DFU16 v Minister for Immigration
[2020] FCCA 1376
•3 June 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFU16 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 1376 |
| Catchwords: MIGRATION – Protection (class XA) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider a claim – whether the Tribunal made illogical findings – no jurisdictional error – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth), r.7.01 Migration Act 1958 (Cth), ss.5, 36, 46, 476 Migration Regulations 1994 (Cth), regs.1.05A, 1.12, 2.07 |
| Cases cited: BYR17 v Minister for Immigration & Border Protection [2018] FCA 1324 Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 |
| Applicant: | DFU16 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2351 of 2016 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 1 August 2018 |
| Date of Last Submission: | 1 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 3 June 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr M. Guo |
| Solicitors for the Applicant: | Carina Ford Immigration Lawyers |
| Counsel for the First Respondent: | Mr J. Maloney |
| The Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
Pursuant to r.7.01 of the Federal Circuit Court Rules 2001 (Cth), the name of the First Respondent be amended to the “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.
A copy of the Applicant’s amended written submissions dated 1 August 2018 be treated as filed in Court.
The Application, as amended on 13 July 2018, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2351 of 2016
| DFU16 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By way of an amended application filed on 13 July 2018 (Amended Application), the Applicant seeks review of a decision of the Second Respondent (Tribunal) dated 10 October 2016. The Tribunal affirmed a decision of a delegate (Delegate) of the First Respondent (Minister) to not grant the Applicant a Protection (class XA) visa (Visa).
This application is brought pursuant to s.476 of the Migration Act 1958 (Cth) (Act). The materials before the Court include the Amended Application, an affidavit of Carina Ford affirmed on 13 July 2018, a Court Book numbering 234 pages, an outline of submissions from the Applicant dated 13 July 2018 (Applicant’s Submissions), the Applicant’s Amended Written Submissions, dated 1 August 2018 and submissions from the Minister dated 25 July 2018 (Minister’s Submissions). The Court has also closely reviewed the transcript of the hearing that took place before the Court.
Background
The Applicant is a citizen of Sri Lanka. He arrived in Australia on 9 August 2012[1]. On 10 December 2012, the Applicant applied for the Visa (Visa Application)[2]. He was assisted by a migration agent. His claims can be summarised as follows:
a)The Applicant is a Tamil and he has been subjected to constant harassment from the Sri Lankan Army (SLA). On occasions, his parents were taken by the SLA and questioned about their links to the Liberation Tigers of Tamil Eelam (LTTE).
b)The Applicant’s uncles, father and grandfather were all taken and tortured by the SLA. After a murder close to the Applicant’s home in 2007, his father came under increased scrutiny from the SLA. This forced his father to leave. After his father left, the Applicant’s family was constantly harassed by the SLA.
c)In or around July 2012, unknown people covered the Applicant’s home with posters of the Eelam People’s Democratic Party (EPDP). Five days later, the Applicant was stopped outside of an EPDP camp. The Applicant was slapped and kicked. A pistol was pointed at his head. The Applicant was told he had to pay them one million rupees and was let go with the warning that he should have the money the next time the EPDP saw him.
d)The Applicant will be persecuted because he has been imputed with an anti-EPDP political opinion and members of the EPDP have photos of him tearing down their posters and they have attempted to extort money from him.
e)The Applicant will be persecuted because he is a member of a particular social group, namely a family member of someone who had been granted asylum in Australia.
[1] Court Book (CB) 96.
[2] CB 12-82.
The Applicant attended an interview before a delegate of the Minister’s Department (Department) on 20 August 2013[3]. On 18 February 2014, the Delegate refused to grant the Applicant the Visa (Delegate’s Decision)[4].
[3] CB 88-89.
[4] CB 91-111.
The Applicant sought review of the Delegate’s Decision at the Tribunal on 3 March 2014[5]. On 7 August 2014, the Applicant’s migration agent forwarded a lengthy written submission to the Tribunal[6].
[5] CB 112-113.
[6] CB 117-146.
On 12 May 2016, the Applicant attended a hearing before the Tribunal. The Applicant’s migration agent also attended the Tribunal hearing[7]. On 16 May 2016, a further substantive written submission was forwarded by the Applicant’s migration agent to the Tribunal[8].
[7] CB 160-162.
[8] CB 189-198.
On 10 October 2016, the Tribunal affirmed the Delegate’s Decision not to grant the Applicant the Visa (Tribunal’s Decision)[9].
[9] CB 216-229.
Tribunal’s Decision
The Tribunal’s Decision is found at Court Book pages 216 to 229. The Court notes that the Minister’s Submissions at [13]-[19] accurately summarise the Tribunal’s Decision. The Court adopts those submissions, with some alterations, as follows.
The Tribunal noted that the Applicant appeared before the Tribunal on 12 May 2016 to give evidence and present arguments. The Applicant was represented at the hearing and an interpreter was present[10]. It was further noted that the Applicant and some family members lodged a Refugee and Humanitarian (Class XB) visa (XB Visa) application in Colombo around 2 February 2011. The Tribunal outlined the Applicant’s evidence that he did not recall making any specific protection claims at the interview for the XB Visa, and that he did not know why it was refused[11].
[10] CB 217, at [3]-[4].
[11] CB 217, at [7].
The Tribunal then summarised the Applicant’s claims as made in his Visa Application, and detailed the content of a statutory declaration dated 10 December 2012 and the written submission dated 7 August 2014 provided to the Tribunal by the Applicant’s migration agent[12].
[12] CB 217-218, at [9]-[11].
