Caq16 v Minister for Immigration
[2018] FCCA 3129
•2 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAQ16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3129 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant protection visa – whether Tribunal was doubtful about whether asserted events that constituted claim made by applicant occurred and ought therefore to have assessed the future risk of harm by reference to the possibility that such events occurred – Tribunal not in doubt that asserted facts did not occur – no jurisdictional error. |
| Legislation: 1951 Convention relating to the Status of Refugees 1967 Protocol Relating to the Status of Refugees Migration Act 1958 (Cth), s.476 |
| Cases cited: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 |
| Applicant: | CAQ16 |
| Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| File Number: | SYG 2013 of 2016 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 29 September 2017 |
| Date of Last Submission: | 29 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Zipser |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Solicitors for the Respondent: | Ms S Burnett of Clayton Utz |
ORDERS
The application to amend the application by substituting for ground 2 of the application the ground formulated in MFI1 is dismissed.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2013 of 2016
| CAQ16 |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant, who is a citizen of Sri Lanka and a Tamil, applies for a remedy under s.476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The application as filed contains two grounds. At the beginning of the hearing before me counsel for the applicant applied for leave to amend the application by adding an additional paragraph to the particulars to ground 1, and substituting a new ground 2 (initial proposed ground 2). Ms Burnett, who appeared for the Minister, opposed the application to amend on the ground that the proposed amendments were not reasonably arguable. I indicated to the parties that I would hear argument both on the question of whether leave should be granted and, assuming leave is granted, on the substantive merits of the proposed amendments, and that, in my reasons for judgment, I will consider separately the question of whether leave should be granted.
Counsel for the applicant first addressed the initial proposed ground 2. Near the end of his submissions counsel indicated he wished to reformulate the proposed ground to make it clear that ground 2 is intended to claim the Tribunal failed to address an aspect of the applicant’s claims. I adjourned the hearing to give counsel time to reformulate the ground. On resuming the hearing, counsel for the applicant handed up a reformulated ground 2 (reformulated ground 2), which I marked “MFI1”. I indicated to the parties that I would treat the reformulated ground 2 as the new ground 2 for which the applicant was seeking leave to substitute for ground 2 of the application as filed. Ms Burnett indicated she would be able to address the reformulated ground, but she reserved the right to file written submissions after the hearing. Ms Burnett made submissions in relation to the reformulated ground 2 and, at the end of the hearing, I made directions permitting the Minister to file further written submissions in relation to the proposed amendment. The Minister did not file any further submissions.
These reasons for judgment, therefore, are arranged as follows:
a)First, I set out the applicant’s claims.
b)Second, I set out Tribunal’s reasons for not accepting those claims, emphasising those parts of the Tribunal’s reasons that are relevant to the grounds on which the applicant relies or seeks to rely.
c)Third, I consider whether leave should be granted to amend the application.
d)Finally I consider ground 1.
Claims for protection
The applicant’s claims for protection are stated in a statutory declaration that formed part of his application for a Protection visa.[1] He there claimed he is a Tamil and a Catholic,[2] and that he left Sri Lanka because the Karuna group had been threatening him since 2011. The applicant claimed the Karuna group came looking for the applicant once or twice a week asking if they could borrow the van the applicant drove for his brother and a tractor. The applicant lent the van and tractor because he feared the Karuna group would harm him if he refused. The Karuna group had taken the applicant’s vehicles many times and, for six months, they were being returned with faults requiring repairs.
[1] CB29-32
[2] In the Tribunal’s reasons for decision and in the delegate’s decision, the applicant is said to have claimed he is a Hindu. Nothing turns on this discrepancy.
The applicant claimed he was tired of having to repair the vehicles, and the Karuna group’s taking his vehicles was stopping the applicant from earning a living. That led the applicant in April 2012 to refuse a request by the Karuna group that they borrow his vehicles. The Karuna group responded by hitting the applicant across his face with the end of a gun, and stating “they would get rid of me in due cause [sic]”. A couple of days later the Karuna group came to the applicant’s family home and threatened the applicant’s parents; they told them they were looking for the applicant and they would “take care” of him.
