MZWEL v Minister for Immigration
[2007] FMCA 1224
•21 August 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWEL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1224 |
| MIGRATION – Refugee Review Tribunal – whether Tribunal required to obtain the most up-to-date country information available – Tribunal may rely on information as it sees fit – application dismissed. |
| Migration Act 1958, s.424A |
| WADA v Minister for Immigration and Mu1ticultural Affairs [2002] FCAFC 202 |
| Applicant: | MZWEL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 123 of 2007 |
| Judgment of: | Riley FM |
| Hearing date: | 20 June 2007 |
| Date of last submission: | 20 June 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 21 August 2007 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the First Respondent: | Sharon Moore |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The application filed on 7 February 2007 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 123 of 2007
| MZWEL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application filed on 7 February 2007 seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 12 January 2007. That decision affirmed a decision of the first respondent’s delegate refusing to grant the applicant a protection visa.
The applicant is a 39 year old male citizen of Sri Lanka. He arrived in Australia on 11 January 2002 on a tourist visa, having previously lived in the United Kingdom. On 23 January 2002, he applied for a protection visa and on 10 May 2002, a delegate of the first respondent refused the application. On 3 June 2002, the applicant applied to the Tribunal for review of the decision of the delegate. On 13 February 2004, the Tribunal handed down its decision affirming the delegate’s decision.
The applicant applied to this Court for review of the Tribunal’s decision. On 21 January 2005, a Federal Magistrate dismissed the application for review. The applicant then appealed to the Federal Court which quashed the Tribunal’s decision and remitted the matter to the Tribunal for further hearing. On 12 January 2007, the Tribunal handed down its second decision which again affirmed the decision of the first respondent’s delegate.
On 7 February 2007, an application for judicial review of the Tribunal’s decision and a supporting affidavit were filed in this court. On 12 April 2007, the applicant filed an amended application and contentions of fact and law and, on 8 May 2007, the first respondent filed contentions of fact and law.
Initial claims
In his protection visa application, the applicant claimed that his mother was Tamil and his father was Sinhalese. He claimed that the Sri Lankan government had placed his life in danger. He said he had been living with his mother in Colombo after their return from Jaffna and said he had a lot of Tamil friends. At an interview with the delegate, the applicant claimed that because his mother had been involved with the LTTE, the authorities also suspected him of involvement. He claimed that even after their return to Colombo, the police continued to monitor him and his mother and that on one occasion, he was detained for two days and questioned by the police.
The second Tribunal’s reasons for decision
In its findings and reasons, the Tribunal said that it “was concerned by the inconsistencies in the applicant’s recall of the events and the changes in his version of events and his increased LTTE profile at the hearing.” The Tribunal considered the applicant’s claims that he was arrested by the police, saying that:
In the applicant’s protection visa application and accompanying statement he made no claim that he had been taken to the police station or arrested. The applicant told the delegate that he was arrested on one occasion only. At the previously constituted Refugee Review Tribunal hearing he stated that his mother was taken to the police station for questioning and that he was taken to the police station the next day. He also stated that the police came to his home to question him and his mother two to three times a day and the police followed him and required him to go to the police station for questioning once a week. He told the previously constituted Tribunal that when he was detained by the police they threatened him with a revolver and spoke to him in a threatening manner. He stated that some friends of his had been involved in activities in which the police were interested in (sic) (although he had no knowledge of their activities) and they assaulted the applicant but did not charge him. At this Tribunal hearing on 11 September 2006, he stated that the police would arrest him and his mother two to three times a day and that every Sunday before 9 a.m. he and his mother went down to the police station to sign a book. He also stated that the police hit him a few times in that they bashed him. The Tribunal finds that the applicant has increased his profile and the number of times that he attended the police station and the treatment he received at the hands of the police in order to bolster his claims. The Tribunal has not accept (sic) that the applicant and his mother were arrested two to three times a day and that the applicant and his mother had to go down to the police station every Sunday before 9 a.m. to sign a book or that he was hit bashed or threatened in any way by the police or that he was being watched by the police. It makes no sense that the applicant and his mother were asked to do things for the LTTE if in fact they had been watched so closely by the police and arrested two to three times a day. If the applicant had been monitored so closely he would not have been asked to do any activities including monitoring of other people on behalf of the LTTE in Colombo because the fishmonger and other people would have been caught by the police, as a result of the police monitoring the applicant and his mother closely. The applicant and his mother would have had extreme problems changing addresses if they were moving from place to place in Colombo, as suggested by the applicant, if they were being watched closely by the police. The Tribunal does not accept that the applicant and his mother moved houses to avoid detection.
