MZZNK v Minister for Immigration
[2014] FCCA 2282
•7 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZNK v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2282 |
| Catchwords: MIGRATION – Refugee Review Tribunal – whether the Tribunal made findings without evidence – whether the Tribunal considered the applicant’s particular social group claim – whether there were any errors of interpretation that could have affected the decision – whether the Tribunal was obliged to put country information to the applicant. |
| Applicant: | MZZNK |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 1013 of 2013 |
| Judgment of: | Judge Riley |
| Hearing date: | 11 August 2014 |
| Date of last submission: | 11 August 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 7 October 2014 |
REPRESENTATION
| Counsel for the applicant: | The applicant appeared in person |
| Solicitors for the applicant: | The applicant was not represented |
| Counsel for the first respondent: | Liam Brown |
| Solicitors for the first respondent: | Clayton Utz |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Clayton Utz |
ORDERS
The application filed on 8 July 2013 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1013 of 2013
| MZZNK |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the first respondent refusing the applicant a protection visa.
The applicant was represented by a migration agent before the Tribunal but did not have legal representation before this court.
The applicant’s claims
The applicant claimed in his initial statement that:
a)he is a Sri Lankan citizen of Sinhalese ethnicity and Buddhist religion;
b)he was born in 1972 in Hikkaduwa in Galle;
c)he worked on ships;
d)he travelled to Indonesia, Thailand, Malaysia, Kuwait, the Maldives and Australia;
e)the applicant had short stays in Australia in August 2008 and February 2009 as a crew member;
f)he arrived in Australia most recently in May 2011 and has remained here since;
g)he applied for a protection visa with the assistance of a migration agent on 17 June 2011;
h)he married in 2001 and maintains contact with his wife and children who have remained in Sri Lanka;
i)he initially worked in the limestone business;
j)in 1998, he took a job on a ship which lasted about 22 months;
k)after that job, he worked as a cleaner and labourer for a trucking company;
l)in 2001, one of the sons of the owner of the business had a physical fight with Manoj Silva;
m)a few days later, the son shot Manoj in the leg;
n)Manoj left the village and took up with some gangs;
o)from May 2002 until June 2004, the applicant worked as a kitchen hand in a hotel in Kuwait;
p)when he returned to Sri Lanka, he resumed working for the trucking company;
q)Manoj returned to the village as a highly influential underworld figure;
r)on 17 August 2004, the applicant witnessed a shooting;
s)two of the businessman’s sons were killed and two people were injured;
t)it was widely believed that the attack had been carried out by Manoj;
u)the police and the businessman could not find anyone to give evidence against Manoj because everyone was too scared;
v)the applicant continued to work for the businessman for one month but then went to his wife’s parents’ home in Kurunegala;
w)the police visited him there;
x)he told the police he was in the house when the shooting occurred, heard the shots and ran outside but did not see anything;
y)the police appeared to believe the applicant but said they might ask further questions later;
z)thugs associated with Manoj ran political affairs in the area;
aa)the applicant did not want to be caught in the conflict between the businessman and Manoj;
bb)in November 2006, Manoj’s thugs went to the applicant’s house in Kurunegala, said that they knew that the applicant knew about the shootings and said that if the applicant opened his mouth he would be killed;
cc)the applicant was employed on a ship that went to the Maldives and returned to Sri Lanka in June 2007;
dd)the businessman pressured the applicant to give evidence about the murders;
ee)the police no longer believed that the applicant did not see anything;
ff)they threatened to compel the applicant to give evidence by “other” means;
gg)the applicant was very frightened;
hh)he left Sri Lanka between April and December 2008;
ii)while he was away, his wife was visited by unidentified people who asked for the applicant;
jj)the applicant lived with friends and other relatives until he was able to get another job on a ship in February 2009;
kk)he returned after six months and went into hiding for two months;
ll)he left Sri Lanka again on a ship and returned in January 2010;
mm)a few days later, a gang of men broke into the applicant’s house and threatened him about giving evidence against Manoj;
nn)they cut his wrist and he had to rush to hospital;
oo)in April 2010 the applicant again left Sri Lanka to work on a ship;
pp)he returned to Sri Lanka after two months;
qq)later, the applicant obtained work on another ship which he left at Fremantle and applied for a protection visa; and
rr)Manoj is in prison for another murder but still wields significant power.