In the same month another group from the Karuna group came to the applicant’s farm while the applicant was using his tractor. They threatened to kill the applicant, but the applicant refused to give them the keys to his tractor. The applicant feared for his life and remained indoors moving from house to house among the homes of families and friends. The applicant knows of what the Karuna group is capable; they killed two other Tamil males who also owned vehicles like those of the applicant.
In a letter dated 21 April 2015 the applicant’s representative informed the Tribunal the applicant “seeks to provide the Tribunal with new information with respect to his claims for protection against Sri Lanka”.[3] The new information was as follows:
a)In 2008 the applicant’s family owned a large piece of land on which “the Applicant was carrying out small-scale work making flowerpots, concrete pests [sic] etc”.
b)In 2008 two friends of the applicant, Mr S and Mr M, whom the applicant knew since his school days, and who were members of the Liberation Tigers of Tamil Eelam (LTTE), “requested the applicant allow them to hide their weapons on his land”. Mr M and Mr S would often come past and visit the applicant at the place where the applicant worked which was on the way to the village of Mr M and Mr S. After initially refusing, the applicant was pressured into agreeing with the request. Mr S and Mr M “bundled up the weapons in a polythene bag and buried the bag under a palm tree on the land”. The applicant has not seen Mr S and Mr M again.
c)In October 2014 (after the applicant had arrived in Australia), “approximately ten armed members from the Sri Lankan Army (SLA) surround the applicant’s family’s land.”[4] Some of the SLA members tied up the hands of the applicant’s father while other members “dug up the weapons that had been buried under the palm tree.”[5] An SLA soldier screamed to the applicant’s father the applicant “is LTTE”, and asked where the applicant was. The SLA proceeded to the applicant’s family house who was ransacked it in search of the applicant, and took a copy of the applicant’s identity card. The authorities accused the applicant of being an LTTE member and attempted to discover his location. After this incident plain clothed army personnel made sudden visits to the applicant’s home in search of the applicant.
[3] CB310
[4] CB311
[5] CB311
At the hearing before the Tribunal the applicant submitted an interpretation of what purports to be a record of a complaint the applicant’s mother made on 5 February 2015 to the “Grama Niladhari’s Office” (GC).[6] It states that SLA officers came to the applicant’s mother’s house with arms; they said her son has connections with terrorism, has been hiding weapons, and is a member of the LTTE; they wanted to question the applicant to ascertain the facts, and asked where he was; and they threatened the applicant’s mother. The document records the applicant’s mother complained that after taking “weapons from our cultivation land”, they have been coming unannounced asking where the applicant is.
[6] CB331
In a letter dated 6 May 2015 sent to the Tribunal after the hearing before it,[7] the applicant’s representative requested further time to enable the applicant with the assistance of his friends in Sri Lanka to go through newspapers to see if they are able to identify any information about the SLA retrieving weapons from the applicant’s land. By email sent on 19 May 2015 the applicant’s representative provided an English translation of a newspaper article published on 21 October 2014 which the applicant’s representative submitted was highly corroborative of the applicant’s claims.[8] The translation states that “[l]arge amounts of arms have been recovered from land” in the area described, and that the arms have been recovered from “land . . . where they manufacture flower pots”.[9] The article said the police stated that “last month” they had also recovered two motor shells, and eight motor shells had been recovered in other areas. The article concludes that it “is significant to mention that arms have been recovered in Batticaloa in recent times in various places”.[10]
[7] CB335-341
[8] CB349
[9] CB352
[10] CB352
Tribunal’s reasons
The Tribunal was willing to accept the applicant was a businessman, using a very broad interpretation of that word, in that “[h]e made concrete pots, [operated] an ad hoc taxi service using his brother’s van and did some farming on land owned and leased by his family using his tractor”.[11] The Tribunal was also willing to accept that “businessmen” is a particular social group, the Karuna group demanded the applicant lend to it his van and tractor and had assaulted the applicant when he refused to do so, and the applicant held a subjective fear that he would be harmed by the Karuna group.[12]
[11] CB363, [31]
[12] CB363, [31]
