on the material before it, the requisite state of satisfaction under s 65 of the Act: at [31]–[36]. Again, the focus was on the formation of the state of satisfaction. So too in SZSRS, the Court was also concerned with whether a claim or evidence had been “dealt with”: at [56]. The Court emphasised that the critical consideration is “the Tribunal’s decision making process”: at [56]. Importantly, that process could miscarry where important evidence was “ignored” in the course of the Tribunal's “decision-making”: at [54]. Properly understood, that was what occurred in this case. The Tribunal may have been conscious of the contents of the email and the Amnesty International report, but they were ignored in its decision-making process. The primary judge’s reasoning was consistent with these authorities. At [123], his Honour noted the absence of any evaluation of the contents of the email, and correctly emphasised its importance to the Tribunal’s decision-making task. Likewise, at [124], his Honour identified the absence of any evaluation of the Amnesty International report. The correctness of that reasoning was further strengthened by reason of the additional failures identified in the visa applicant’s submissions in relation to ground 1.”

14. The crucial words for consideration contained in the relevant document in the present case are:-

    “[BZAFI]….. is wanted by police on suspicion of terrorism…”

15. I have come to the conclusion that the Tribunal did “deal with” this evidence/claim made by the applicant.  In particular I note paragraph 81 of the Tribunal’s decision contained in the Court Book at page 250.  That paragraph states:-

    “81. The Tribunal accepts that the applicant’s cousin [Mr A] and his friend [Mr R] may have been detained in January 2008 on suspicion of assisting the LTTE.  The Tribunal accepts that other members of [Mr A]’s extended family may also have been questioned.  However the Tribunal does not accept that the Sri Lankan authorities continued to search for the applicant from January 2008 onwards and that he remains a person who they wish to question or detain or a person they will subject to serious harm if he returns to Sri Lanka.”

16. So, whereas the evidence/claim put forward by the applicant is that he was “wanted by the police on suspicion of terrorism” – the Tribunal made a credit finding against the applicant by concluding that the applicant was not wanted by the Sri Lankan authorities.  Further, the Tribunal concluded that the Sri Lankan authorities did not continue to search for the applicant from January 2008 onwards.  The Tribunal concluded that the applicant did not remain a person whom the Sri Lankan authorities wished to question or detain.  Finally, the Tribunal did not accept that the Sri Lankan authorities will subject the applicant to serious harm if he returns to Sri Lanka.

17. By making those specific credit findings against the applicant – the Tribunal, in essence, dealt with the evidence/claim made by the applicant (and included as part of the Extract from the Information Book of the Negombo Police Station) – that the applicant “is wanted by the police on suspicion of terrorism”.  Inherent in the credit findings made by the Tribunal is the conclusion that the Tribunal did not accept the authenticity of the “Extract” in question.  If my own conclusion on that point is incorrect or unnecessary then I consider it makes no difference to my decision in this application.  The applicant cannot circumvent the broad ranging credit findings made against him by the Tribunal.  It is not permissible for this Court to review the merits of those credit findings.

1. The specific reasons behind the Tribunal’s credibility findings made against the applicant are summarised (at least in part) in paragraph 82 at page 250 of the Court Book – and formed part of the Tribunal’s decision.  Paragraph 82 states in full:-

   “82. The applicant’s claims in this regard are undermined by the following.  The applicant was able to obtain a passport issued in his own name.  The delegate’s decision (provided by the applicant with his review application) indicates that the applicant confirmed that he thought he obtained his passport in 2008 or 2009.  The Tribunal does not accept that in 2008 or 2009 the applicant would be issued a passport without any difficulty by the government of Sri Lanka, during the civil war between the Sri Lankan government and the LTTE, if he was suspected of assisting the LTTE and being associated with two people who were arrested and detained in January 2008 on suspicion of plotting to harm a Sri Lankan government Minster who was subsequently killed by a suicide bomber in April 2008.”

2. The Tribunal went further and gave additional reasons for its credibility finding against the applicant in paragraph 83 of its decision which is contained at page 250 of the Court Book.  At paragraph 83 of the Tribunal’s decision the Tribunal stated, inter alia:-

   “83…. The Sri Lankan Government has a sophisticated intelligence capacity and in the Tribunal’s view, once the applicant was issued with a passport in his identity, it would have led to his being detained and questioned if he was genuinely thought to have been involved in a terrorist activity.”