The Tribunal then turned to consider the Applicant’s claims in relation to the EPDP. The Tribunal detailed the Applicant’s oral evidence in relation to this claim[13]. The Tribunal stated:
17. The Tribunal accepts the applicant was approached by EPDP members whilst driving past their camp near Jaffna town in early July 2012, beaten, had a gun pointed at his head, and threatened as claimed. The applicant’s oral evidence to the Tribunal about this incident was spontaneous, detailed and consistent with his written claims to the Department. The applicant has claimed they threatened and harmed him because he had torn down EPDP posters from the front of his house a few days prior, and had ‘evidence’ in the form of a photograph on their phone. However, the Tribunal finds it implausible that EPDP members would have happened to be near the applicant’s house when he removed the posters (or others who then gave the photograph to them) and photographed him doing so, yet did not confront him at the time, nor later, but waited until they chanced upon him when he was driving past their camp a few days later. For these reasons the Tribunal does not accept the applicant’s claims to have removed EPDP posters from the front of his house and it follows that it does not accept that he was harmed and threatened by EPDP members for this reason. It is unclear why the EPDP harmed the applicant, and sort to extort him, but given country information indicates that paramilitary groups have been (and continue to be) involved in criminal activity (referenced below), the Tribunal is of the view that they were motivated to make some money.
18. The Tribunal is willing to accept that EPDP members may have tried to get some money from the applicant, possibly because they knew his father was in Australia as claimed, however for the reasons that follow the Tribunal is not satisfied that they were serious in their extortion attempt nor that they planned to carry out their threats. That is because they let the applicant go (returning his motorbike keys) without providing any deadline in which he had to pay the money, only stating that he should have the money the next time they saw him. Yet the next time they purportedly did see him – a few days later on his way to Jaffna again - they did nothing. The applicant said at hearing this was because he stopped outside the library in Jaffna where there was a lot of people. Whilst that may have been the case, the applicant told the Tribunal that the EPDP men who were following him left after he stopped at the library and gave no indication that they tried to find him again. The Tribunal also notes in this regard that the applicant made no mention of this incident - that is having two EPDP members following him on his motorbike - at all in his statutory declaration he provided to the Department. Given these concerns the Tribunal does not accept the applicant’s claims that the EPDP demanded LKR 1 million from him and threatened to kill him if he did not pay. Given this finding the Tribunal also does not accept the applicant’s claims that EPDP members visited the family looking for him two or three times following this incident and before they moved to Vavuniya in early 2013, or that during one of those visits they tried to strangle his brother and also brought the army with them, as claimed.
[13] CB 218-219, at [14]-[16].
On the basis of its findings at [17]-[18], the Tribunal considered that whilst the Applicant was threatened and beaten in 2012, and that at the time his assailants may have demanded some money, “they were not serious about obtaining the money and did not consider the Applicant a particular threat for holding anti-EPDP or anti-government views as submitted, or for any other reason”[14].
[14] CB 220, at [19].
The Tribunal was not satisfied that the EPDP had an ongoing adverse interest in the Applicant, or members of his family. The Tribunal found there was only a remote chance that the EPDP would seek to seriously harm the Applicant because of the claimed incident which took place almost four years previously[15].
[15] CB 220, at [21].
Having regard to its factual findings and to country information[16], including the Applicant’s responses to the country information when it was discussed at the hearing, the Tribunal found that the Applicant did not face a real chance of harm from the EPDP[17].
[16] CB 220, at [22]-[44].
[17] CB 221, at [25].
The Tribunal then considered the “Claims in relation to the applicant’s father”. The Tribunal detailed the evidence the Applicant provided in the Visa Application and at hearing in relation to this claim[18]. The Tribunal accepted that the Applicant’s father was questioned and beaten in connection with a murder[19]. However, the Tribunal did not consider that the Applicant’s father was a suspect in the murder case or of any ongoing interest to the authorities, for that or any other reason. In reaching that view, it referred to[20]:
a)The failure of the authorities to arrest the Applicant’s father;
b)The fact that contrary to the Applicant’s earlier claims (and his representative’s submissions) that he and his family were harassed after the father’s departure, his oral evidence was that the SLA had visited only once looking for the father, three to six months after his departure. The Tribunal was of the view that the Applicant’s father was not of any particular interest, nor the Applicant or his family members, in relation to the murder of someone from their village around April 2007; and
c)The fact that the Applicant’s father had departed Colombo without incident.
[18] CB 221, at [26]-[28].
[19] CB 221, at [29].
[20] CB 221-222, at [30]-[31].
The Tribunal concluded:
For these reasons, and noting that the murder took place almost ten years ago, before the end of the conflict, the Tribunal finds remote the chance the applicant would be seriously harmed by the army or authorities on the basis of his membership of a particular social group of a ‘family member of someone who had been granted asylum in Australia’. The Tribunal accepts that the applicant’s father was granted protection in Australia but finds remote the chance that the applicant would be imputed with an anti-government or proseparatism political opinion and seriously harmed by the authorities as a result on return.[21]
[21] CB 222, at [31].
The Tribunal then considered whether the Applicant faced a real chance of harm in relation to his Tamil ethnicity and any imputed political opinion. The Tribunal canvassed, in detail, the Applicant’s evidence and the written submissions provided in support of this claim[22]. The Tribunal cited a large variety of country information sources. Ultimately, the Tribunal accepted that Tamils in Sri Lanka faced a degree of harassment, discrimination and, in some cases, persecution, on account of their ethnicity during the time of conflict between the LTTE and the Sri Lankan authorities. However, the Tribunal noted that in light of the end of the war in May 2009 (and with reference to the country information), the Tribunal found that the Applicant did not face a real chance of suffering serious harm solely on account of his Tamil ethnicity, for being from the northern province, nor in combination with the Applicant’s imputed political opinion[23]. The Tribunal concluded that the Applicant’s fear of persecution on this basis was not well founded.
[22] CB 222-224, at [32]-[39].
[23] CB 224, at [40].