The Tribunal considered the applicant’s claim that his mother was involved with the LTTE, saying that:
The applicant has stated that the LTTE was using his mother. The applicant stated that he believes his mother provided the LTTE with intelligence by assimilating with the Sinhalese majority in Colombo and gathering information and also assisted in the training of young LTTE members by teaching them Sinhalese. He stated at the hearing that he believes the fishmonger helped him to go to the United Kingdom financially in order to get more assistance from his mother. He believes that his mother was used in the bombing of this Sri Lankan airport in July 2001 because he has not heard from his mother since then. The applicant also advised in his protection visa application that his mother and father still reside in Sri Lanka and he contacts his relatives by telephone. At the hearing he stated at (sic) four to five months before he left London that he last spoke to his mother. In the statement accompanying his protection visa application he states his mother sent him to Australia for his safety. At the hearing the applicant stated that she had told him to come to Australia if he had any problems in the United Kingdom. In view of the inconsistencies, the Tribunal does not accept that the applicant’s mother had anything to do with the bombing of the Sri Lankan airport in July 2001 and it does not accept that he has not heard from his mother since July 2001 or four to five months prior to him leaving the United Kingdom. The Tribunal does not accept that the applicant’s mother worked for the LTTE or that she gathered information on the Sinhalese community in Colombo on behalf of the LTTE or that she gathered information on the Sinhalese community in Colombo on behalf of the LTTE or that she helped LTTE youth in Colombo or that she conducted classes or translated for the LTTE youth in Colombo. It therefore follows that it does not accept that the applicant’s mother was arrested two to three times a day and questioned by the police. It does not accept that she was watched by the police. It does not accept that she had to report to the police every Sunday. It does not accept that the fishmonger paid the applicant’s fares and the cost of his first two terms in the United Kingdom in return for the applicant’s mother to assist the LTTE in anyway or form.
In relation to the applicant’s claim that he was of mixed ethnicity, the Tribunal said:
The Tribunal notes that the applicant in his protection visa [application] gave his ethnicity as Sri Lankan and at the hearing gave his ethnicity as Sinhalese. The applicant provided no independent evidence such as a birth certificate to prove that his father is Sinhalese and his mother Tamil. The applicant has stated that he is scared of attack because he is a Tamil’s son. The Tribunal accepts that the applicant is Sinhalese, as stated by the applicant. It accepts that the applicant was born and has lived in Colombo and it finds that he would not experience any difficulties if he returned to Colombo even if his father is Sinhalese and his mother is a Tamil. The Tribunal does not accept that the applicant experienced any difficulty because of his mother’s and father’s ethnicity. Mixed ethnic marriages are not uncommon in Sri Lanka or usually do not create a problem or difficulty with even inflexible communities “eventually come around to accept the relationship” (independent country information above).
The Tribunal considered whether the applicant feared persecution because of his membership of a particular social group, finding that:
The Tribunal considered whether the applicant as a member of his mother’s family is a particular social group for the purposes of the Convention. The Tribunal finds that the applicant is a member of his family and this distinguishes the group from society at large. Therefore the Tribunal finds that the applicant as a member of his family is a recognisable particular social group. Based on its finding above in respect of his mother the Tribunal finds that the applicant will not face a real chance of persecution now or in the reasonably foreseeable future because he is a member of a particular social group (his mother’s family).
The Tribunal also considered the recent news articles provided by the applicant. The Tribunal finds that the articles provide general information in respect to Sri Lanka and the Sri Lankan population in general at this difficult time for the country. The articles are not specific to the applicant and he would face no greater threat of harm in Sri Lanka than the rest of the general public in the country. In view of the above findings the Tribunal finds that the applicant does not face a real chance of persecution in Sri Lanka now or in the reasonably foreseeable future.