The Tribunal, however, found the applicant exaggerated the likelihood the Karuna group would actually carry out any threat. The Tribunal so found because it considered the applicant had given inconsistent evidence about the threats the Karuna group had made to his mother, and also because the Karuna group did not attempt to use the applicant’s van or tractor since he departed Sri Lanka.[13] On that point, the applicant told the Tribunal that after he left Sri Lanka no one had farmed his land and the tractor was standing unused, and no one has come back asking to use the tractor;[14] and although the applicant claimed that on four occasions in around July 2012 the Karuna group asked the applicant’s mother for permission to use the van, no further requests have been made.[15] The Tribunal also relied on its finding that the Karuna group is no longer a part of the ruling coalition and, although it still exists, its ability to harm the applicant will be greatly curtailed.[16] The Tribunal, therefore, was not satisfied there is a real chance the applicant will face serious harm from the Karuna group because of his former dispute with the Karuna group; and the Tribunal was satisfied there is only a remote chance, and therefore not a real chance, the applicant will face serious harm from the Karuna group due to his membership of the particular social group of businessman, or because of his imputed political opinion of being anti-Karuna group, or because he is a Tamil, or for any other reason.[17]
[13] CB363, [31]
[14] CB362, [26]
[15] CB362, [27], [28]
[16] CB363, [32]
[17] CB363, [32]
The Tribunal found the applicant’s claims regarding the hiding of weapons not to be credible.[18] The Tribunal relied on the following matters:
a)The Tribunal found the applicant’s description of the nature of his relationship with Mr M and Mr S to be inconsistent and vague.[19] Before the Tribunal the applicant discussed how Mr M and Mr S had to walk past his home to change buses to go to school. In the applicant’s representative letter, on the other hand, it was stated Mr M and Mr S often visited the applicant’s work. The applicant said that was incorrect.[20] Even accepting the inconsistencies it identified were due to error, the Tribunal found it difficult to accept as plausible that two people with whom the applicant shared a school bus would suddenly turn up 12 years after they left school and force the applicant to bury weapons.[21]
b)The Tribunal found it implausible that six years after the weapons had been buried, the SLA suddenly arrived to dig up the weapons.[22]
c)Had the applicant in 2008 been forced by members of the LTTE to bury weapons, as the applicant claimed had occurred, the Tribunal considered it reasonable to expect the applicant would have raised this claim at the time he applied for a Protection visa.[23]
d)The applicant delayed making the claim after the day on which the SLA, on the applicant’s evidence, recovered the weapons. The Tribunal did not accept that the applicant’s parents would not have informed the applicant that the army had come to their home in October 2014 of this incident until January 2015 because they did not want to worry the applicant. Even if that were accepted, it took the applicant two months to provide a statement to his representative after he claimed his parents informed him of the incident.[24]
e)The Tribunal found it implausible that the applicant’s mother would complain about the SLA four months after the weapons were dug up. It also found it implausible that the applicant’s mother would complain to the GS given that both GS and the SLA are part of the Sri Lankan government. The Tribunal also noted that the complaint referred to the SLA having taken weapons from cultivated land, which was inconsistent with the applicant’s claim that the weapons were buried on the land the applicant used for making pots.[25]
f)The Tribunal was not persuaded the newspaper report related to the applicant’s land. The Tribunal relied on a number of matters, these being the applicant’s not having raised until after the hearing the possibility of there being a newspaper report of the SLA recovering weapons from the applicant’s land; the newspaper report referring only to mortars, and not to rifles being found; the report does not state the weapons were found by the army; and the newspaper report referred to the weapons being found on land used to manufacture pots whereas, as the Tribunal understood the applicant’s evidence, the applicant said that the pot manufacturing business ceased when the applicant left Sri Lanka.[26]
[18] CB368, [56]
[19] CB365, [40]
[20] CB364, [35]
[21] CB365, [40]
[22] CB365, [40]
[23] CB365, [43]
[24] CB365, [41]
[25] CB366, [49]
[26] CB367, [53]
Leave to amend by substituting reformulated ground 2
The proposed ground 2 as formulated in MFI1 is as follows:
The Second Respondent accepted that the applicant had been threatened and persecuted by the Karuna group in the past, and that there was a risk the applicant may be threatened by the Karuna group in the future if required to return to Sri Lanka. However, the Second Respondent reasoned in paragraph 32 of its decision that, because the Karuna group was “no longer part of the ruling coalition”, the chance that the applicant would face serious harm from the Karuna group was remote. This reasoning process involves an erroneous application of the real chance test and whether the applicant has a well-founded fear of persecution for a Convention reason. The fact that the Karuna group is no longer part of the ruling coalition has no bearing, without further explanation or analysis, on whether the applicant faces a real chance of future harm from the Karuna group. The Tribunal failed to consider whether the Sri Lankan authorities encouraged, condoned or tolerated the Karuna group’s activities, or whether the authorities were unwilling or unable to protect the applicant from the Karuna group. To this extent, the Tribunal failed to consider an aspect of the applicant’s claims, part of the evidence before the Tribunal and a matter relevant to whether the applicant faced a real chance of future harm from the Karuna group.
