MZARY v Minister for Immigration
[2016] FCCA 2453
•22 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARY v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2453 |
| Catchwords: MIGRATION – Application for protection visa – whether the Tribunal’s failure to make further inquiries constituted jurisdictional error – whether the Tribunal failed to correctly apply or interpret the requirements under subsections 36(2)(a) and (aa) of the Migration Act 1958 – whether the Tribunal’s decision was unreasonable in a legal sense – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss. 36(2)(a) and (aa), 91R(1)(c) |
| Cases cited: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 |
| Applicant: | MZARY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 303 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 19 July 2016 |
| Date of Last Submission: | 19 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 22 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application for judicial review filed on 18 February 2015 be dismissed.
The Applicant pay the First Respondent’s costs in a fixed amount.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 303 of 2015
| MZARY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 22 January 2015 affirming a decision made by a delegate of the Minister for Immigration and Border Protection (“the delegate”) refusing to grant the Applicant a protection (Class XA) visa (“the visa”).
The Applicant is a male national of Sri Lanka, from Karayakkantivu in the Batticaloa district, who arrived in Australia on 20 June 2012. On 7 November 2012, he applied for the visa. He nominated a migration agent as his authorised recipient: Court Book (“CB”) 36. On 23 July 2013, the delegate decided to refuse to grant the Applicant the visa, whereupon the Applicant applied, on 1 August 2013, to the Tribunal for a review the delegate’s decision.
The issues for determination, arising out of the Applicant’s grounds of review, are as follows:
a)whether the Tribunal was obliged to take further steps during the hearing of the application for merits review, with respect to correspondence from a Sri Lankan Member of Parliament (“the MP”) provided by the Applicant, by conducting a telephone interview with the MP. Whether the Tribunal’s failure to do so constituted jurisdictional error.
b)Whether the Tribunal failed to correctly apply and interpret the law because:
i)it treated the Applicant’s later amplification of his claims as a reason for doubting the Applicant’s credibility; and/or
ii)the Tribunal’s conclusion was not open to it, given the general evidence regarding the treatment of Tamils (particularly those with an association or a suspected association with the Liberation Tigers of Tamil Eelam (“the LTTE”) upon return to Sri Lanka, as well is the evidence of the death of four of the Applicant’s uncles and the links of two of the Applicant’s uncles with the LTTE;
c)whether the Tribunal’s decision was unreasonable because:
i)it did not accept the Applicant’s explanation for his later amplification of his claim; and
ii)having regard to the matters referred to in the earlier grounds of his review application.
The Applicant abandons the fourth ground of judicial review, in which he alleged bias by the Tribunal.
For the reasons set out in detail below, I find that the Tribunal’s decision was not affected by jurisdictional error. In summary, in respect of the Applicant’s grounds of judicial review, I have found that:
a)the Tribunal was not obliged to make further inquiries in relation to the correspondence from the MP;
b)the second ground of review merely invites the Court to review the Tribunal’s credibility findings and the weight given by the Tribunal to the evidence before it. Such an exercise is not open to this Court on judicial review;
c)the Tribunal’s decision not to accept the Applicant’s explanation for his amplification of his claim does not amount to legal unreasonableness.
Claims
The Applicant claims to fear harm upon return to Sri Lanka from the Sri Lankan Army, and armed Tamil groups that work with the Army. The Applicant articulated Convention claims on grounds of his ethnicity/race (Tamil), his imputed political opinion (supportive of the LTTE), and his membership of a particular social group (namely a failed Tamil asylum seeker). He also claimed to fear significant harm on those grounds and because he is a person who has departed Sri Lanka illegally.
There can be no doubt that, over the period of time when the Applicant first applied for the visa, to the time of the Tribunal hearing, the Applicant’s claims to fear persecution upon return to Sri Lanka became more detailed. I will set the Applicant’s claims out as they were made chronologically. Of course, however, all of the claims cumulatively form the basis for the Applicant’s fear of persecution.