Finally, the Tribunal considered that there was adequate state protection available to the applicant, saying that:
Even if the Tribunal should accept that there is the remotest chance that the applicant could face some problems from the LTTE, another issue is whether the Sri Lankan government is unable or unwilling to protect him.
The issue of the adequacy of state protection was summarised in Svecs v MIMA (1999) FCA 1507 where Hely J remarked at 26 that:
The issue is not whether the authorities can guarantee that the applicants will not suffer harm for a convention reason, but whether in the language of the Full Court in A, B & C v Minister for Immigration & Multicultural Affairs at par 42, (the relevant Country) has “effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort said to be feared” by the applicants.
In the remote event that the LTTE assailants would attempt to harm him on his return to Sri Lanka, the Tribunal is satisfied from country information outlined above that Sri Lanka would be willing and able to offer him effective protection because Sri Lanka has a functioning independent judiciary in place and police who can provide this protection. Although Sri Lanka has difficulties it is not a country without law. It has a well established legal system, with Courts, lawyers, and police that at an international standard that can provide reasonable protection as required by the populace. The Tribunal also finds that the applicant is not denied state protection because of his race, imputed/actual political opinion or his membership to a particular social group.
Ground A
In the amended application filed with the court on 12 April 2007, the first ground of review is as follows:
The Tribunal did not consider the various elements of the applicant’s claims made and make findings in respect of them.
The applicant reiterated this ground in his contentions of fact and law but did not make any further submissions about this ground. At the hearing before this court, the applicant’s only oral submission was that the Tribunal’s decision was not fair to him.
The first respondent’s written contentions on this ground were as follows:
[20] In the first ground of review the applicant claims that the “Tribunal did not consider the various elements of the applicant’s claims made and make findings in respect of them”. The applicant does not identify which of his claims or which elements of his claim the Tribunal did not consider. It is not for the Minister to make out the applicant’s case for him.
[21] The Minister submits that the Tribunal’s reasons are detailed and thorough. It made findings on each of the applicant’s claims and its findings were open to it on the evidence. It did not fail to consider the ‘‘elements” or “integers’’ of the applicant’s claims (cf Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389). Therefore it is submitted that this ground of review should fail.
The applicant has not specified any particular claim that he made which was allegedly not considered by the Tribunal. I am unable to detect any such claim. Accordingly, I am unable to find that this claim is made out.
Ground B
The second ground of review is as follows:
The Tribunal also failed to discharge its statutory obligations with respect to the application to review the decision of the delegate.
The applicant reiterated this ground in his contentions of fact and law and added that the Tribunal had breached s.424A of the Migration Act 1958 (“the Act”).
The first respondent’s written contentions on this ground were as follows:
[22] … In relation to this ground the applicant does not address why the tribunal has breached s424A of the Act.
[23] It is submitted by the Minister that a very comprehensive s424A letter was sent to the applicant on 22 November 2006. The letter set out the information that it considered would be the reasons or a part of the reason for affirming the delegate’s decision (namely, inconsistencies in the applicant’s evidence), stated why the information was relevant to the review and invited the applicant to comment on it. The applicant provided his comments and these were considered by the Tribunal. In these circumstances it is submitted the Tribunal did not breach s424A of the Act.
In oral submissions, the first respondent said that the Tribunal had sent the applicant a comprehensive s.424A letter to which the applicant had responded.
Section 424A of the Act is as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies--by one of the methods specified in section 441A; or
(b)if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)that the applicant for review gave for the purpose of the application; or
(ba)that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c)that is non‑disclosable information.
Except in relation to ground D, the discussion of which is set out below, the applicant has not nominated any information that the Tribunal did not include in the s.424A letter but that s.424A required the Tribunal to include. I am unable to detect any information of that type. Accordingly, I am unable to conclude that this ground is made out.
