ERY17 v Minister for Immigration
[2018] FCCA 738
•10 May 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ERY17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 738 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant disbelieved in important respects and other fears found not to be well-founded – whether the Tribunal misapplied the protection criteria, made unreasonable findings, failed to consider a relevant factor or failed to address the implications of a factual finding considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5J, 36, 424A, 438 |
| Cases cited: Applicant S303/2003 v Minister for Immigration [2008] FCA 1811 Creamer v Minister for Immigration [2018] FCA 269 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration v MZYTS [2013] FCAFC 114 |
| Applicant: | ERY17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 561 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 26 March 2018 |
| Date of Last Submission: | 30 April 2018 |
| Delivered at: | Sydney |
| Delivered on: | 10 May 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr D V Blades |
| Solicitors for the Applicant: | SCALES Community Legal Centre |
| Counsel for the Respondents: | Mr P R Macliver |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application as amended on 20 March 2018 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 561 of 2017
| ERY17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 10 October 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a citizen of Sri Lanka who was born on 2 April 1988 in a named town in Jaffna District, Northern Province, Sri Lanka.[1]
[1] Court Book (CB) 14
The applicant arrived in Perth, Australia using a false Malaysian passport on 2 July 2015.[2]
[2] CB 21 and 278
Following his arrival, the applicant participated in an Entry Interview at Perth Airport.[3]
[3] CB 42 at [5]; CB 278, footnote 7
Subsequent to the Entry Interview, the applicant was examined by medical doctors at the detention centre in Perth and at Wickham Point Detention Centre.[4]
[4] CB 23
With the assistance of a migration agent,[5] the applicant lodged a temporary protection visa application with the Minister’s Department (Department) on 25 August 2015.[6]
[5] CB 46-48
[6] CB 1-80
The applicant set out his claims for protection in a “Record of phone statement” consisting of four pages and 34 paragraphs.[7] He claimed that if returned Sri Lanka, his life would be in danger due to the Terrorist Investigation Unit (TID), an organisation that had previously arrested and detained him.
[7] CB 42-45
With his application, the applicant provided documents stating, among other things, that:
a)he was detained at Boossa Detention Camp and Colombo Remand Prison between March 2009 and September 2009;[8]
b)he was detained in Colombo Remand Prison from 13 May 2009 to 22 September 2009;[9]
c)he was released “on order of the [court] after producing him to the … Chief Magistrate Court of Colombo, on 22 September 2009”;[10]
d)he was the subject of a Detention Order dated 6 April 2009 on the ground that there were reasons to suspect that he was involved in the commission of offences under the Emergency (Miscellaneous Provisions and Powers) Regulations, No.1 of 2005. The offence was described as “concerned in planning to attack in Trincomalee area and aiding and abetting the LTTE[11] to commit unlawful activity”;[12]
e)the Sri Lanka Police had supplied an “Information … to the Magistrate” in respect of the applicant’s alleged aiding and abetting of terrorist activities;[13] and
f)a former militant who was not “re-habilitated” and said to be involved in the “return of the Liberation Tigers” had been arrested on 6 July 2015.[14]
[8] CB 61
[9] CB 63
[10] CB 63
[11] Liberation Tigers of Tamil Eelam
[12] CB 73
[13] CB 75, 76
[14] newspaper article translation, CB 68
A case officer of the Department invited the applicant to attend an interview arranged for 12 May 2016.[15]
[15] CB 93-104
Following the above interview, the applicant’s migration agent emailed the case officer stating, among other things, that:[16]
[16] CB 131-132
a)on the basis of country information available, it was submitted that Tamil returnees/failed Tamil asylum seeker returnees being targeted by the authorities remains an ongoing issue in Sri Lanka despite that war having ended in 2009; and
b)most recent country information seemed to indicate the applicant was likely to be harmed if returned. For example a recent article published online states:
1) Tamils are continued to be detained and targeted under draconian laws such as the Prevention of Terrorism Act.
…
3) More recently a UN official who visited Sri Lanka reported that the SL authorities continue to use torture as a means to extract information from LTTE suspects.
The agent also sent to the case officer numerous country information documents and online links, including:
a)a document entitled “Supporting Country Information – Sri Lanka, in which it is stated that:[17]
Arbitrary arrests continue to this day with reports of Tamils being arrested under the notorious Emergency Regulations. Many Tamils have also been deprived of their liberty through rehabilitation camps. There are also reports of persons being imprisoned for prolonged periods of time without being charged of any crime. Cases of police mistreatment and deaths in custody continue to be reported.
b)a news article dated 1 July 2015[18] stating that a Tamil youth, an ex-LTTE member, was arrested at the Katunayake airport on 27 June and was being detained for rehabilitation.
[17] CB 133-134
[18] at CB 152-3
On 29 August 2016 the Department received translations of further documents concerning the applicant’s arrest for offences relating to terrorist activities, imprisonment and release in 2009.[19]
[19] CB 213-215; 218-220
On 22 and 28 December 2016, the Department received further documents from the applicant concerning his family circumstances and marriage in Sri Lanka.[20]
[20] CB 233-269
On 19 January 2017 the delegate decided to refuse the protection visa application.[21] The Department renotified the applicant of the decision on 24 April 2017 after finding he had not been correctly notified earlier.[22]
[21] CB 270
[22] CB 274-290
On 12 July 2017 a delegate of the Minister issued a certificate and notification regarding the disclosure of certain information under s.438 of the Migration Act 1958 (Cth) (Migration Act).[23]
[23] CB 291
The applicant, by then unrepresented, lodged an application for review with the Tribunal on 28 April 2017.[24]
[24] CB 298-299
The applicant provided further documents to the Tribunal including:
a)a letter on the letterhead of Home for Human Rights dated 1 October 2009 stating that a lawyer from that organisation had appeared on the applicant’s behalf in the Supreme Court of Sri Lanka in an application for his release;[25] and
b)a document entitled “ASeTTS Torture and Trauma Assessment Report”[26] stating that the applicant was experiencing active symptoms of anxiety and depression.