The Tribunal then considered the Applicant’s claim to fear harm because of his status as a failed asylum seeker. The Tribunal detailed and acknowledged the Applicant’s concerns about returning as a failed asylum seeker, as they were articulated in his evidence and in the written submissions[24]. The Tribunal accepted that the Applicant may be identified as a person who had unsuccessfully sought asylum[25]. After referring to country information[26], the Tribunal then considered the circumstances that the Applicant may face on return. This included questioning at the airport, questioning by the Sri Lankan authorities immediately upon return, and questioning by the Sri Lankan authorities when returning to his village[27]. With reference to country information, and noting that the conflict had ended and the incidents that the Applicant claimed occurred were almost 20 years ago, the Tribunal was not satisfied there was a real chance of serious harm to the Applicant during these processes[28].
[24] CB 224-225, at [42]-[46].
[25] CB 225, at [47].
[26] CB225, at [48].
[27] CB 226, at [49]-[50] and [52].
[28] CB 226, at [51]-[53].
At [54] of its decision, the Tribunal stated[29]:
For the reasons above, the Tribunal does not accept that the applicant faces a real chance of serious harm form the authorities on imputed political opinion grounds for any of the grounds advanced, that is as an ethnic Tamil from the Northern province; at the appropriate age to be involved with the LTTE during the civil war; deemed to hold anti-government views by members of the EPDP; or as a returnee to Sri Lanka as a failed asylum seeker.
(Without alteration)
[29] CB 227.
The Tribunal found that the Applicant did not meet s.36(2)(a) of the Act.
The Tribunal summarised the Applicant’s written submissions in relation to the complementary protection criterion[30], however for the reasons it gave in relation to the refugee criterion, the Tribunal was not satisfied that the Applicant was owed complementary protection obligations[31].
[30] CB 227, at [58].
[31] CB 227-228, at [59]-[60].
The Tribunal affirmed the decision not to grant the Applicant the Visa[32].
[32] CB 228, at [65].
Amended Application
The Amended Application advances 2 grounds of review as follows:
1. The Tribunal failed to consider the Applicant’s claims that the Applicant was eligible for a protection visa by reason of s36(2)(b) and/or (c) of the Migration Act 1958.
Particulars
a. The Applicant claimed to be a member of the same family unit as his father: CB 57.
b. The Tribunal accepted that the father was granted a protection visa: CB 222 [31].
2. The Tribunal’s decision was illogical.
Particulars
Illogicality arises from each of:
a. it not being open on the evidence for the Tribunal to conclude that the EPDP harmed the Applicant because they were motivated to participate in ‘criminal activity’ and ‘make some money’: [17];
b. the lack of logical connection between the possibility that persons other than EPDP members saw the Applicant take down the EPDP posters, and the conclusion that it was implausible for EPDP members not to have immediately confronted the Applicant: [17];
c. the lack of logical connection between rejecting the claim that the Applicant was threatened if he did not pay the EPDP and the rejection of the claim that the Applicant was later searched for, his family having relocated and his brother having been strangled: [18].
The Affidavit of Carina Ford, affirmed 13 July 2018, annexes a copy of the Department of Foreign Affairs and Trade Country Information Report – Sri Lanka, dated 18 December 2018 (DFAT Report)[33].
[33] Affidavit of Carina Ford, filed 13.7.18, Annexure “CF-1”.
As noted above, the Court received written submissions from both parties. These written submissions were supplemented by extensive oral submissions at the hearing.
Ground 1
Legislative Provisions
The premise of this ground is based on s.36(2) of the Act which provides as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa)a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa.
“Member of the same family unit” is defined in s.5 of the Act as follows:
[…] one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.
“Member of the family unit” is defined in reg.1.12 of the Migration Regulations 1994 (Cth) (Regulations):
(1)For the definition of member of the family unit in subsection 5 (1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is:
(a) a spouse or de facto partner of the family head; or
(b) a dependent child of the family head or of a spouse or de facto partner of the family head; or
(c) a dependent child of a dependent child of the family head or of a spouse or de facto partner of the family head; or
(e) a relative of the family head or of a spouse or de facto partner of the family head who:
(i) does not have a spouse or de facto partner; and
(ii) is usually resident in the family head’s household; and
(iii) is dependent on the family head.
“Dependent” is, for present purposes, defined in reg.1.05A(2) of the Regulations as follows:
(2) A person (the first person) is dependent on another person for the purposes of an application for:
(d)a Protection (Class XA) visa; or
(e) a Refugee and Humanitarian (Migrant) (Class BA) visa; or
(ea)a Refugee and Humanitarian (Class XB) visa; or
(i)a Temporary Safe Haven (Class UJ) visa;
if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support.
Consideration
The essence of this ground is that there was a failure to consider a claim. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 (NABE No.2), the Full Court stated at [58]:
The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
The Applicant submitted that a claim that the Applicant met either ss.36(2)(b) or 36(2)(c), “squarely” arose from the material before the Tribunal. The Applicant specifically referred to the following:
a)In the Visa Application form (which the Applicant was required to use), in response to the question whether there were any members of the same family unit not included in the Visa Application form, the Applicant stated that his father was a member of his family unit and that he was an Australian Permanent Resident[34].
b)The Applicant specifically told the Delegate that his father had applied for and been granted a protection visa[35]. The Delegate accepted this, as did the Tribunal.
c)The Applicant’s home address was the same address as his father, he did not have a partner, and the Applicant had never worked and was “unemployed”.
[34] CB 16 and 57.
[35] CB 101.
At hearing, Counsel for the Applicant took the Court to s.46 of the Act and reg.2.07 of the Regulations to highlight his submission that the way in which the Applicant filled out the Visa Application (which he was required to do in order to submit a valid application) was enough to give rise to the claim, particularly where there is no express space to raise a claim under ss.36(2)(b) and (c) of the Act in the Visa Application form. Particular attention was placed on the fact that in the section titled “Your reasons for claiming protection” of the form, the explanatory note refers to ss.36(2)(a) and (aa) of the Act, but not ss.36(2)(b) and (c) of the Act. Counsel for the Applicant submitted that therefore the failure to mention the claim in the statement is not relevant given the context.