3. That information concerning the Sri Lankan Government’s intelligence capacity was also another crucial aspect underpinning the Tribunal’s conclusion that the applicant lacked credibility.  The obvious reasoning of the Tribunal being that – if the applicant was wanted by the police on suspicion of terrorism – then once the applicant obtained a passport in his own name (which it seems on the applicant’s own evidence/claims occurred in 2008 or 2009 or 2010) then the sophisticated Sri Lankan intelligence service would have detained and questioned the applicant.

4. There is also the inescapable fact (noted in the written submissions of the behalf of the first respondent) that the document which is entitled “True Extract from the Information Book of the Negombo Police Station” dated 3 June 2008 – was expressly referred to in the Tribunal’s reasons – at paragraph 67 on page 248 of the Court Book.

5. For the above stated reasons I have come to the conclusion that the applicant’s claim fails in respect of ground one.  That is, the applicant has not been able to show that the Tribunal fell into jurisdictional error.

Ground Two

1. The second ground of review is stated as follows:

   “2. The Second Respondent committed jurisdictional error by failing to consider a claim or integer of a claim that arose either expressly or clearly on the information and evidence before it.

   Particulars:

   2.1 The applicant claimed that he feared suffering serious harm on account of his membership of a particular social group, namely ‘Tamils with familial links to persons suspected of associating with or supporting the LTTE’.

   2.2 The Second Respondent did not address this claim.”

2. I have come to the conclusion that the applicant’s claim fails in respect of ground two.  I am satisfied that the Tribunal made significant references to the fact that the applicant was a person (a Tamil) with familial links to persons suspected of associating with the LTTE.  This fact was appropriately considered.

3. In my view, one needs to go no further then make reference to the Tribunal’s reasons at paragraph 81 (page 250 of the Court Book) where the Tribunal stated:-

   “81. The Tribunal accepts that the applicant’s cousin [Mr A] and his friend [Mr R] may have been detained in January 2008 on suspicion of assisting the LTTE.  The Tribunal accepts that other members of [Mr A]’s extended family may also have been questioned.  However the Tribunal does not accept that the Sri Lankan authorities continued to search for the applicant from January 2008 onwards and that he remains a person who they wish to question or detain or a person they will subject to serious harm if he returns to Sri Lanka.”

4. I consider that the submissions put forward on behalf of the first respondent in relation to this ground are correct.  In particular I accept the submission made in paragraph 26 of the first respondent’s written submissions to the effect that the Tribunal was “plainly cognisant” that one of the applicant’s arguments was that his claim was founded on the risks associated with being a “Tamil” with familial links to persons suspected of associating with the LTTE.

Ground Three

1. The third ground of review is stated as follows:

   “3. The Second Respondent committed jurisdictional error by not inviting the applicant to give evidence and present arguments relating to an issue under review as required under section 425 of the Migration Act 1958 (Cth).

   Particulars:

   3.1 The applicant submitted an English translation of a document from the Director of the Terrorist Investigation Unit, Colombo, regarding the suspect, [Mr A], that indicates that the suspect is detained under the Emergency Regulations.

   3.2 The Tribunal did not put any weight on this document because only a translation had been submitted and not the original document.

   3.3 This issue was never put to the applicant.”

2. In relation to this ground the applicant did not really pursue this ground.  Initially his solicitor indicated it would be withdrawn at the hearing.  He then sought to rely upon it but did not press the point.  I think that was wise.  I consider that the submissions made on behalf of the first respondent are correct.  The Tribunal accepted that the applicant’s cousin [Mr A] was a person who had been detained in January 2008 on suspicion of assisting the LTTE.  It is therefore irrelevant as to whether or not the Tribunal gave to the applicant an opportunity to be heard in relation to the document – said to be an English translation from the “Director of the Terrorist Investigation Unit, Colombo, regarding [Mr A]” (note page 232 of the Court Book).

Ground Four

1. The fourth ground of review is stated as follows:

   “4. The Second Respondent committed jurisdictional error by failing to ask itself the correct question.

   Particulars:

   4.1 The Second Respondent focused on the outcome of the detention and interrogation process but did not ask itself whether the detention or interrogation process itself could amount to serious harm for the purposes of Complementary Protection.”

