CKR16 v Minister for Immigration
[2020] FCCA 390
•26 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CKR16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 390 |
| Catchwords: MIGRATION – Application to review decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider one of nine integers of the Applicant’s claims or failed to consider relocation factors or the decision was legally unreasonable or otherwise involved jurisdictional error – admissibility of evidence not before the decision maker on application for judicial review. |
| Legislation: Migration Act 1958 (Cth), s.36 |
| Cases cited: AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 |
| Applicant: | CKR16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2354 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 29 November 2018 |
| Date of Last Submission: | 11 December 2018 |
| Delivered at: | Sydney |
| Delivered on: | 26 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Schipp |
| Solicitors for the Applicant: | Australian Presence Legal |
| Counsel for the Respondents: | Ms Laing |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2354 of 2016
| CKR16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 29 July 2016 affirming a decision of a delegate of the First Respondent not to grant the Applicant a Protection visa.
The Applicant, a Tamil Sri Lankan, arrived in Australia in July 2012. He lodged a Protection visa application in January 2013. He claimed, in essence, to fear harm by reason of his previous encounters with the Karuna Group (a Tamil paramilitary group) which wanted him to join the “ruling party”. He elaborated on his claims in a departmental interview.
The application was refused on 20 December 2013. The Applicant sought review by the then Refugee Review Tribunal. He attended a Tribunal hearing (the first Tribunal hearing). The Applicant gave the Tribunal some supporting documentation, in particular a written submission, a supplementary statutory declaration, photographs of an event in Sri Lanka and documents relating to his medical condition and psychological state. His agent claimed that the Applicant feared harm on the basis of his Tamil ethnicity, an imputed political opinion as a suspected member of or person with links to the LTTE and as a failed asylum seeker returning from the West. The Applicant claimed that members of the Karuna Group had threatened him in 2009 or 2010 for refusing to assist them during elections and that they would continue to harm him.
The Tribunal as originally constituted affirmed the delegate’s decision.
The Applicant sought judicial review. The matter was remitted by consent to the Administrative Appeals Tribunal (the Tribunal). The reconsideration by the Tribunal is the subject of the present proceeding.
On 10 June 2016 the Tribunal invited the Applicant to a hearing, which he attended. He provided further copies of photographs and documents. On 29 July 2016 the Tribunal affirmed the delegate’s decision
The Tribunal decision
In its reasons for decision the Tribunal summarised the Applicant’s immigration history. It referred to the fact that he had provided a number of professional reports attesting to symptoms of depression and anxiety as well as to the fact that he had a hearing loss which he attributed to a severe beating he had received “some decades ago”. The Tribunal stated that it had considered this material with regard to whether the Applicant had been able to give meaningful evidence, particularly during the Tribunal hearing. It observed that there were some instances in which the Applicant’s responses to questions “seemed to be digressions from the point of the questions”, but that when the Tribunal checked to ascertain whether he had heard the questions correctly, he had expressly indicated that he had. Seen in this light, the Tribunal was of the view that the Applicant’s digressions appeared to be motivated in the main by a desire to emphasise or reiterate what he viewed overall as his main claims. The Tribunal was satisfied that the Applicant was not hindered by any factors beyond his control from giving meaningful evidence and that he had been given a real opportunity to put his case to the reconstituted Tribunal.
The Tribunal summarised the Applicant’s claims in the statutory declaration accompanying his protection visa application. The Applicant had claimed that, prior to parliamentary elections in Sri Lanka a few years earlier, he had been asked by members of the Karuna Group to help them as they supported the then President of the Sri Lanka Freedom Party (the SLFP). He claimed that at that time he was in charge of the audio, public announcement (PA) and lighting equipment for a local Hindu temple in the Batticaloa district. He claimed that he had initially refused their request to use this equipment at a meeting, but that he was beaten and threatened with a gun and had no option but to agree. According to the Tribunal, the Applicant suggested that these events took place in the run-up to the January 2010 presidential elections. It appears that there was uncertainty as to whether the claimed request, assault and these meetings took place in late 2009 or early 2010. For convenience these events are referred to as in 2009/10.
The Tribunal recorded that the Applicant also claimed that on 1 June 2012 someone from the Karuna Group telephoned him, came to see him in the temple and demanded that he join the SLFP and bring as many friends with him as possible to a meeting in Batticaloa on 10 June 2012. He claimed he agreed to do this, but then made hasty preparations to leave Sri Lanka as he did not want to have anything to do with the Karuna Group.
The Applicant claimed that he could not return to Sri Lanka as the Karuna Group would target him because it worked closely with the Sri Lankan government. He claimed that the police did not take action when complaints were made against the Karuna Group. The Tribunal suggested that the Applicant’s claims appeared to have been “somewhat dependent on the SLFP continuing to be the governing party in Sri Lanka” and “also on the suggestion that the authorities would not investigate complaints against individuals associated with the Karuna Group”.
As discussed further below, the Tribunal also summarised the Applicant’s evidence to the delegate about past incidents, including his claims that he had been detained in a routine round-up in 1994 or 1995, and beaten by members of the Sri Lankan army’s Special Task Force. This left him partially deaf. He also claimed that his elder brother had received some adverse attention from the LTTE in 1998; that his second eldest brother was jailed for a period; that he (the Applicant) was detained for 21 days in 1996 and 12 hours in 2007 or 2008 in round-ups; that there were routine searches of his premises in Colombo up to 2010 and that his permission to reside in Colombo was regularly checked. He claimed to the delegate that when he returned to his village from Colombo, soldiers at a checkpoint always blocked his passage until he bribed them.
In addition, the Tribunal recorded that the Applicant described to the delegate his claimed problems with the Karuna Group in 2009/10 and 2012, claimed that the Karuna Group had also targeted two named local youths (R and N) and that N sought revenge on him.
The Tribunal referred to various issues in relation to the Applicant’s evidence to the delegate. It recorded that the Applicant claimed that he feared persecution as a failed asylum seeker, but did not claim at any stage to have ever been involved with the LTTE or to have been interned as a suspected LTTE supporter after the end of the civil war.
The Tribunal referred to country information in relation to the historical background to the Applicant’s claim, the Karuna Group and its relationship with the SLFP and about the treatment of returnees to Sri Lanka.
The Tribunal described the submissions and evidence provided by the Applicant to the previously constituted Tribunal, including a letter “purportedly” signed in July 2012 by the president, secretary and treasurer of a named Hindu temple in a village in Batticaloa. The Tribunal found that this letter suggested that the Applicant never returned to duties at the temple after 2011 and hence that the information it provided did not appear to “sit” with his claim about what happened to him at the temple in June 2012. It also observed that the letter did not appear to acknowledge that the Applicant had resided and worked in Colombo throughout 2005 to June 2012.
As discussed further below, the Tribunal quoted 11 paragraphs from the decision of the previously constituted Tribunal in which it summarised the Applicant’s claims. In particular, it summarised his evidence at the first Tribunal hearing, including that he had lived and worked in Colombo from approximately 2005 to June 2012, but returned to the village on occasion to visit his parents and assist in the temple.
The Tribunal recorded that the Applicant also told the previously constituted Tribunal that none of his brothers were facing any relevant difficulties in Sri Lanka. When asked how the change of government since he left Sri Lanka might impact on his claims about being forced to join the SLFP, he had said that he now might be forced to join the new “ruling party”. The Tribunal recorded that he did not persist with this “claim” before it, but rather said that the Karuna Group would still try to recruit him to the SLFP.
The Tribunal was of the view that in telling the previously constituted Tribunal that he had been targeted by the Karuna Group because he was a popular and prominent person in his local area, the Applicant had implied that he would have been seen by the Karuna Group as a “valuable catch” capable of bringing other supporters along with him. The Applicant’s migration agent had speculated that the Applicant might be imputed by the authorities to have played some role with the LTTE, even though he had never been singled out or detained at any time in searches or round-ups after the war and had not suggested that anyone in his family was being treated as a suspected LTTE cadre or supporter.
The Tribunal also recorded that when the previously constituted Tribunal asked the Applicant why he could not go on living in Colombo, he had said he needed to stay in the village as the parents were elderly and he must return there to look after their property and interests.
The Tribunal detailed the Applicant’s oral evidence to it. It recorded his evidence that from the time he went to live and work in Colombo from 2005 (to June 2012) he only went back to the village every 6 months or so or when there was a festival. He had essentially confirmed that he did not reside regularly in his family district or even visit there for very long between 2005 and 2012. However he had said repeatedly at the Tribunal hearing that his fears related to localised circumstances in his home district.
The Tribunal observed that the Applicant initially claimed to it to fear that a person in his home district [J] would force him to join the Karuna Group or “whatever party” J was in (whereas previously he had specifically claimed that the Karuna Group wanted him to join the SLFP). It noted that he had also previously singled out another person [N] as the person who intended to harm him, but had claimed that N had ultimately been kidnapped by another group. The Tribunal gave no weight to the Applicant’s earlier evidence about N. The Tribunal found that the Applicant’s claims about which entity he was being pressed to join had “evidently” varied markedly over time.
According to the Tribunal, the Applicant indicated to it that Colombo was his “legitimate place of residence” between 2000 and 2012 (apart from a brief break between 2002 and 2004). The Applicant had lived in and operated a small business in Colombo. He only participated in setting up audio and lighting equipment in his home village when a big function was being staged. He claimed that he “happened” to be in the village in 2009/10 when the Karuna Group contacted him about setting up an audio system for a campaign gathering.
The Tribunal recorded that the Applicant showed it photographs of what appeared to be a political meeting for which he claimed he set up the audio equipment. It found that these photographs indicated that the Applicant had attended a meeting at some time at which Karuna Amman spoke and that election posters in the background of the photographs were satisfactory evidence that this event occurred in late 2009-early 2010. However it was of the view that, on their own, these photographs did not suggest “any reluctant involvement” on the part of the Applicant, particularly given his very close proximity to Karuna Amman on the podium, or at least behind the speakers, in two of the images.
According to the Tribunal, the Applicant did not know what had happened to J (who he claimed was Karuna Amman’s assistant) or whether he was still in politics. He described his own family in terms that indicated that they were “just going about their lives”.
The Tribunal also referred to the Applicant’s limited knowledge about what had become of the Karuna Group as a political presence in Batticaloa District and Eastern province and about the internal strife of the TMVP.