The Minister referred the Court to case law considered similar to this case and submitted that the Applicant, who was legally represented throughout this process, made no reference to any claim founded on him being a dependent of his father. At the hearing, Counsel for the Minister drew attention to the lack of anything of substance which adverts to a relationship of dependency. Counsel for the Minister gave the example of there being nothing pertaining to the precise living circumstances of the Applicant and his father, the Applicant’s means at any time, the Applicant’s employment and level of income after he made his application or the Applicant’s social, familial, practical, financial or other support networks. Counsel for the Minister submitted that rather, the Applicant referred at some length to his father’s circumstances to support his own claims to meet the criterion for the Visa. It was submitted that the matters that the Applicant refers to (at [31] above) do no more than indicate the possibility that the Applicant is a dependent of his father. However, that is not enough to infer that a claim was made or arose from the materials.
It was noted that at the time the Court heard this matter, a matter raising similar grounds had been argued before the Federal Court and judgment was reserved (BYR17 v Minister for Immigration & Border Protection [2018] FCA 1324 (BYR17)). The Federal Court dismissed the appellant’s appeal in BYR17.
The Minister referred the Court to SZTAD v Minister for Immigration & Border Protection [2014] FCA 1256 (SZTAD). In SZTAD, the Court considered an argument that the Tribunal had failed to consider a claim that the appellant was a member of her mother’s family unit. In that case, the appellant’s mother applied for a protection visa on the same date and was successful in obtaining that visa. At [20]-[22], it was stated as follows:
20. The appellant relied on the following facts and circumstances before the Tribunal to contend that it was apparent that a claim was being raised that she was entitled to a protection visa as a dependent of her mother:
(i) the appellant’s mother had made a claim for a protection visa and (by the time the Tribunal determined the appellant’s application), her mother had been granted a protection visa;
(ii) the appellant was her mother’s daughter;
(iii) the appellant lived with her mother;
(iv) the mother and daughter lived in a one bedroom apartment;
(v) by the time of the Tribunal’s hearing, the appellant could no longer afford to engage a migration agent;
(vi) at the time the appellant applied for a protection visa she was not working;
(vii) at the time of the hearing before the Tribunal the appellant was working part-time; and
(viii)the appellant only had one friend.
21.The Minister denied that those facts and circumstances made it apparent that the appellant had raised any claim as a dependent. Further, the Minister contended that the appellant’s approach was selective and referred to the following facts and circumstances:
(i) when the appellant made her application for a visa she was represented by a representative who was both a migration agent and a solicitor. The assistance given to the appellant by her solicitor/migration agent included assisting her with filling in the pro-forma forms by which she made her application for a protection visa;
(ii) the appellant made her application on a form headed “Application for an Applicant who wishes to submit their own claims to be a refugee”. That application stated that the appellant’s mother was in Australia, was a relative of the appellant but was not a member of the same family unit and not included as such in the appellant’s application;
(iii) written statements provided by the appellant in support of her application made no suggestion that the appellant claimed to be a dependent of her mother;
(iv) when the appellant told the Tribunal that she lived with her mother, she said “we rent the place”;
(v) when the appellant informed the Tribunal that she could no longer afford a migration agent she said “we weren’t able to afford him”;
(vi) the appellant’s evidence about the extent of her paid work suggested that it was extensive; and
(vii) the appellant told the Tribunal that prior to leaving Zimbabwe she had finished college, she had a good job and she could take care of herself.
22. It was not apparent on the face of the material before the Tribunal that the appellant was making a claim as a dependent of her mother on the basis of the s 36(2)(b) criterion. The material before the Tribunal would not have suggested to a reasonably competent Tribunal member that the appellant was attempting to demonstrate that she was a dependent of her mother in a general sense let alone “wholly or substantially reliant on her mother for financial, psychological or physical support”. The facts and circumstances upon which the appellant relies do not either individually or collectively suggest that the appellant was attempting to demonstrate dependence on her mother, and the context in which those facts either arose or were communicated are entirely unsupportive of a suggestion that the appellant was pursuing a claim based on that dependence. The fact that despite the benefit of legal assistance, the appellant did not articulate any such claim is also significant. For those reasons, the primary judge did not err in concluding that the appellant did not raise a claim as a dependent of her mother.
At hearing, Counsel for the Applicant sought to distinguish SZTAD on the basis that the Applicant did state that the father was a member of the family unit.
In BYR17, the material before the Immigration Assessment Authority included[36]:
[36] BYR17, at [21].
(1) In his entry interview on 6 September 2013, the appellant stated that he had travelled to Australia with his brother by boat and had come to Australia to live with him.
(2) On 6 November 2015, the appellant signed a consent form allowing the Department of Immigration and Border Protection (“Department”) to share his personal information with a Primary Application and Information Service Provider. On that form, it was stated that if the appellant intended to make an application as part of a family unit, to so indicate. The appellant did not give this indication on the form.
(3) In Part B of his visa application, the appellant was asked to give details of “ALL persons included in this application (those seeking Australia’s protection and those who are ‘members of the same family unit’…)” (emphasis added) and the appellant only provided his own details. Further, when asked if there were members of the same family unit in Australia but not included in the appellant’s application, he responded “No”.
(4)In Part C of his visa application, the appellant stated he had never been married or in a de facto relationship. Further, the appellant listed his younger brother and an older brother (with whom he had not travelled to Australia) as family members who are in Australia and not included in Part B of the application. This was in contrast to the appellant answering “No” as to whether there were persons “in the same family unit”. The appellant also listed his brothers as personal contacts in Australia and indicated he was making his own claims for protection.