[25] CB 316
[26] CB 329-331
The Tribunal arranged a hearing for the applicant that was held on 7 August 2017.[27]
[27] CB 332-347
Following the hearing, the applicant submitted further documents to the Tribunal.[28] These documents consisted of reports of sexual violence and torture in internment camps run by the Sri Lankan security forces,[29] reports of informers who were actively looking for any Tamils returning home from abroad in order to interrogate them[30] and various news articles about the treatment of Tamils returning to Sri Lanka.[31]
[28] CB 350-432
[29] see “Conclusions” at CB 402
[30] including a report that the intention was to abduct, detain and torture them: CB 385
[31] CB 418-432
Tribunal’s decision
The applicant claimed to fear return to Sri Lanka on the basis of his Tamil race, his imputed political opinion of being with the LTTE and opposition to the Sri Lankan government. He also claimed he would be harmed on return to Sri Lanka as a failed asylum seeker returning from Australia and/or the West.[32]
[32] see Tribunal’s Statement of Decision and Reasons (“the Tribunal’s reasons”) at [2]
The applicant also made the following specific claims:[33]
a)his brother was a member of the LTTE and was killed in action against the Sri Lankan Army in 1995;
b)Colombo has become increasingly unsafe for Tamils with the authorities targeting them for arrest;
c)when the applicant went to Trincomalee Town in 2008 he was arrested by the TID. He believed he was arrested on suspicion that he was an LTTE member and that he was detained in a house at an unknown location for 10 or 11 days by the TID. He claimed he was tortured during this period and kept naked and handcuffed;
d)from the end of 2008 to September 2009 he was transferred between detention centres and the Colombo Remand Prison and was tortured during part of this period. The applicant was released on 22 September 2009;
e)since July 2014, the TID frequently visited his home or contacted him by phone asking him to report to the police station. He claimed that they came at the end of each month, except for a couple of months, and when he arrived at the police station he would be taken by the same two TID officers to a room and beaten, the last beating having occurred on 25 or 26 May 2015. It was due to the frequent visits of the TID and fearing further harm that the applicant departed Sri Lanka in July 2015; and
f)the applicant claimed he would receive adverse attention on his return to Sri Lanka because he is a Tamil, because he was detained by the authorities for a long period in the past on accusation of LTTE involvement, on account of his brother’s past membership of the LTTE as a fighter, and due to the scarring on his body. However, while the applicant repeated his claims to fear harm requiring protection at the Tribunal hearing, he confirmed that he had never been questioned about his older brother’s involvement with the LTTE and did not fear return on this basis.
[33] CB 445-446 at [19]-[31]
The Tribunal considered the applicant’s claims and evidence and made the following findings and statements:
a)the Tribunal noted that it had significant concerns about the applicant’s credibility in relation to aspects of his claims and evidence, particularly those claims that led him to leave Sri Lanka and why he feared return;[34]
[34] [33]
b)the Tribunal accepted that the applicant is a Tamil from the North of Sri Lanka;[35]
[35] [33]
c)the Tribunal accepted that the applicant’s brother died while fighting with the LTTE in 1995 against the Sri Lankan Army;[36]
[36] [33]
d)the Tribunal accepted that the applicant had never personally been involved as a supporter or member of the LTTE and that his father had not been involved with the LTTE;[37]
[37] [33]
e)the Tribunal accepted that, on his return to Sri Lanka, the applicant would be viewed as a failed asylum seeker and returnee from Australia and/or the West;[38]
[38] [33]
f)based on the 2009 UNHCR Guidelines relating to asylum seekers in Sri Lanka, which referred to Tamils frequently suspected of being associated with the LTTE prior to 2009, the Tribunal accepted that the applicant was arrested and detained by the Sri Lankan TID for 10 or 11 days and then transferred between the detention centres and the Colombo Remand Prison from the end of 2008 until his release on 22 September 2009, and that he was repeatedly questioned, beaten and tortured while in detention;[39]
[39] [34]
g)notwithstanding the claims that the Tribunal had accepted, it stated that it had significant concerns as to the applicant’s credibility relating to the difficulties he faced after his release from detention in September 2009. The Tribunal stated that the applicant had provided inconsistent evidence as to the interest in him by the authorities after being questioned in May 2015, specifically that there had been no mention in his statement attached to his protection visa application that there had been any further visits by the authorities after his departure;[40]
[40] [40]
h)the Tribunal further considered that the applicant had provided inconsistent evidence as to who he told about the interrogations in 2014/2015, as there was inconsistent evidence between letters from the Grama Niladhari’s Office[41] and his claims at the Departmental interview and the Tribunal hearing that he did not receive any interest from the authorities after his release in 2009 until 2014;[42]
[41] A Grama Niladhari (“village officer”) is a Sri Lankan public official
[42] [41]‑[43]
i)the Tribunal also concluded that the applicant provided inconsistent evidence as to when he sought help following his questioning and interrogation in 2014/2015, and that while not determinative, his inconsistent evidence as to when he first made arrangements to depart added to the finding that he is not a credible witness as to these claims and departing for the reasons he claims;[43]
j)the Tribunal also stated that the applicant had provided inconsistent evidence as to the difficulties faced by his family and it had concerns about his evidence about being repeatedly questioned and physically harmed by the authorities on a monthly basis from July 2014 to May 2015, and about the credibility of his employment claim;[44]
k)based on the inconsistencies in his evidence and the reasons set out above, the Tribunal did not accept that the applicant was a credible witness as to his claims of being arrested, interrogated and harmed, or to have faced any of the difficulties he claimed as being a suspect of the LTTE following his release in September 2009, and therefore did not accept that he had been questioned monthly from July 2014 to May 2015, did not accept his claims as to treatment he suffered during that questioning, and did not accept other matters flowing from that alleged treatment;[45]
l)the Tribunal concluded that it rejected in their entirety the applicant’s claims as to difficulties faced after his release in September 2009 because he was suspected of being with the LTTE, and that it therefore did not accept that at the time he departed Sri Lanka he was of any interest to the authorities as being perceived or suspected as being involved in the LTTE;[46]
m)the Tribunal was also not satisfied that the applicant faced a real chance of persecution involving serious harm at the hands of the authorities if he returned to Sri Lanka in the reasonable foreseeable future by being perceived to be involved with the LTTE because his brother was involved with and was a member of the LTTE and fought against the Sri Lankan Army, and also did not accept that there was not a real risk that he would suffer significant harm for that reason;[47]
n)the Tribunal also stated that, as the applicant was not suspected of being involved with the LTTE at the time of his departure from Sri Lanka and he had not been involved in any separatist organisation while he was in Australia, the Tribunal did not accept that, on his return, he would be suspected or perceived to be involved in the LTTE for any of the reasons he claimed;[48]
o)the Tribunal was therefore not satisfied that the applicant faced a real chance of persecution involving serious harm by being perceived to be involved with the LTTE for the reasons he claimed, and also did not accept that there was a real risk that he would suffer significant harm for those reasons;[49]
p)based on country information that the Tamil situation had changed since 2009 and that the risk was limited to those who had or were perceived to have a significant role in relation to post-conflict separatism or were suspected of involvement in the LTTE, the Tribunal did not accept that the applicant would face any difficulty if he returned to Sri Lanka for reason of being suspected to be with the LTTE as a Tamil and/or a Tamil from the North. The Tribunal also did not accept that the applicant would face a real chance of persecution involving serious harm because he was a Tamil or a Tamil from the North if he returned to Sri Lanka in the reasonably foreseeable future, or because of any imputed political opinion as an LTTE supporter on account of his Tamil ethnicity or as he is a Tamil from the North;[50]