In the Applicant’s statutory declaration, dated 25 October 2012, attached to his application the visa, the Applicant’s claims were as follows (CB 39-42):
a)his hometown was in an LTTE controlled area. The Army retains a heavy presence there and those who live in the area are constantly harassed about their LTTE connections;
b)in 2008, during a ceremony for his sister, there was a bomb attack on an army vehicle close by. Members from the Army came to his house and they beat him;
c)in September 2008, he was staying with his maternal uncle who lived in Mandoor. His uncle ran a shop. The Sri Lankan Army and Tamil armed groups would come and take goods from his shop without paying. One evening in September 2008, his uncle was fatally shot by members of the Army. The next day the police and members of the Tamil armed groups came to his uncle’s house. He got angry and accused them of being the people who killed his uncle. He did not give them a statement and his parents took him away;
d)around three months after his uncle was killed, he was threatened by people who spoke in Tamil with a Sinhalese accent. He was studying at that time and he was threatened when he was walking on the street. They carried pistols, referred to his attitude with the police when his uncle was killed and told him they would kill him;
e)he received threats often by the phone. Again they would refer to the fact that he talked about his uncle’s death and threatened to kill him. He changed his sim card;
f)four of his uncles (three maternal uncles and one paternal uncle) have been killed. He does not know why they were killed or whether they had links to the LTTE;
g)if he was returned to Sri Lanka, the Sri Lankan Army and armed Tamil groups will target him because they think he will criticise the Army and cause trouble over what they did to his uncle;
h)his home area is still singled out by the Army and they (Tamils) are treated with suspicion and attacked because their home area was LTTE controlled; and
i)he will be murdered and/or tortured by the Army or armed groups and the government will not protect him.
Included in the documents the Applicant provided with his application for the visa, was a copy of correspondence dated 28 July 2012 from a Mr S. Y., Member of Parliament, Batticaloa District (CB 50). The correspondence was typed in Sri Lankan and no translation into the English language was provided.
During the course of the interview with the delegate, the Applicant made the following additional claims (CB 97):
a)between 2004 to 2010, he was rounded up along with others on many occasions by the Army. In 2006 he was rounded up separately by the Army, questioned about any connection he had with the LTTE and then released;
b)after the death of his uncle in 2008, the same people visited his home and spoke to his mother asking about his whereabouts. This happened 3 to 4 times during September/October 2008. When he returned home, they came to his house looking for him during 2010 and 2011. December 2011 was the last time anyone threatened him over the phone or at his home;
c)his mother was questioned but neither his mother or father have been mistreated in any other way;
d)since his departure from Sri Lanka, these people have attended his home in September 2012, asking his whereabouts. His mother told them he had gone overseas. He believes he will be identified on return to Sri Lanka.
Although the Applicant was represented by a migration agent during the Tribunal proceedings, no written submissions were made by the migration agent on the Applicant’s behalf. The claims the Applicant next gave, were those given in evidence at the hearing before the Tribunal. His additional claims were:
a)one of his other uncles was killed in 1991. His mother said he had been providing food to the LTTE (CB 146-147 at [34]);
b)an uncle was killed in 2006. In 2000 his uncle helped the LTTE by providing food parcels to LTTE members who were in hiding, some of them in his uncle’s paddy fields. In 2002 his uncle was taken and tortured, he went overseas for four years and came back in 2006 and opened a shop (CB 147 at [35]-[36];
c)a paternal uncle was killed in 2007 (CB 147-148 at [37]).
Tribunal decision
The Tribunal accepted the Applicant’s following claims:
a)an uncle of the Applicant was killed in 1991 because he had given food to the LTTE (CB 147-148 at [37]);
b)in 2006 the Applicant was arrested by the military because the address in his ID card was a village under LTTE control. He was questioned but not detained (CB 146 at [31]);
c)the Applicant was caught up in a number of roundups from 2004 to 2010 during which he was questioned and then released (CB 146 at [31]);
d)his paternal uncle was killed in 2007 for reasons unknown (CB 147-148 at [37]);
e)at a ceremony for his sister in 2008, there was an attack on an army vehicle nearby. The Applicant was beaten at his home by the military, but did not suffer any injuries and did not seek medical treatment (CB 146 at [32]);
f)in 2008, the Applicant was living at his paternal uncle’s house and the Army and armed groups sometimes came around and asked for his uncle. The uncle was killed by gunshot injury one evening. He was killed by someone from the Army when the Applicant was in the home. The police came around the next day to his uncle home, the Applicant was angry and did not want to give them a statement (CB 146 at [33]).
