CEM15 v Minister for Immigration

[2018] FCCA 59

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEM15 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 59

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – refusal of protection visa – where Tribunal found Applicant to be not credible – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.65

Cases cited:

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863

Applicant: CEM15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2369 of 2015

Judgment of: Judge Hartnett

Hearing date: 4 September 2017

Delivered at: Melbourne

Delivered on: 17 January 2018

REPRESENTATION

Counsel for the Applicant: Mr Aleksov

Solicitors for the Applicant: Victoria Legal Aid

Counsel for the First Respondent: Mr Gauntlett

Solicitors for the First Respondent: Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2369 of 2015

CEM15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant relies upon, in these proceedings, a further amended application filed 10 May 2017. By such application the Applicant added a fourth ground of application as provided for in orders made by the Court on 3 May 2017.

2. The Applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (‘the Tribunal’) made 23 September 2015 wherein the Tribunal affirmed the decision of a delegate of the First Respondent (‘the delegate’) not to grant the Applicant a protection (Class XA) visa (‘the visa’) under s.65 of the Migration Act 1958 (Cth) (‘the Act’). The Applicant seeks writs to issue to quash the Tribunal decision and to compel the Second Respondent to rehear and determine the matter according to law. The First Respondent seeks dismissal of the application. Both parties seek costs.

3. The Applicant relies upon an affidavit of Ms Hannah Sycamore affirmed 20 April 2017 which annexes transcripts of the audio recordings of the Tribunal hearings of 9 December 2014 and 23 September 2015. The Applicant further relies upon submissions filed 13 April 2017 and 10 May 2017. The First Respondent relies upon submissions filed 21 April 2017 and 24 May 2017. There is before the Court the evidence as contained in the Court Book filed 6 April 2016.

4. The grounds of the application are as follows:-

   “1. The Tribunal failed to perform its statutory function according to law in that it:

   a. mischaracterised the applicant's claim that in the event that he were to return to Sri Lanka, he feared persecution or significant harm in the form of violent reprisal for his political activities; and

   b. failed to properly consider the applicant's claim that in the event that he were to return to Sri Lanka, he feared persecution or significant harm in the form of violent reprisal for his political activities.

   PARTICULARS

   i. The Tribunal failed to consider the applicant's written submissions dated 18 September 2015 to the effect that notwithstanding that the political party he supported had been successful at Sri Lanka's 2015 elections, he continued to fear if he were returned to Sri Lanka, he would face violent reprisal from a prominent opposition political figure and his supporters.

   2. The Tribunal failed to comply with s 425 of the Migration Act in that it:

   a. failed to afford the applicant an opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   PARTICULARS

   i. The Tribunal failed to afford the applicant an opportunity to lead evidence or make submissions before finding that the laws governing the constitution of the Chilaw Urban Council were such that it was not plausible or credible that the applicant's political opponents would continue to harass, intimidate and threaten the applicant after elections for the council had concluded in 2011.

   3. The Tribunal failed to perform its statutory function according to law in that it:

   a. failed to consider the applicant's claim that if he were returned to Sri Lanka, he would not be able to pay any fine imposed on him for departing Sri Lanka in breach of the Immigrants and Emigrants Act and would be imprisoned in circumstances that would constitute persecution or significant harm.

   PARTICULARS

   i. The applicant's claim that if he were returned to Sri Lanka, he would not be able to pay any fine imposed on him for departing Sri Lanka in breach of the Immigrants and Emigrants Act and would be imprisoned in circumstances that would constitute persecution or significant harm, was not made expressly by the applicant but arose on the material before the Tribunal.

   4. The Tribunal failed to respond to the applicant's substantive claims and arguments in relation to events following the 2011 elections, and in so failing, did not perform its statutory task, or alternatively, acted in a manner that was illogical, irrational or legally unreasonable.”

Background

1. The Applicant was born on 7 February 1981 in Sri Lanka. He is a citizen of Sri Lanka, of Tamil ethnicity and Hindu religion. He is married to a Sinhalese woman and they have two sons. His wife and children continue to reside in Sri Lanka in the Puttalam district. He resided in Chilaw (village) Puttalam (district) between 1993 and his departure from Sri Lanka on 26 June 2012 and worked as a taxi driver.

2. The Applicant arrived in Australia by boat and as an Irregular Maritime Arrival on Christmas Island on 15 July 2012. He had an Irregular Maritime Arrival Entry Interview on 24 August 2012. He applied to the Department of Immigration and Citizenship (‘the Department’) for the visa on 6 November 2012. A delegate of the Minister refused to grant the visa on 23 August 2013.