In his counsel’s written submissions, which were prepared in relation to the initial proposed ground 2, the applicant refers to the Tribunal having accepted country information to the effect the Karuna group continues to exist, and to paragraph 32 of the Tribunal’s reasons. The applicant submits that the effect of the Tribunal’s reasoning in that paragraph is that, because the Karuna group is no longer part of the ruling coalition, that reduces the chance the Karuna group would target the applicant for future harm to a remote chance, and that its ability to harm the applicant will be greatly reduced. The applicant submits that this reasoning does not make sense because whether or not a paramilitary group is a part of the ruling coalition has no bearing, without further explanation or analysis, on whether an applicant will face future harm from the paramilitary group. The applicant gives as an example that even though a paramilitary group may not form part of the ruling coalition, the government may still turn a blind eye to the paramilitary group’s illegal activities.[27]
[27] Outline of Submission [sic] for Applicant, [26], [27]
In his oral submissions counsel for the applicant referred to the Tribunal having put to the applicant that following the change in government in Sri Lanka in January 2015 Karuna was no longer part of the ruling coalition, and, therefore, members of the Karuna group no longer had any protection from the Sri Lankan government that would affect their ability to harm the applicant; and the applicant’s having responded by claiming Karuna “is covertly supported by the government due to his help in defeating the LTTE and due to Karuna . . . being former cabinet colleagues [sic] with Sirisena”.[28] Counsel submitted the Tribunal did not consider that claim. That is so even though, counsel submitted, the applicant’s representative submitted, and identified to the Tribunal country information to the effect that the Karuna group continues to exist and is able to engage in criminal activities. Counsel referred to the following submission the applicant’s representative made in a letter dated 6 May 2015 sent to the Tribunal after the hearing:[29]
During the review hearing the Tribunal stated that the Karuna party was no longer part of the government and that they did not have the same protection from the government as they did earlier.
We respectfully submit that according to the recent DFAT Country Report on Sri Lanka, it is stated that the Karuna group (now known also has [sic] Tamil Makkal Vidhuthalai Pulikal) continues to be active within Sri Lanka, including in criminal activities. We note that this report was published after the new government was appointed. Whilst the government has changed, we advise that the Karuna part continues to be active. The fact that they may not receive the same level of support from the current government nor have protection from them does not affect their ability to subsist. Furthermore, it must be pointed out that it is too early to comment on the Sirisena government’s approach towards Karuna as the government is still in its early stages of power.
[28] CB362, [29]
[29] CB335 at CB340
Counsel for the applicant also relied on Minister for Immigration and Multicultural Affairs v Respondents S152/2003[30] as authority for the principle that a well-founded fear of harm from non-state actors may in certain circumstances constitute a well-founded fear of persecution for the purposes of the definition of “refugee” contained in Art.1A(2) of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.
[30] [2004] HCA 18
Ms Burnett for the Minister made a number of submissions. First, Ms Burnett submitted that by putting to the applicant during the hearing before it that the Karuna group was no longer part of the Sri Lankan government, and by repeating that as a finding in its reasons for decision, the Tribunal implicitly rejected the claim that somehow the Sri Lankan authorities were “in cahoots” with the Karuna group. Second, the Tribunal rejected the claims of future threat by the Karuna group. That means there was no need for the Tribunal to consider whether the Sri Lankan authorities continued to support the Karuna group. Third, the applicant made no claim to the effect that he sought but was refused state protection against harm from the Karuna group.