The Tribunal did not accept the Applicant’s claims that:
a)he was targeted by anyone after the death of his uncle in 2008[1]. The Tribunal found this claim was not credible (CB 147 at [37]);
b)his uncle who was killed in 2008 gave food to the LTTE or that there were LTTE members hiding his paddy fields (CB 148 at [38]);
c)his uncle was detained and tortured in 2002 (CB 148 at [38]);
d)he received threatening phone calls concerning is uncle’s death and his response to it (CB 148 at [38]); and
e)the authorities, prior to his departure from Sri Lanka and afterwards, came to his home looking for him and asking about his whereabouts (CB 148 at [38]).
[1] In its decision record, the Tribunal recorded the date of the Applicant’s uncle’s death as 2006. However, this is clearly a typographical error.
The reasons the Tribunal gave for not accepting the Applicant’s claims included (CB 147 at [37]):
a)the failure of the Sri Lankan authorities to locate, detain or harm the Applicant after the death of his uncle in 2008, despite them having a significant period of time to do so (until 2012);
b)the Applicant’s own lack of involvement in the LTTE; and
c)the failure of the Applicant to mention, until the Tribunal hearing, that his uncle had provided food parcels to the LTTE and had allowed LTTE members to hide in his fields or had been detained and tortured by authorities in 2002.
The Tribunal found that the murder of his uncle in 1991 due to LTTE activity and the beating suffered by the Applicant in 2008 by the military, would not have had an enduring impact on the Applicant’s profile, as they had occurred many years ago. Recent country information (including, particularly, the UNHCR eligibility guidelines and information from DFAT) indicates that after the cessation of the war in 2009, there was a generally improved situation for Tamils (CB 149-150 at [40]-[45]).
The Tribunal concluded that the Applicant did not face a real chance of persecution because of his race, membership of particular social groups, including ‘young male Tamil’, or his actual or imputed political opinion, now or in the reasonably foreseeable future. The Tribunal also found, having regard to the Applicant’s individual circumstances and country information, that it was not satisfied 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 he will suffer significant harm (CB 150 at [46]-[47]).
The Tribunal also rejected the Applicant’s claims that he would face a risk of serious or significant harm as a failed Tamil asylum seeker, having regard to country information that emphasised the non-discriminatory treatment of deportees and returnees and given its earlier findings that the Applicant was not a person of adverse interest to the authorities. The Tribunal accepted that the Applicant might be subjected to questioning upon his return, but did not accept that this constituted serious or significant harm (CB 150-151 at [48]-[54].
In relation to the Applicant’s status as a person who had left Sri Lanka illegally, the Tribunal found that provisions of the Sri Lankan law that dealt with departure were of general application and not selectively enforced, and that country information indicated that all persons who were returnees or who had left Sri Lanka by irregular means were dealt with equally, regardless of ethnicity (CB 151-152 at [55]). The Tribunal also noted that there was no country information before it that indicated that persons in the Applicant’s circumstances were being imprisoned under Sri Lankan law (CB 152 at [56]).
The Tribunal found that, on the Applicant’s return to Sri Lanka, he would face short term detention prior to obtaining bail and a fine, as a result of being charged under Sri Lankan law. However, the Tribunal was not satisfied that any problems the Applicant might face as a result of being questioned, charged, being in cramped and uncomfortable cells and kept in unsanitary conditions in remand, were aimed at the Applicant for any convention reason, but were factors which applied to the general population and not specifically to Tamils. Therefore, the Tribunal was not satisfied that these circumstances amounted to discriminatory conduct as required by s.91R(1)(c) of the Migration Act 1958 (“the Act”) (CB 152 at [57]). It further found that the short term detention, questioning or imposition of a fine did not amount to significant harm, and found that the risk the Applicant would be subject to torture or any other form of significant harm was remote (CB 152 at [58]).
Judicial Review
Ground One
The Applicant’s first ground of judicial review is as follows:
The Tribunal fell into jurisdictional error in that it failed to make inquiries as required by law, whether by the exercise of its power under section 424 of the Act to get information or otherwise.
Particulars
The letter from the MP
(a) The applicant had claimed to have been in danger because of being present at the murder of his uncle in 2008, and to have received subsequent threats on a number of occasions. (See e.g. CB 40, [6]-[10].)
(b) The applicant also claimed to have had four uncles in total killed. (CB 40, [11])
(c) The applicant claimed that his uncle who was killed in 2008 and another uncle had helped the LTTE with supplies or in other ways. (CB 146-147, [34-[36])
(d) Critical issues on the review included the applicant’s credibility, including the credibility of his claim to have been in danger because of the murder of this uncle in 2008. (CB147-148)
(e) The Tribunal had before it a critical piece of evidence, namely a letter on Parliamentary letterhead stationery (with telephone, facsimile and email contact details) by a Member of the Parliament of Sri Lanka (“the MP”) which attested to the applicant’s family having informed him because the applicant was a witness to his uncle’s murder, he was receiving threats, the military were looking for him and he left because he could not get protection. (CB 50, 148-149, [39])
(f) This material was therefore potentially critical evidence for the applicant’s credibility and for his claims for protection.