3. The Applicant sought review of the delegate’s decision by application to the Tribunal on 2 September 2013.

4. The matter was heard by the Tribunal on 9 December 2014 and 23 September 2015, with the aid of an interpreter. The Applicant was represented by his registered migration agent. A decision was made by the Tribunal after considering a significant amount of material, including but not limited to:-

   a)the application for the visa with accompanying statutory declared dated 25 October 2012;

   b)background information, such as birth certificates and references;

   c)records of interview at entry on 24 August 2012 and with the delegate dated 4 June 2013; and

   d)written submissions dated 4 April 2014, 2 December 2014 , 18 December 2014 and 18 September 2015.

   The Tribunal referred to its consideration of the above, and other material, as set out in paragraph 20 of the Statement of Decision and Reasons (‘the Decision Record’).

5. The hearing of the matter was split over two dates: 9 December 2014 and 23 September 2015. This enabled the Tribunal to assess some “recent changes at a national level in Sri Lanka”,[1] to discuss with Mr Raj (a witness for the Applicant) the problems the Applicant had at the time of elections working for Mr Raj and the United National Party,[2] and oral submissions from the Applicant’s legal representative clarifying the nature of Mr Raj’s evidence.[3]  At the commencement of the second hearing date, the Tribunal member and Applicant (through the interpreter) had the following exchange:-

   [1] Transcript of Tribunal hearing dated 23 September 2015 at page 43.

   [2] Transcript of Tribunal hearing dated 23 September 2015 at page 47.

   [3] Transcript of Tribunal hearing dated 23 September 2015 at page 52.

   “… MEMBER: But certainly at a national level this year there appears to have been some significant changes in Sri Lanka. As you would be aware, President Rajapaksa was defeated in the presidential elections in 2015, and also in - January 2015, that happened. And also there was the leader of the United National Party was appointed the Prime Minister. There has been some recent elections in August as well in which the UNP has won the most number of seats.

   INTERPRETER: Yes, there was one on 23 August.

   MEMBER: They won the most number of seats, and I know there has been an alliance formed with the SLFP, but they seem to be in the majority position, the most powerful position. So in terms of being a UNP supporter, I may think the chance of you being persecuted or significantly harmed is remote.

   INTERPRETER: I believe that.

   MEMBER: Okay. Has anything happened? It has been since - I think we were last here about December of last year. Has anything happened since then that you want to tell me about that you think may be relevant to your case?

   INTERPRETER: I came here on 9 December. I told them the election was going to be on 8 January. I did say definitely (indistinct) was going to win the election. I guess that he did win. After that government there was no problems for my family back home there, so that my wife would get some phone calls from unknown numbers. But it doesn't happen all the time, like once every five months or once every two months. They wouldn't threaten her, they would just say, “when would Siva come back. We just need to speak to him," that's all. Nothing else has happened.”[4]

Thereafter, the Applicant told the Tribunal when asked if there was anything else he wished to say, the following:-

“INTERPRETER: Yes. I can't really talk about the country's situation now, it's because the situation is pretty good now. 90 per cent of the time Sinhalese and the Muslims are getting along well. I can't be selfish and talk bad things about the country. This government is running the country very well. The current government's aim is to promote religion, race, economy and language; like, bring it forward. I don't believe I would have problems when this government (indistinct) what I'm saying is generally people don't have problems in the country now, but personally I'm a bit scared that I might face some sort of problems. The person who was against me, he was in the state - the state government, now he has gone to the parliament, and he's in the same political party as (indistinct) because now it's a joint party, because he is a member of parliament, so he does have powers. My fear is if I go back to the country, he might do something to me. It's not like I want to go back, I'm actually organising everything to go back. I can't just suddenly go and arrive in the country, I have to organise with the ministers that I know and with him, and organise things and make peace before I arrive there. I will try to make that situation, and definitely go back. I won't take long. I like to go and live in my country. I'm not asking for citizenship here. You let me live here for three years, and just give me some more time, that's all.”

[4] Transcript of Tribunal hearing dated 23 September 2015 at page 44.

1. The Applicant’s claims were summarised by the Tribunal, in particular at paragraphs 22 to 30 of the Decision Record as follows:-

   “22. The applicant became politically active in 2010 when he supported a Tamil candidate, Apollo Raj, of the United National Party (UNP), who won an election. The applicant organised 2-3 times a month the visit of Apollo Raj to the village and told people to vote for him. The applicant was one of his main supporters and was the only Tamil.