(5) At the time of the application, the appellant was represented and had the assistance of an interpreter in completing Part B of his application.
(6) In his statement dated 17 March 2016 in support of his visa application, the appellant:
(a) stated his younger brother had travelled to Australia with him and was currently living in Australia on a bridging visa;
(b) stated his father would beat his younger brother and him with a thick cable;
(c) in discussing his fears associated with his embrace of Christianity and rejection of Islam, and the consequent mistreatment by his father, stated that the same situation was happening for his younger brother; and
(d) did not mention his younger brother when discussing the circumstances of leaving his home or journey to Australia.
(7) In her Torture and Trauma/Psychological Report, the appellant’s counsellor stated that the appellant had left Iran “after sneaking his younger brother with him, who was also being threatened and beaten by their father” and found that he met the diagnostic criteria for separation anxiety “due to being away from his brother and his overwhelming sense of responsibility for him”.
(8) In the appellant’s submissions to the delegate prepared by his representative, there is no mention regarding a claim associated with the Family Unit Criteria. The appellant’s younger brother is only mentioned once, in regard to the distress faced by the appellant while detained and separated from his brother who was in the community on a bridging visa.
(9) In the decision record, the delegate ticked a box indicating that the appellant did not meet the Family Unit Criteria but did not otherwise deal with any such claim.
(10) The appellant was then invited to prepare a submission to the Authority that stated why the appellant disagreed with the decision and outline any claim or matter overlooked. Neither the appellant nor his representative raised the Family Unit Claim. However, the appellant did state that when released from detention, he moved to Sydney to be closer to his brother.
The Court in BYR17 was not satisfied that the claim was apparent. The Court continued:
27. Even accepting that the material before the Authority was potentially relevant to a claim that the appellant was a member of the same family unit as his brother, it is necessary to take into account the context in which that material was put forward by the appellant […]
[…]
29. This is not a situation where certain material was put before the delegate or Authority that could only have been relevant to a particular claim, and from that material it was reasonably apparent that the particular claim was being made.
[…]
32. In my view, it was not apparent on the face of the material before the Authority that the appellant was making a claim as a dependent of his younger brother on the basis of the Family Unit Criteria. The material before the Authority would not have suggested to a reasonably competent decision-maker that the appellant was attempting to demonstrate that he was a dependent of his younger brother in a general sense let alone “wholly or substantially reliant” on his brother for “financial, psychological or physical support”. The facts and circumstances upon which the appellant relies do not either individually or collectively suggest that the appellant was attempting to demonstrate dependence on his brother, and the context in which those facts either arose or were communicated are unsupportive of a suggestion that the appellant was pursuing a claim based on that dependence.
The Court does not dispute that the facts in this matter differ in some aspects from BYR17 and SZTAD. For example, the appellants in both BYR17 and SZTAD claimed that they were members of the same family unit of a person who was claiming protection at the same time as the appellants. In the present matter, the Applicant’s father had already been granted protection. In SZTAD and BYR17, the appellants had indicated “no” in their visa application forms to the question of whether there were members of the same family unit in Australia but not included in the appellant’s application. In this matter the Applicant responded “Please see appendix A” in the Visa Application form, which included details, amongst others, of his father.
The issue is whether the claim “squarely” arose from the materials here. The Court does not consider that it does for the reasons that follow.
First, the Visa Application asked the question[37]: “Are there any members of the same family unit who are IN AUSTRALIA but are NOT included in this application?”.
[37] CB 16, question 10.
The Applicant did not indicate yes or no to this question. He stated “Please see appendix A”. Appendix A was used to respond to not just question 10 of Part B of the Visa Application; it was used to respond, in total, to 20 questions that arose in Part B and Part C of the Visa Application. Relevantly, of the questions that Appendix A was said to be in response to, none related to the Applicant’s reasons for claiming protection. It cannot be said that the answer to this question raised the claim. In no way did the Applicant’s Appendix A indicate that the Applicant’s father had been granted a protection visa. Rather Appendix A simply stated that his father was a “Permanent Resident”.
The Applicant did indicate that a basis to him fearing harm was as a member of a particular social group of persons who have a family member who has been granted asylum. However, the Applicant made no reference to being a dependent of his father, nor to relying on his father being granted a visa as a basis distinct from ss.36(2)(a) or (aa) of the Act. Hence, the only reliance that the Applicant placed on his father having been granted a protection visa was in the context of advancing his own claim for protection if he was to return. As in BYR17 at [27], it was open and rational for the Tribunal to consider, given that was the manner in which it was put to the Tribunal, that the sole reliance on the fact of his father having been granted a protection visa was to form the basis of a claim that the Applicant would face harm as a member of a particular social group.
Insofar as it was submitted that the Applicant was required to use the application form and therefore there was no other permissible way to raise the claim other than by filling it out, the Applicant should have indicated in his Visa Application the basis upon which he was relying on being a member of his father’s family unit. The Applicant was represented at the time of his Visa Application, and the sole reference to his father was to found a claim based on a particular social group in order to meet s.36(2)(a) of the Act.
True it is that the “explanatory note” to the “reasons for claiming protection” referenced only ss.36(2)(a) and (aa) of the Act, nonetheless, the explanatory note did expressly state (prior to outlining the matters in ss.36(2)(a) and (aa) of the Act) that “[y]ou should tell us everything about why you think you are owed protection”. The Court accepts that the explanatory note hardly makes it clear to an applicant of the operation of ss.36(2)(b) and (c) of the Act. However, in circumstances where the Applicant was represented and it was indicated that “everything” should be disclosed, it would be reasonable to expect that if the Applicant was seeking to advance a claim under ss.36(2)(b) and (c) of the Act there would, to some extent, have been a reference to this in the Visa Application form or his statement. There was not.
The Court does not consider it apparent, on the face of the Visa Application, that the Applicant was in any way advancing a claim that he was seeking protection pursuant to ss.36(2)(b) or (c) of the Act.