Ground C
The third ground of review is as follows:
The finding that the applicant did not have a well founded fear of persecution was inconsistent with its approach as recorded in its reasons for decision.
The applicant’s written contentions on this ground were as follows:
[6] The finding that the applicant did not have a well founded fear of persecution was inconsistent with its approach as recorded in its reasons for decision.
[7] The tribunal is incorrect when it concludes that my mother did not work for the LTTE or that she gathered information on the Sinhalese community in Colombo on behalf of the LTTE or that she helped LTTE youth in Colombo or that she conducted Tamil classes or translated for the LTTE youth in Colombo.
[8] The tribunal is also incorrect when it does not accept that my mother was arrested two to three times a day (I originally said she was questioned 2-3 times a day and that is what I meant by use of the word arrest. The word arrest gives a different meaning and at no stage did the tribunal ask me to clarify what I meant by arrest) and questioned by the police, or that she was watched by the police, or that she had to report to the police station every Sunday, or that the fishmonger paid my fares and the cost of my first two terms in the United Kingdom in return for my mother’s help to assist the LTTE in any way or form.
I say the tribunal is wrong on both occasions, because there is no evidence for the tribunal to base that conclusion upon.
The first respondent’s written contentions on this ground were as follows:
[24] In the third ground of review, the applicant claims that “the finding that the applicant did not have a well founded fear of persecution was inconsistent with its approach as recorded in its reasons for decision’’. Neither in his amended application or his contentions does the applicant articulate what inconsistency or inconsistencies existed. In paragraph 6 of the applicant’s contentions, he simply repeats the ground of review. In the circumstances, the Minister is unable to fully respond to this ground. It is submitted that no ground of review has been made out by the applicant and therefore it should fail.
The first respondent’s submissions do not address the applicant’s contentions set out in paragraphs 7 and 8 cited above. However, those contentions clearly dispute the factual findings of the Tribunal and thus call for merits review. This court is unable to undertake a merits review. The matters identified by the applicant do not indicate that the Tribunal misunderstood the applicant’s claims or otherwise made a jurisdictional error. The applicant says that he meant “questioned” when he said “arrested”. However, it was open to the Tribunal to act on the basis that the applicant meant arrested when he said arrested. The Tribunal was under no obligation to ascertain whether the applicant meant what he had said.
In relation to the applicant’s no evidence claim, it is apparent that the Tribunal was not persuaded of the truth of the applicant’s claims. The Tribunal did not need to have any evidence rebutting the applicant’s allegations. The Tribunal was entitled to disbelieve the applicant in circumstances where the Tribunal considered that the applicant’s claims were inconsistent and implausible. This was sufficient to provide probative grounds for the decision. This ground is not made out.
Ground D
The fourth ground of review is as follows:
The tribunal by not writing to me and saying that this question of my ethnicity would be a reason or part of the reason for it coming to its decision has breached section 424A of the Act and the breach of this requirement constitutes a jurisdictional error.
The applicant’s written contentions on this ground were as follows:
[9] The tribunal states that the applicant in his protection visa gave his ethnicity as Sri Lankan and at the hearing gave his ethnicity as Sinhalese. The applicant provided no independent evidence such as a birth certificate to prove that his father is a Sinhalese and his mother is a Tamil.
[10] The tribunal has considered my ethnicity to be a relevant factor. If the tribunal was that concerned with this fact, it should have put this concern to me at the hearing or after the hearing requested me to provide evidence of my parents ethnicity. There is no doubt the tribunal has considered this an important issue.
[11] I say that just like the Federal Court did on 8 May 2006 when it heard my case, you are referred to the decision of SAAP v Minister of Immigration and Multicultural Affairs (2005) 215 ALR 162 that required the tribunal under section 424A of the Act, to give me particulars in writing of any information that would be the reason or part of the reason for affirming a decision. That a breach of this requirement constitutes a jurisdictional error.
[12] The tribunal by not writing to me and saying that this question of my ethnicity would be a reason or part of the reason for it coming to its decision has breached section 424A of the Act and the breach of this requirement constitutes a jurisdictional error.