   23. The applicant was personally threatened by people working for the Opposition Minister, Sanath Nishantha. One night in June 2011 his house was targeted. Windows were broken by stones and faeces wrapped in toilet paper thrown at his house.

   24. In August 2011, eight bodyguards of Nishantha came to the applicant's house, put him in a car and drove him to Chilaw beach. They forced him to pick up small stones, spread them on the sand and kneel on them for three hours. During that time they were sitting and drinking. Crowds passed by and the applicant was humiliated. They forced him to pick up the ash from the cigarettes they had been smoking. The applicant was also prevented from driving his taxi for three weeks but after complaining to the taxi committee he was able to drive again.

   25. In March 2012, the applicant was sitting in his rickshaw when he was surrounded by several of Nishantha's bodyguards and threatened by them.

   26. In June 2012, the applicant's brother died in a car accident but the applicant thinks he was deliberately killed because the car was not damaged and his brother sustained fatal head injuries that could have not happened from the accident alone. His brother had arranged a parade in the village against increased oil prices for fishermen and the person next to him was shot and killed. His brother was not involved in the election but was well known in Chilaw and helped people in the village. The applicant thinks people associated with the government are responsible for the death.

   27. In October 2012, the applicant's wife and children were shopping at a local chemist. A car pulled up beside and one of the four men said that they knew the applicant had fled the country because of them and that as she was alone she needed to come and stay with them.

   28. Stones have also been thrown at the applicant's wife and threats have been made that acid would be thrown at her. A supporter of the government party has also threatened to kill the applicant and his family and kill his wife if she reported this. His wife reported these threats to the police but they have not responded and she is refusing to leave the house out of fear.

   29. The applicant's wife whilst riding her bike on the way to pick up her children from school was targeted by an automobile which chased her. In attempting to escape she hit a wall and seriously injured her foot. His children have been prevented from attending three schools in Chilaw and have had to be sent to an international school. In 2015, his wife has received several phone calls from an unlisted number asking about his whereabouts.

   30. The applicant also fears harm because he has sought asylum in a foreign country and left Sri Lanka illegally.”

The Tribunal

1. At the first hearing before the Tribunal on 9 December 2014, the Applicant conceded that if Mr Sirisena, the UNP’s favoured candidate was elected President of Sri Lanka in January 2015, the Applicant would not have to live in fear. However, in his fourth set of written submissions, dated 18 September 2015, the Applicant submitted that the political situation in Sri Lanka following the elections of January 2015 was such that the election of Mr Sirisena as President would not ensure his safety in particular as Mr Nishantha remained in a position of political power in Sri Lanka and that he continued to ‘face a real chance of persecution or a real risk of significant harm in Sri Lanka’ in the form of violent retribution from Mr Nishantha and his supporters.

2. The Applicant argues that the Tribunal failed to properly consider his claim to fear persecution or significant harm for his political activities and in particular failed to mention and consider the content of his fourth written submission dated 18 September 2015.

3. The First Respondent states in response that the Tribunal:-

   a)provided reasons that are not to be approached with an eye keenly attuned to the detection of error;[5]

   b)was able to make findings concerning the credibility of the Applicant;

   c)specifically noted that it had before it the Applicant’s written submission dated 18 September 2015;

   d)did note the statement made at the first oral hearing by the Applicant regarding what would occur if the UNP won the election;

   e)noted the various news articles submitted and referred to concerning the main instigator of any violence, Sanath Nishantha (including those from January 2015 regarding an attack on one of Maithirpala Sirsena’s campaign offices), and the oral evidence of Mr Apollo Raj (who gave evidence after the written submissions filed in September 2015) and gave these reports some weight in assessing what may happen to the Applicant in the future;

   f)concluded this evidence supported that politically motivated violence was most likely to occur around election times;

   g)did not accept that the Applicant would continue to be of ongoing adverse interest to Nishantha or his supporters; and

   h)considered the Applicant’s individual circumstances and the overall weight of the independent country information, including that from the Department of Foreign Affairs and Trade (‘DFAT’), and found that the Applicant did not face harm for the reason of his political opinion.

   The Court accepts the Tribunal did each of the above.

   [5] SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, 81(h).