q)based on these findings and the country information, the Tribunal therefore also did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk that he would suffer significant harm because he is of Tamil race or a Tamil from the North, or because of any imputed political opinion as an LTTE supporter on account of his Tamil ethnicity or as he is a Tamil from the North;[51] and
r)in relation to the applicant being a failed asylum seeker, the Tribunal stated that based on the totality of the evidence before it, it was not satisfied that the evidence revealed a real chance of persecution involving serious harm in connection with the applicant’s unsuccessful application for asylum and/or his protracted stay in Australia and as a returnee from Australia and a Western country and was also not satisfied that he faced a real risk of significant harm for those reasons.[52]
[43] [44]
[44] [45], [46] and [48]
[45] [49]
[46] [50]
[47] [62] and [63]
[48] [71]
[49] [72] and [73]
[50] [78]-[79]
[51] [80]
[52] [90]
The Tribunal concluded by stating that, based on all of the evidence before it, the Tribunal was not satisfied that the applicant faced a real chance of serious harm in the reasonable foreseeable future for any of the reasons claimed, either singularly or cumulatively, for a reason outlined in s.5J(1)(a) of the Migration Act. Accordingly, the Tribunal was not satisfied that the applicant was a refugee under s.36(2)(a) of the Migration Act.[53]
[53] [101]
In relation to the complementary protection criterion, the Tribunal considered the cumulative effect of all of the claims raised by the applicant and his agent in light of the evidence before it and its reasons, and concluded that it did not accept that there were 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 the applicant would suffer significant harm as defined in s.36(2A) of the Migration Act.[54]
[54] [102]
The present proceedings
These proceedings began with a show cause application lodged on 20 October 2017. The application was subsequently amended several times. At the trial of this matter on 26 March 2018, the applicant relied upon a further amended application filed on 20 March 2018. There are seven grounds in that application:
1.The Tribunal committed jurisdictional error by failing to properly consider for the purposes of the refugee criteria (s 36(2)(a) of the Act) and the complementary protection criteria (s 36(2)(aa) of the Act):
a.Whether the Applicant, as a consequence of his detention in 2008 until 2009 for allegedly aiding and abetting the Tamil terrorist activities (CB 219; 325) and the physical scarring he bears, would be a person of interest to the Sri Lankan authorities, including the TID, upon his return from Australia and therefore be at increased risk of a longer period of detention and harm associated with that detention;
b. Whether the Applicant has any criminal charges/warrants outstanding in Sri Lanka, given that he was previously detained on allegations of adding and abetting a terrorist organisation (CB 73-76; 218-220) which, in light of recent DFAT advice set out at [83] of the Tribunal’s decision (CB 460-461) could lead to a longer period of detention and harm associated with that detention;
c. The potential length of time that the Applicant may face in detention and as a consequence the risk of harm from poor prison conditions as outlined in the DFAT 2017 report (paragraphs 4.25-4.26), including in light of his acknowledged history with torture and trauma (CB 448).
2.The Tribunal committed jurisdictional error by making unreasonable or illogical findings as to the credibility of the Applicant, alternatively by failing to give proper, genuine and realistic consideration to the Applicant's claims, through:
a.Finding at [47], (CB 451) that the UNHCR 2012 report UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka supported an inference that if the authorities had continued to suspect the Applicant of involvement with the LTTE he would not have been released and would have continued to be questioned whereas in fact, the report:
• states “The issuance of ad hoc "release certificates" by these authorities, including with expiration dates, reportedly creates confusion as to the status of those who are released.” (p 28);
• states “... generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances.” (p 26)
• at footnote 179 (p 26) cites country information that:
o“Human rights violations in Sri Lanka continue unabated against ethnic Tamils and Muslims who fear an increasingly nationalist government”;
o“Nearly two years after the end of the war, minorities face daily repression and marginalisation in politics and development policies, particularly in the country's north and east”; and
o“Despite the end of the war, many Tamil and Muslim minorities in Sri Lanka continue to live in fear.”
b.Finding the Applicant's story that he worked only on a family farm to lack credibility because there was a single photo on the Applicant's Facebook account of him wearing a guard's shirt (Transcript p 23) and despite there being no evidence to the contrary, did not accept his explanation that the shirt belonged to a friend and he simply took the photograph of himself wearing the shirt for fun (see [18], CB 445; [36], CB 449; [48], CB 452; Transcript of Tribunal hearing, p 23-25);
c. Finding that his claims about being visited by the TID on a monthly basis in 2011 and 2015 lacked credibility because he failed to mention at his interview with the Department that the TID had visited his family twice, despite the Tribunal:
i. acknowledging that he had been consistent throughout about the frequency of the visits, the names of the two officers who always came to interrogate him, details of the beatings he received and the scars he carries on his body (CB 449-450);
ii. having before it written evidence submitted with the protection visa application that:
1.TID officers had visited the office of Grama Niladhari enquiring about the Applicant's whereabouts and movements (CB 64);
2.officers of the CID and NIB had started frequenting the Applicant's home making enquiries about the Applicant, and on finding that the Applicant was not there, subjecting the Applicant's family to intimidation and threat (CB 66); and
3.the Applicant's statement that: “Since July 2014 I have had problems with the TID. TID officers came to my home in search of me and have also contacted me over the phone, they asked me to report at the Chavakacheri police station. TID officers usually came once a month usually end of the month since July 2014.” (CB 45, paragraph 31).
d.Discounting the Applicant's claims that he received scars from the torture he experienced in May 2015 at the hands of the TID on the basis that the scars" could be caused by any injury" and because the Applicant did not have independent evidence to indicate the scarring occurred during the May 2015 interrogation; and in circumstances where the Tribunal did not consider health examination reports by medical doctors at the detention centres in Perth and Wickham Point (CB 23, Question 66).
e.Finding the Applicant lacked credibility because his oral evidence was inconsistent with the evidence given in letters of support for the Applicant, the latter of which the Tribunal discounted as having no evidentiary value (CB 451).
3.The Tribunal committed jurisdictional error by failing to take into consideration a relevant factor.
a.The Tribunal failed to take into consideration the extracts from the UNHCR 2012 report UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka on pages 26-28 set out at Ground 2a. above.
b.The Tribunal relied upon paragraph 3.9.16 of the Operational Guidance Note: Sri Lanka, July 2013 prepared by the UK Home Office which states, in effect, that examinations of individuals for evidence of scarring is no longer routinely carried out. The Tribunal, however, failed to consider:
i. the following paragraph, 3.9.17 which states: The Freedom from Torture report Out of the Silence: New Evidence of Ongoing Torture in Sri Lanka, released on 7 November 2011, noted that high levels of scarring [based on a data set of '35 medico-legal reports (MLRs) prepared by Freedom from Torture clinicians in relation to clients, most of whom are asylum seekers or refugees' in the UK] could reflect a policy of permanently 'branding' victims not only to inflict long-term psychological and physical damage, but also to ensure that the individual may be easily identified in future as having been suspected of links to the LTTE.[55]
[55] UK Home Office, Operational Guidance Note: Sri Lanka, July 2013, accessed at 2.2.4 which states: "There were reports that the government, its agents, or its paramilitary allies committed arbitrary or unlawful killings, but reliable statistics on such killings were difficult to obtain, because past complainants were killed and some families were fearful of reprisals if they filed complaints. Among these arbitrary or unlawful killings, there were reports of suspects detained by police or other security forces who died under questionable circumstances. While the overall number of extrajudicial killings appeared to decrease from previous years, killings and assaults on civilians by government officials was a problem". "The Prevention of Terrorism Act (PTA) is still in force; it allows people to be arrested and detained for up to 18 months without charge on the basis of a mere suspicion".