The first respondent’s written contentions on this ground were as follows:
[26] The Tribunal addressed the applicant’s ethnicity at CB 108. It noted that in his protection visa the applicant had given his ethnicity as Sri Lankan and that at the hearing gave his ethnicity as Sinhalese. The Tribunal accepted that the applicant is Sinhalese. It found that he would not experience any difficulties if he returned to Colombo even if his father is Sinhalese and his mother is a Tamil and did not accept that the applicant experienced any difficulty because of his mother’s and father’s ethnicity. It noted that mixed ethnic marriages were not uncommon in Sri Lanka and usually did not create a problem or difficulty with even inflexible communities eventually coming around to accept the relationship.
[27] The applicant claims that the Tribunal should have put his ethnicity to him in writing in its s424A letter. This misunderstands the Tribunal’s findings. It did not find against the applicant in relation to his ethnicity. Despite the inconsistency between his protection visa and his evidence, the Tribunal found, consistent with the applicant’s evidence that he was Sinhalese. In these circumstances, the Tribunal was not obliged by s424A of the Act to put this information to the applicant.
The applicant’s claims, as summarised by the delegate, were that he was attacked by the Sri Lankan government because of his half Tamil ethnicity and because of his relationship with his mother. The Tribunal found that the applicant was Sinhalese, as he claimed elsewhere, and, in any event, said that he would not experience any difficulties if he were in fact half Tamil. The explanation the Tribunal gave for that conclusion was that mixed marriages are not uncommon in Sri Lanka and they do not create a problem even in inflexible communities. Reference was made to independent country information.
The independent country information fell within one of the exceptions in s.424A, namely, the exception relating to information that is not just about the applicant or another person but about a class of persons. It was information about Sri Lankans who enter into mixed marriages and Sri Lankans who form views about other Sri Lankans who enter into mixed marriages. Accordingly, there was no need for the Tribunal to provide the information about mixed marriages to the applicant under s.424A. For completeness, I note that the delegate concluded that the applicant would not face any difficulty due to his mixed race, so this was not a matter that took the applicant by surprise.
In relation to the applicant’s ethnicity generally, the information that the applicant was Sinhalese and the information that he was half Tamil were both items of information that the applicant gave to the Tribunal. Accordingly, the applicant’s ethnicity, as such, was not information that the Tribunal needed to give back to the applicant under s.424A. Nor was there any requirement for the Tribunal to advise the applicant under s.424A that the applicant’s ethnicity would be the reason or part of the reason for affirming the decision under review. The applicant himself raised the issue of his ethnicity and its connection to his claims of persecution.
Ground E
The fifth ground of review is as follows:
The tribunal is also wrong when it concludes that I would not experience any difficulties if I returned to Colombo. The tribunal has addressed the wrong issue by saying at page 108 of the Court Book that mixed ethnic marriages are not uncommon in Sri Lanka. It has got nothing to do with the question of mixed marriages, it is the question of my ethnicity.
The applicant’s written contentions on this ground were as follows:
[13] The tribunal is also wrong when it concludes that I would not experience any difficulties if I returned to Colombo. The fact is I am part Sinhalese and part Tamil and I say that I will experience problems because of my part ethnicity, that is Tamil. The tribunal has addressed the wrong issue by saying at page 108 of the Court Book that mixed ethnic marriages are not uncommon in Sri Lanka or usually do not create a problem or difficulty with even inflexible communities. “eventually come around to accept the relationship.” It has got nothing to do with the question of mixed marriages, it is the question of my ethnicity.
The first respondent’s written contentions on this ground were as follows:
[29] It is submitted that the Tribunal did not commit a jurisdictional error in its decision as alleged by the applicant. It did not address the wrong issue. It did address whether the applicant would experience difficulties if he returned to Colombo if his father is Sinhalese and his mother is Tamil. It did not accept that the applicant experienced any difficulty because of his father’s and mother’s ethnicity. In this way, regardless of any consideration of the status of mixed marriages in Sri Lanka, the Tribunal considered the claim raised by the applicant – namely that he would be harmed because he was part Tamil and part Sinhalese. Ultimately, the applicant’s ground of review is an attempt to review the merits and the fact finding and/or logic of the Tribunal’s decision making which are not appropriate grounds of judicial review. Accordingly, this ground of review should fail.