4. The Tribunal accepted some of the claims made by the Applicant and not others. It was clearly open on the evidence before the Tribunal for it to do so. The Tribunal said at paragraphs 32 to 36 and 40, the following:-

   “32. The applicant has consistently claimed that he and his wife have been members of the UNP and has submitted copies of membership cards and a letter from a MP that attest to this and I am prepared to accept that they have been and that they are supporters of this party. I accept that the applicant was a supporter of a local Tamil UNP candidate, Apollo Raj and that prior to local elections in 2011, he campaigned for this candidate and helped organise visits and public meetings for the candidate where the applicant spoke in support of Apollo Raj. Apollo Raj at the second hearing gave oral evidence that the applicant had canvassed for him in elections and this supports broadly the applicant's claims of his involvement in the UNP.

   33. I accept that prior to the local elections that the applicant's home was targeted by supporters of Sanath Nishantha by throwing stones and faeces at it. I accept that prior to the elections, the applicant received 2-4 phone calls from an unknown person threatening him for his support of Apollo Raj and demanding him to support another candidate Sanji. The applicant has been consistent about these claims and they accord with country information referred to in the delegate's decision concerning electoral violence and intimidation in the weeks leading up to the July 2011 local council elections.

   34. I do not accept the applicant's claims that he was threatened and harmed after the elections or that his family have had problems since these elections. I do so for the following reasons:

   •    Given the election had already taken place and Apollo Raj had been elected, it is not plausible or credible that bodyguards of Nishantha would continue to threaten the applicant afterwards and for a substantial period afterwards. Country information referred to in the delegate's decision indicates that the council elections were held in July 2011 and it is not credible that he would be [sic] still be of such adverse interest to them as late as March 2012 when he claims he was threatened in his taxi. At the hearing, the applicant claimed it was because Sanij couldn't become mayor on the local council and Nishantha was trying to get revenge and thought the applicant could be an obstacle for this to happen. I do not find this explanation credible as on the applicant's evidence Apollo Raj Sanji had been elected to the urban council and were still serving and it is not apparent how the applicant (who was not on this council) could have been an obstacle to Sanji becoming mayor given this would have been a decision for the councillors. The Tribunal has also taken into account that on the applicant's own evidence Apollo Raj (who was elected) was not harmed at the time or that the Tribunal has not identified any reports of political violence in Chilaw in the period after the 2011 elections.

   • The applicant's evidence was inconsistent on a number of important matters which detracts from his credibility. At the hearing, the applicant stated that the men picked up the stones and put them on the ground, however this was inconsistent with his statement in his statutory declaration that they forced him to do so. When I put this to him, he said they both did but this does not overcome my concerns with the inconsistency. The applicant told the Tribunal that 4-5 people in a car told his wife that if he comes back they will kill him. Asked what his wife was doing at the time, he said standing at the road waiting for a bus to pick up the children and there were no shops nearby. When I put to him that this was inconsistent with his statutory declaration where he had said this incident occurred when his wife and children were shopping at a local chemist, he said that his oldest son was at school, his youngest son was with her and she needed to go to the pharmacy. I do not consider his explanation satisfactorily addresses this inconsistency as to the location of the incident and I find it detracts from his credibility.

   • The applicant departed the country in the middle of 2012 and the local elections were held a year before. It is not plausible or credible in these circumstances that supporters of Nishantha would threaten or attempt to harm the applicant's wife or children or prevent the admission of his children to school for such a long period of time afterwards.

   35. Given these significant concerns about his credibility, I do not accept that in August 2011, eight bodyguards of Nishantha came to the applicant's house, put him in a car and drove him to Chilaw beach. I do not accept that they forced him to pick up small stones, spread them on the sand and kneel on them for three hours. I do not accept that the applicant was also prevented from driving his taxi for three weeks but after complaining to the taxi committee he was able to drive again. I do not accept that in March 2012, the applicant was sitting in his rickshaw when he was surrounded by several of Nishantha's bodyguards and threatened by them.

   36. I do not accept that in October 2012, a car pulled up beside his wife and one of the four men said that they knew the applicant had fled the country because of them and that as she was alone she needed to come and stay with them. I do not accept that stones have also been thrown at the applicant's wife and threats have been made that acid would be thrown at her. I do not accept that a supporter of the government party has also threatened to kill the applicant and his family and kill his wife if she reported this. I do not accept that his wife reported these threats to the police but they have not responded and she is refusing to leave the house out of fear. I do not accept that the applicant's wife whilst riding her bike on the way to pick up her children from school was targeted by an automobile which chased her. I do not accept that in attempting to escape she hit a wall and seriously injured her foot. I do not accept that his children have been prevented from attending schools in Chilaw. I do not accept that the applicant and his family are of any continuing ongoing adverse interest to Nishantha or his supporters or anyone else.