The question that initially arises from these competing submissions is whether it is reasonably arguable there arose tolerably clearly from the material that was before the Tribunal a claim to the effect that the Sri Lankan authorities encouraged, condoned, or tolerated the Karuna group’s activities, or were otherwise unwilling or unable to protect the applicant from the Karuna group.[31] In my opinion it is reasonably arguable there arose tolerably from the material before it that the applicant claimed that the Sri Lankan authorities encouraged, condoned, or tolerated the Karuna group’s activities. That claim was made by the applicant asserting at the hearing before the Tribunal that Karuna “is covertly supported by the government due to his help in defeating the LTTE and due to Karuna . . . being former cabinet colleagues [sic] with Sirisena”.[32] There was no material before the Tribunal, however, other than the applicant’s assertion, that could arguably be considered as having given rise to such a claim. The applicant’s representative’s submission about the Karuna group went no further than pointing to country information that showed the Karuna group continues to be active, and submitting that the Karuna group’s not receiving the same level of support from the current government nor having the protection of the government, does not affect their ability to subsist, and that it was too early to comment on the Sirisena government’s approach towards Karuna.
[31] See NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695, at [15]: “A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.” (Allsop J, as his Honour then was)
[32] CB362, [29]
The next question is whether it is reasonably arguable the Tribunal failed to consider the claim. In my opinion, that question is to be answered in the negative. The Tribunal recorded in its reasons the claim the applicant made at the hearing before it that the Karuna group is covertly supported by the government.[33] The Tribunal also recorded the submission the applicant’s representative made, which the Tribunal described as submitting that “while it may be the case Karuna was no longer part of the Sri Lankan government and the Karuna group would not have the same level of protection from the government, the Karuna group continued to exist”.[34] There is, therefore, no question the Tribunal understood that the applicant claimed that even though Karuna was no longer part of the government, the Karuna group continued to receive protection from the Sri Lankan government; and there is no doubt the Tribunal addressed and determined that claim. It did so by finding that Karuna’s no longer being a part of the ruling coalition reduces – not eliminates – the chance of the Karuna group targeting the applicant for future harm; and the Tribunal so found having accepted the Karuna group may continue to exist. Although counsel for the applicant at the hearing before me made it clear he did not wish to submit (as he had in effect submitted in his written submissions) that the Tribunal’s finding was not reasonably open to it, it would be appropriate for me to record my opinion that it is beyond argument it was reasonably open to the Tribunal to so find.
[33] CB362, [29]
[34] CB362, [30]
For these reasons, the applicant would have no reasonable prospects of succeeding on the reformulated ground 2 if I were to grant leave to the applicant to amend the application to include that ground; and I propose to order that the applicant not have leave to amend the application to include the reformulated ground 2.
Finally I should note I have assumed that by applying for leave to substitute the existing ground 2 with the reformulated ground 2 the applicant abandoned ground 2 of the application as filed. That assumption is based not only on the applicant having applied for leave to amend by substituting the reformulated ground 2 for the original ground 2, but also because the applicant made no submissions in relation to the original ground 2.
Ground 1
Ground 1 (including the proposed additional paragraph of the particulars to ground 1) is as follows:
The Second Respondent made a jurisdictional error by failing to apply or incorrectly applying the real chance test and failed to apply the “what if I am wrong?” approach to the real chance test.
Particulars:
a)At paragraph 53 the Second respondent stated that “The Tribunal is doubtful the news report would describe a place which has been abandoned for 2 years as a place used to manufacture pots. The Tribunal is not persuaded by the applicant’s explanation his work items were not removed from the premises. The Tribunal does not accept the submission the news report is highly corroborative of the applicant’s claims, but accepts it has some corroborative elements.
b)At paragraph 54 the Second Respondent found that “the applicant has manufactured [the] claims” that Mr M and Mr S forced the applicant to hide weapons for the LTTE in 2008 and the army found those weapons in 2014. In the circumstances of the case, the Second Respondent ought to have taken into account the possibility that this alleged past event occurred.