The first respondent said in oral submissions that the Tribunal had addressed the question of the applicant’s ethnicity and had found that he faced no difficulty because of it. The reference to mixed marriages, in the first respondent’s submission, was merely illustrative of the Tribunal’s view that mixed ethnicity does not create difficulties for half Tamil Sri Lankans.
The Tribunal’s findings about this matter are as follows:
The Tribunal notes that the applicant in his protection visa gave his ethnicity as Sri Lankan and at the hearing gave his ethnicity as Sinhalese. The applicant provided no independent evidence such as a birth certificate to prove that his father is Sinhalese and his mother Tamil. The applicant has stated that he is scared of attack because he is a Tamil’s son. The Tribunal accepts that the applicant is Sinhalese, as stated by the applicant. It accepts that the applicant was born and has lived in Colombo and it finds that he would not experience any difficulties if he returned to Colombo even if his father is Sinhalese and his mother is a Tamil. The Tribunal does not accept that the applicant experienced any difficulty because of his mother’s and father’s ethnicity. Mixed ethnic marriages are not uncommon in Sri Lanka or usually do not create a problem or difficulty with even inflexible communities “eventually come around to accept the relationship” (independent country information above).
The Tribunal clearly dealt with the claim that the applicant faced difficulty because of his alleged half Tamil ethnicity and concluded that he did not. The reference to mixed marriages did not really advance the matter. However, it does not indicate that the Tribunal misunderstood the claim. It simply provided some background for the Tribunal’s conclusion. This ground is not made out.
Ground F
The sixth ground of review is as follows:
The very Country Information quoted by the tribunal in its decision paints a dim picture of the problems I face if forced to return to Sri Lanka.
The Tribunal made this decision on 20 December 2006 and yet the latest country information with respect to the Tamil situation in Sri Lanka which is referred to by the tribunal only goes back to early January 2006. It is common ground and this is supported by documented evidence that the situation in Sri Lanka worsened over the course of 2006 and yet there is no reference by the tribunal to this situation. Therefore there is relevant information which has not been taken into account by the tribunal when making its decision.
The applicant’s written contentions on this ground added a quotation from the Tribunal’s decision as follows:
December 2005 news reports and advice received from the Department of Foreign Affairs and Trade DFAT suggests the situation for Tamils in Colombo has changed significantly in recent times. The final weeks of 2005 saw the arrest of a large number of Tamils in Colombo in a broad security operation which detained over 100 persons on 17 December 2005 and over 900 persons on 31 December 2005. Tamil Net has reported that intelligence agencies were questioning the arrested persons to establish and document valid reasons for their stay in Colombo.
The first respondent’s written contentions on this ground were as follows:
[31] At the outset it is submitted that the applicant’s claims are not factually correct. In its decision, the Tribunal referred to country information dated after January 2006. For example, it referred to country information dated or accessed in March 2006. In any event, however, a failure by the Tribunal to search for, and obtain, the most up-to-date factual information available does not constitute jurisdictional error. The selection of the material on which it relies is a matter for the Tribunal (see for example, WADA v Minister for Immigration and Mu1ticultural Affairs [2002] FCAFC 202 at [40]). The use which a tribunal makes of country information will ordinarily be a question of fact or a finding within jurisdiction. Therefore it is submitted that this ground of review must fail.
It is true that the Tribunal cited country information dated or accessed in March 2006 although the decision was not handed down until December 2006. However, it is for the applicant to put such material before the Tribunal as he wishes. The Tribunal does not need to make out the applicant’s case for him. Moreover, the Tribunal may select and rely on such country information as it deems fit. The country information does not need to be the latest that might be available on the internet: WADA v Minister for Immigration and Mu1ticultural Affairs [2002] FCAFC 202 at [40]. In any event, the Tribunal did not accept the truth of the applicant’s claims, irrespective of the current political climate in Sri Lanka. For these reasons, this ground is not made out.