c. The Tribunal relied upon page 530 of the Human Rights Watch annual report of 2016 as evidence that the Prevention of Terrorism Act has long been used to hold people of suspected links with the LTTE without charge and to support the inference that if the Applicant was of genuine interest to the Army, he would not have been released (CB 452). The Tribunal failed to take into consideration that the same page in the annual report states:
The law has been used since the end of the war, including under the present government, to detain and torture people suspected of links to the LTTE, including forcibly returned asylum seekers.
4. The Tribunal committed a jurisdictional error by failing to consider the Applicant's cumulative claims in a meaningful way. The Tribunal failed to set out what factors it has taken into consideration as part of the cumulative assessment, and in particular, the issue of the Applicant's scarring appears not to have formed part of the Tribunal’s cumulative assessment (CB 462, 464-465).
5.The Tribunal committed jurisdictional error by failing to afford the applicant a real and meaningful hearing: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126.
6.The Tribunal committed a jurisdictional error by failing to address the implications of its finding that the Applicant had been employed as a guard in Sri Lanka: [18], CB 445; [36], CB 449; [48], CB 452; Transcript of Tribunal hearing, p 23-25. This finding raised the question whether the applicant would be at risk of serious harm or significant harm upon returning to Sri Lanka as a failed asylum seeker through being perceived either as a former LTTE cadre or as a person previously employed by a security or intelligence agency or in some other official capacity. The Tribunal made no finding on that question.
7.The Tribunal denied the Applicant procedural fairness and this constituted a jurisdictional error, of the kind found in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183, in circumstances where:
a.a delegate of the First Respondent issued a certificate pursuant to section 438(1)(a) of the Migration Act 1958 (Cth) on 12 July 2017; and
b.the documents subject of the certificate were relevant, or potentially relevant, to the issues arising on the review by the Tribunal.
The Tribunal fell into jurisdictional error by failing to comply with s 424A of the Migration Act 1958 (Cth) (the Act) as it did not put to the Applicant for comment information in folios 78-85 of Department file CLF2015/52857 that were relevant or potentially relevant to the issues under review.
Particular (c) to Ground 1 and Grounds 4 and 5 were not pressed at the trial. On 30 April 2018, the applicant’s representatives informed the Court that Ground 7 was no longer pressed.
In addition to the court book filed on 12 January 2018, I have before me as evidence the following affidavits:
a)the affidavit of Patricia Anne Blake made on 19 March 2018, to which are annexed documents containing country information about Sri Lanka and the Facebook photo (Annexure A1);
b)the affidavit of Lillian Robb made on 1 March 2018, to which is annexed a transcript of the Tribunal hearing conducted on 7 August 2017; and
c)the affidavit of Sasirekha Tasari Ramasany made on 14 March 2018, to which is annexed a transcript of the applicant’s interview with the delegate on 12 May 2016.
After the hearing, the Minister’s solicitors provided additional documents from the Department’s file. These documents had been referred to in the Tribunal decision but not all of them were reproduced in the court book.
Both the applicant and the Minister filed pre-hearing written submissions and also made oral submissions through their representatives at the trial. I have been assisted by those submissions.
Consideration
Ground 1 – did the Tribunal fail to properly consider the visa criteria?
Particular (a)
The applicant told the Tribunal, when trying to explain why he was still of interest to the CID and TID, that he has never been sent to rehabilitation, that he has never been rehabilitated and therefore they still suspect his involvement with the LTTE.[56] His evidence was to the effect that there was a suspicion hanging over from his 2008/2009 detention.
[56] Transcript, page 23
The Tribunal did not acknowledge this point in the transcript and did not address this point in its reasons for decision. However, the DFAT[57] report states that although the great majority of these low profile (low-risk) former members have already been released following their rehabilitation, any other low-profile LTTE members who came to the attention of the Sri Lankan authorities would be detained and may be sent to the remaining rehabilitation centre.[58]
[57] Department of Foreign Affairs and Trade
[58] extracted by the Tribunal at CB 457 at [67]
Accordingly, the applicant contends that the Tribunal failed to consider his risk of harm vis-à-vis his risk of being sent to a rehabilitation camp.
In addition, the applicant submits that in the transcript it is apparent the applicant told the Tribunal to look at his medical report, as this would confirm his scarring had come from torture.[59] The applicant complains that the Tribunal said it could not determine if the scars were from his detention in 2008/2009 or from some other incident, but no effort was made to obtain the report or review it.
[59] Transcript, page 18-19
Finally, the applicant submits that in the hearing he told the Tribunal[60] about newspaper articles already given to the Department about Tamils returning after many years and being arrested on their return. The Tribunal referred to one news article on the file,[61] but failed to mention the other articles on the Departmental file,[62] all of which are in English and which refer to a number of examples where Tamils were returning from overseas, many from work overseas (i.e. not as failed asylum seekers), who had returned safely for visits on previous occasions and who were now being arrested without charge for unknown reasons. These articles are said to support the applicant’s reasons for being fearful to return, they were on the Department’s file prior to the Tribunal hearing, and yet were not taken into consideration by the Tribunal.
[60] Transcript, page 18
[61] in the list of documents referred to CB 443
[62] CB 152-159; 181–190; 191–200; 201–210; 211–212
Particular (b)
The Tribunal accepted at [70][63] that the applicant was detained in 2009 as being perceived to be involved with the LTTE.
[63] CB 457
At [88][64] the Tribunal accepted that the applicant would, as a Tamil returnee to Sri Lanka, go through a process which would bring him into contact with the Sri Lankan authorities including screening and questioning on arrival.
[64] CB 462
As outlined at [9] above, the applicant provided a Detention Order[65] stating “there are reasons to suspect that he is involved in the commission of the offences under the above regulation[66] viz concerned in planning to attack in Trincomalee area and aiding and abetting the LTTE to commit unlawful activity”. The applicant also provided an “Information supplied to the Magistrate” reporting on a crime, in respect of aiding and abetting terrorist activities, stamped by a Sri Lankan court on 12 August 2015.[67]
[65] CB 73
[66] Emergency (Miscellaneous Provisions and Powers) Regulations, No.1 of 2005
[67] CB 75-76
The applicant also provided a certificate stating that he had been held “on remand” before being released on 22 September 2009. There was nothing in the documents submitted by the applicant to suggest that the charges had been dropped and that he was not still facing a trial, notwithstanding his release from custody in 2009.