During his interview with the delegate, the applicant also claimed that he was a supporter of the UNP, and supported one of the businessman’s sons who was a UNP candidate.
The delegate’s reasons
The delegate accepted that the applicant supported the UNP party. However the delegate did not accept that the applicant’s political opinion was the essential and significant reason for the harm he claimed to fear. The delegate considered that the applicant’s fear of harm from Manoj did not engage the Refugees Convention.
The delegate also considered that the applicant’s claims about witnessing the shootings were not credible or genuine.
The Tribunal’s reasons
For reasons which it gave, the Tribunal did not accept that the applicant witnessed the murders, that he or his wife had been threatened by Manoj, or that the applicant was of any interest to Manoj or his political connections or the police.
For reasons which it gave, the Tribunal did not accept that the applicant was a UNP supporter, much less an active member of the UNP.
Consequently, the Tribunal was not satisfied that the applicant met the criteria for a protection visa.
Ground 1
The first ground of review in the application filed on 8 July 2013 is:
There was no evidence to suggest that the police had no interest in the applicant and did not regard him as a witness to the murders.
This ground misapprehends the no evidence ground. The Tribunal did not accept the applicant’s claims. It is able to do so without having any evidence to the contrary. It is sufficient that the Tribunal found the applicant’s claims to be implausible.
Ground 2
The second ground of review in the application filed on 8 July 2013 is:
There was no evidence to suggest that the applicant did not witness the murders or that he was not known personally to Manoj Silva and his associates.
This ground is without substance for the same reasons as the first ground.
Ground 3
The third ground of review in the application filed on 8 July 2013 is:
There was no reason why the applicant could not do work and support the UNP and continue with his job.
The Tribunal rejected the applicant’s claims that he worked for the UNP, partly because those claims were raised late in the process and partly because the Tribunal considered the claim that the applicant did significant work for the party to be implausible, in view of the fact that the applicant was frequently out of the country or in hiding.
To the extent that the applicant might be alleging that the Tribunal’s decision in this respect was irrational or unreasonable, I do not accept the contention. The Tribunal’s decision on this aspect of the matter was rational and not unreasonable in the necessary sense.
To the extent that the applicant might be asking the court to undertake merits review, such a course is not permissible.
Ground 4
The fourth ground of review in the application filed on 8 July 2013 is:
The tribunal has placed too much significance on the fact that he did not raise the fact that he supported the UNP until being interviewed by the delegate.
This ground challenges the weight that the Tribunal placed on a particular item of evidence. It is well established that, in judicial review of administrative decisions, the weight to be given to particular items of evidence is a matter for the decision-maker. The court is not permitted to interfere with the weight given by the decision-maker to particular items of evidence.
Ground 5
The fifth ground of review in the application filed on 8 July 2013 is:
The tribunal should have considered the applicant as belonging to a particular social group, that is as a returning asylum seeker.
The Tribunal did consider that issue. As noted at paragraph 38 of the Tribunal’s reasons for decision, the Tribunal raised the matter with the applicant during the hearing. The applicant told the tribunal he would probably not have any problem with the government if he returned as a failed asylum seeker. The Tribunal found that the applicant had no subjective fear of being harmed by the Sri Lankan authorities as a failed asylum seeker. That finding was open on the evidence.
Ground 6
In the applicant’s contentions of fact and law filed on 16 April 2014 the applicant raised two additional grounds.The sixth ground of review, contained in the applicant’s contentions of fact and law filed on
16 April 2014, is:
The Tribunal failed to deal with an integer of the claim, as to whether or not there was a well founded fear of persecution based on my membership of an alleged particular social group, namely returning failed asylum seekers of Sri Lanka. In particular, the fact that I had applied for asylum in Australia and I had failed and I was returning after some years in Australia. It will be assumed by the authorities and then by Manoj that given I was returning from a wealthy western country, I would be bringing money back into the country and I could well be a target for extortion and even kidnapping.
As discussed under the previous ground, the Tribunal did deal with the failed asylum seeker claim. The applicant did not expressly raise the claim of being a target of extortion and kidnapping. That is not a claim that clearly arises from the materials before the Tribunal. There was no obligation on the Tribunal to consider those matters.