(g) The Tribunal said:
“Given the highly significant concerns I have with the applicant’s credibility…, I have given this letter only limited weight in my assessment.” (CB 149, [39])
(h) The Tribunal did not make inquiries or take evidence from the MP about the contents of the MP’s letter or any other knowledge of the MP about the applicant’s situation.
(i) The questions whether the applicant was in danger because of being a witness to his uncle’s murder, and what evidence the MP could give of this, were critical questions of fact.
(j) Each of the following questions was “an obvious inquiry about a critical fact, the existence of which is easily ascertained” for the Tribunal to have asked the MP:
vWas the letter genuinely from the MP?
vDid the applicant’s family report the applicant’s situation to the MP?
vWhat other knowledge, if any, does the MP have of the applicant’s situation?
In failing to do so, the Tribunal failed to exercise its power and jurisdiction as required by law.
The correspondence from the Sri Lankan MP for Batticaloa was dealt with the Tribunal as follows (CB 149 at [39]:
… I have taken into account the copy of the MP’s letter which the interpreter at the hearing translated. It states that the applicant’s family had informed him that due to the applicant witnessing the murder of his uncle that the applicant was receiving threats and that military officials were looking for him. It also was also (sic) translated as saying that the applicant could not get protection that that is why he left. Given the highly significant concerns I have with the applicant’s credibility set out above, I have given this document only limited weight in my assessment.
In Minister for Immigration and Citizenship v SZIAI [2009] 259 ALR 429, the majority of the High Court relevantly said at [1]:
The functions, powers and duties of the Refugee Review Tribunal (“the Tribunal”) are set out in Pt 7 of the Migration Act 1958 (Cth) (“the Migration Act”). When the Tribunal receives a valid application for the review of an “RRT-reviewable decision” under the Migration Act, it must review that decision (referring to s.414 of the Act)… In the exercise of its review function, the Tribunal may obtain such information as it considers relevant (referring to s.424 of the Act). In this sense it has an inquisitorial function. That does not, however, impose upon it a general duty to undertake its own inquiries in addition to information provided to it by the applicant and otherwise under the Act.
(footnotes omitted)
At [25], the majority of the High Court said:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a “duty to inquire”, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error…
(footnotes omitted)
The majority went on to say, however, that it was not necessary, having regard to the factual basis, to explore this question. Two reasons were given. The first reason was that an inquiry with the author of the correspondence (who alleged certificates relied on by the Applicant to support his claim regarding his faith were fake) by telephone would not have assisted the disposition of the matter. Either the author would have confirmed the falsity of the certificates, “then the grounds for a decision adverse to SZIAI would have been strengthened if the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves.” The second reason was that there was nothing further the Applicant had relied on, beyond a bare denial of the contents of the correspondence: at [26].
The Applicant submits that taking these steps to interview the MP by telephone was an obvious and easy inquiry for the Tribunal to make. The Applicant argues the Tribunal had before it a critical piece of evidence; this being the correspondence from a Member of Parliament of Sri Lanka, which attested to the Applicant’s family having informed him that, because the Applicant was a witness to his uncle’s murder, he was receiving threats, the military were looking for him and he left because he could not get protection. The Applicant submits that it was potentially critical corroborative evidence in relation to the Applicant’s credibility. The Applicant submits that the following questions could have assisted the Tribunal ascertain the critical fact; that is, the Applicant’s claims that, after his uncle’s murder, he was receiving threats and the military were looking for him and for that reason he left Sri Lanka. These questions were identified as:
a)was the letter genuine from the MP?;
b)did the Applicant’s family report the Applicant situation to the MP?;
c)what other knowledge, if any, does the MP have of the Applicant’s situation?
Counsel for the Applicant conceded that the MP may have not been able to say anything further about the matter. On the other hand, Counsel suggesteded that that the MP could have said to the Tribunal “they came to see me and it was obvious that they were very distressed and deeply troubled”.