The Tribunal outlined in some detail issues it had raised with the Applicant at the hearing, his responses and its views in relation to matters such as why he would be under pressure to join the Karuna Group, TMVP or SLFP and whether he could “relocate to” or return to live in Colombo and the consequences of returning to Sri Lanka as a failed asylum seeker and illegal departee.
According to the Tribunal, the Applicant essentially told it that the authorities would not regard him as having any links with the LTTE “in spite of his place of origin, past activities, ethnicity, religion, marital status, absence from Sri Lanka, time in Australia or act of seeking asylum”. The Tribunal found that in this respect the Applicant appeared to contradict the general submissions from his former agent. The Applicant also said that his brother’s past detention was no longer a significant issue.
In its findings and reasons the Tribunal accepted that the Applicant was an unmarried Hindu Tamil male national from Sri Lanka’s previously conflict ridden east. However, having regard to cited information it was not satisfied that any of these characteristics attributable to the Applicant “either separately or cumulatively, or in combination with any other factors such as his 1994 or 1995 detention and beating, or his inclusion in roundups during the war, or his brother’s long past detention, or the checks to which he was subjected in Colombo or on the road back to his village, or his illegal departure or asylum-seeking in Australia, would lead to his being imputed with pro-LTTE political opinion or profile, let alone to a real chance of his being persecuted in Sri Lanka in the reasonably foreseeable future”.
Overall, the Tribunal was not satisfied that “any potential factor” would give the Applicant a profile in the eyes of the authorities that would lead them to suspect that he was “linked to the LTTE”.
On the evidence before it the Tribunal accepted that the Applicant had “only very fleeting and superficial contact with political entities and activities”. It gave weight to his claims that he was not aligned with the Karuna Group, the TMVP or the SLFP or UPFA. It gave no weight to his claims about serving tea to the TNA or helping with the set up for one of its rallies. Nor did it give any weight to a 2007 letter inviting the Applicant to discuss some matter with local members of the TMVP, not least because he had indicated that the call from the Karuna Group or TMVP in 2009/10 was “out of the blue”. The Tribunal noted that the Applicant appeared prominently in photographs together with Karuna Amman, a TNA representative and the person he identified as J. It accepted his claim about local people turning out for such gatherings, irrespective of political affiliation.
The Tribunal stated that when it had tried to engage the Applicant in discussion about the full range of issues in relation to his claims, he was “often digressive”. Overall, its impression was that the Applicant preferred to repeat his broad claims about an alleged beating in 2010 and coercion in 2012, rather than addressing concerns about the reliability of details relevant to those and other claims.
The Tribunal found that although the Applicant originated from a village in the vicinity of Batticaloa, his place of residence and occupation in Sri Lanka was Colombo. It found that all the problems he claimed to fear in Sri Lanka were “localised and limited to a particular area in and around Batticaloa” where (unlike in other parts of Sri Lanka) the TMVP had been a prominent contender in local politics. It gave weight to the fact that the Applicant’s claim was that he would be harmed “in the event of returning to his home village”. It was confident that his claims, even if accepted at face value, were claims about “how he was treated in a specific locality at a specific point in the past”. It found that he had “failed to argue satisfactorily” that he would have to resume residing in his home village or that it would be “unreasonable for him to resume living and working in Colombo”. It noted that the Applicant said he would not be able to find “justice” in Colombo, but was of the view that this claim was at best a repetition of his claimed fear of returning to the locality where alleged foes from the Karuna Group and the TMVP used to be active. It found that he did not provide satisfactory evidence that they were still active in that locality, let alone that they had any interest in doing anything with or to him.
The Tribunal found that “overall”, if it accepted the Applicant’s claims “at face value”, it must also take into account his claim to the effect that J had not been heard of since 2012, his evidence about his family’s ongoing “unremarkable” circumstances and the lack of any evidence that J or the Karuna Group was trying to locate him through his family. It stated that it must also take into account the fact that “the government has changed”; that the SLFP was now in opposition and no longer the “ruling party” with the powers of coercion the Applicant had attributed to it while it ruled; and the “very strong evidence to the effect that the authorities are calling the Karuna Group/TMVP to account for past criminality”. It gave this evidence some considerable weight.
The Tribunal considered in this context that the Applicant relied on what it saw as “baldly speculative conditions” predicating his fear that he could be forced at some time in the future to join the SLFP (or the Karuna Group for that matter). It listed these conditions as: “a change of government at some future point; a change of government to a party over which the Karuna Group/TMVP would have significant influence in future; conditions in which the Karuna Group and/or the TMVP would even continue to have sufficient influence in local politics in Batticaloa, let alone Sri Lanka”. Overall, the Tribunal gave very little weight to the “baldly speculative conditions” on which the Applicant’s claims relied.
The Tribunal found that, even if it accepted the Applicant’s claims about past treatment at face value, on the evidence before it, it was not satisfied that he faced a real chance of persecution in Sri Lanka in the reasonably foreseeable future on the basis that he feared being killed for an imputed political opinion if he refused to join the SLFP and/or the Karuna Group, “whether he resides in his home village or visits there from Colombo”. Further, the Tribunal was satisfied on the evidence before it that it would be reasonable and practicable in the claimed circumstances for the Applicant to “relocate to” or to “resume his long and evidently productive residence” in Colombo to avoid claimed harm in his home district.
In any event, the Tribunal found that “overall” it did not believe the Applicant’s claims about having been pressed to join the “ruling party”, the SLFP or to bring others to join the party with him. It did not accept his claim that he was so prominent and popular in the local community (which he said was the basis for this claim). It found that he had been inconsistent in his claim about which entity he was being forced to join, and did not accept that he was “not quite sure” which group he was being pressed to join. It considered it far-fetched, to the point of being fanciful, that someone was waiting for the Applicant to return to Batticaloa so that the process of forcing him into “this party or that” could be completed or, if he resisted, he could be punished with death.
The Tribunal gave no weight to the letter from the local temple because it found the Applicant’s claims to be inconsistent and far-fetched and the content of the letter to be unreliable because it suggested that as at 2012 he had worked continuously for the previous 18 years at the temple, whereas for most of the past 12 years he had been living and running a sole trader business in Colombo and also because, contradicting the Applicant’s claims about last being in his home village in 2012, the letter suggested that he had left the village for the last time in 2011.
The Tribunal observed that the Applicant claimed that the alleged events of 2012 arose out of his being targeted, co-opted and threatened by the Karuna Group in 2009/10. The Tribunal was of the view that the Applicant’s claims about 2009/10 were “problematic”. It accepted that he was familiar with the local temple administration and that he used to return to the village about twice a year to join in big community events, sometimes setting up audio and lighting for community events, including festivals and the like. It accepted that it would have been unusual for the temple to lend audio equipment to political parties and other political entities, but considered it very unlikely on the evidence before it that the Applicant, who was hardly ever in his home village, would have had any influence over whether the temple did lend its equipment for political activities.
The Tribunal found on the evidence before it that if the temple did lend its equipment to a TMVP or SLFP event in 2009 or 2010, this would have been a decision of the committee. It was prepared to accept that if the Applicant had been in the village at the time, the temple might have allowed or asked him to help set up the equipment for the Karuna gathering he had described. It was prepared to accept on the photographic evidence that he in fact helped set up the audio for such a gathering, which he also attended. However the Tribunal did not accept that the Applicant was to any significant extent or for any significant reason reluctant to do this. It observed that the photographs put him on stage right behind Karuna.
Overall, the Tribunal did not accept that the Applicant had been truthful as to the state of relations between himself and figures associated with the local Karuna Group or local TMVP or local SLFP in 2009/10. It did not accept his claims about having been beaten or threatened into agreeing to service the Karuna meeting because, overall, it did not accept he that would have had the power to decide on behalf of the temple whether or not to assist any of these people in the manner in which they were assisted. Hence, on the evidence before it, the Tribunal did not accept that the Applicant’s claims as to why he left Sri Lanka in mid-June 2012 were credible.
The Tribunal added that it was not satisfied that the Applicant faced a real chance of persecution for having attended the Karuna Group’s 2009 or 2010 gathering(s) which were ostensibly in support of the SLFP re-election. It noted that he had remained in Sri Lanka for a further two and a half years and had suffered no harassment from the authorities or anyone else for participating in that activity. It was not satisfied that such activity in that election campaign would be of any relevant or significant interest to the current government or to local or national authorities, notwithstanding that the authorities were apparently pursuing the Karuna Group and the TMVP political wing over past crimes in Sri Lanka.
The Tribunal accepted that the Applicant had departed Sri Lanka illegally and that he would likely come to the attention of the authorities on return. It discussed country information in relation to the likely consequences. It found that the process of interviewing and prosecuting returning Sri Lankans who had departed illegally was implemented under laws of general application (which it was not satisfied would be enforced in a discriminatory manner). The Tribunal was not satisfied that the Applicant’s treatment on or after his return to Sri Lanka would amount, separately or cumulatively, to serious harm or that in any other way he would suffer serious harm in the course of, or as a result of, or in the longer term aftermath of being processed on return and/or prosecuted for illegal departure, either from state officials or other parties. It acknowledged that the Applicant may be monitored for some time after his return, but was not satisfied that this would amount to or lead separately or cumulatively to serious harm in the reasonably foreseeable future.
The Tribunal was not satisfied on the evidence before it that the Applicant faced a real chance of persecution in the reasonably foreseeable future for reasons of having sought asylum or his partial hearing loss and/or his disposition to anxiety or depression.
Overall, the Tribunal was not satisfied that the Applicant faced a real chance of Convention-related persecution in the reasonably foreseeable future or that his claimed fear of Convention-related persecution was well founded.
The Tribunal referred to the fact that the Applicant’s complementary protection claims relied essentially on the same facts as his Refugee Convention claims. It observed that his main claims had generally failed for lack of credibility and for not meeting the “real chance” test. It found that these claims would similarly fail in the context of the complementary protection ground.
The Tribunal referred to the fact it had found that the Applicant’s claims about being forced under real threat of death to join a political entity in Sri Lanka were “unreliable” and that, in the alternative, these claims related to only one locality in Sri Lanka. The Tribunal found on the evidence the Applicant had provided about living and working in Colombo for a total of 9 years, the practicality of travelling to and from Colombo and earning a living there and his responses to the Tribunal questions about issues affecting his ability to reside in Colombo in the future, that it would be reasonable for him to relocate to, or continue to reside in, Colombo, where there would not be a real risk that he would suffer significant harm.