Second, it is accepted that the Delegate and the Tribunal accepted that the Applicant’s father had been granted a protection visa. However, this fact alone does not give rise to an implied claim. The Applicant attended an interview before the Delegate, and his purported claim does not seem to have been raised at any point. Again, the context in which the Applicant’s father appears to have been relevant was in indicating that because his father and his family had allegedly fled, his profile may be of interest to the Sri Lankan authorities[38]. It is relevant to note that the Applicant’s agent was present during the interview with the Delegate.
[38] CB 101.
The Delegate made no finding or reference to ss.36(2)(b) or (c) of the Act in the Delegate’s Decision. Hence, there is no indication that the Delegate considered ss.36(2)(b) or (c) of the Act. When the matter came to be reviewed by the Tribunal, two extensive submissions were provided. In the first of those submissions, the Applicant’s representative identifies the “[i]ssues” arising in the review. None of those issues related to or in any way adverted to ss.36(2)(b) or (c) of the Act. Following the Tribunal hearing, further submissions were provided which, again, made no reference to the Applicant raising a claim based on being a member of his father’s family unit.
Third, the Court made reference above to the fact that in BYR17 and SZTAD, the appellants claimed that they were members of the same family unit as someone who had applied for a visa at the same time. Those appellants were at something more of a disadvantage to the Applicant in this case. Here, the Applicant was aware at the time of his application that his father had been granted a protection visa. One would expect that, in circumstances where the Applicant was represented at all times, any claim on this basis would have been clearly articulated, arguments would have been advanced as to the Applicant’s dependency and, in light of the Delegate having overlooked the purported claim, the Applicant’s representatives would have clearly raised the matter as an “issue” before the Tribunal. They did not.
Finally, there is nothing in the materials to suggest that the Applicant’s responses indicated that he was a “dependent” of his father. The Applicant’s responses in the Visa Application form, which the Applicant refers to in his submissions (i.e., that he lived with his father, that he had no partner and that he was unemployed), in no way clearly articulated that the Applicant was “dependent” on his father. These questions on the Visa Application form were generic and are asked of every applicant.
None of the written submissions provided to the Tribunal made any suggestion that the Applicant was dependent on his father. The Applicant’s submissions before the Tribunal did reveal that the Applicant successfully completed his “Advanced Levels” and an information technology training course[39], and that he had started other courses but had lost interest. The Applicant’s father had departed Sri Lanka in 2009, and despite this, the Applicant remained in Sri Lanka and continued to study. At the Tribunal hearing, it appears that the Applicant stated that on return to Sri Lanka, it would be assumed that the Applicant had been working in Australia. The Tribunal also observed that the Applicant “lived with” his father in Australia[40].
[39] CB 123.
[40] CB 221, at [27].
However, each of these factors, individually and cumulatively, do not suggest that the Applicant was seeking to demonstrate that he was “wholly or substantially” dependent on his father. The circumstances in which all of these circumstances were raised appears to have been as ancillary or background information, or at its highest, a claim based on being a member of a particular social group. They are entirely unsupportive that the Applicant was pursuing a claim based on his “dependence” on his father. Further, the fact that the Applicant had legal assistance throughout the Visa application process implores that, were such a claim being advanced, it would, at the least, have been articulated in some appreciable way. Here it was not, and therefore the Court is not satisfied that the claim was in fact made.
At the hearing before this Court, Counsel for the Applicant posed a “counter factual” scenario, asking “what more could the Applicant have done to make the claim”. The answer to that is, when the Delegate did not address this issue, the Applicant (again noting he was represented) ought to have made it patently clear to the Tribunal. He did not do so. The Visa process provides a number of opportunities for applicants to express their claims and clarify or identify matters that are pertinent. Here, the Applicant, despite being on notice by virtue of the Delegate’s Decision, did not express such a claim in any discernible manner. A reference in submissions to the Applicant’s father seeking asylum in Australia and to him being granted a protection visa is not enough to give rise to a claim under ss.36(2)(b) and (c) of the Act.
For the reasons outlined above, the Court does not accept that a claim that the Applicant was eligible for the Visa by reason of ss.36(2)(b) and/or (c) of the Act was ever advanced. It did not “squarely” arise on the materials.
Ground 1 is dismissed.
Ground 2
Consideration
The oft-cited authority when considering illogicality is Minister for Immigration & Citizenship v SZMDS [2010] HCA 16, wherein Crennan and Bell JJ stated:
130. In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
131. What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[…]
135. On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. 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. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
The Applicant argues that the Tribunal has acted illogically in the following paragraphs of the Tribunal’s Decision:
17. The Tribunal accepts the applicant was approached by EPDP members whilst driving past their camp near Jaffna town in early July 2012, beaten, had a gun pointed at his head, and threatened as claimed. The applicant’s oral evidence to the Tribunal about this incident was spontaneous, detailed and consistent with his written claims to the Department. The applicant has claimed they threatened and harmed him because he had torn down EPDP posters from the front of his house a few days prior, and had ‘evidence’ in the form of a photograph on their phone. However, the Tribunal finds it implausible that EPDP members would have happened to be near the applicant’s house when he removed the posters (or others who then gave the photograph to them) and photographed him doing so, yet did not confront him at the time, nor later, but waited until they chanced upon him when he was driving past their camp a few days later. For these reasons the Tribunal does not accept the applicant’s claims to have removed EPDP posters from the front of his house and it follows that it does not accept that he was harmed and threatened by EPDP members for this reason. It is unclear why the EPDP harmed the applicant, and sort to extort him, but given country information indicates that paramilitary groups have been (and continue to be) involved in criminal activity (referenced below), the Tribunal is of the view that they were motivated to make some money.