Ground 7
The seventh ground of review, contained in the applicant’s contentions of fact and law filed on 16 April 2014, is:
The Tribunal did not put to me for comment all adverse “country information” regarding the situation for failed asylum seekers/returnees in Sri Lanka. I say that I was entitled to this adverse information being put to me, so that I can read and comprehend what the case against me was and I should be then entitled to do my own research and be given the opportunity to rebut the information against me. I am well aware that it is the tribunal who then decides which country information it chooses and its decision to prefer certain independent country information in makings [sic] its findings was a matter for it in the exercise of its jurisdiction.
The Tribunal’s decision about the failed asylum seeker claim was not based on any particular country information. It was based on the applicant having no subjective fear of harm as a failed asylum seeker. Therefore, there was no obligation on the Tribunal to put country information about failed asylum seekers to the applicant.
Ground 8
In the applicant’s contentions of fact and law that he was given leave to file on 30 May 2014, and which he in fact filed during the hearing in this court on 11 August 2014, the applicant raised a number of additional grounds.
The eighth ground of review, contained in the applicant’s contentions of fact and law filed on 11 August 2014, is:
At the RRT I was Questioned regarding the murder & I have given a large discription about it (the way I saw the incident).
But RRT has not included the incident in the decission record. without including the description of the murder, RRT has come to a decission by saiying that I did not witness the murder.
I belive that RRT has purposely omitted the description of the murder incident. So that RRT has come to a negative decission without considering or adding it to the RRT decission record.
I believe that is an unfare act of RRT which has not given a proper consideration to my statement and the description of the murder. (spelling and grammatical errors in the original)
It is true that the Tribunal did not include in its reasons for decision the applicant’s verbal account of the murder. However, the Tribunal was under no obligation to do so. The Tribunal accepted that Manoj was involved in the murder of two of the businessman’s sons but did not accept that the applicant was a witness. The Tribunal noted at paragraph 20 of its reasons for decision that the applicant’s account of the day of the murders was detailed and generally internally consistent. However, the Tribunal considered that the applicant’s overall account lacked internal coherence, plausibility and credibility. It was open to the Tribunal to so find.
Ground 9
The ninth ground of review, contained in the applicant’s contentions of fact and law filed on 11 August 2014, is:
Also when I described about the murder I have mentioned that the shooters got-in to the white car that they came and left “towards colombo side” after the gun fire. But the interpreter has interprited it as they left to “colombo”. I believe that is a Miss-Interpretaion happned from interpreters end. (spelling and grammatical errors in the original)
The transcript of the Tribunal hearing indicates that the relevant statement was inaudible: line 222. However, having listened to the recording, it seems to me that the interpreter did say that the assailants left “towards Colombo”.
In any event, the applicant did not provide any expert evidence of any misinterpretation. More importantly, there is no reason to suppose that a misinterpretation, as alleged, could have made any difference to the decision. The decision did not turn on whether the assailants went to Colombo or only towards Colombo. The decision turned on the claims and facts surrounding the day of the murders.
Moreover, the applicant’s initial written statement said that the assailants “drove away towards the Colombo direction.” The Tribunal can be taken to have known that is what the applicant meant. Obviously, there was no reason to suppose that the applicant would have followed the assailants all the way to Colombo and thus have been able to report that they went “to Colombo”. This ground is without substance.
Ground 10
The tenth ground of review, contained in the applicant’s contentions of fact and law filed on 11 August 2014, is:
In the 1st audio cd of the RRT hearing between 27:27 minute and 31:32 minute I have mentioned that “I have tried maximum to be in Sri Lanka. I would like to be with my family and children.
But at last I could not stay because Manoj came with his hang and harm me. So, to save my life I came to Australia and applied for protection visa. Once I left Sri Lanka Manoj and his gang came to my place and threaten my family few times”
This purticular description has not included in the RRT decission record. Without including my statement RRT has purposely made a negative decission regarding my family threat and for the reason why did not apply for p.v before 2011 even that I visited Australia. This matter reffer to my 1st audio cd of RRT hearing between 54:11 minute and 56:07 minute. (spelling and grammatical errors in the original)
The Tribunal is under no obligation to set out, chapter and verse, everything that an applicant says to it. The Tribunal is obliged to consider each claim that an applicant makes. Relevant to the present ground, the Tribunal noted and considered the applicant’s claim that his family was threatened and noted and considered the applicant’s claim that he was frequently overseas because of threats against him.
The Tribunal did not accept those claims. It was under no obligation to do so.