Ground G
The seventh ground of review is as follows:
That the tribunal should have posed the question with regards the police/security forces. That is would the applicant face problems from the security forces/police on his return to Sri Lanka.
Therefore the tribunal has not asked itself the right question, because if it did it would have to rely upon the Country information it has quoted in its decision and there is no doubt that if we applied that information to my situation, there is a real chance that I would face problems from the security force/police because of my Tamil ethnicity.
The applicant’s written contentions on this ground were as follows:
[16] The tribunal states that even if the tribunal should accept that there is a remotest chance that the applicant could face problems from the LTTE, another issue is whether the Sri Lankan government is unable or unwilling to protect him. That is a fair question to pose, however the tribunal should have posed the same question with regards the police/security forces. That is would the applicant face problems from the security forces/police on his return to Sri Lanka.
[17] Therefore the tribunal has not asked itself the right question, because if it did it would have to rely upon the Country information it has quoted in its decision and there is no doubt that if we applied that information to my situation, there is a real chance that I would face problems from the security forces/police because of my part Tamil ethnicity.
The first respondent’s written contentions on this ground were as follows:
[33] It is submitted by the Minister that the Tribunal did not err as the applicant claims in this ground of review. It expressly rejected the applicant’s claims that he had been arrested, detained or harmed or monitored in any way by the police. This ground takes issue with the factual findings of the Tribunal’s decision rather than addressing a jurisdictional error of law. Accordingly, it must fail.
The Tribunal did pose the question whether the applicant faced any difficulty because of his Tamil ethnicity and decided that he did not. This subsumed the question of whether the applicant faced any difficulty from the police or security forces because of his Tamil ethnicity. In fact, the Tribunal rejected the truth of the applicant’s claims and found in any event that he would be provided with state protection if he needed it. This ground is not made out.
Ground H – paragraph 18 of the applicant’s contentions
In his written contentions, the applicant raised a further issue that had not formed a ground in his amended application. The applicant submitted that:
[18] I also disagree that just because “Sri Lanka has a functioning independent judiciary in place and police who can provide this protection. Although Sri Lanka has difficulties it is not a country without law. It has a well established legal system, with courts, lawyers and police that at an international standard that can provide reasonable protection as required by the populace.” This statement is trotted out by the tribunal to justify its decision, however in reality the state cannot guarantee my fundamental rights as a Sri Lankan citizen and the best evidence of this is the very country information referred to by the tribunal.
The first respondent’s written contentions on this ground were as follows:
[34] Finally, it is noted that in paragraph 18 of the applicant’s contentions he takes issue with the Tribunal’s assessment of the function of the judiciary and police and claims that in reality the state cannot guarantee his fundamental rights as a Sri Lankan citizen. This is not raised in any of the grounds of review in the applicant’s amended application however, it having been raised, it is appropriate for the Minister to respond.
[35] It is submitted that in claiming that the Tribunal erred in law in determining whether there were adequate protections from the law enforcement agencies in Sri Lanka, the applicant seeks a merits review of the decision of the Tribunal by this Court. This is clearly not permissible. In any in any event, in finding as a fact that the applicant did not have a well-founded fear of persecution, the Tribunal was not required to determine whether the law enforcement agencies of Sri Lanka would provide the applicant in a practical sense or otherwise with adequate protections. The Refugees Convention does not require a state to guarantee that it will protect an applicant Minister for Immigration and Multicultural Affairs v Respondents S152/200 (2004) CLR 1 at [26]-[27]. In these circumstances, the applicant has not made out any jurisdictional error.
The Tribunal found as a fact that Sri Lanka had an effective legal and judicial system that was able to provide a reasonable level of protection to its population. This finding was open to it. The Tribunal does not appear to have misunderstood the law on adequate state protection. There is no requirement that the state provide a guarantee of safety. No government can provide that.
Moreover, the Tribunal rejected the claims made by the applicant and found that he was at no greater risk than the general population. In these circumstances, the question of state protection did not need to be addressed. For these reasons, the implied application for leave to amend the amended application to include this proposed ground is refused.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate: Melissa Gangemi
Date: 21 August 2007
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