18. The Tribunal is willing to accept that EPDP members may have tried to get some money from the applicant, possibly because they knew his father was in Australia as claimed, however for the reasons that follow the Tribunal is not satisfied that they were serious in their extortion attempt nor that they planned to carry out their threats. That is because they let the applicant go (returning his motorbike keys) without providing any deadline in which he had to pay the money, only stating that he should have the money the next time they saw him. Yet the next time they purportedly did see him – a few days later on his way to Jaffna again – they did nothing. The applicant said at hearing this was because he stopped outside the library in Jaffna where there was a lot of people. Whilst that may have been the case, the applicant told the Tribunal that the EPDP men who were following him left after he stopped at the library and gave no indication that they tried to find him again. The Tribunal also notes in this regard that the applicant made no mention of this incident – that is having two EPDP members following him on his motorbike – at all in his statutory declaration he provided to the Department. Given these concerns the Tribunal does not accept the applicant’s claims that the EPDP demanded LKR1 million from him and threatened to kill him if he did not pay. Given this finding the Tribunal also does not accept the applicant’s claims that EPDP members visited his family looking for him two to three times following this incident and before they moved to Vavuniya in early 2013, or that during one of those visits they tried to strangle his brother and also brought the army with them, as claimed.
The Court will consider each particular of Ground 2 individually.
Particular (a)
The first alleged illogicality is in the Tribunal’s finding that:
[…] It is unclear why the EPDP harmed the applicant, and sort to extort him, but given country information indicates that paramilitary groups have been (and continue to be) involved in criminal activity (referenced below), the Tribunal is of the view that they were motivated to make some money.
The Applicant submitted that this finding was made without evidence as the DFAT Report relied on by the Tribunal did not leave it open to the Tribunal to form such a view. The Applicant stated that the error was fatal as the “criminality theory” cannot be separated from the Tribunal’s rejection of the claim. At hearing, Counsel for the Applicant submitted that the bare reference to “criminal activity” by the Tribunal did not give rise to a basis for the Tribunal to conclude that the EPDP was engaging in “extortion”, particularly where the information also suggested that incidents such as kidnapping for ransom were “politically motivated”.
The Minister submits that the Tribunal’s reasoning was “unremarkable” and that the Tribunal simply accepted some basic features of the Applicant’s account and rejected other features. The Minister submits that the Tribunal’s conclusion was not founded on country information or other rebutting evidence, rather, it arose from the inherent implausibility of the Applicant’s account.
The country information “referenced below” included portions of the DFAT Report, which provided as follows:
Some Tamil militant groups, such as the Eelam People’s Democratic Party (EPDP) and the Tamil Makkal Viduthalai Pulikal (TMVP), switched their allegiance to the then Government during the conflict and played a key role in supporting it in the north and east. While these groups have reportedly renounced paramilitary activities, DFAT is aware of credible reports that these groups continue to be active in Sri Lanka, including in criminal activity. However verifying these reports is difficult.[41]
[…]
There have also been incidents of kidnapping for ransom and incidents of kidnapping that appear to be politically motivated. No particular group has been the target of these attacks and they do not appear to be ethnically-based.[42]
[41] DFAT Report, at [2.35].
[42] DFAT Report, at [4.10].
It is apparent that the DFAT Report does not expressly state that the EPDP were involved in extortion. However, the particular passage that the Applicant says is “illogical” must be read in context and as a whole, against the background that the Tribunal had already not accepted that the Applicant had been harmed by the EPDP for political reasons. The Tribunal, having rejected the premise that it was for political reasons, already, then indicated that it was not clear why the Applicant would have been targeted. The Tribunal however noted that there was a suggestion in the country information that the EPDP may have been involved in “criminal activity”. The Applicant’s evidence was that the EPDP had threatened him and asked him for money. It was open (in that there was a logical basis founded in the evidence) that the Applicant was a target of extortion (i.e., a criminal activity), in light of the Tribunal’s rejection of the harm being for political reasons, given there was information before the Tribunal that suggested the EPDP were involved in criminal activity, and the Applicant’s own evidence that the EPDP demanded money.
The Court agrees with the Minister’s submission that the Tribunal’s conclusion was not an “adventurous conclusion”. It was a logical and rational view formed on the basis of the materials before the Tribunal. To the extent that the Applicant refers to that conclusion not being open to the Tribunal because the DFAT Report stated that it was difficult to verify, and there was information that ransoms still “appear to be politically motivated”, the Tribunal’s use of the information was a matter for the Tribunal. The latter assertion (that there was information that ransoms still “appear to be politically motivated”) was subsumed by the finding already made that the Applicant was not targeted for political reasons. Hence, while the Applicant submits that this was “consistent” with the claim as put by the Applicant, the Tribunal had already rejected this claim.
Accordingly, the first particular of Ground 2 does not identify jurisdictional error.
Particular (b)
The second particular of Ground 2 takes issue with the Tribunal finding that it was:
[…] implausible that EPDP members would have happened to be near the applicant’s house when he removed the posters (or others who then gave the photograph to them) and photographed him doing so, yet did not confront him at the time, nor later, but waited until they chanced upon him when he was driving past their camp a few days later.
The Applicant submits that there was a lack of logical connection between the possibility that persons other than the EPDP saw the Applicant take down the EPDP posters, with the conclusion that it was implausible for EPDP members not to have immediately confronted the Applicant. The Applicant submits that this is because the Tribunal itself noted that “others” may have photographed the Applicant and provided the photo to the EPDP. Therefore, the Tribunal provided an “answer” to why the Applicant was not confronted at the time, and therefore it cannot be said to be “implausible”. Rather, the Applicant submits that that a plain reading demonstrates that the finding was illogical. At hearing, Counsel for the Applicant described it as the Tribunal “…dressing up as speculation a finding of implausibility”.