I am not satisfied that conducting a telephone interview with the MP was an obvious inquiry about a critical fact which could have easily been ascertained. Even if I had found that taking this step constituted an obvious inquiry about a critical fact which could have easily been ascertained, I would not have found that the inquiry would have produced “a sufficient link between the failure by the Tribunal to inquire into the genuineness and the outcome of the proceedings”: MZABA v Minister for immigration and Border Protection [2015] FCA 711 at [77].
First, I am not satisfied that the correspondence from the MP was critical evidence. It was not direct corroborative evidence. As the Minister has pointed out, the correspondence merely recited what the MP had been told by the Applicant’s family. Second, the Tribunal clearly did not question the authenticity or genuineness of the correspondence. It is clear from the decision record, that the Tribunal accepted the contents of the correspondence as translated by the interpreter present at the Tribunal hearing. Therefore, the first two questions which the Applicant posits could have been asked, would not have assisted the Tribunal one way or the other. Third, had the MP said, at a telephone interview, that he was not told the information conveyed by the correspondence, this would only have operated adversely to the Applicant. On the other hand, had the MP confirmed the contents of the correspondence, this would not have taken matters any further. It would not have assisted the Tribunal in determining the critical fact which was whether, after his uncle’s death, the Applicant received threats and the military were looking for him. Furthermore, I fail to understand how the MP’s observation about the demeanour of the family would have assisted the Tribunal either way. If it is suggested that had the family appeared upset and troubled, this would have been evidence supporting the Applicant’s claims, then I reject that. Such evidence, from a third party, is so subjective as to lack utility. Fourth, there was no material before the Tribunal to suggest that the MP had direct knowledge of the family, other than that which was conveyed to him and recorded in his correspondence. Finally, I am not satisfied that there was a sufficient link between the failure of the Tribunal to make inquiries of the sort proposed by the Applicant and the outcome of the proceedings. This is because the Tribunal had other reasons for rejecting the Applicant’s claims. These reasons arose out of the Tribunal’s “highly significant credibility concerns” (CB 148 at [38]) with the Applicant’s evidence (see [14] above).
In a decision referred to by the Minister, Re Minister for Immigration and Multicultural Affairs; ex parte S20/2002 (2003) 198 ALR 59, Gleeson CJ said, in respect of an argument that the Tribunal failed to assess or give any weight to the Applicant’s evidence in light of the corroborating evidence, at [12]:
It is not necessarily irrational, or illogical, for a finder of fact, who is convinced that a principal witness is fabricating a story, which is considered to be inherently implausible, to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness.
Accordingly, I do not find jurisdictional error on this ground.
Ground Two
The Applicant’s second ground of review is as follows:
The Tribunal fell into jurisdictional error in failing correctly to apply or to interpret the law.
Particulars
(a) It was not open to the Tribunal, correctly applying the law, to assume that later amplification of evidence by the applicant, or later advancing of claims, was necessarily evidence or an indication of that evidence or those claims not being credible. (CB 147-149)
(b) It was not open to the Tribunal, correctly applying the law, to conclude that the applicant did not have a well-founded fear of persecution or a real chance of significant harm, given the evidence before the Tribunal of torture and other mistreatment of Tamils returned to Sri Lanka especially of those with an actual or perceived association with the LTTE, and the evidence of the deaths of four of the applicant’s uncles and of links of two of those uncles to the LTTE. (CB 151, Decision [50]-[52])
The Applicant’s submissions commence with the well-settled principle, that a well-founded fear of persecution is made out if there is a real chance of persecution in the reasonably foreseeable future: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 (“Chan”). The Applicant submits that a real risk of significant harm is sufficient for a claim of complementary protection to be made out under the Act. Certainty of harm, or even likelihood of harm, is not required.
Counsel for the Applicant made the following submissions in support of this ground of judicial review. First, it was said that one of the critical reasons for the Tribunal’s decision, was its focus upon the difference between the Applicant’s earlier evidence about the deaths of his uncles, and his later evidence given to the Tribunal about why they were killed.
Second, it was argued that, instead of this difference forming the basis for rejecting the Applicant’s claims, the Tribunal ought to have accepted the Applicant’s claims regarding the reasons why the Applicant’s uncle was killed in 2008 and the threats subsequently made against him. Counsel for the Applicant submitted that, given that the Tribunal was prepared to accept that the uncle who was killed in 1991 had connections with the LTTE, or had at least assisted the LTTE by giving food to them, its rejection of the Applicant’s claim about the connection of the uncle in 2008 to the LTTE, or the other aspects of the Applicant’s evidence, including the threats, lacked coherence and was arbitrary. Counsel for the Applicant submitted that the decision record of the Tribunal discloses arbitrary distinctions between old claims or claims about old facts which the Tribunal was positively satisfied occurred, and about which it said had no bearing on the Applicant now, and claims about more recent facts which the Tribunal rejects when the evidentiary basis for the whole range of claims was essentially the same.