Ground 11
The eleventh ground of review, contained in the applicant’s contentions of fact and law filed on 11 August 2014, is:
At DIABP(Immigration) I have largely described about my U.N.P involvement and the way I supprted for the victory of the party. DIABP has accepted that I am a U.N.P supporter. This matter reffers to the page 171 in the court book. But DIABP has failed to include the description in their decission record. Because of that RRT has come to a conclution that I have mentioned about my U.N.P support and involvement also the 2004 perticular muder incident happned of political involvement only at the RRT hearing.
I believe It was a mistake happned from the DIABP end that they have failed to include it in their decission record.
Infact I provided a letter from Mr.Danawansa (reffer to page no.169 in the court book) to DIABP and RRT has failed to read the whole letter and undestand the fact that I am a U.N.P supporter.
Also It is mentioned that I am a U.N.P member and a supporter in Mr.Wajira Abewardana’s letter(It has been attached in the court book). I orally mentioned that I have worked for mr.Wajira Abeyawrdana.
From the begining of myP.V application I have prooven that I am a political aylum seeker but DIABP and RRT both have failed recognize that fact. (spelling and grammatical errors in the original)
The delegate was under no obligation to set out in its reasons for decision the applicant’s whole account of his political activity. If the applicant wanted the Tribunal to have more detail on that issue than the delegate provided in her reasons for decision, it was up to the applicant to provide that information to the Tribunal. The applicant was assisted by a migration agent before the Tribunal.
The Tribunal was not obliged to accept that the letters that the applicant provided regarding his political activity were genuine. The Tribunal said at paragraph 30 of its reasons for decision that:
a)the letters were vague and generalised as to the nature and scope of the applicant’s UNP involvement and his relationship with the authors of the letters; and
b)the description in the letters of the applicant’s political activities in 2009 and 2010 was incompatible with his limited presence in Sri Lanka during that period.
The Tribunal gave limited weight to the letters. It was open to the Tribunal to do so.
Ground 12
The twelfth ground of review, contained in the applicant’s contentions of fact and law filed on 11 August 2014, is:
In the 1st audio cd of the RRT hearing at 74:14 minute to the end of the recording and the 2nd audio cd bening to the 06:42 minute RRT has asked the same question again and again. This purticular fact concern me about the legal frame of an indipendance hearing that RRT has to proceed. I felt that RRT has questioned me like questioning from a criminal rather than questioning from an asylum seeker.
It has raised a question about the RRT hearing proceedeour and their legal frame work. (spelling and grammatical errors in the original)
With this ground, the applicant may be attempting to raise a claim of apprehended bias. The first respondent, pursuant to an order of the court, provided a transcript of the Tribunal hearing. The recording provided to the court consisted of one compact disc, not two. Nevertheless, I have read the transcript and listened to the recording of the whole hearing, with particular attention to the passage from the 70 minute mark to the 92.5 minute mark.
In that passage, the Tribunal did not ask the applicant the same question again and again.The Tribunal asked the applicant about some documents that he had provided. The Tribunal asked who translated the documents, when, and why they had only recently been provided, given that they predated the applicant’s protection visa application.
The Tribunal then said that documents provided by the applicant, which appeared to be statements made by the applicant to the police, suggested that he had witnessed the murders when he had said that he had told the police that he had not witnessed the murders.
The Tribunal said it was confused about this matter and wanted to give the applicant a chance to explain. The applicant talked about his state of mind. The Tribunal asked if he had sought psychological assistance in Australia. The applicant said he had. The Tribunal asked who had provided the assistance and the organisation that person was from.
The Tribunal then took a 15 minute break. When the hearing resumed, the Tribunal asked the applicant when he began to support the UNP and when he became a member. The Tribunal then asked the applicant about the assistance he had provided to the UNP and the elections he had assisted with.
The Tribunal’s questioning during this passage, and the entire hearing, was entirely reasonable. The Tribunal member was gently spoken and she remained calm and composed throughout the hearing. Her manner and tone were exemplary. The Tribunal did not ask the same question again and again. On occasion, the Tribunal repeated a question or comment to clarify or refine a question, answer or comment. This was entirely fair and reasonable. I am unable to discern any basis for a claim of apprehended bias.
Ground 13
The thirteenth ground of review, contained in the applicant’s contentions of fact and law filed on 11 August 2014, is:
In 2010 after Monoj has attacked me, I went to the police station and made a complain about the attack and regrding my safety.