The Tribunal was also not satisfied on the evidence before it that there was a real risk that the Applicant would suffer significant harm of any kind during any detention on remand following his return to Sri Lanka as a person who had departed illegally or as a consequence of any other aspect of the process of being prosecuted for illegal departure. Nor was it satisfied that his hearing loss and disposition to depression and anxiety were such as to meet the complementary protection criterion.
The Tribunal affirmed the delegate’s decision not to grant the Applicant a Protection visa.
The Applicant now relies on a further amended application filed on 27 November 2018 which is referred to for convenience as the application. There are six grounds in the application. However Ground 2 contains nine separate particulars and Ground 6 contains three separate particulars, each of which amounts to a ground of review.
Ground 1
Ground 1 in the application is as follows:
1. The AAT misunderstood and therefore wrongly applied itself to the nature of the task it was to perform.
Particulars
a. Considering that “reliability” was an issue in the case.
The Applicant took issue with the fact that under the heading “The issues” in paragraph 4 of its reasons the Tribunal stated:
The issue in this case is whether [the Applicant] is entitled to protection as a refugee or, in the event that he is not, on complementary protection grounds. Another issue in this case is his reliability as a witness.
The Applicant submitted that the reference to “credibility” as an “issue” was a misconception of the law, as the “only” issues in the matter were whether he had a well-founded fear of persecution for a Convention reason in accordance with s.36 of Migration Act 1958 (Cth) (the Act) or was otherwise entitled to complementary protection. It was pointed out that the concept of “reliability” was not to be found in s.36 or elsewhere in the Act.
While it was acknowledged that there may be subsidiary issues, including credibility or reliability, which might be considered to be a factor when weighing evidence, the Applicant submitted that the elevation of credibility to a primary “issue” demonstrated that the Tribunal misapprehended the nature of its task (see Craig v South Australia (1994) 184 CLR 163; [1994] HCA 58) and elevated the issue above its “proper place”.
In support of this ground it was pointed out that an applicant may be found to be a completely unreliable witness and yet be entitled to protection in circumstances where rejection of an applicant’s evidence may still leave a substratum of facts on which a fear may be well-founded (see Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; [1999] FCA 247 at [21]).
The Applicant contended that the inappropriate “prominence” the Tribunal gave to the “issue” of “reliability” was demonstrated by the manner in which it repeated the previously constituted Tribunal’s findings on credit. It was suggested that in this context the Tribunal had used the word “evidently” at least 9 times, presumably to demonstrate what was perceived as the Applicant’s lack of reliability. The Applicant referred in written submissions to paragraphs 18 to 21 of the Tribunal’s reasons.
I note that, contrary to this submission, paragraphs 18 to 21 of the Tribunal’s reasons refer to part of the Applicant’s evidence to the delegate and aspects of the delegate’s findings (not to the findings of the previously constituted Tribunal).
The Tribunal recorded the Applicant’s claim to the delegate that when he had to pass a military checkpoint, soldiers blocked his passage until he bribed them. It stated that the Applicant was “evidently unable to give the delegate consistent details information (sic) as to when the military check point first appeared” and that the delegate concluded that this story was fabricated. Similarly the Tribunal referred to the Applicant’s evidence to the delegate of his purported problems with the Karuna Group in 2009/10 and 2012 and in that context stated that he “gave evidently vague and digressive replies to questions…” and that the delegate “evidently put to him…” certain matters. The Tribunal also recorded that the delegate “evidently asked” the Applicant a particular question about who the Karuna Group had targeted and that he “evidently provided no details about” another person he claimed had been targeted and that, in relation to his claims about a different person, the delegate “evidently tried to seek clarification and [the Applicant] evidently said” certain things. Further, the Applicant referred to the fact that at paragraph 21 of its reasons the Tribunal recorded that the delegate “evidently asked” the Applicant a number of times if he ever considered in 2012 just getting away from Batticaloa district and going back to Colombo and that “he did not evidently answer the question on the point”.
As the First Respondent submitted, this ground is without substance. There is no basis for any suggestion that the Tribunal elevated “reliability” to the level of a statutory criterion.
It is well-established that a court should not be concerned with “looseness in the language… nor with unhappy phrasing” in the reasons for an administrative decision (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30]). As was also pointed out in Wu Shan Liang at [30] (citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1; [1993] FCA 322 at [22]) “the reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.
Having regard to the beneficial construction appropriate in relation to the reasons of an administrative decision-maker and the manner in which the Tribunal in fact dealt with credibility (as distinct from the questions of whether the Applicant satisfied the Refugees Convention criterion or the complementary protection criterion), I am not satisfied that it has been established that the Tribunal fell into jurisdictional error in the manner contended for by the Applicant.
Reading the Tribunal decision fairly and as a whole, I am not persuaded that the fact that, after identifying “the issue” in the case by reference to statutory criteria, the Tribunal stated that “another issue in this case is [the Applicant’s] reliability as a witness” reveals that it misunderstood and therefore wrongly applied itself to the nature of the task it was to perform.
As the First Respondent submitted, although the ultimate legal issues in the case concerned the question of whether the Applicant met the statutory criteria, many factual and evidentiary issues were capable of informing this ultimate legal issue (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). There is no basis in the reasons, read fairly and as a whole, for any finding that the Tribunal elevated reliability to the level of a statutory criterion. The Tribunal’s discussion of evidence, its findings and the wording of its conclusions summarised above do not support such a view. It clearly understood that an adverse credibility finding was not determinative of all the Applicant’s claims. It considered the failed asylum seeker and illegal departure claims, notwithstanding its rejection of the Karuna Group claims.
Nor do the Tribunal’s references to what “evidently” happened in the interview with the delegate (the matters discussed in paragraphs 18 to 21 of its reasons) support such a contention. This part of the Tribunal’s reasons did not repeat or otherwise address the previously constituted Tribunal’s finding on credit. Rather, paragraphs 18 to 21 discussed aspects of the delegate’s questions and the Applicant’s evidence to the delegate. The Tribunal referred in passing to some of the delegate’s conclusions, including the delegate’s finding that the military checkpoint claims (see [121]-[122] below) were fabricated and that the Applicant’s evidence was inconsistent.
It may be that the Tribunal relied on the account of the Applicant’s evidence to the delegate that was recorded in the delegate’s decision, rather than a recording of the protection visa interview. No issue was taken by the Applicant in relation to such a possibility. In any event, I accept that, as the First Respondent submitted, the references to “evidently” in this part of the reasons reflected the Tribunal’s understanding of the delegate’s account of the Applicant’s evidence and qualified reliance on the delegate’s decision, rather than indicating or supporting the conclusion that the Tribunal incorrectly elevated the issue of reliability to that of a statutory criterion or that there was a misunderstanding or misapplication of the Tribunal’s statutory task.
Ground 1 is not made out.
Ground 2
Ground 2 in the application is as follows:
2. The AAT failed to consider claims, and integers of the Applicant’s claims.
Particulars
a. Failing to make findings regarding the Applicant’s assault in 1994
b. Failing to make findings regarding roundups during the civil war
c. Failing to make findings regarding the Applicant’s detention in 1996
d. Failing to make findings regarding the harassment of the Applicant’s bother (sic)
e. Failing to make findings as to the round-ups in 2007/8.
f. Misunderstanding the Applicant’s claim regarding the assault of the Applicant in 2009, by considering that the Applicant alleged that he had authority to determine who used the Batticaloa temple
g. Failing to make findings as to whether the Applicant’s premises in Colombo were searched in 2010.
h. Failing to make findings as to the claim that the Applicant was required to do ‘favours’ while in Colombo.
i. Failing to make findings regarding the Applicant’s involvement in the proposed meeting in Batticaloa in June 2012.
Each particularised failure was said to constitute a jurisdictional error.
The Applicant pointed out that the Tribunal was required to consider all of his claims or their component integers and that a failure to do so would be a failure to complete the exercise of jurisdiction embarked upon. It was also pointed out that there is no clear distinction between claims and evidence (see in particular Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [111] per Robertson J). The Applicant contended that, whether the matters particularised were seen as express claims or integers of claims arising squarely on the material before the Tribunal (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263) or as evidence, they were nonetheless matters which had to be expressly considered by the Tribunal as claims of past persecution (see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [75]). It was suggested that these claims were all critical in the context of the Applicant’s protection visa application and that the Tribunal was obliged to consider all the substantial claims and information in support of his claims (see Sellamuthu at [19]). The Applicant submitted that in circumstances where the Tribunal failed to determine all of his claims about past events, it was not possible for it to accurately determine the cumulative effect of the claims (see DDK16 v Minister for Immigration & Anor [2017] FCCA 353 at [103] per Judge Driver).
It was also submitted that the Tribunal was required to give a proper consideration to the Applicant’s claims in the sense of the “active intellectual process” referred to by Black CJ in Tickner v Chapman (1995) 57 FCR 451 at 462; [1995] FCA 1726 at [39].
In essence, while it was acknowledged that the matters particularised in ground 2 had been referred to in the Tribunal’s reasons (except for the matters referred to in particular (h)), the Applicant submitted that the Tribunal had failed to discuss or make findings about the matters in particular (a) to (e) and (g) to (h); had misunderstood the claim referred to in particular (f) about the events of 2009; and that while a history was given of the claims about 2012 (particular (i)) the Tribunal’s finding was unclear and did not give proper consideration to this claim.
The First Respondent submitted generally that the Tribunal was not required to provide a line by line refutation of the evidence or claims put forward by an applicant (see Re Minister for Immigration and Multicultural Affairs ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1; Minister for Immigration and Border Protection v CZBP [2014] FCAFC 105 at [64] and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [47]). In any event, it was said to be apparent that the Tribunal did in fact consider and deal with the various matters particularised in this ground in so far as necessary.
In particular, it was pointed out that in paragraph 39 of its decision the Tribunal quoted the previously constituted Tribunal’s summary of the Applicant’s claims about past incidents. In paragraph 61 of its reasons, the Tribunal observed that the Applicant “essentially said that the authorities would not regard him as having any links with the LTTE, in spite of his place or origin, past activities, ethnicity, religion, marital status, absence from Sri Lanka, time in Australia or act of seeking asylum”. This was said to amount to an observation that the Applicant had confirmed that, despite earlier incidents of assaults, detentions, searches and round-ups, he would not be imputed with any adverse LTTE association (notwithstanding a contrary submission by his representative).