The Minister submits that the Tribunal applied the correct test as articulated in Chan when it considered whether there was a real chance that the Applicant would suffer harm if he was to return to Sri Lanka. It is submitted that this is evident from the following passages of the Tribunal’s decision record where:[2]
(a) at [13], the Tribunal identified the law relating to the objective basis of an applicant’s fear of persecution and that such fear must be ‘well-founded’ and premised upon a ‘real chance’;
(b) at [46], the Tribunal recorded that it was not satisfied that the applicant faced a real chance of persecution on account of his Tamil race, membership of particular social groups or his actual or imputed political opinion;
(c) at [53], the Tribunal recorded that it was not satisfied that the applicant faced a real chance of serious harm if he were to return to Sri Lanka as a failed asylum seeker; and
(d) at [57], the Tribunal recorded that it was not satisfied that the applicant faced a real chance of persecution for any reason during any short term period of being detained; and
(e) at [61], recorded a finding (having undertaken a cumulative assessment of the applicant’s claims), that the applicant’s fear of persecution was not well-founded.
[2] First Respondent’s Submissions at [23].
I agree with the Minister.
In my opinion, this ground of review goes no further than inviting this Court to engage in a review of the evidence before the Tribunal, for the purpose of reaching an alternative conclusion to that reached by the Tribunal.
It was open to the Tribunal to make the credibility findings it did. Of course, the mere fact that a claim of an Applicant seeking protection visa may change over the course of proceedings, does not on its own suggest that the Applicant has engaged in a process of amplifying or enlarging his claims to support his case. By the same token, however, the Tribunal was entitled to have regard to the differences in the evidence given by the Applicant over the course of the proceedings, and to make credibility findings. There were other reasons the Tribunal did not accept the Applicant’s later claims. These included the plausibility of those claims, the Applicant’s evidence of his lack of involvement in the LTTE and the failure of the Sri Lankan authorities to locate, detain and torture the Applicant after his uncle’s death in 2008 (see [14] above). The Applicant’s submissions seem to suggest that the Tribunal deliberately contrived to accept the Applicant’s claims about earlier circumstances and treat these as irrelevant to its findings on the basis of the effluxion of time, but then rejected the Applicant’s claims about later incidents which may have borne directly on its satisfaction about whether the Applicant had a well-founded fear of persecution. If this is the essence of the submission, I reject it. In my opinion, the Tribunal’s reasoning for accepting the earlier claims and rejecting the Applicant’s later claims was cogent and open to the Tribunal.
So long as the Tribunal’s findings were open to it, no error is demonstrated: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at pp.558-559, and W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703 at [64]-[69] per Tamberlin and Nicholson JJ.
Ground Three
The Applicant’s third ground of review is as follows:
The Tribunal fell into jurisdictional error in that it was unreasonable in its decision and reasons.
Particulars
(a) The Tribunal rejected the credibility of the applicant’s claims in large part because it rejected the applicant’s claim that his uncle who was killed in 1991 and his uncle killed in 2008 while the applicant was present, had been killed for supporting the LTTE by supplying them with food, and possibly in some other ways. This claim was advanced at the Tribunal hearing, but not in earlier material by the applicant. The Tribunal did not accept the applicant’s explanation for not earlier mentioning the connection with the LTTE because the applicant thought it might jeopardise his application. This was unreasonable by the Tribunal, because the profile of the LTTE as a militant and violent group, and a group perceived as a terrorist group, made the applicant’s concern about revealing a family conection with the LTTE very reasonable. (CB 146-147; [34]-[37)
(b) The Applicant otherwise refers to and repeats the particulars to the other Grounds of this application.
The Applicant submits that the Tribunal’s failure to accept his explanation for failing provide reasons why his uncles were killed until the Tribunal hearing was unreasonable in a legal sense.