Counsel for the Minister submitted that the Applicant was “selectively” reading the Tribunal’s decision. The Minister submits that the Tribunal did not reason that it was implausible that the EPDP did not confront the Applicant immediately. Rather, as explained by Counsel at the hearing, the Tribunal found it implausible that the EPDP did not pursue the Applicant at all.
The Court agrees with the Minister’s submission. The Applicant is selectively reading in the sense that he is emphasising the “yet did not confront him at the time” and overlooking what immediately follows which, critically, links to the Tribunal’s suggestion that another person may have photographed the Applicant and supplied the photo to the EPDP.
Read as a whole, what the Tribunal found implausible was that no matter who took the photo (be it an EPDP member or another person), it was not until five days later, when the Applicant happened to be driving past an EPDP camp, that he was stopped because of his actions. It was entirely open to the Tribunal to make such a finding. It was not the fact that the Applicant was not confronted immediately that led the Tribunal to find the claim implausible; it was the way in which the Applicant came to be confronted which was implausible per se. That is, it was that the EPDP, being aware of the photograph, took no action against the Applicant until, by chance, the Applicant drove past five days later, as opposed to taking action at the time or, relevantly, after it came to possess the photo.
There was a logical connection between the Tribunal’s considerations and statements and the finding that the evidence was “implausible”. The implausibility finding was logical and rational, and the Tribunal did not “answer” its own implausibility as the Applicant suggests.
The Applicant is, in effect, disagreeing with the conclusion reached. Disagreement does not amount to illogicality. The second particular of Ground 2 is therefore dismissed.
Particular (c)
Particular (c) of Ground 2 suggests that the Tribunal was illogical in stating that, at [18]:
[…] Given this finding the Tribunal also does not accept the applicant’s claims that EPDP members visited his family looking for him two to three times following this incident and before they moved to Vavuniya in early 2013, or that during one of those visits they tried to strangle his brother and also brought the army with them, as claimed.
The “finding” referred to in the opening sentence is that the EPDP had not demanded the Applicant to pay them money, and had not threatened to kill him if he did not pay, as he had claimed. In the Applicant’s submission, he makes a comment in passing that “assuming this finding is legally correct”. The Applicant has not advanced any argument or ground that the finding was not legally correct. If he was of the view it was, he should have pleaded such and made submissions. The Applicant’s failure to challenge this finding indicates to the Court that he accepts that the finding is legally correct, and he has consciously chosen not to pursue any challenge toward it.
The Applicant’s submission was that it does not logically follow that, because the EPDP had not demanded the Applicant pay them money and had not threatened to kill him, then this meant that he had not then been sought out, his family had not relocated and an attempt had not been made to strangle his brother. It was said that these matters stood independently, and needed to be dealt with independently. At hearing, Counsel for the Applicant submitted that had the Tribunal dealt with each of these pieces individually, it may very well have accepted that the Applicant’s family was still harassed for some other reason.
The Minister submitted that this finding was “unexceptionable”. In effect, the Tribunal had considered that whilst the EPDP had opportunistically threatened, beaten and possibly demanded some money from the Applicant on one occasion in 2012, the incident did not give rise to any sustained interest in the Applicant which would have caused the EPDP to visit his family when looking for him on several occasions. Thus, the Tribunal rejected the Applicant’s claim that the EPDP had visited his family as claimed.
It is necessary to outline how the Applicant came to explain that his family had been visited and that they relocated because of this, and that one of his brother’s was strangled:
a)In the interview with the Delegate, in response to a question about whether his family had had any problems since he left Sri Lanka, the Applicant stated that:
[…] his family members have been requested to produce him and that they threatened to kidnap and kill his younger brothers. The EPDP had attended his home with the army. His family have since left Sri Lanka in February/March 2013.[43]
b)In the Applicant’s migration agent’s written submissions to the Tribunal, it was stated:
Sometime towards the end of February 2014, the Applicant’s family departed from Sri Lanka by air to India due to the continuous harassment they were receiving from the EPDP…However, the harassment and terror they were experiencing from the EPDP became too significant for them to handle, and they were forced to flee.[44]
c)At the Tribunal hearing, the Applicant’s evidence was that after he left Sri Lanka, the EPDP members visited his mother’s house two or three times, threatened his brothers and once tried to strangle one of them[45].
[43] CB 100.
[44] CB 126, at [60].
[45] CB 219, at [15].
It is also relevant to note that the Tribunal had rejected the Applicant’s claim that the EPDP were motivated by political reasons, and found that the EPDP had not actually demanded money from the Applicant or threatened to kill him.
Against that background, it was logical for the Tribunal to conclude that it did not accept that the Applicant’s family had been visited after the Applicant left Sri Lanka and prior to their departure to India, nor that an attempt to strangle the brother had been made, as the Tribunal had rejected the basis for there to be any continuing interest in the Applicant.
The Court is satisfied that the Tribunal’s finding does “logically follow”. The Applicant’s claims regarding his family being visited and harassed were intrinsically linked to his claims regarding the EPDP. They were not “separate”. Therefore the Court finds that Particular 3 of Ground 2 fails to disclose any jurisdictional error.
Overall
The Applicant has not demonstrated that the Tribunal’s reasons are illogical or irrational. It cannot be said that there was only one conclusion open on the evidence, or that there was no logical connection between the evidence and the inferences drawn or conclusions made by the Tribunal. The Tribunal’s reasons and conclusions were not “clearly unjust”, “arbitrary”, “capricious” or “unreasonable”. The Applicant’s submission that the Tribunal’s findings and reasons were illogical, in this case, simply indicates that there was more than one conclusion open to be reached on the evidence before it. However, the fact that reasonable minds may differ does not implore that a decision or finding is illogical.
Ground 2 is not made out and must be dismissed.
Conclusion
The Court has not identified any jurisdictional error. Accordingly, the Application is dismissed.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge C. E. Kirton QC
Associate:
Date: 3 June 2020
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