The First Respondent also pointed to the fact that in paragraph 65 of its reasons the Tribunal accepted that the Applicant was an unmarried Hindu Tamil male originating from Sri Lanka’s previously conflict ridden east but, having regard to UNHCR and other relevant cited material and giving weight to that information, the Tribunal was:
… not satisfied that any of these characteristics attributable to [the Applicant], either separately of cumulatively, or in combination with any other factors such as his 1994 or 1995 detention and beating, or his inclusion in roundups during the war, or his brother’s long past detention, or the checks to which he was subjected in Colombo or on the road back to his village, or his illegal departure or asylum-seeking in Australia, would lead to his being imputed with pro-LTTE political opinion or profile, let alone to a real chance of his being persecuted in Sri Lanka in the reasonably foreseeable future.
It was said to be apparent from its reference to the past incidents that the Tribunal accepted the Applicant’s claims to have experienced various past issues with the authorities of limited duration prior to, during and/or immediately after the civil war (the subject of particulars (a) to (e), (g) and (h) to this ground). However the First Respondent submitted that the Applicant himself had not emphasised these matters as matters that would cause him to come to the adverse attention of the authorities in the future and that the Tribunal did not accept that they would do so.
The First Respondent also submitted that the Applicant’s claim was primarily a claim to fear harm from those seeking to recruit him to the SLFP/Karuna Group and/or obtain his assistance (the subject of particulars (f) and (i)). In that context, it was pointed out the Tribunal had observed that the alleged events of 2012 were claimed to have arisen out of the Applicant being targeted in 2009/10, not out of any of the other particularised matters. It was submitted that it had not been established that the Tribunal misunderstood the 2009/10 claim or that it failed to make findings in relation to the Applicant’s involvement in the proposed 2012 meeting in a manner constituting jurisdictional error.
Consideration
For the reasons that follow I am not satisfied that Ground 2 is made out on any of the bases contended for by the Applicant.
It is well-established that a failure by the Tribunal to consider all of an applicant’s claims to fear future harm, whether made expressly or arising clearly on the materials before it will constitute a jurisdictional error (see Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 at [42] and NABE (No 2) at [55] – [68]). Whether an applicant has in fact made and maintained a claim before the Tribunal to fear harm on a particular basis is an issue to be objectively determined on the material before the Tribunal in so far as it is before the court. In this case the only evidence of what occurred in the departmental interview and the two Tribunal hearings is the account in the decision of the delegate and in the two Tribunal decisions.
It is also the case that, as Robertson J stated in SZRKT at [111], there is no clear distinction in every case between claims and evidence and that in considering whether a failure to consider material amounted to a jurisdictional error the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error”.
In so far as ground 2 involves contentions that the Tribunal failed to engage sufficiently with factual allegations about past events, it is necessary to consider whether, as a matter of substance, these allegations, if accepted, were of relevance to the issues the Tribunal was obliged to consider in addressing the question of whether the Applicant met the criteria for a Protection visa.
In the Applicant’s entry interview, the focus of the claimed reasons for why he left Sri Lanka related to his asserted problems with the Karuna Group (that is, the claimed events of 2009-2010 and the claimed approach in 2012), although he also claimed he had been beaten up many times previously. In response to questions about whether he had ever been arrested or detained by the police or security organisations and how that impacted on his daily life, he provided details of having been detained and rounded-up on the basis of a suspected association with the LTTE and also of having been asked by army personnel to recharge their phones, make silver rings, buy liquor and other things in Colombo, although he did not claim to fear future harm on those bases.
In the statutory declaration accompanying his protection visa application, the Applicant referred only to the claimed events involving the Karuna Group in explaining why he left Sri Lanka. He claimed only to fear being targeted by the Karuna Group (and that the police would not take action if that occurred).
The delegate recorded, in some detail, the claims made by the Applicant in relation to past events, but summarised the Applicant’s fears as fears of returning to Sri Lanka for reason of his refusal to obey the Karuna Group’s demands to help them during the 2012 election campaign. Despite this, it also considered his claims about past round-ups and detentions by the Sri Lankan army to which he had been subject; the detention of his second eldest brother by the Sri Lankan authorities; and the detention of the Applicant in 1996 on suspicion that he was involved with the LTTE as well as in round-ups in approximately 2007 or 2008. The Applicant was also recorded as claiming that the Sri Lankan authorities had conducted searches of the room where he and his brother worked in Colombo up until 2010. In addition, he claimed that when he returned to his village from Colombo he was required to report to the Sri Lankan army base, that at various times he was required to provide them with alcohol or silver rings, that they would call him in Colombo, and that they would ask him to charge their mobile telephones. The delegate made findings about whether he was satisfied that these past events had occurred and also whether there was a real chance of the Applicant experiencing future harm by reason of the claimed past events he accepted as credible. However this in itself does not establish error on the part of the Tribunal.
The approach of the present Tribunal is to be seen in light of the submission from the Applicant’s migration agent of 21 August 2014 and the Applicant’s statutory declaration of 9 June 2014 as well as what occurred at the two Tribunal hearings. The statutory declaration was in response to the delegate’s adverse credibility findings. In addition to taking issue with aspects of the delegate’s findings in relation to the Karuna Group, the Applicant reiterated aspects of his claims about past events, including his claim that his brother was detained but that he did not know who detained him; that in 1996 he had problems with the navy and the army and was arrested and imprisoned for 21 days and that he believed they suspected that he supported the LTTE and had been involved in detonating a bomb; and that while he did not remember when the army camp in Batticaloa was built, he had to report to it and had to charge phones and provide soldiers with alcohol and silver rings.
However, significantly, as explained by the Tribunal, the Applicant’s claim about the future was primarily explained as a claim to fear that he would be harmed by the Karuna Group if he returned to Sri Lanka. He claimed the Karuna Group had tried to harm him in 2009 or 2010 for refusing to assist them in the elections. It appears that he was also implicitly claiming to fear harm as a Tamil in referring to past round-ups of Tamils. He also referred to harm that had been occasioned to a Tamil failed asylum seeker. According to the submission, the Applicant feared that he would be harmed for his ethnicity, his association with his brother, and that the Karuna Group would continue to harm him. It was also claimed that he feared harm because of his membership of the particular social group of returned failed asylum seekers from the West. The submission appeared to suggest that the Applicant would be imputed with a political opinion of supporting the LTTE on the basis of his ethnicity and association with his brother.
The Applicant attended hearings before both the previously constituted Tribunal and the Tribunal. As discussed further below, the Tribunal quoted part of the first Tribunal’s summary of the Applicant’s claims and also referred to his evidence to it. Its conclusions must be read in light of its description of the Applicant’s evidence about the matters particularised.
It is apparent from the Tribunal’s reasons that it accepted the Applicant’s claims to have experienced various past issues with the Sri Lankan authorities which were of limited duration and had occurred prior to, during or immediately after the war. There is no evidence that the Applicant either expressly or impliedly maintained a claim to fear future harm on any or all of those bases (particularly any harm based on a perceived association with the LTTE). Rather, his claimed fear of future harm, as presented to the Tribunal, related primarily to localised circumstances in his home district and to the Karuna Group (as well as his illegal departure and the fact he was a Tamil failed asylum seeker). In any event, the Tribunal considered the relevance of past events to the Applicant’s fear of future harm as discussed further below.
Particular (a): the assault in 1994
The Applicant acknowledged that at paragraph 39 of its reasons the Tribunal repeated a summary of this claim as made to the previously constituted Tribunal and that it made “a short reference” to the 1994 assault in paragraph 61 of its reasons. However it was contended that while it appeared that the Applicant’s hearing loss was accepted by the Tribunal, there was no finding as to how it occurred.
First, contrary to the Applicant’s contention, the Tribunal’s references to the Applicant’s evidence about this event were not as limited as suggested. The Tribunal also referred to the medical evidence of hearing loss attributed to a severe beating the Applicant claimed to have received some decades earlier and to the delegate’s summary of how the Applicant claimed this had occurred (and to his elaboration to the Tribunal). It recorded that he explained that he was detained in a routine army round-up in 1994 and beaten by members of the Sri Lankan army’s Special Task Force. He received a boxing to his ears that left him partially deaf. Further, according to the Tribunal, the Applicant did not suggest to the delegate that any relevant events or treatment followed from this episode, apart from his ongoing disability and treatment.
Importantly, the Applicant’s quoted further explanation to the previously constituted Tribunal was that the assault by the army was because, as a young Tamil male returning from an event, he was suspected of being part of the LTTE. He was abused and slapped on the head and lost hearing in both ears.
The Tribunal made express findings about this claim, in so far as it was necessary to do so. It recorded the Applicant’s oral evidence to it (at paragraph 61) that the last time the authorities harmed him over suspected LTTE links was in or around 1994 when he was beaten in a way that cost him some of his ability to hear and that the army’s Special Task Force suspected at the time that he might have been with or supporting the LTTE. There is no evidence or suggestion that the Applicant claimed to fear future beatings by the army on this basis.
The Tribunal noted that this was a long time ago and that at the time of its decision the civil war had been over for nearly 8 years. It had regard to the fact that the Applicant confirmed that he would not have been issued a passport in 2006 had the authorities suspected him of being involved in the LTTE and that there was never any move to intern or investigate him after the civil war ended in 2009. According to the Tribunal, the Applicant essentially said, at the Tribunal hearing, that the authorities would not regard him as having any links with the LTTE in spite of his place of origin, past activities, ethnicity, religion, marital status, absence from Sri Lanka, time in Australia or act of seeking asylum.
The Tribunal also considered the Applicant’s claims about being beaten up in 1994 in its general finding (in paragraph 65) that it was not satisfied that his 1994 or 1995 detention and beating (in combination with any other factors) would lead to him being imputed with a pro-LTTE political opinion or profile, let alone to a real chance of his being persecuted in Sri Lanka in the reasonably foreseeable future.
In addition, the Tribunal considered whether on the evidence before it the Applicant faced a real chance of persecution in the reasonably foreseeable future or met the complementary protection criterion for reason of his partial hearing loss.
The Tribunal relied on its findings in relation to the Refugees Convention criterion in finding that the claims that did not meet the “real chance” test did not meet the “real risk” test and that those claims that had failed on credibility grounds similarly failed to meet the complementary protection criterion. It also considered expressly the Applicant’s hearing loss and dispassion to depression and anxiety.
As the First Respondent submitted, it is apparent that the Tribunal accepted the claim that the Applicant was detained and beaten (whether that was in 1994 or 1995) and considered the relevance of the detention and beating as well as the relevance of the Applicant’s resulting partial hearing loss to a real chance or real risk of future harm. Contrary to the Applicant’s submission, it was not necessary for the Tribunal to make any further finding as to how his hearing loss occurred.