At the RRT hearing I was questioned why I did not mentioned about it at the DIABP hearing.
Then I have mentioned about my mental stress and depression. Also RRT asked whether I am taking any councelling or not.
I answered I am going for councelling to Foundation house and that helps me as well.
But again RRT has failed to mention that I am taking councelling because of my mental stress, depression and fear of persicussion. I believe that RRT has purposely avoid the fact that I am taking councelling. If RRT add that fact in to decission record they have to admit the fact that I am in a menataly depressed situation and because of that I could not mention about the complain I made to the police regarding the attack. I believe RRT has omitted the fact that I am suffering with mentaly depressed and fear of persicussion. (spelling and grammatical errors in the original)
When the Tribunal asked the applicant about whether he had received any psychological assistance in Australia, the applicant said he had seen Mike at Foundation House. The Tribunal noted during the hearing that there was no documentation before it to the effect that the applicant was suffering from a psychological disorder. The applicant was represented by a migration agent at the Tribunal hearing.
A document from Foundation House was faxed to the court on
23 September 2014, after the hearing. As this document was not before the Tribunal, the court cannot take it into account in determining whether the Tribunal made a jurisdictional error.
The Tribunal referred in its reasons to the applicant’s mental state, at the second and third lines of page six of its reasons for decision (CB280) and at paragraph 27.
In connection with the first reference, the Tribunal had earlier noted that the applicant had not provided his police statements to the delegate even though he said that they predated his application for a visa.
The Tribunal then said:
I do not accept this omission was due to emotional stress or heartache – given the relevance of this matter to his core case, and given the level of other detail in his written claims.
I do not consider that this matter gives rise to jurisdictional error.
The only evidence about the applicant’s mental state was given verbally by him in response to a question from the Tribunal.
The Tribunal gave sound reasons for not accepting that the applicant’s state of mind was an adequate explanation for him not providing documents to the delegate that predated the protection visa application. This is not a case of a psychological disorder explaining confused oral testimony.
The Tribunal’s second reference to the applicant’s mental state concerned the applicant’s failure to mention his UNP support in his four page, very detailed, initial statement to the department.
The Tribunal said:
I do not accept that the reasons advanced (for example, stress and his emotional state) caused him to omit this particular part of his claims from the statement. It is reasonable to expect the applicant would refer to his UNP involvement in his written statement in some – even brief – way, were it integral to his claims.
I do not accept that this matter gives rise to a jurisdictional error.
The Tribunal considered the applicant’s mental and emotional state, and did not accept that it explained the omission. This finding was open to the Tribunal.
Ground 14
The fourteenth ground of review, contained in the applicant’s contentions of fact and law filed in court on 11 August 2014, is:
In fact I did not have written proof regarding this attack and the police report to provide at DIABP stage. But I had chance to submit the police report at RRT stage. In RRT proceedeures it is possible to submit further information related to any asylum seeker claim. I believe it is a pointless question raised by RRT and RRT has purposely created a negative impression on my decisson by raising an invalid question. (spelling and grammatical errors in the original)
In the passage from the Tribunal hearing mentioned under ground twelve, the applicant told the Tribunal that the documents were translated in Sri Lanka in 2010 and 2011. The applicant’s protection visa application was lodged on 17 June 2011. The applicant’s representatives submitted various documents to the department between June 2011 and February 2012, but not the presently relevant documents. The applicant was invited to attend, and did attend, an interview with the delegate on 13 April 2012. The delegate’s decision was dated 5 June 2012.
On the applicant’s own evidence, he did have the presently relevant translated documents well before the interview with the delegate.
The factual substratum for this ground is lacking.
Ground 15
The fifteenth ground of review, contained in the applicant’s contentions of fact and law filed in court on 11 August 2014, is:
RRT has failed to consider country information. Even my legal representative has submitted few documents as country information. But RRT has not mentioned anything about country information. As a responsible institution like RRT must consider country information for the decission report. But RRT has failed to consider country information related to my claims. (grammatical errors in the original)
The Tribunal is under no obligation to consider country information, unless it somehow raises a claim. There is no suggestion in this case that the country information provided by the applicant’s representatives raised a claim that the Tribunal failed to consider. Otherwise, the Tribunal is empowered to select and rely on such country information and other evidence as it chooses.