2. In relation to ground four the applicant has referred to the decision in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025. That case also referred to a Sri Lankan applicant. As in this case, the matter for consideration involved a consideration of whether the applicant was at risk of serious harm from state authorities if he was returned to Sri Lanka.

3. In the present case the Tribunal concluded that the applicant was not at risk whether within the terms of section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958 (“the Act”).

4. The applicant says that the Tribunal fell into legal error by failing to ask itself the correct question.

5. In this case it was accepted by the Tribunal that the applicant would be detained for questioning and security and character checks upon his return to Sri Lanka. It was accepted he would be remanded and charged with an offence under the Sri Lankan Immigration and Emigration Act because he departed Sri Lanka illegally. The Tribunal went to say (at paragraph 104) of the reasons that the information from DFAT indicated that “all persons in this situation are released on bail, with their family member as surety, and will likely be fined after facing court at a future date”.

6. The Tribunal accepted that in 2007 the applicant had been detained by the state authorities, severely assaulted by being bashed to the head and the Tribunal also accepted that he was sexually assaulted during that detention.  The Tribunal accepted that the applicant’s cousin was detained on suspicion of being involved in terrorist activity in 2008.  But the Tribunal went on to find against the applicant on credibility because, essentially it concluded that it was unlikely he would have been able to obtain a passport and travel to India and return to Sri Lanka in 2010 if it was considered by the Sri Lankan government that he was a security risk.

7. Underpinning the Tribunal’s decision is the conclusion reached by the Tribunal that the applicant lacked credibility.  I have made specific reference to the Tribunal’s findings in this regard.  Keeping in mind the conclusion by the Tribunal that the applicant lacked credibility – the Tribunal did during the course of its reasons weigh up the detention and/or interrogation process to which the applicant will likely be subjected upon his return to Sri Lanka.  He will be detained and questioned by reason of the fact that he departed Sri Lanka illegally to come to Australia.

8. The Tribunal concluded that the applicant was not and is not at risk within the terms of s.36(2)(a) or s.36(2)(aa) of the Act. I note paragraph 105 of the Tribunal’s reasons (contained at paragraph 254 of the Court Book). That paragraph states:-

   “105. The Tribunal has considered the applicant’s claims singularly and cumulatively but is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s being removed from Australia to a receiving country, namely Sri Lanka, that there is a real risk he will suffer significant harm. Accordingly, the Tribunal finds that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.”

9. In relation to this issue of whether or not the Tribunal committed jurisdictional error by failing to ask itself the correct question – it has to be kept in mind that the Tribunal was well aware that the applicant had some familial links with individuals who were or who were suspected to be involved in terrorist activity on behalf of the LTTE (in particular the applicant’s cousin [Mr A]).  Paragraph 97 of the Tribunal’s reasons deals specifically with that particular issue – namely the applicant’s Tamil ethnicity and his membership of a particular social group – i.e. a group of people with familial links as noted.

10. Within this process the Tribunal also was cognisant of the fact that in 2007 the applicant had been detained, assaulted and sexually abused.  The Tribunal dealt with those facts on the basis that those events had occurred in 2007 during the civil war in Sri Lanka and at a time when it was known that Tamils were unlawfully detained, assaulted and abused. 

11. In summary, therefore, the Tribunal was cognisant of the relevant facts when considering the question of whether or not the applicant was at a real risk of suffering significant harm upon his return to Sri Lanka.

12. The Tribunal did, in my view, adequately deal with the issues relating to s.36(2)(a) and s.36(2)(aa) of the Act. The Tribunal did ask itself the appropriate question/questions.

13. I have come to the conclusion that ground four in the applicant’s claim must fail.

Conclusion

1. In conclusion I would make specific reference to the decision of the High Court in the Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 especially at page 272 where Brennan CJ and Toohey, McHugh and Gummow JJ stated in the joint judgment:-

   “… the reasons of an administrative decision-maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.  This has been made clear many times in this Court.  For example, it was said by Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36:

   “The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

2. It is not for this Court to conduct a review on the merits.  In my view, the applicant has not been able to show that the Tribunal fell into jurisdictional error and the application must therefore be dismissed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Howard

Date: 2 October 2014