The Applicant’s assertion of jurisdictional error in relation to the Tribunal’s consideration of the 1994 assault is not made out.
Particular (b): round-ups during the civil war.
The Applicant submitted that the Tribunal merely repeated a summary of the claim he made to the previously constituted Tribunal that he was caught in round-ups during the civil war. It was submitted that the first Tribunal’s account conflicted with the Applicant’s evidence in the entry interview as to how many round-ups he was caught in and that there was also conflicting evidence as to how long he was detained. It was also submitted that the Tribunal had erred in providing no discussion or attempt to resolve any conflict in the evidence and that it had made no findings in relation to these round-ups.
This contention is not made out. The Tribunal outlined the Applicant’s claims about routine round-ups by the army during the civil war of those suspected of LTTE involvement. It quoted the previously constituted Tribunal, which had recorded:
…the applicant said that during the civil war in Sri Lanka, the SLA [Sri Lankan Army] would enter his village and conduct roundup operations. In writing, it was said the applicant was caught during these roundups and detained for 2 or 3 days, during which time he was beaten, prior to being released. When asked at the hearing, the applicant said he was taken on 2 or 3 occasions by the SLA, however, he was always released on the same day. He said he may be interrogated, mistreated, or just left alone prior to being released.
In so far as the Applicant suggested that there was a conflict in the evidence about how many times he was rounded up that the Tribunal had to resolve, while in his entry interview the Applicant referred to “seven” and “many” times, as recorded in the above quoted passage, he told the first Tribunal he was taken on 2 or 3 occasions (and always released the same day). However, given the Applicant’s admission to the Tribunal that he would not be imputed with a pro-LTTE opinion or profile by the authorities and the Tribunal’s reference to his inclusion in round-ups during the civil war in making its findings in paragraph 65 of its reasons, the Tribunal sufficiently considered these matters. It was not necessary for the Tribunal to also make a finding about any conflict in the evidence about the claim that the Applicant was caught in round-ups during the civil war. He did not claim to fear future round-ups or future harm on the basis of these incidents beyond that addressed by the Tribunal’s findings that he would not be regarded by the authorities as having any link with the LTTE and there was not a real risk or real chance of future harm on this basis.
The contention in particular (b) is not made out.
Particular (c): the Applicant’s detention in 1996
The Applicant submitted that the Tribunal had done no more than summarise the claim he made to the first Tribunal and had provided no discussion or made any findings.
However the Tribunal recorded the Applicant’s claim to the delegate that he was detained for 21 days after a round-up in 1996 following a bomb blast, never convicted and ultimately released.
Further, in referring to the Applicant’s description of this event to the first Tribunal, the Tribunal recorded that the Applicant had not indicated that anything else arose as a result of this detention and (as the first Tribunal also recorded) did not say that any further harm arose from this incident.
As discussed in relation to particular (b), in circumstances where the Applicant had confirmed that the authorities would not regard him as having any links with the LTTE, the Tribunal’s reference in its finding at paragraph 65 to the Applicant’s “inclusion in roundups during the war” and its adoption of these findings in considering complementary protection sufficiently dealt with this aspect of the Applicant’s evidence. No jurisdictional error is established on this basis.
Particular (d): “harassment” of the Applicant’s brother
As explained in the Applicant’s submissions, this particular refers to the Applicant’s claim that in 1998 one of his brothers received some adverse attention from the LTTE, which was collecting money from people in the Batticaloa area. The Applicant claimed that the Tribunal had done no more than repeat the first Tribunal’s summary of this claim and had not considered, discussed or made findings about it.
The Tribunal recorded the Applicant’s evidence to the delegate (as well as to the previously constituted Tribunal), including the fact that the Applicant had explained that he and his brothers were able to move to Colombo to avoid such pressure from the LTTE.
In oral submissions counsel for the Applicant explained that the concern expressed in this particular also related to the claim that the Applicant’s brother (described as a different brother to the delegate, but as the same brother to the previously constituted Tribunal) spent some time in prison.
The Tribunal recorded that the Applicant did not appear to claim to the delegate that this event (which happened when he was young) had any ongoing significance. Further, he was recorded as telling the previously constituted Tribunal that this brother was now working in the jewellery business in Jaffna and that none of his 4 brothers living in Sri Lanka had or continued to face any relevant difficulties. It recorded that he did not claim that any family member was detained in any detention camp after the war ceased in 2009.
Contrary to the Applicant’s contention, the Tribunal considered this aspect of his claims (at paragraph 61) in light of his express concession that his now Jaffna based brother’s past detention was “no longer a significant issue”.
There is no evidence that the Applicant claimed to fear future harassment by the LTTE, or otherwise, because of his family connections. I am not satisfied that such a claim arose squarely on the material before the Tribunal (cf NABE (No 2) at [58]). The Applicant confirmed to the Tribunal that the authorities would not regard him as having any LTTE connections. The Applicant expressly disclaimed any future concern based on his brother’s past detention. In any event the Tribunal considered whether any characteristics attributable to the Applicant in combination with “any” factors, “such as his brother’s long past detention” would lead to a real chance of being imputed with a pro-LTTE political opinion or profile “let alone” a real chance of persecution in the reasonably foreseeable future. It adopted these findings in considering the complementary protection “real risk” test.
In these circumstances, the Tribunal adequately considered the material raised in particular (d). No jurisdictional error is made out on this basis.
Particular (e): round-ups in 2007/8
The Applicant submitted that the Tribunal had done no more than repeat the first Tribunal’s summary of the claim that he was caught with others in a round-up in Colombo in 2007 or 2008, detained for one day and then released after showing his registration card. It was submitted that the Tribunal had not considered, discussed or made findings about this claim.
Contrary to the Applicant’s submission, the Tribunal did consider and make findings about this material. It recorded the Applicant’s claim to the delegate (not just to the previously constituted Tribunal), including the fact that he did not suggest to the delegate that anything potentially significant arose from the fact that he was caught in a round-up and detained for one day in 2007 or 2008. It also recorded that at the first Tribunal hearing no claim was made of any mistreatment on that occasion.
In these circumstances (and given the Applicant’s apparent concession to the Tribunal that the authorities would not regard him as having any links with the LTTE), the Tribunal’s reference in its findings to the Applicant’s characteristics in combination with factors, including his inclusion in round-ups during the war (and the adoption of these findings in relation to the complementary protection criterion), sufficiently addressed the matters referred to in particular (e). No jurisdictional error is established on this basis.
Particular (g): searches of the Applicant’s premises in Colombo in 2010
It is convenient to consider particular (g) next (as the Applicant did in submissions).
The Applicant submitted that the Tribunal did no more than repeat a summary of his claims in this respect to the previously constituted Tribunal and that it had provided no discussion nor made any finding. It was also noted that the Applicant’s claim referred to multiple searches, but not to any specific number.
Once again, the Tribunal had regard to the Applicant’s evidence to the delegate in this respect (as well as to the previously constituted Tribunal). It noted that the Applicant did not suggest to the delegate that anything significant arose from what he said were “routine searches” up to 2010 (or from regular checks on his permission to reside in Colombo). The Tribunal also recorded that the Applicant told the previously constituted Tribunal that no further searches were undertaken after 2010 and that nothing had ever arisen due to these searches.
Contrary to the Applicant’s apparent contention, the Tribunal did not have to make any finding about the number of searches conducted. It was of the view that the authorities would not regard the Applicant as having any links with the LTTE. He had confirmed that there was never any move to intern or investigate him after the civil war ended. He did not claim to fear any future harm from the authorities on this basis. Such past events were not central or relevant to the claimed fears of harm.
In these circumstances the Tribunal’s reference in its findings in paragraph 65 of consideration of the “checks” to which the Applicant was subjected in Colombo (and the adoption of this finding in relation to the complementary protection criterion) adequately addressed this matter. No jurisdictional error is established on this basis.
Particular (h): the Applicant was required to do “favours” while in Colombo
The Applicant referred to his claims in the entry interview that officers in an army camp near his village used to ask him for favours (such as making silver rings, recharging their phones in Colombo and buying them liquor and other things).
Contrary to the Applicant’s contention, the Tribunal referred to this claim, in so far as it referred to the fact that (as explained to the delegate) the Applicant’s claim was that when he returned to his village he had to pass a military checkpoint where soldiers blocked his passage until he bribed them. The Tribunal also recorded that the Applicant was evidently unable to give the delegate consistent details as to when the military checkpoint first appeared and that the delegate concluded that this story was fabricated. The delegate considered past adverse attention to the Applicant from the Sri Lankan army (in particular the requirement that the Applicant report to the Sri Lankan army base which was said to be the source of requests for favours). In circumstances where the Applicant was unable to provide information as to when the army camp was set up or to recount specific incidents with detail, the delegate did not accept those claims about past events were credible. There is no evidence that this claim (or the claim about consequential favours for army officers) was made to the previously constituted Tribunal.
Importantly, the Tribunal recorded (at paragraph 61) that in its hearing it asked the Applicant about the military checkpoint he had mentioned in earlier evidence and “[the Applicant] said it was no longer an issue in his case; he said he did not even know if the checkpoint was still operating or not, and certainly did not suggest that it ever affected his family…”.
The Tribunal would not have erred in failing to make a finding about a claim the Applicant did not maintain. It did in fact have regard to the checks to which he was subjected on the road back to his village (in paragraph 65).
Further, even if the Tribunal’s express finding about checks at the military checkpoint did not encompass, and hence address the claimed requests by the army officers for favours, paragraph 65 was a sufficiently general finding to encompass the Applicant’s claims about doing past favours for army officers.
I also note that in his entry interview the Applicant described these requests for favours as part of the way in which the authorities had impacted on his day to day life in Sri Lanka, but he did not claim to fear future serious or significant harm on this basis (or that this was a reason he left Sri Lanka). Nor did he make such claims in the statutory declaration provided in support of his protection visa application.
The Applicant’s submission and statutory declaration to the Tribunal asserted the truth about past events (including this matter) but made no claim to fear future harm on this basis. Rather, the Applicant’s claims to fear harm from the Sri Lankan authorities (including the army) were put on the basis that he would be suspected of being linked to the LTTE and to have an imputed political opinion. The Tribunal considered whether the Applicant faced a real chance of future harm for any reason in light of the Applicant’s acknowledgment that the authorities would not regard him as having any links with the LTTE in spite of various factors, including his past activities.