The Tribunal referred at [83] to DFAT information stating that the Sri Lankan agencies would check intelligence databases and records of outstanding criminal matters. However, the Tribunal is said to have failed to have regard to any of the official documents that the applicant submitted confirming his criminal charges, arrest and detention.
Subject to my observations below, I prefer the Minister’s submissions on this ground.
This claimed basis of jurisdictional error in the first particular is not persuasive. The applicant’s submissions refer to evidence that the applicant gave to the Tribunal that he had never been sent to rehabilitation, that he had never been rehabilitated, and therefore that the authorities still suspect he has involvement with the LTTE, but that the Tribunal did not acknowledge this point and did not address the point in its reasons for decision.[68] However, the Tribunal clearly did consider the applicant’s claims based upon his previous detention in 2008 and 2009 (which the Tribunal accepted).[69]
[68] see applicant’s submissions at [23] and [24]
[69] see [23(f)] above and [34] of the Tribunal’s reasons
Moreover, while the Tribunal accepted that the applicant was previously detained in 2008-2009 as being perceived to be involved with the LTTE, it also rejected as untrue that he was of any interest to the authorities after his release in 2009 or at the time of his departure from Sri Lanka as being involved in the LTTE.[70]
[70] see the Tribunal’s reasons at [70]
The Tribunal further concluded at [71] that as the applicant was not suspected of being involved in the LTTE at the time of his departure and he not been involved in any separatist organisations while in Australia, it did not accept that on his return he would be suspected of or perceived to be involved in the LTTE for reasons including that “his file is not closed and he is suspected of being with the LTTE due to his previous detention 2008/9”.
Having regard to those findings, the Tribunal was not then bound to consider whether, as a consequence of his detention in 2008 and 2009, the applicant was still of interest to the authorities because he had never been sent to rehabilitation. Neither did the Tribunal erroneously fail to consider the applicant’s risk of harm by being sent to a rehabilitation camp upon his return to Sri Lanka. Those claims were not required to be separately considered in light of the Tribunal’s findings of greater generality.
The Minister’s submissions note that it is the applicant’s case that between July 2014 and May 2015 he was visited monthly by the authorities at his home and questioned and mistreated. This claim is said to completely contradict his claim that he was never sent to rehabilitation and that if he came to the attention of the Sri Lankan authorities he would be detained and might be sent to the remaining rehabilitation centre. If the applicant was still of interest to the Sri Lankan authorities because he had not been rehabilitated and they wished to send him to a rehabilitation camp, they had every opportunity to do so. While there is some force in that submission, it strays into the merits of the claim for protection.
The applicant’s submissions also refer to the applicant telling the Tribunal to look at his medical report to confirm his scarring had come from torture, that the Tribunal said that it could not determine if the scars were from his detention in 2008/2009 or from some other incident, but that no effort was made to obtain the report or review it.
However, the transcript of the Tribunal hearing at page 18 reveals that the applicant was not asking the Tribunal to look at an existing medical report about his scars. Rather, the applicant stated that he had not had any such medical examination, but speculated that if he was subjected to a medical examination such a report would speak for itself as to whether he was attacked or assaulted.
In any event, even if the applicant was to obtain a medical report that indicated that his scars were as a result of the applicant being attacked or assaulted, that could not have affected the Tribunal’s decision. That is because the Tribunal had accepted that the applicant had been detained in 2008 and 2009 and that he had been beaten and tortured during that detention.
The applicant’s submissions also refer to newspaper articles that the applicant had given to the Department, that the Tribunal had referred to one article but failed to mention the other articles, which supported the applicant’s reasons for fearing to return, and yet were not taken into account by the Tribunal.
At [15] of the Tribunal’s reasons it stated that it had before it the Department’s file relating to the applicant, and that it “also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.” The fact that the Tribunal did not specifically mention in its reasons certain news articles provided by the applicant does not mean it did not have regard to them, and the Tribunal is not required to refer to every piece of evidence before it.
Further, it is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal.[71]
[71] see NAHI v Minister for Immigration [2004] FCAFC 10; VWFW v Minister for Immigration [2006] FCAFC 29
Neither is the second particular made out. The Tribunal accepted that the applicant had been detained in 2008 and 2009 but concluded that he was not at risk of future harm as a result of that detention.
The applicant’s submissions refer to a certificate stating that the applicant had been held “on remand” before being released on 22 September 2009, and that there was nothing in the documents to suggest that the charges had been dropped and that the applicant was still not facing a trial, notwithstanding his release from custody in 2009.
However, while the Tribunal accepted that the applicant was detained between 2008 and 22 September 2009, and had been beaten and tortured,[72] it did not accept that the applicant was subsequently questioned by the TID between July 2014 and May 2015, particularly given that the Tribunal considered that a person who continued to be suspected of links to the LTTE would not have been released in September 2009, or that he would be questioned again five years later as having suspected links to the LTTE due to his former detention. The fact that the applicant’s previous detention was as a result of 90 day Detention Orders cannot affect the Tribunal’s reasoning and conclusion in relation to his claims of monthly interviews by the TID between July 2014 and May 2015.
Ground 2 – did the Tribunal make unreasonable or illogical credibility findings or fail to give proper and realistic consideration to the applicant’s claims?
[72] at [34]
This ground asserts that the Tribunal committed jurisdictional error by making unreasonable or illogical findings as to the credibility of the applicant, or alternatively by failing to give proper, genuine and realistic consideration to the applicant’s claims.
In CQG15 v Minister for Immigration,[73] the Full Federal Court said that credibility findings can be challenged on recognised grounds, such as:
a)failure to afford procedural fairness;
b)reaching a finding without any logical or probative basis;
c)unreasonableness; and/or
d)jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration.[74]
[73] [2016] FCAFC 146 at [38]
[74] [2015] FCA 1089
In SZVAP, Flick J stated:[75]
In an appropriate case findings of credibility by an administrative decision-maker may expose legal error.
Thus, for example, in Minister for Immigration and Citizenship v SZRKT[2013] FCA 317,… Robertson J also observed:
[78] It is not, in my opinion, the case that a finding in relation to credit may never found a conclusion of jurisdictional error, particularly where a finding on credit on an objectively minor matter of fact is the basis for a tribunal’s rejection of the entirety of an applicant’s evidence and the entirety of the applicant’s claim.