   …

   40. I have accepted that the applicant's house had stones thrown at it and faeces left at it and that he received 2-4 threatening calls in the lead up to the 2011 election. I do not consider that such conduct even when considered cumulatively constitutes either serious harm or significant harm. I accept that when the applicant returns to Sri Lanka he will want to involve himself in political activities in the manner that he has done so in the past (supporting and organising for Apollo Raj and the UNP at election and other times). I accept that his wife will continue to be a member of the party and engage in political activities as she has done in the past. However, I find that the chance or risk that he will be subjected to either serious harm or significant harm at the hands of Sanath Nishantha, his supporters, the government or anyone else is remote.”

1. The Tribunal as a matter of fact, did take into account the various news articles submitted and referred to concerning Mr Nishantha, as well as the oral evidence of Mr Raj and relevant country information. The Tribunal found further that:-

   “43. Whilst I accept that there are reports of violence between supporters of political parties during election periods, these need to be seen in the context that the UNP is a major political party in Sri Lanka and would have many activists supporting it. Whilst I accept that Nishantha and his supporters may have been involved in electoral and political violence in the past as per the reports, I have not accepted that the applicant has been seriously or significantly harmed by them in the past.

   44. I have also taken into account that the applicant told the Tribunal that if the common candidate for the UNP won, he would not have to live in fear. UNP backed candidate, Maithripala Sirsena defeated former President Mahinda Rajapaksa in presidential elections in January 2015 and UNP National Leader Ranil Wickremesinghe was appointed as the Prime Minister after that election and has maintained that position post the August 2015 parliamentary elections in which the UNP won the most number of seats. Nishantha has recently been elected to the national parliament as a member of the United People's Freedom Alliance (UPFA) and SLFP. Whilst, the UNP has entered a national unity government with the SLFP (which is Nishantha's party) it is apparent that the applicant's own party is the largest party and holds the key position of Prime Minister.

   45. I have also taken into account that Apollo Raj has not been harmed in the years since the applicant left Sri Lanka and a substantial period of time has passed since the applicant was involved in campaigning for him. The applicant has claimed that his wife has received calls from an unlisted number enquiring about his whereabouts, but I do not accept this has occurred (or if it did that there was any malice involved) given several years have passed since he left the country and it is not apparent why he would continue to be of such ongoing adverse interest to Nishantha or his supporters. I have also taken into account (based on my findings above) that nothing adverse has happened to the applicant's wife (who has been involved in the UNP) since he left the country.”

2. Given all of the above, it is clear the Tribunal considered, and in some detail, the submissions of the Applicant made in September 2015. The Tribunal considered, and rejected, the likelihood of politically motivated violence against the Applicant post the election of 2015, and made the findings that it did on the basis of probative evidence before it.

Ground Two

1. The Applicant has suggested that the Tribunal’s reference to the composition of the urban council and the Applicant’s inability to influence who could be mayor meant, “implicit in this aspect of the Tribunal’s reasons for decision is a finding that under the laws governing the composition of the council, the appointment of a person to serve as mayor is ‘a decision for the councillors’.”[6] It is further suggested by the Applicant that this finding was, “central to the Tribunal’s conclusion that aspects of the applicant’s evidence were not plausible. However, no such finding was made by the Minister’s delegate and there was no material before the Tribunal concerning the laws governing the composition of the council. The Tribunal’s finding appears to have been solely a matter of inference”.[7]

   [6] Decision Record dated 23 September 2015 at paragraphs 21-30.

   [7] Applicant’s Contentions of Fact and Law dated 13 April 2017 at paragraph 20.

2. As submitted by the First Respondent however, the Tribunal’s findings with respect to the council were not a critical aspect of the decision forming part of the Tribunal’s assessment regarding claims of past harassment and intimidation. The Applicant’s credibility was impugned because of inconsistent evidence given by the Applicant as remarked upon by the Tribunal in the paragraphs referred to in paragraph 14 above.

3. Secondly, and in any event, the consideration of who would be Mayor of Chilaw was openly discussed in the Tribunal hearings as was the influence of Mr Nishantha. The Tribunal did not fail to afford the Applicant natural justice.  Accordingly, this ground of review should be dismissed.