In these circumstances, the Applicant’s evidence about having to do past favours for army officers was not a matter that had to be expressly considered by the Tribunal. It was not a matter of substance which, if accepted, bore critically on the issues the Tribunal had to decide (see BDJ15 v Minister for Immigration and Border Protection (2017) 158 ALD 39; [2017] FCA 1281 at [61]). The Tribunal did not ignore relevant, cogent or corroborative evidence in the sense considered in SZRKT. It considered the integers of the Applicant’s claims to fear future harm. No jurisdictional error is established on this basis.
Particular (f): whether the Tribunal misunderstood the Applicant’s claim regarding his assault in 2009/10, by considering that he alleged that he had authority to determine who used the Batticaloa temple
The Applicant acknowledged that the Tribunal recounted a history of his claims about the event in 2009/10 (described as an “election assault”) was recounted, but submitted that there was no “description” of the assault by the Tribunal and that this was indicative of jurisdictional error because no proper consideration of the Applicant’s claim in this respect could be made without a consideration of the actual content of the assault, that is, that he claimed that he was beaten with a tree branch, made to kneel, threatened with gun and pleaded for his life.
However, as the Applicant acknowledged in submissions, the quoted previously constituted Tribunal’s summary of the Applicant’s claim did describe the assault. The Applicant’s contention that the Tribunal failed to describe the claimed assault does not reveal jurisdictional error. It sufficiently recorded his claims about the physical nature of the claims (in particular that he claimed he was beaten and threatened with a gun).
In addition the Applicant submitted that in not accepting that the Applicant would have the power to decide on behalf of the temple whether or not to assist political parties and other political entities the Tribunal had misunderstood the Applicant’s claim.
It was pointed out that in his entry interview the Applicant had stated that permission to use the temple PA system was a matter for the temple committee, that he had told the Karuna Group about the temple committee’s decision and that, after he was beaten up and threatened, he said he would “oblige” them and that he would speak to the temple committee and would get their permission, get the PA system and “conduct the meeting”.
The Applicant submitted that the Tribunal had failed to consider that the 2009/10 threats and assault were in relation to a request that he operate the equipment, rather than that he give permission to use the equipment. This was said to be a misunderstanding of the Applicant’s claim and a factual error causing jurisdictional error.
The First Respondent submitted that in so far as there was a suggestion that the Tribunal misunderstood the Applicant’s claim regarding his assault in 2009/10 (by considering that he claimed that he had authority to determine who used the Batticaloa temple) the Tribunal had not misconstrued the Applicant’s claims regarding that assault. It was suggested that the Tribunal’s initial summary of the Applicant’s claims (at paragraph 9 of its reasons) was consistent with the claims in the statutory declaration accompanying the Applicant’s protection visa application and submitted that the Tribunal had had regard to issues in relation to his claims. It was also pointed out that there was an alternative basis for the decision which accepted that the claimed events had occurred.
First I note that while this particular refers to use of the temple it is apparent that the Applicant consistently claimed that what was in issue was the temple’s equipment, whether described as the PA system or audio and lighting equipment.
In so far as the Applicant suggested that his claim was as had been presented in his entry interview, in the statutory declaration filed in support of his protection visa application, he had claimed that he was asked by members of the Karuna Group to help them during the election campaign, that at that time he was “in charge of” all the audio and lighting equipment that belonged to the temple and that the Karuna Group members “wanted [him] to set up the election stage (and use the audio and lightings that belonged to the temple) prior to the elections for the ruling party candidates”. He claimed “I refused as it was previously agreed by the temple administrators that audio equipment and lightings should not be used for political purposes”. He claimed that as soon as he refused, two members of the Karuna Group began to beat him with sticks, verbally abuse him, ordered him to kneel and that he was threatened with a gun and told that he would be allowed to live if he “agree[d] to set the stage on the date” to be notified. He claimed that he had “no option but to agree” and that he set the stage on the date for the meeting and was able to gather a crowd. He did not refer to agreeing to speak to the temple committee to obtain permission.
The Tribunal did not refer expressly in its initial description of the Applicant’s claims to the fact that the Applicant claimed that it had been previously agreed by the temple administrators that audio equipment and lighting should not be used for political purposes. However it correctly recorded the Applicant’s claims that he had initially refused the Karuna Group’s application to use the temple’s audio, lighting and PA equipment and that he had been beaten and threatened with a gun and that he claimed in his statutory declaration he had no option but to agree and that he set the stage for the meeting.
As the First Respondent pointed out, this differed from the claim in the entry interview that the Applicant told his attackers that he would get the temple committee’s permission. Rather, in his statutory declaration the Applicant appeared to claim he had been able to agree to the demands because he was in charge of all audio equipment and lighting.
The Tribunal recorded the previously constituted Tribunal’s summary of the Applicant’s oral evidence to it (which it clearly accepted as an accurate summary). In that context, it did record that the Applicant refused the Karuna Group’s demand that he “set up” an election stage prior to the election “as it had previously agreed by the temple administrators that audio equipment and lighting should not be used for political purposes”. The quote from the first Tribunal decision then set out in detail the Applicant’s claim in relation to the nature and extent of the assault, including his claim that he would be allowed to leave if he agreed to “set up the stage” on the date he was notified. He claimed he had “no option but to agree to assist” the Karuna Group.
The Tribunal also recorded the Applicant’s oral evidence to it that he had a limited role in managing the equipment, only attended big functions in the village every six months “participating” in setting up the equipment and that he just happened to be in the village in 2010 when the Karuna Group contacted him “about setting up” an audio system for their campaign gathering.
The Tribunal found at paragraph 71 of its reasons:
[The Applicant] claims that the alleged events of 2012 arose out of his being targeted, co-opted and threatened by the Karuna Group in 2009-10. The delegate did not accept that the claims about 2009-10 were credible; the previously-constituted Tribunal appears to have accepted, in his reference to “troubles”, that they possibly were. In my own assessment, I find that [the Applicant] claims about 2009-10 are problematic. I accept that he was familiar with the local temple administration, and I accept that he used to return to his village, say, around twice a year to join in big community events. In light of this, I accept that he assisted sometimes with setting up audio and lighting for community events including temple festivals and the like. I accept that it would have been unusual for the temple to lend audio equipment to political parties and other political entities for their use. I consider it very unlikely on the evidence before me that [the Applicant], who was hardly ever in his home village, would have had any influence over whether the temple ever did lend its equipment for political activities. I find on the evidence before me that if the temple did lend equipment to a TNVP (sic) or SLFP event in 2009 or 2010, this would have been a decision of the committee. I can accept that if [the Applicant] was in the village at that time, the temple might have allowed or asked him to help set up the equipment for the Karuna gathering he has described. I am prepared to accept on the photographic evidence that he helped set up the audio for such a gathering and that he attended it. I do not accept on the evidence before me that he was to any significant extent or for any significant reason reluctant to do this. The photographs he has presented put him on stage right behind Karuna. Overall, I do not accept that he has been truthful as to the state of relations between him and figures associated with the local Karuna Group or the local TMVP or the local SLFP in 2009-10. I do not accept his claims about having been beaten or threatened into agreeing to service the Karuna meeting because, overall, I do not accept that he would have had the power to decide on behalf of the temple whether or not to assist any of these people in the manner in which they were assisted.
It has not been established that the Tribunal misunderstood this claim as presented at various times. Rather, it was unclear to the Tribunal why the Applicant would have been targeted or “had any influence over whether the temple ever did lend its equipment for political activities” given that he was “hardly ever in his home village”. This was a difficulty for the Applicant. He had claimed in his entry interview that he agreed to get the committee’s permission, whereas in his statutory declaration he stated that he agreed to set up the stage (with “audio and lightings that belonged to the temple”). The Tribunal did not accept his claims that he would have had the power to decide whether to assist the Karuna Group in the manner in which they were assisted.
Seen in light of the development in the way in which the Applicant presented this aspect of his claims, I am not satisfied that the Tribunal misunderstood or failed to consider this claim in the manner contended for by the Applicant such as to establish jurisdictional error. Nor is any such misunderstanding apparent in the Tribunal’s finding that even if it accepted the claimed past events on face value it was not satisfied the Applicant faced a real chance of future harm on that basis.
The Tribunal’s reference in paragraph 69 to its satisfaction that “it would be reasonable and practicable in the claimed circumstances for [the Applicant] to ‘relocate to’ Colombo or resume his long and evidently productive residence there” may reflect the fact that what was in issue was not a future move to a new place of residence, but a return to the Applicant’s previous place of residence and occupation, where he had lived and worked for over 9 years before coming to Australia.
The Applicant made general reference to SZSCA (at [20] and [25]-[32]) in relation to factors relevant to the practicality of relocation. It was submitted that the Tribunal had made a finding in relation to Colombo (not the Batticaloa area) in finding at paragraph 69 that he “did not provide satisfactory evidence to the effect that they [the Karuna Group or the TMVP] are still active there, let alone that they have any interest in doing anything with or to him”. On this basis it was submitted that the Tribunal had erred in that it did not make findings about particular incidents and ongoing harassment alleged to have occurred in Colombo in 1996, 2007/2008, 2009/10 and 2012 in considering whether it was reasonable for the Applicant to relocate to Colombo.
More generally, the Applicant contended that the Tribunal did not give “proper” consideration to the question of relocation in the sense of the “active intellectual process” referred to by Black CJ in Tickner v Chapman at [39]. In support of this ground the Applicant referred to his evidence to the previously constituted Tribunal that he needed to stay in the village as his parents were elderly and must return there to look after their property and interests and his evidence to the Tribunal that he would have no choice but to live in the family’s home district, as that was where all their assets were and that for reasons of income he would not be able to leave the village. It was submitted that the Tribunal had failed to consider obstacles to relocation.
The Applicant pointed to the fact that, in terms of relocation, the concept of “reasonable” contained considerations of practicality which must depend on the particular circumstances of the visa applicant and the impact upon that person of relocation (see SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; [2007] HCA 40 at [81]) and that relevant factors may include family relationships, and responsibilities, vulnerabilities, financial difficulties, travel and past persecution (see SZTJO v Minister for Immigration & Anor [2015] FCCA 1921; SZSCA and MZYPWv Minister for Immigration and Citizenship [2012] FCAFC 99 at [9] and [19]).
It was submitted that the Tribunal did not consider adequately, or at all, the Applicant’s cultural requirements to care for his elderly parents, his health and disabilities (depression and hearing loss), his financial position including whether it was feasible or possible for him to start a business in Colombo and the fact that his brother/business partner no longer resided there. Nor did it consider his travel requirements, in particular the need for him to travel home to his home village on occasion to see his family, as well as the past incidents, said to be of “past persecution”.