Ground 16
The sixteenth ground of review, contained in the applicant’s contentions of fact and law filed in court on 11 August 2014, is:
Reffer to the audio recording(RRT hearing) I have been questioned about the police report and the english translation. Without giving a proper consideration RRT has given a minor wheight on to the english translation of the police report by saying it has few gramatical errors.
I believe responsible and indsipendant institution like RRT should give a special attention to such king of a police report. Because it is an important fact for my claim. It is all about my protection and my life. for such kind of an important report giving a silly excuse by saying that it has few gramatical errors is an unfair decission. Without doing a proper investigation simply omitted the facts of the police report is a major mistake made by RRT.
I believe RRT puropsely made an invalid reason to give a negative impression on my decission. (spelling and grammatical errors in the original)
I was not able to find any mention of grammatical errors in the transcript or in the recording of the Tribunal hearing. Nevertheless, the Tribunal may have mentioned grammatical errors during the oral hearing. However, whether there was a jurisdictional error in this regard depends on the written reasons that the Tribunal gave for its decision. Those reasons, in relation to the police reports are as follows:
•I do not accept the applicant was physically attacked or wounded in 2010 by Manoj or people under his direction (during a break in at his home), because of his stated role as a witness.
◦For reasons above, I have found the applicant was not threatened by Manoj’s men in 2006, as claimed. I have significant doubt that Manoj’s interest or concern in the applicant as a witness would be renewed in 2010, many years after the murders.
◦I attach limited weight to the police reports offered by the applicant as supporting his account of past threats against him and his wife, or the stated attack and injury to the applicant, or that during that attack, he identified one assailant as the driver of the vehicle involved in the 2004 murder.
▪ As I told the applicant at the hearing, the translations are not certified translations produced by a qualified translator in Australia, and I question why the applicant did not provide the reports to DIAC given their dates precede the review period. The applicant did not at all mention to DIAC that he/his wife reported the attack by Manoj to police and sought state protection. I do not accept this omission was due to emotional stress or heartache – given the relevance of this matter to his core case, and given the level of other detail in his written claims.
▪ Further, the contents are reported to police by the applicant and/or his wife and the reporting itself does not automatically support the view the events and threats occurred.
▪ The reports alone do not alleviate my other concerns about the plausibility of the applicant’s account.
There is no jurisdictional error in that passage. In general, the Tribunal is empowered to give such weight to items of evidence as it sees fit. The Tribunal’s findings in relation to this aspect of the matter were reasonable, given that the police reports predated the applicant’s interview with the delegate.
Ground 17
The seventeenth ground of review, contained in the applicant’s contentions of fact and law filed in court on 11 August 2014, is:
Also RRT has failed to add that the statement I have made at RRT hearing “when I complained to police they said that I should be very carefull about Manoj and he is a very powerfull person.
He can find you anytime”. this statement RRT has not included in the decission record. By doing that RRT has failed to recognized the fact that police is not in a possition to protect me from Manoj. (spelling and grammatical errors in the original)
The Tribunal did not need to consider whether the police were in a position to protect the applicant from Manoj because the Tribunal did not accept that the applicant was of any interest to Manoj or his associates or government connections.
Ground 18
The eighteenth ground of review, contained in the applicant’s contentions of fact and law filed in court on 11 August 2014, is:
I have provided two important news articles regarding Manoj’s criminal history. I have submitted those documents at the DIABP stage. But it is not in the DIABP decission report and also has not included in the court book. Which means DIABP has purposely skipped those news reports and faild to consider about the news reoprts and did not include in my P.V clims and case file as well.
I believe it is an unfair act of the DIABP and they have leggaly error on that matter. (spelling and grammatical errors in the original)
The newspaper reports, which were tendered to this court, give some credence to the allegation that Manoj was a murderer. However, even if those documents were provided to the department, their absence from the delegate’s reasons and from the court book is of no significance. The Tribunal apparently accepted that Manoj was a murderer. However, the Tribunal did not accept that the applicant was a witness to any murder committed by Manoj. The newspaper articles did not support the applicant’s claim to have been a witness to murders committed by Manoj. Moreover, if the applicant wanted the Tribunal to take those newspaper reports into account, it was incumbent on the applicant to provide them to the Tribunal.