The Refugee Review Tribunal in that case had found the claimant had been “untruthful”, including in the account he had given as to his having studied Persian in Pakistan. The Tribunal, however, had failed to refer in the course of the hearing or in its reasons to a document from Punjab University corroborating the claimant’s account. Notwithstanding the findings as to credit, the decision of the Tribunal was set aside. See also: MZYWL v Minister for Immigration, Multicultural Affairs and Citizenship[2013] FCA 895 at [24] per Bromberg J. Jurisdictional error may also be exposed where the Tribunal applies “a process of reasoning which damns a man’s credibility by reference, materially, to a false factual premise concerning a critical document”: SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [37], … per Logan J. Unwarranted assumptions by a Tribunal as to matters relevant to the formation of a view on the credibility of a corroborative witness may cause the Tribunal to disbelieve and disregard that evidence and may constitute a failure duly to consider the question raised by the material put before it: WAGO of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[2002] FCA 437 at [54], (2002) 194 ALR 676 at 685.
“Adverse findings as to credit by the Tribunal”, as has previously been observed, “do not shield its decision-making processes from scrutiny”: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. And the basis upon which the Tribunal has made adverse findings, including adverse findings as to credit, must be adequately explained: SZSRV v Minister for Immigration and Border Protection[2014] FCA 220 at [23],…. A failure to set forth the basis upon which adverse credit findings are made may expose jurisdictional error.
[75] at [21]-[23]
In CQG15 at [60], the Full Federal Court set out the following relevant principles collected by Wigney J in Minister for Immigration v SZUXN :[76]
As Robertson J put it in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317…[148], for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality or irrationality must be shown, “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”. And as McKerracher J (with whom Reeves J agreed) emphasised in SZOOR v Minister for Immigration & Citizenship[2012] FCAFC 58… (at … [84]), a decision cannot be said by a reviewing court to be illogical, irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion.
...
... The judgment of Crennan and Bell JJ in SZMDS reveals that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings “on the way” to the final conclusion (see 648 [132]): see also SZRKT at 137-138 [151]-[153]; SZWCO v Minister for Immigration and Border Protection[2016] FCA 51 at[61]- [62].
Nevertheless, allegations of illogical or irrational reasoning or findings of fact must be considered against the framework of the inquiry being whether or not there has been jurisdictional error on the part of the Tribunal: SZRKT at 137 [148]. The overarching question is whether the Tribunal’s decision was affected by jurisdictional error: SZRKT at 137-138 [151]. Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result: Minister for Immigration and Citizenship v SZOCT[2010] FCAFC 159…[83]- [84] (Nicholas J); SZNKO v Minister for Immigration and Citizenship [2013] FCA 123 at [113]. Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out: SZRLQ v Minister for Immigration and Citizenship[2013] FCA 566…; SZWCO at [64]-[67].
An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review Applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the Applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny: SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31]. Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error: SZVAP v Minister for Immigration and Border Protection [2015] FCA 1089…. That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision. In SZMDS, Crennan and Bell JJ (at 636 [96]) made it plain that the deployment of illogicality or irrationality to achieve merits review should not be sanctioned.
[76] [2016] FCA 516 at [52] and [54]-[56]
Particular (a)
The Tribunal relied on the 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (“Guidelines”) to find that it did not accept that at the time the applicant left Sri Lanka he was of any interest to the authorities.[77] The Tribunal referenced page 26 of the Guidelines for its finding that if the authorities had continued to suspect him of involvement in the LTTE he would not have been released and would have continued to be questioned.[78]
[77] see CB 451 at [47], footnote 5; CB 453 at [50], footnote 8
[78] [47], [50]
The applicant contends that, in fact, page 26 of the Guidelines does not state that the authorities would not release a person suspected of involvement in the LTTE, and nor does a statement to that effect appear anywhere else in the Guidelines. The Guidelines do state on page 28 that the issue of ad hoc “release certificates” by the authorities creates confusion as to the status of those released. Further, there is a statement that human rights violations in Sri Lanka continue unabated against ethnic Tamils who fear an increasingly nationalist government.[79] Further, the Guidelines on page 27 point to the applicant being a person whose profile would put him at risk through having family links to a person who was an LTTE combatant (i.e. the applicant’s deceased brother), an aspect of the Guidelines that was footnoted by the Tribunal[80] but to which it gave no other consideration.
[79] page 26, footnote 179
[80] CB 456 at [67], footnote 15
Accordingly, the Tribunal is said to have reached a finding without any logical or probative basis. It was a finding that was critical to the ultimate conclusion that the authorities had no interest in the applicant after 2009[81] and beyond that to the conclusion that he would not face a real chance of serious harm or a real risk of significant harm in Sri Lanka.[82]
[81] [70]
[82] [89]
However, as the Minister notes in his submissions, the Tribunal’s reference to the Guidelines at [47] of the Tribunal’s reasons cannot be viewed in isolation. The Tribunal goes on at [47] to refer to further country information, including that from an Amnesty International Report 2015/2016 and the Human Rights Watch Annual Report 2016.
Importantly, the Tribunal then stated at [47] that:
On the basis of the information before it, the Tribunal is of the view that a person who continued to be suspected of such links with the LTTE would not have been released, particularly around the end of the war in September 2009. The information therefore does not support the applicant’s claim that having being released from detention 2009, he would be questioned again in 2014, approximately 5 years later as being suspected of links with the LTTE due to his former detention, particularly as there is no evidence he had done anything else to raise the suspicion of the authorities.
The reasoning of the Tribunal set out immediately above based upon a variety of country information does not demonstrate “extreme” illogicality or irrationality “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions”.[83]
[83] see Minister for Immigration v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [148]
Further, and in any event, this was only one of many reasons why the Tribunal concluded at [49] that it did not accept the applicant as a credible witness in relation to his claims of being arrested, interrogated, detained and questioned between July 2014 and May 2015.[84] Accordingly, even if there was error of the kind asserted by the applicant by Ground 2(a), it was not such as would have affected the Tribunal’s finding as to credibility of the applicant’s claims regarding the period July 2014 to May 2015, and therefore could not have affected the Tribunal’s decision.[85]
[84] see Tribunal’s reasons at [40]‑[48]
[85] see Minister for Immigration v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 per Gleeson CJ at [37], Gaudron and McHugh JJ at [70]-[71] and Callinan J at [161]; Minister for Immigration v Yusuf (2001) 206 CLR 323; [2001] HCA 30 per McHugh, Gummow and Hayne JJ at [82] and [84]
Particular (b)
The delegate’s decision made no mention the applicant’s Facebook account nor of the photograph of the applicant in a guard’s uniform.
The Tribunal put to the applicant at the hearing that there was a Facebook photograph of him in a guard’s uniform.[86] The Tribunal also stated that the Australian diplomatic post in Colombo had said that the uniform “appears to be the standard uniform a guard would wear. A guard in Sri Lanka wears the Sri Lankan uniform regardless of who they work for”. The Tribunal went on to say that the information may lead the Tribunal to find that the applicant was not just involved as a farmer growing paddies or chillies, “and that you were employed as a guard”. The Tribunal then stated: “It may lead me to find you’re not only – you’re not a credible witness and may lead me to find you are not in need of protection.”[87]
[86] Transcript, page 23
[87] Transcript, page 24
The Tribunal did rely on the information to find that the applicant had been employed as a guard. This is evident from the Tribunal’s statement at [36] that:[88]
The Tribunal also has significant concerns as to whether he has been a witness of truth as to his employment after the end of the war.