The Applicant contended that it was not the correct legal position for the Tribunal to rely on the fact that he had failed to argue satisfactorily that he would have to resume residing in his village or that it would be unreasonable for him to resume living and working in Colombo.
The First Respondent submitted that, reading the decision fairly and as a whole, the Tribunal had considered the Applicant’s claimed circumstances and claimed impediments to relocation, in so far as it was necessary for it to do so. It was pointed out that the Tribunal found that Colombo was the Applicant’s home area and also that it was not satisfied that the Applicant faced a real chance of persecution in the reasonably foreseeable future anywhere in Sri Lanka. It was submitted that any error in what was said to be an alternative “relocation” finding, was not capable of causing this court to remit the matter.
Neither party addressed in detail the application of the principles considered by the majority in SZSCA or referred to subsequent decisions, such as CSO15 v Minister for Immigration and Border Protection (2018) 266 FLR 134; [2018] FCAFC 14.
While French CJ, Hayne, Keifel and Keane JJ stated in SZSCA at [20] “the same considerations as are relevant to relocation apply when the Tribunal identifies an area where the visa applicant may be safe, so long as he or she remains there” (emphasis added), this is not such a case. As the First Respondent submitted, the short answer to this ground is that the Tribunal found that it was not satisfied that the Applicant faced a real chance of persecution in the reasonably foreseeable future or a real risk of significant harm anywhere in Sri Lanka (albeit that it considered return or “relocation” to Colombo to avoid claimed harm as an alternative). Strictly speaking, given this primary finding, no issue of the application of relocation principles arose. As no jurisdictional error has been established in relation to the primary basis for the decision, any shortcoming or error in relation to the Tribunal’s consideration of relocation principles that would have been relevant if it had ultimately accepted that the Applicant had a well-founded fear of harm in his home area would not be material and would not amount to jurisdictional error (see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34).
Further, the Tribunal did not approach the issue of the reasonableness of the Applicant returning to reside in Colombo (and visiting the village) in the erroneous manner considered in SZSCA. It made findings on the basis that it was not satisfied that the Applicant faced a real chance of persecution in Sri Lanka, whether he resided in his home village or visited there from Colombo (cf SZSCA at [31]-[32]). In that context, the Tribunal did not expect that the Applicant would remain in an area where he may be safe to avoid harm elsewhere, such as to raise an issue as to whether such an expectation was reasonable (cf SZSCA at [29]).
In so far as the Tribunal was obliged to consider whether it was reasonable, in the sense of being practicable, for the Applicant to return to reside in Colombo, it had to consider this issue in a framework reflecting the Applicant’s evidence and claims (and see SZSCA at [24]). It did so, addressing the concerns in that respect raised with it by the Applicant. The Tribunal was not obliged to consider all theoretical possibilities or objections to resumption of residence in Colombo not raised by the Applicant (or, given its findings, to do so on the basis that the Applicant had a well-founded fear of returning to his former home village).
While relevant “relocation” factors may include the range of issues identified in the Applicant’s submissions, that did not mean that all such possible factors had to be expressly considered by the Tribunal in considering the particular circumstances of the Applicant and taking into account what it was really like to live in Colombo, which the Tribunal effectively regarded as his home area (notwithstanding his origin from a village in the Batticaloa district).
The Tribunal put to the Applicant the proposition that it appeared reasonable for him to “relocate to or continue residing and working in Colombo”. In response the Applicant suggested that for reasons of income he would not be able to leave his village. The Tribunal then put to him that, on his evidence, the family’s gold holdings were transferable because he had told the Tribunal that he had transferred gold to his brother, who later moved the business from Colombo to Batticaloa and that there seemed no reason why he could not establish a gold business again in Colombo. It explained the relevance of relocation as a “potential” issue, to which the Applicant’s response was recorded as “Why can’t I live in my village? Why should I live away from there?” The Tribunal also put to the Applicant that he did live and work away from his village for about 9 years and that it seemed absurd in the circumstances that he was suggesting that he could never live away from his village.
The Tribunal pointed out that the Applicant lived away from the village at the time of the Tribunal hearing. In so far as counsel for the Applicant took issue with this, in this case it is to be seen in light of the Applicant’s apparent suggestion that he could “never” live away from his village. The Applicant claimed that he would not have come to Australia had he been able to reside in Colombo. However the Tribunal recorded that at another stage in the hearing it asked the Applicant how his life had been in Colombo and he said “Fine”. On one of the other occasions on which it asked the Applicant why he could not reside in or relocate to Colombo, his response was that one could not find justice in Colombo. The Tribunal recorded that when it asked the Applicant to explain this, he reverted to saying that if he went back to Sri Lanka he would be asked to join “them” (the Karuna Group/ TMVP or SLFP) and be forced to work for them.
Contrary to the Applicant’s contention, I am not satisfied that the finding about whether the Karuna Group or the TMVP were still active “there” related to Colombo. Paragraph 69 (set out at [160] above) should be read in light of the Tribunal’s discussion of the Applicant’s evidence at the hearing. The Tribunal had observed that the Applicant’s claims were limited to a particular area in and around Batticaloa “where the TMVP, unlike in other parts of Sri Lanka, has been a prominent contender in local politics”. The Applicant did not claim to fear future harm from the Karuna Group in Colombo. It is clear that the Tribunal understood that in so far as the Applicant said he would not be able to find justice in Colombo, when it examined the claim more closely it was at best a repetition of his claimed fear of returning to “the locality” (that is the Batticaloa district where his home village was) where his alleged foes from the Karuna Group and the TMVP “used to be active”. The Tribunal was of the view that the Applicant had not provided satisfactory evidence to the effect that those paramilitary groups were still active in the localised area where he claimed to fear future harm. In other words, this was a finding about the Batticaloa district, not about Colombo. As discussed in relation to ground 2, the Tribunal considered and made findings about the past incidents said to have occurred in Colombo (as well as elsewhere) relevant to the real chance of any future harm to the Applicant in Sri Lanka, including if he returned to live in Colombo, which it found was his place of former residence and occupation.
The Tribunal considered the Applicant’s claim that on return to Sri Lanka he would have “no choice” but to live in his family home district (instead of Colombo) as that was where all their assets were at the moment. There is no suggestion or evidence that the Applicant claimed that he would be unable to run a business (such as his previous sole trader business) without his brother or a business partner. There was evidence that he had other family members (four brothers remaining in Sri Lanka) including two in the village and he had a demonstrated ability of living away from his village and in Colombo, having done so for several years before leaving in Sri Lanka. He had also given evidence concerning the practicality of travelling to and from Colombo to his village (where his parents lived) while earning a living in Colombo.
The Tribunal’s discussion is to be seen in light of the Applicant’s evidence. There is no suggestion that the Applicant raised any other concerns with it.
I note that the Tribunal also considered relocation principles in the context of addressing the complementary protection criterion and the Applicant’s return to Colombo. It stated at paragraph 95:
…On the evidence [the Applicant] has provided about living and working in Colombo for a total of about nine years, on his evidence about the practicability of travelling to and from Colombo and earning a living there, and having considered his responses to my questions about issues affecting his ability to reside there in future, I find it would be reasonable for him to relocate to, or continue to reside in, Colombo where there would not be a real risk that he will suffer significant harm.
(emphasis added)
I am not satisfied that the Tribunal fell into jurisdictional error in failing to take into account considerations “analogous” to those with which the internal relocation principle is concerned, in particular whether it was reasonable and practicable in terms of how the Applicant would live and work in Colombo for him to resume residing there (see SZSCA at [25] and CSO15 at [26] and [42]).
As indicated, in relation to both the Refugees Convention and complementary protection criteria, the Tribunal relevantly relied primarily on the finding (unaffected by jurisdictional error) that it did not accept as reliable the Applicant’s claims to fear harm by being forced under real threat of death to join a political party or that he faced a real chance or real risk of serious or significant harm anywhere in Sri Lanka on any other basis, whether he resided in his former home village or visited there from Colombo. The main alternative finding was that even if the Applicant’s claim about past harm were accepted, the Tribunal did not accept that he faced a real chance of persecution anywhere in Sri Lanka. In those contexts there was no expectation on the part of the Tribunal that the Applicant would remain in Colombo to avoid harm in Batticaloa (cf SZSCA). Even if there was some inadequacy in the Tribunal’s (other) alternative consideration of the reasonableness of relocation had the Applicant’s claimed fears in the Batticaloa district been accepted, such error would not be material and would not amount to jurisdictional error (see Hossain).
Ground 4 is not made out.
Ground 5
Ground 5 is that the Tribunal “misunderstood and failed to give any consideration to the Applicant’s disabilities (ie his personal vulnerabilities) in determining well-founded fear”.
Although the Applicant acknowledged that the Tribunal accepted his claims about his hearing loss, it was submitted that the only “real” reference to this disability was in the Tribunal’s findings in relation to complementary protection. It recorded:
With regard to [the Applicant’s] hearing loss and disposition to depression and anxiety, I am not satisfied on the evidence before me that I have substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
The Applicant submitted that the meaning of this finding was unclear, but that it was at least a finding that the Tribunal accepted that he had suffered hearing loss and had a disposition to depression and anxiety. In oral submissions it was acknowledged that the Tribunal had made a similar finding in relation to the Refugees Convention criterion. However, the Applicant suggested that in so far as these findings referred to a “disposition” (rather than actual anxiety and depression) it was made without evidence.
In any event, the Applicant submitted that personal attributes such as age, frailty and personal vulnerability must be taken into account when determining the seriousness of harm and that the Tribunal had failed to consider the impact of his depression and hearing loss in determining the seriousness of harm (cf AGA16 v Minister for Immigration and Border Protection [2018] FCA 628 at [35]-[36] and [41] and SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 at [21]).
First, contrary to the Applicant’s contention, the Tribunal’s consideration of his hearing loss and his disposition to anxiety and depression was not confined to its ultimate findings. It referred to the fact that the Department and both Tribunals had received a number of professional reports attesting to symptoms of depression and anxiety as well as to hearing loss attributed to a severe beating the Applicant claimed to have received some decades ago. At paragraph 5 of its reasons the Tribunal considered this material in relation to whether the Applicant had been able to give meaningful evidence, particularly during the hearing before it.