This ground relies on the judgment of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam.[35] In that case Sackville J (with whose reasons North J agreed) stated the following principles:[36]
[35] [1999] FCA 719
[36] This part of my reasons substantially reproduces what I said in SZTFI & Anor v Minister for Immigration & Anor [2014] FCCA 740 at [25] and [26]
a)There are circumstances in which the Tribunal “must take into account the possibility that alleged past events occurred even though it finds that those events probably did not occur”. The Tribunal “must not foreclose reasonable speculation about the chances of the hypothetical future event occurring”.[37]
b)The Tribunal “performs its fact-finding task as an administrative decision-maker”, which means it cannot simply apply the civil standard of proof to all fact-finding; that is particularly so because the Tribunal “must frequently make its assessment on the basis of fragmented, incomplete and confused information” and “that it has to assess the plausibility of accounts given by people who may be understandably bewildered, frightened and, perhaps, desperate and who often do not understand either the process or the language spoken by the decision-maker/investigator”.[38]
c)Given (b), “it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence”. When, however, the Tribunal:[39]
is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution. Similarly, if the non-occurrence of an event is important in the applicant’s case . . . the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
d)The question whether in any given case the Tribunal should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to its own reasons:[40]
If a fair reading of the reasons as a whole shows that the RRT itself had “no real doubt” (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong. Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued. . . . . Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur). If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.
[37] [1999] FCA 719 [60]
[38] [1999] FCA 719 [61]
[39] [1999] FCA 719 [62]
[40][1999] FCA 719 [62]
In his counsel’s written submissions, the applicant identified eleven observations the Tribunal made in the course of its reasons which, the applicant submitted, are tentative or otherwise manifest doubt. For example, the written submissions refer to the Tribunal’s stating that “it had difficulty accepting as credible his claims”,[41] and the applicant’s delay being a “reason for [the Tribunal] to doubt the credibility of his claims”,[42] and the Tribunal “is not persuaded the applicant’s mother made the complaint to protect herself”.[43] The applicant submits that the Tribunal ought to have assessed the future risk of harm by having regard to the tentative views the Tribunal expressed.
[41] Outline of Submission [sic] for Applicant, [17(a)]
[42] Outline of Submission [sic] for Applicant, [17(e)]
[43] Outline of Submission [sic] for Applicant, [17(i)]
The difficulty with the applicant’s submissions is they ignore that the Tribunal’s observations, which the applicant submits manifest doubt, form part of a chain or chains of reasoning the ultimate conclusion of which is the unequivocal conclusion that the applicant’s claim that he hid weapons for the LTTE was not credible. The applicant’s submissions also ignore that the Tribunal unequivocally rejected each of the asserted material facts that constituted the applicant’s claim that he hid weapons for the LTTE. The Tribunal rejected the applicant had any friends named Mr M and Mr S who were members of the LTTE in 2008; that “Mr M and Mr S forced the applicant to bury a bag of rifles on the land of his pot making business premises”; that the SLA “dug up any weapons on the applicant’s land”; that the SLA “detained the applicant’s father, accused the applicant of being a member of the LTTE, threatened to shoot the applicant if he did not report to an army camp”; and it rejected the applicant’s claim that the SLA have been looking for the applicant and have threated the applicant’s family.[44] Further, the Tribunal found the applicant “has manufactured these claims as [a] means to create a profile on which to apply for protection”.[45]
[44] CB367, [55]
[45] CB367, [55]
Given these unequivocal findings, there was no occasion for the Tribunal to assess the future risk of harm to the applicant on the basis that the facts the applicant asserted occurred might have occurred. Ground 1, therefore, also fails.
Conclusion and disposition
I have concluded the reformulated ground 2 is not reasonably arguable, and ground 1 has failed. I propose, therefore, to order that the applicant not be granted leave to amend the application, and to order that the application be dismissed. I will deal with the question of costs when I pronounce my orders.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 2 November 2018