Ground 19
The nineteenth ground of review, contained in the applicant’s contentions of fact and law filed in court on 11 August 2014, is:
As overall I believe that at least I should come under Complimentary Protction visa Measurment because I have faced a serious harm and police is not in a position to give protection for me. RRT has failed to consider properly and recognized that my protection visa claims and all the statements that I have made should come even under the Complimentry Protection Visa Measurements. (spelling and grammatical errors in the original)
The Tribunal considered the complementary protection claims at paragraphs 41 and 42 of its reasons for decision. Those paragraphs are as follows:
41.Given the above findings, I have also considered whether the complementary provisions of s. 36(2)(aa) are met, having regard to the exhaustive definition of `significant harm’ and attendant definitions in s. 5 of the Act.
42.On the accepted evidence, the applicant did not witness a crime in 2004 and is not of adverse interest to any party as a result of this, and he is not an active supporter of the UNP. The applicant advanced no evidence or argument that he would be harmed by Sri Lankan authorities in relation to his asylum claim here – he said this was “probably not a problem”. There is no other logical basis in the accepted evidence for finding there are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned to Sri Lanka, the applicant faces a real risk of significant harm (including in the form of death, torture, and/or humiliating or degrading treatment, for any of the reasons advanced by him. Accordingly, I find the complementary protection criterion is not met.
There is nothing untoward in the Tribunal’s consideration of the complementary protection claims. The applicant, in this ground, merely appears to be seeking impermissible merits review.
Ground 20
In his written submissions filed on 21 July 2014, the applicant raised two additional grounds. The twentieth ground of review, contained in the applicant’s written submissions filed on 21 July 2014, is:
But RRT member expressed my UNP political involvement is not clear. I believe said expression also an ideology and only a concept. Not only that DIAC/DIBP also accepted my political involvement for UNP, but RRT member denied that fact.
I hope as an independent institute RRT will implement an independent decision towards me regarding my claims. After the DIAC/DIBP hearing I applied for a more favourable decision but RRT did not consider my claim in an independent way.
I believe RRT conducted my hearing in negative form that is unfair for my decision and also jurisdictional error.
RRT can ask relevant questions at hearing but RRT has asked the same question again and again. According to my mental condition this pattern of questioning is unfair for me.
I felt this method of questioning is like a criminal investigation as an asylum seeker I mentioned to RRT I am under heavy depression due to life threat and serious harm. Under this situation RRT should have asked questions from me in independent way. But RRT’s method of questioning confused me and put me mental down more. According to my knowledge the way of questioning is not suitable for independent institute like RRT. I believe this method of questioning is out of the legal frame for an independent institution. Therefore I believe RRT has done legal error in method of questioning. (grammatical errors in the original)
It is the case that the delegate accepted that the applicant was a UNP supporter and the Tribunal did not. However, on review, the Tribunal is able to depart from the findings made by the delegate. The only rider on that is that the applicant must be afforded procedural fairness by being alerted to any issues on which the decision may turn, to the extent that they differ from the issues on which the delegate’s decision turned. In the present case, the Tribunal clearly raised with the applicant, during the hearing, its doubts about whether the applicant was an active UNP supporter and gave the applicant an opportunity to respond. (See paragraph 15 of the Tribunal’s reasons for decision and lines 624, 677-686, 720-722, 900-903 and 917-919 of the transcript of the Tribunal hearing.) That is all that was required of the Tribunal.
In relation to the Tribunal’s method of questioning, I have read the transcript and listened to the entire recording of the Tribunal hearing. As mentioned previously, there was nothing untoward in the Tribunal’s manner of questioning. In particular, the Tribunal did not ask the same question again and again.
Ground 21
The twenty-first ground of review, contained in the applicant’s written submissions filed on 21 July 2014, is:
As refer to country information I have provided “manoj’s” news reports of criminal activities it means the depth of my claims for fear of persecution has not properly considered under country information that refer to “manoj’s” criminal activities. It is very important to see for anyone that what could be the result of being against the government political opinion. I believe RRT has made jurisdictional error by failing to properly consider the country information that I have provided. (grammatical errors in the original)
As mentioned previously, the Tribunal accepted that Manoj is a murderer. The Tribunal did not accept that the applicant was of any interest to Manoj or his associates. The country information provided by the applicant did not show any link between the applicant and Manoj. That information therefore did not assist with the central questions of whether the applicant faced a real risk of serious or significant harm from Manoj.
Conclusion
For the reasons given above, none of the applicant’s grounds has disclosed jurisdictional error on the part of the Tribunal. Consequently, the application must be dismissed with costs.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 7 October 2014
1
0
0