Further, in summarising the Applicant’s evidence to the delegate, the Tribunal set out the details of his claims to have been beaten in a round-up in 1994 or 1995 which left him partially deaf. Relevantly, the Tribunal also recorded that the Applicant had not suggested to the delegate that any relevant events or treatment followed from this episode, apart from his ongoing disability and treatment.
While the Tribunal was clearly aware of these characteristics of the Applicant, there is no evidence that he expressly claimed that he was a vulnerable person such that harm he faced would amount to serious or significant harm (cf AGA16 at [36]) or that it was suggested that because of his hearing loss, anxiety and depression, the feared harm may impact the Applicant differently (for example in relation to his claims as a failed asylum seeker or illegal departee which were not factually rejected by the Tribunal) (cf SZBQJ at [21]).
Given that the Applicant essentially said that the authorities would not regard him as having any links with the LTTE, it cannot be said that his depression and hearing loss impacted on any prospect of harm on that basis. As the Tribunal rejected the factual basis for the Karuna Group claims, the Applicant’s personal characteristics did not arise for consideration in that context. While the reasonableness of return to Colombo was only an alternative basis for the Tribunal’s findings in this respect, there is no evidence that the Applicant raised his hearing loss or depression as obstacles to resumption of residence in Colombo.
In these circumstances, the Tribunal adequately addressed the possibility that a claim to fear harm by reason of hearing loss and depression arose on the material before it in its findings in relation to those characteristics at paragraphs 86 and 101 of its reasons seen in conjunction with its cumulative findings.
This ground is not made out.
Ground 6
Ground 6 is as follows:
6. The decision was legally unreasonable.
a. In making an adverse credit finding on the basis that the “entity he was being pressed to join had varied markedly over time” ([48], [70]) when there was no such inconsistency or variation.
b. In drawing adverse conclusions from the photographs of the Applicant, on the basis that they do not show “any reluctant involvement” in a meeting, when such a conclusion cannot be logically drawn.
c. In finding that all of the Applicant’s problems were localised in and around Batticaloa.
In submissions counsel for the Applicant addressed separately particulars (a) and (b) which were described as “grounds” 6(a) and 6(b). When I brought to his attention the fact that the written submissions had not addressed particular 6(c), he made oral submissions in that respect.
In other words, ground 6 is effectively three grounds, each of which involves an assertion of legal unreasonableness.
The Applicant’s written submissions did not address the law in relation to legal unreasonableness beyond asserting generally that unreasonableness and illogicality were jurisdictional errors (referring to Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] and Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 at [11] and [61]) and that credibility findings were not immune from scrutiny (see SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]).
As described in Stretton at [11] per Allsop CJ the consideration of whether a decision is legally unreasonable is:
…not definitional, but one of characterisation: the decision is to be evaluated, and a conclusion reached as to whether it has the character of being unreasonable, in sufficiently lacking rational foundation, or an evident or intelligible justification, or in being plainly unjust, arbitrary, capricious, or lacking common sense having regard to the terms, scope and purpose of the statutory source of the power, such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. The descriptions of the lack of quality used above are not exhaustive or definitional, they are explanations or explications of legal unreasonableness, of going beyond the source of power.
Legal unreasonableness can arise where there is an underlying error in the decision-making process or can be outcome focused where there is no evident and intelligible justification for the decision (see generally Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18). However, as stated in SZMDS at [96], a high degree of caution must be exercised before finding that adverse findings as to credit expose jurisdictional error, in order to ensure that the court does not embark impermissibly on merits review.
To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme illogicality must be demonstrated” 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” (SZRKT at [148]). As Crennan and Bell JJ stated in SZMDS at [135]:
A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.
Illogicality must also be shown to have affected the decision in question. In other words, “even emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality” (see CQG15 v Minister for Immigration and Border Protection (2016) 253 FCR 496; [2016] FCAFC 146 at [61]).
Particular (a)
The Applicant submitted that the Tribunal’s finding that he had been inconsistent in his claim about which entity he was being forced to join (in particular whether it was the SLFP or Karuna Group) was an unreasonable and illogical finding. The submission was put on the basis that there was no significant difference between these entities. It was suggested that the Tribunal had used these terms without apparent distinction.
The First Respondent submitted that the evidence was that the Karuna Group was not the same as the SLFP and that the Tribunal had not used the terms interchangeably.
Contrary to the Applicant’s submission that there was no “significant difference” between the SLFP ruling party and the Karuna Group, in country information cited by the Tribunal a clear distinction was drawn between the paramilitary Karuna Group and its relationship with the SLFP political party. The fact that evidence that people may be associated with one or more of the Karuna Group, the TMVP, or the SLFP was referred to by the Tribunal does not establish that there was no significant difference between the entities. Nor does it support the conclusion that no reasonable decision-maker could have taken the view that the Applicant’s claims as to which entity he was being pressed to join (the paramilitary Karuna Group or the SLFP political party) had varied over time, such that his evidence could not be described by a reasonable decision maker as inconsistent.
It was reasonably open to the Tribunal to find that the Applicant’s evidence varied on this point. As the First Respondent submitted, the Tribunal was not using the terms Karuna Group or SLFP interchangeably, but was dealing with the Applicant’s various claimed associations with the paramilitary group and the political party. It was reasonably open to the Tribunal to have regard to the inconsistency in the Applicant’s evidence in this respect. Such inconsistency cannot be said to be minor or trivial, given the nature of the Applicant’s claims. Nor can it be said that no reasonable decision-maker could have regarded the Applicant’s evidence in this respect to be inconsistent.
Particular (a) to ground 6 is not made out.
Particular (b)
Particular 6(b) takes issue with the Tribunal’s approach to what could be drawn from photographs of the Applicant which he said were taken at the 2009/10 meeting. Two colour photographs were tendered by the Applicant on the basis that they were the colour versions of photographs that appeared in the courtbook.
It was contended that the Tribunal’s decision was legally unreasonable because it drew adverse conclusions from these photographs on the basis that they did not show “any reluctant involvement” in the meeting (as it observed in paragraph 51 of its reasons), when such a conclusion could not be logically drawn.
The Applicant referred first to the Tribunal’s finding that he had only very fleeting and superficial contact with political entities and activities. He took issue with the reasoning supporting the Tribunal’s view that no weight should be given to his claims about having served tea to the TNA or to his having helped set up one of its rallies. The Applicant submitted that it could be inferred that this referred to the incident late in 2009.
It is not clear to me that this is the case, as the TNA is quite distinct from the other entities (the Karuna Group, the TMVP and the SLFP or the UPFA) with which the Applicant claimed no alignment. The Tribunal recognised that there was country information that the TNA and the SLFP/UPFA were archrivals. He explained the presence of a TNA candidate at the 2009 meeting on the basis that everybody was scared of Karuna and paid attention to him when he came to town.
In any event, in the course of describing the evidence at the Tribunal hearing, the Tribunal referred to the photographs produced by the Applicant in relation to the 2009/2010 meeting which he described as a gathering at which Karuna Amman himself was in attendance. The Tribunal accepted at paragraph 51 of its reasons that the photographs indicated that the Applicant attended a meeting at which Karuna spoke at some time in the past and that the election posters were satisfactory evidence that it occurred in late 2009/early 2010 although it found that “on their own, these photographs do not suggest any reluctant involvement on [the Applicant’s] part” (emphasis added), particularly given the Applicant’s very close proximity to Karuna on the podium, or at least, behind the speakers in two of the images.
In so far as the Applicant submitted that it was illogical for the Tribunal to have regard to the photographs in drawing an adverse conclusion about the Applicant’s state of mind or motivation, as the First Respondent submitted the Tribunal’s reasoning in this respect is to be seen in light of the fact that its remark was that “on their own” these photographs did not suggest any reluctant involvement on the Applicant’s part. In other words, the Tribunal was of the view that on their face the photographs did not support the Applicant’s claim that he was coerced into setting up the event and forced to operate the audio equipment for this meeting, as he claimed had occurred. He did not claim to have been coerced into posing for the photographs.
Further, the Tribunal’s consideration of the photographs is to be seen in context. In paragraph 71 of its reasons the Tribunal considered what evidence there was before it in relation to the reason for the Applicant’s involvement in setting up the equipment for the Karuna gathering. In that context it could accept that if the Applicant was in the village at the time, the temple might have allowed or asked him to help set up the equipment for the gathering and on the photographic evidence it accepted that he helped set up the audio for such a gathering and attended it. However, the Tribunal did not accept on the evidence before it that he was to any significant extent or for any significant reason reluctant to do this. Seen in light of the Tribunal’s earlier finding that “on their own” the photographs did not suggest any reluctant involvement on the Applicant’s part, the finding at paragraph 71 that the photographs the Applicant presented put him on stage right behind Karuna is a factual observation. It does not involve the extreme illogicality necessary to meet the high threshold test for illogicality as considered in CQG15 at [61].
As discussed above in relation to ground 2(f), the Tribunal did not draw an adverse conclusion from the photographs of the Applicant in themselves, but rather observed that the photographs did not on their face show any reluctant involvement. It had not been established that in the context of considering the various concerns that it had with the claims about the events of 2009 and 2010 the Tribunal fell into jurisdictional error in the manner contended for in ground 6(b) in the amended application.
Particular (c)
Finally in ground 6(c) it was asserted that the decision was legally unreasonable in finding that all of the Applicant’s problems were localised in and around Batticaloa.
No written submissions were made by the Applicant in support of this particular. In oral submissions, it was submitted that ground 6(c) was really an offshoot of other issues about Batticaloa raised in other grounds.
It was contended that the Tribunal could not make any findings about the safety of Batticaloa (or Colombo) without making findings about the incidents that were said to have occurred there. The Applicant submitted that the Tribunal could not find that the harm he feared was localised in and around Batticaloa, because it had not made findings of fact about the incidents that had occurred to him.
However as discussed above, the Tribunal did not fall into error in acknowledging that on his own evidence to it, the Applicant’s fears related to localised circumstances in his home district of Batticaloa. In other words, notwithstanding that he recited past events, including doing favours while in Colombo, the Applicant did not made a claim to fear future harm on that basis (and indeed the claim about doing favours while in Colombo was on the basis of doing favours for army officers he had encountered at former army checkpoints in Batticaloa, which he told the Tribunal was no longer a problem). It has not been established that the Tribunal’s finding, or indeed its ultimate outcome, was illogical, irrational or otherwise legally unreasonable.
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.
I certify that the preceding two hundred and fifty-five (255) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 26 February 2020
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