Ground Three

1. The Applicant argues that the Tribunal failed to consider his claim that he did not have the financial means to pay a fine, nor did the Tribunal consider the consequences of the Applicant’s failure to pay any fine imposed on him under the Immigrants and Emigrants Act 1949 (Sri Lanka).

2. The Tribunal gave considerable weight to the report of DFAT which it noted to be “recent and … an authoritative source” and that DFAT had been “specifically charged with giving advice to the Australian government”.[8] The Tribunal said in paragraph 67 of the Decision Record (as to the Applicant’s illegal departure from Sri Lanka) the following:-

   “… 5.28 DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around ADD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.”

   [8] Decision Record dated 23 September 2015 at paragraph 56.

3. The Tribunal went on to consider the Applicant’s particular circumstances and found as follows:-

   “72. The evidence does not indicate that the applicant has been involved in facilitating or organising people smuggling or terrorism and therefore there is no reason to suspect he would (sic) accused of this and to thereby face possible long term imprisonment. There is no independent country information before me that shows that persons in the applicant's circumstances are being imprisoned under the I&E Act. The DFAT information is that they are not given a custodial sentence but are only fined as a deterrent. This information shows that Magistrates are handing out fines of up to 50,000 LKR and prosecutors would only seek a prison sentence and a fine of 200,000 LKR for people smuggling or facilitating it. My findings are also supported by information from a Sri Lankan lawyer cited above who states that persons in the applicant's position are likely to face a fine of between 50,000 to 100,000 LKR. The information from DFAT and the Sri Lankan lawyer is strong evidence that offenders in the applicant's circumstances do not face both a fine and imprisonment.

   73. I find that on the applicant's return to Sri Lanka that he faces short term detainment prior to applying for and obtaining bail and a fine as a result of being charged under the I&E Act. The information from DFAT is that returnees have been granted bail on personal surety immediately by magistrates. I note the applicant has family in Sri Lanka who would be able to come and collect him from court and an amount of money would not need to be paid to obtain bail. I find that any short term detention or fine does not amount to persecution for a Convention reason because it is the enforcement of a generally applicable law and is not discriminatory. I accept that prison conditions in Sri Lanka are poor but I do not accept that he faces a real chance of persecution for any reason (Convention or non-Convention related) during any short term period of being detained. I am not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population and not specifically to Tamils. I am not satisfied therefore, that questioning, arrest, detention, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c). Nor do I accept that the applicant being detained for a short period in the prison conditions and fined constitutes serious harm.”

4. In his entry interview the Applicant stated he had “a financial problem” in the context of being the financial provider for a number of family members in Sri Lanka. He sought time in Australia to provide financial support for his extended family in circumstances where he could not provide such support in like terms in Sri Lanka. His statements did not go to supporting a claim to fear harm for a Convention reason.

5. Further, the Applicant did not articulate a claim that he had a “financial problem” and accordingly could not pay a fine. It necessarily follows, as submitted by the First Respondent, that the Tribunal was not required to consider the consequences for the applicant having failed to pay any fine. These were not claims which were made, or clearly emerged, from the materials before the Tribunal.

Ground Four

1. The Applicant argues the Tribunal failed to respond to the Applicant’s substantive claims and arguments in relation to the events following the 2011 elections and, in so failing, did not perform its statutory task, or alternatively, acted in a manner that was illogical, irrational or legally unreasonable.

2. The Tribunal specifically considered and rejected the Applicant’s claims that he was threatened and harmed after the elections and that his family had problems since the elections in 2011. The Tribunal explained its reasons for impugning the credibility of the Applicant and the information it considered in doing so.

3. The Tribunal made findings open to it on the evidence before it as set out in a carefully considered Decision Record and after holding two hearings and affording the Applicant the opportunity to call witnesses and put numerous submissions before the Tribunal. None of the Tribunal’s findings of fact or reasons involved “extreme” illogicality or irrationality “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal.”[9]

   [9] ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, 47.

4. The decision cannot be said to be illogical or irrational simply because the Tribunal preferred its conclusions drawn from this evidence over another possible conclusion.[10] The Tribunal decision in these proceedings is not one at which no rational or logical decision maker could arrive on the same evidence.[11]

   [10] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 131.

   [11] Ibid 130.

5. No jurisdictional error attends the decision of the Tribunal. The application is dismissed and costs shall follow.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  17 January 2018