The explanation the Applicant gave at the Tribunal hearing for not setting out his claims regarding the reasons his uncles were killed until the Tribunal hearing, is set out in the decision record as follows (CB 147 at [35]):
… He stated that he was scared if he mentioned the LTTE he would not get his visa and though he had no involvement he was worried it would be a big issue…
The Applicant submits that the only reason given by the Tribunal for not accepting his explanation is set out in the decision record as follows (CB 148 at [37]):
… I do not accept the applicant’s explanations that he did not mention any of these matters because he was worried that his application would be jeopardised. The applicant has been represented throughout the process and he did not claim that he personally or any other family member was involved in the LTTE and its activities (save for another uncle giving food to them way back in 1991).
The Applicant, in his submission, says, erroneously, that the only reason given by the Tribunal for not accepting his explanation was the fact of his legal representation. However, it is plain by reference to the extract from the decision set out above that it was both the fact of his legal representation from the commencement of his visa application, and the fact that he did not claim (other than in relation to one uncle) that either he or any member of the family was involved in the LTTE.
The Applicant submits that: [3]
This approach by the Tribunal was unreasonable. It is notorious that the profile of the LTTE is as a militant and violent group, and a group perceived as a terrorist group. This made the applicant’s concern about revealing a family connection with the LTTE very reasonable. (CB 146-147; [34]-[37) It was also the case that contact with one family member perceived as involved with the LTTE may be enough to cause a real risk of serious or significant harm.
[3] Applicant's written submission at [40].
In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [39], [76] and [135], the relevant test for illogicality, irrationality and unreasonableness was said by Crennan and Bell JJ in SZMDS at [135] as:
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.
In Minister for Immigration and Citizenship v Li (2013) 297 ALR 225, French CJ cautioned at [30]:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, “may have no particular legal consequence.”…
(footnotes omitted)
In Minister for Immigration and Border Protection v Pandey [2014] FCA 640, Wigney J set out at [41], relevant principles relating to legal unreasonableness in the context of decisions by the Tribunal to refuse and adjournment application. In so doing, his Honour drew on the decisions in Li and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (“Singh”). Some of the principles identified by his Honour have direct relevance to their way in which unreasonableness is argued in this case. These have been extracted below:
…
(b) Legal unreasonableness can be a conclusion reached by a supervising Court after the identification of an underlying jurisdictional error in the decision-making process. Or it can be a conclusion reached without necessarily identifying another jurisdictional error: Li at [27]-[28], [72]; Singh at [44]. In the latter case unreasonableness may be taken to be unreasonableness from which an undisclosed error may be inferred: Li at [27], [68]; Singh at [44].
(c) Unreasonableness can be inferred where the decision appears to be arbitrary, capricious, without common sense or “plainly unjust”: Li at [28], [110]; Singh at [44].
(d) In those circumstances, where reasons are given, the supervising Court is concerned with seeing if there is an evident, transparent and intelligible justification within the decision-making process: Li at [105]; Singh at [44]-[45]. The intelligible justification must lie within the reasons given by the decision-maker: Singh at [47].
(e) Regard can also be given to the outcome of the decision: whether the “decision falls within a range of possible, acceptable outcomes which are defensible in respect of fact and law”: Li at [105] (Gageler J quoting Dunsmuir v New Brunswick [2008] 1 SCR 190 at 220-221; Singh at [44]-[45].
…
(j) Properly applied, a standard of legal reasonableness does not involve substituting a Court’s view as to how a discretion should be exercised for that of a decision-maker: Li at [30], [66]; Singh at [47]. The test of legal unreasonableness is stringent: Li at [113].
I am not satisfied that the Tribunal’s decision record discloses legal unreasonableness. The Tribunal gave reasons for not accepting the Applicant’s explanation about his failure to mention critical evidence earlier. I reject any argument that the only conclusion available to the Tribunal, was to accept the Applicant’s explanation on the basis that the profile of the LTTE, as a militant and violent group which was perceived as a terrorist group, was notorious. The Tribunal gave reasons for rejecting the Applicant’s explanation, and I am satisfied that this reasoning was open to it and did not disclose any illogicality. To the contrary, these reasons disclosed, in my view, intelligible justification.
In my opinion, the Applicant is seeking to challenge the decision of the Tribunal under the rubric of unreasonableness, when in fact what is being argued is insufficient or excessive consideration given by the Tribunal to various matters.
Accordingly, I find that no jurisdictional error arises on this ground.
Conclusion
For the reasons set out in this judgment, I will make Orders dismissing the application for judicial review, with costs.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 22 September 2016
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