The Tribunal referred elsewhere to the information at [18] and [48].
[88] CB 449
At [48], the Tribunal stated that the finding that the applicant had worked as a guard was “not determinative”, but the applicant contends that the references to that finding at [18] and [36], as well as the transcript comments of the Tribunal[89] demonstrate that the Tribunal did treat this finding as determinative.[90]
[89] page 24
[90] At Transcript, page 24 the Tribunal stated: “If I were to rely on this information, it would lead me to find you’re not in need of protection.”
It is said to be implicit in the Tribunal’s finding at [36] that it had “significant concerns as to whether he has been a witness of truth as to his employment after the end of the war” that it regarded the alleged non-disclosure of employment as a guard as an important factor in its reasoning supporting the rejection of the applicant’s protection claims.
The applicant submits that the Tribunal’s finding that he had worked as a guard in Sri Lanka and that as a result of not disclosing this he was not a witness of truth and therefore not in need of protection is unreasonable.
The applicant’s claim for protection rested upon his status as a Tamil from the north of Sri Lanka, with a family link to the LTTE through his deceased brother, who had previously been arrested and detained on suspicion of terrorist activity, and who had more recently been the subject of adverse attention and physical mistreatment from the authorities. The applicant’s claim did not have anything to do with his employment in Sri Lanka. The information received from the diplomatic post concerning the guard uniform merely demonstrated that it was a uniform in common use in Sri Lanka. The applicant’s evidence was that it belonged to a friend and he wore it once for the purpose of taking a photograph.[91] It was not in dispute between the Tribunal and the applicant that he was pictured wearing the shirt of the uniform. However, the applicant submits that for the Tribunal to leap from that conclusion to one that the applicant had not been truthful about his employment and therefore he was not a credible witness vis‑à-vis his claim for protection was legally unreasonable.
[91] Transcript, page 25
To meet the test for legal unreasonableness, as summarised recently in Creamer v Minister for Immigration,[92] the applicant must show that the Tribunal’s findings on the way to its conclusion “revealed illogicality or irrationality amounting to jurisdictional error”. The correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it engaged and to make the findings which it did.[93] The standard is one of “extreme illogicality or irrationality” and the applicant must show that a reasonable or rational person would not have made such findings or employed such reasoning. It is not enough that the impugned finding or reasoning is something about which reasonable minds might differ.[94]
[92] [2018] FCA 269 at [81]
[93] Minister for Immigration v SZMDS [2010] HCA 16 at [132]-[133] per Crennan and Bell JJ
[94] SZMDS at [135]
As the applicant notes, this issue was addressed at [48] of the Tribunal’s reasons. The Tribunal gave reasons why it had difficulty accepting the applicant’s response, and concluded that while not determinative, this added to the finding that his claims as to the difficulties he faced in 2014/2015 were not credible.
The Tribunal’s reasoning at [48] does not demonstrate any illogicality or irrationality. It is simply another example of conclusions reached by the Tribunal in respect of which reasonable minds might differ. It does not demonstrate “extreme” illogicality or irrationality.[95] Further, I am unwilling to extrapolate from what is in the Tribunal’s reasons some assumed basis of further reasoning which is unstated.
[95] see SZRKT at [148]
Particular (c)
At [40] of the Tribunal’s decision,[96] the Tribunal doubted the applicant’s credibility on the basis that he did not, prior to the Tribunal hearing, mention that the TID had visited his home.
[96] CB 449-450
However, the Tribunal acknowledged consistency in the applicant’s story concerning the TID visits in 2014 and 2015. Further, at the time of lodging the protection visa application the applicant had presented written evidence of the authorities visiting the office of the Grama Nilhadari enquiring about him;[97] and of the authorities visiting the applicant’s home and intimidating his family as was stated in a letter written by a Justice of the Peace.[98]
[97] CB 64
[98] CB 66
Further, the applicant’s statement at [31],[99] made on 20 August 2015, is said to be consistent with his evidence that his family had been visited twice by the TID.
[99] CB 45
The Tribunal referred to the Departmental interview and said the applicant did not raise the claim there, despite being asked if he had anything else to add. At the Departmental interview, the applicant was asked when the TID had last called him.[100] The interviewer did not ask if the TID had called on his family. When asked if he had anything else to add, this was asked at the end of the interview[101] when he had been questioned about boarding the plane in Singapore. The applicant submits that the question was not asked in the context of TID visits.
[100] Transcript of Departmental Interview, page 16
[101] Transcript, page 28
It in the circumstances of the above, the applicant submits that the Tribunal’s conclusion that his claims concerning the TID visits and his mistreatment by them lacked credibility was unreasonable.
I cannot accept those submissions. This issue is set out at [45] of the Tribunal’s reasons, where the Tribunal noted that the applicant had stated both to the Minister’s Department and the Tribunal that his family faced no difficulties from the authorities after the end of the war, and that while he indicated at the Tribunal hearing on two occasions the authorities inquired as to his whereabouts when he was not there in July 2015, and his mother had told them that he was away, and on the second occasion that he had travelled to Australia, the applicant did not refer to any threats or intimidation faced by his family, but rather gave evidence that they had faced no difficulties.
The Tribunal then referred at [45] to a letter which the applicant had submitted in support of his claims dated 7 July 2015 which indicated that on finding the applicant not at home, his family were subjected to intimidation and threats and that the applicant responded that the letter writer was speaking the truth. However, the Tribunal stated that it did not accept this response as it was of the view that the applicant would be consistent with documentary evidence he submitted as to the difficulties faced by his family, and that the Tribunal had considered but placed no weight on this document as evidence of the truth of the applicant’s claims. This reasoning of the Tribunal does not constitute the “extreme” illogicality or irrationality which must be shown in order to establish jurisdictional error on this basis.
Further, this was only one of many reasons why the Tribunal found that the applicant’s claims as to being interviewed by the TID on a monthly basis between July 2014 and May 2015 were not credible, and the asserted error could not, in my view, have affected the Tribunal’s decision.
Particular (d)
The applicant contends that the Tribunal’s discounting of the applicant’s claims that he received scars from the torture he says he experienced in May 2015 was unreasonable because the Tribunal did not consider health examination reports by medical doctors at the detention centres. The applicant had referred to these examinations at Question 66 of his protection visa application form.[102] Further, at the Tribunal hearing, the applicant stated that the medical report would provide evidence of the assault on him[103], however the Tribunal did not obtain those reports from the Minister’s Department. The applicant claims that he had also informed the delegate of the health examination.[104]
[102] CB 23
[103] Transcript, page 19
[104] Transcript of Department interview, page 30
This ground of application claims that the applicant’s claims as to how he received his scars were discounted on the basis that the scars “could be caused by any injury” and because the applicant did not have independent evidence to indicate that the scarring occurred during the May 2015 interrogation, and in circumstances where the Tribunal did not consider health examination reports by medical doctors at the detention centres in Perth and Wickham Point.
The Tribunal did not accept the applicant’s claims that he was shadowed and questioned monthly from July 2014 to May 2015.[105] As a result, the Tribunal further concluded at [49] that it followed that it did not accept as true that the applicant suffered mistreatment of the kind which he alleged occurred including that alleged to have occurred in May 2015.
[105] see [49] of the Tribunal’s reasons
The Tribunal’s reasoning again does not disclose any illogicality or irrationality of the kind required to establish jurisdictional error. The Tribunal was not required to believe the applicant’s claims, and the fact that it did not consider the health examination reports by doctors at the Perth and Wickham Point detention centres does not give rise to jurisdictional error. This is particularly so where the applicant did not seek to put those reports before the Tribunal, and has also not sought to put the reports in evidence before this Court.
Further, as stated above, the transcript of the Tribunal hearing at page 18 indicates that the applicant was not asking the Tribunal to look at an existing medical report about his scars. Rather, the applicant stated that he had not had any such medical examination, but speculated that if he was subjected to a medical examination, such a report would speak for itself as to whether he was attacked or assaulted.
Particular (e)
The applicant submits that, in relation to the Tribunal’s statements at [45][106] that the applicant had stated to the Tribunal that his family had faced “no difficulties” from the authorities after the end of the war, what the applicant told the Tribunal was that his mother was “not questioned” after 2008. He did not say that his family faced no difficulties from the authorities after the end of the war. The delegate had asked the applicant about the questioning by the TID investigation team, and asked him: “Was anyone else in your family questioned like this?”, to which the applicant answered: “No”.[107] Again, the applicant did not say that his family had no difficulties.
[106] CB 451
[107] Transcript, page 17
The Tribunal said it had considered approaching the JP[108] “directly”[109] however, the Tribunal did not approach him and did not state why it had decided not to do so.
[108] whose letter is at CB 66
[109] CB 451 at [45]
The applicant submits that the Tribunal’s decision to place no weight on the letter from the JP,[110] a letter which provided evidence of the authorities visiting the applicant’s home, was unreasonable.
[110] CB 66
In relation to the letter from the Grama Niladhari’s Office,[111] the Tribunal rejected that letter because it stated, “[e]ver since his release he was continuously shadowed by the officers of the law”, whereas the Tribunal stated that it was the applicant’s repeated claim that he did not receive any interest from the authorities after his release in 2009 until 2014.[112] What the applicant told the Tribunal[113] was that he had “no problem” from 2009 until July 2014. That is said not to be inconsistent with the statement of the Grama Niladhari’s Office that the applicant was being “continuously shadowed by the officers of the law” when it is considered that the applicant’s evidence was that the questioning of him and the police inquiry “is not yet over”;[114] further, the court documents supplied by the applicant stated that he was under suspicion of aiding and abetting terrorist activities[115] and there was no evidence of the information supplied to the Magistrate having been withdrawn. Further, the applicant submits that the meaning of “shadow” is to secretly follow and watch the movements of a person. In light of the above, the conclusion of the Tribunal that it would not place any weight on the letter of the Grama Niladhari’s Office is said to have been unreasonable.
[111] CB 64
[112] CB 450, [43]
[113] Transcript, page 13
[114] Transcript, page 10
[115] CB 75-76
The applicant submits that in the alternative to the Tribunal making unreasonable or illogical findings as to the credibility of the applicant as particularised, the Tribunal failed to give proper, genuine and realistic consideration to the applicant’s claims in way outlined in the particulars to this ground.
Again, I prefer the Minister’s submissions.
As is noted in the applicant’s submissions, this ground of the application refers to the Tribunal’s reasons at CB 451. This is a reference to the Tribunal’s reasons at [45] where it stated that while the applicant indicated twice at the Tribunal hearing that the authorities enquired as to his whereabouts on two occasions in July 2015 when he was not there, and his mother had told them that he was away, and on the second occasion that he had travelled to Australia, the applicant did not refer to any threats or intimidation to his family. The Tribunal then noted at [45] that the letter from the JP dated 7 July 2015 submitted by the applicant in support of his claims indicated that on finding the applicant not at home his family were subjected to intimidation and threats, but that in view of the applicant’s evidence and his failure to refer to any threats or intimidation, it placed no weight on the letter as evidence of the truth of the applicant’s claims.
This reasoning of the Tribunal does not give rise to jurisdictional error on the basis of illogicality or irrationality. It could not be said that no reasonable person could adopt such reasoning, and the Tribunal’s conclusion was one upon which reasonable minds might differ. I take the same view in relation to the Tribunal’s reasoning at [41]-[43] in relation to the documents from the Grama Niladhari’s Office.
Further, where a Tribunal has made comprehensive findings adverse to the credibility of an applicant, there is no error in the Tribunal giving what appears to be a corroborative document no weight on the basis that the document has been undermined by the adverse credibility finding.[116]
[116] Applicant S303/2003 v Minister for Immigration [2008] FCA 1811 at [19]; Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59; [2003] HCA 30 at [49]
Ground 3 – did the Tribunal fail to take into consideration a relevant “factor” or material?
The substance of Ground 3 is that the Tribunal failed to have regard to relevant and material country information, as particularised. In so doing, the Tribunal made a jurisdictional error.[117]
[117] Minister for Immigration v MZYTS [2013] FCAFC 114; ARG15 v Minister for Immigration [2016] FCAFC 174
This ground of application must fail. It is well settled that the country information to which the Tribunal has regard and the weight it gives to that information is a matter for the Tribunal.[118]
[118] NAHI
Further, and in any event, country information is not a “factor” that the Tribunal was bound to take into consideration such that a failure to do so amounts to jurisdictional error.[119]
[119] See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (as he then was) at 39-40
Finally, the issues raised in the country information relied upon by the applicant was discussed by the Tribunal in its reasons at [85]-[91].[120]
Ground 6 – did the Tribunal fail to address the implications of its finding that the applicant had been employed as a guard in Sri Lanka?
[120] CB 461-463
The particulars to Ground 6 state that the Tribunal’s finding that the applicant had been employed as a guard in Sri Lanka raised the question whether he would be at risk of serious harm or significant harm upon return to Sri Lanka as a failed asylum seeker through being perceived either as a former LTTE cadre or as a person previously employed by a security or intelligence agency or in some other official capacity, and that the Tribunal made no finding on that question.
This ground was not developed in the applicant’s submissions and I see no significance in it. As far as I can determine, there was no claim for protection arising from the possible employment of the applicant as a guard prior to leaving Sri Lanka. No jurisdictional error arises from this ground.
Conclusion
The applicant has failed to establish that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 10 May 2018
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