MZZOM v Minister for Immigration

[2015] FCCA 123

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZOM v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 123

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – extension of time  – short delay –  no reasonable prospect of success.

Legislation:
Migration Act 1958, s.447(2)

Cases cited:
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 139 ALD 181; (2013) 297 ALR 225; [2013] HCA 18
Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 115 ALD 248; (2010) 266 ALR 367; [2010] HCA 16
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231

Applicant: MZZOM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 1096 of 2013

Judgment of: Judge Riley

Hearing date: 4 December 2014

Date of last submission: 4 December 2014

Delivered at: Melbourne

Delivered on: 28 January 2015

REPRESENTATION

Counsel for the applicant: Mike Freedman

Solicitors for the applicant: Asylum Seeker Resource Centre

Counsel for the first respondent: Catherine Symons

Solicitors for the first respondent: Clayton Utz

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Clayton Utz

ORDERS

1. The application for an extension of time filed on 17 July 2013 and amended on 24 October 2014 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1096 of 2013

MZZOM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for an extension of time in which to file an application seeking review of a decision made by the Refugee Review Tribunal.  In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.  The hearing of this matter was delayed pending the outcome of the High Court’s decision in the matter of S297 of 2013.

Extension of time application

1. The Tribunal’s decision was made on 8 May 2013.  The application to this court was not filed until 17 July 2013.  Consequently, the application was 35 days late.

2. Under s.477(2) of the Migration Act 1958, the court has power to extend time for the filing of an application if the court is satisfied that it is necessary in the interests of the administration of justice to do so.

3. In considering whether to grant an extension of time, the court must consider:

   a)the length of the delay;

   b)the reasons for the delay;

   c)the prejudice to the respondent from granting an extension of time; and

   d)the merits of the substantive application.

4. As stated, the delay was 35 days.  The applicant explained in an unchallenged affidavit affirmed on 23 October 2014 that:

   a)the solicitors who had helped him with his application to the Tribunal wanted more money than he could afford to help him with the application to this court;

   b)his English is poor;

   c)he could not locate the Tamil community or refugee support groups in time to lodge the application within the time limit; and

   d)a friend eventually directed him to a support group, and he was able to file his application.

5. The respondents did not point to any prejudice from the grant of an extension of time. 

6. For the reasons which follow, I consider that none of the applicant’s grounds has a reasonable prospect of success.

The applicant’s claims

1. The applicant said in a statutory declaration made on 7 July 2012 that:

   a)his family had a history of supporting the UNP;

   b)the applicant assisted the UNP in the elections in October 2011;

   c)on 28 February 2012, he protested with about 30 to 40 others about rising fuel prices;

   d)on 10 March 2012, while the applicant was at his aunt’s house, six or seven men in plain clothes, who claimed to be police, went to his home, asked for the applicant, and assaulted his father;

   e)the men demanded to know where the applicant was and his mother told them, falsely, that he was in Colombo;

   f)when the men asked for more details, the mother said that the applicant was getting a passport;

   g)the men then threatened to kill the applicant if he attempted to leave the country;

   h)the applicant hid at his aunt’s house;

   i)after a few days, a van pulled up beside him;

   j)two men with fluorescent tubes assaulted him;

   k)the applicant fled and hid in a mosque;

   l)the applicant went to stay at his uncle’s house, two hours away;

   m)with the assistance of a friend, the applicant was able to flee Sri Lanka by boat;

   n)if the applicant returned to Sri Lanka, he feared being harmed by the government or its agents; and

   o)the applicant feared harm by reason of:

   i)his political opinion, being a history of involvement with the UNP; and

   ii)his imputed association with the LTTE should he be forcefully returned to Sri Lanka as a failed Tamil asylum seeker.

The Tribunal’s reasons

1. The Tribunal accepted that the applicant participated in a protest in February 2012.  However, the Tribunal did not accept that the applicant had a profile within the UNP, or that people came looking for him and injured his father, or that the applicant went into hiding and then had to flee.

2. The Tribunal accepted that those who have left Sri Lanka illegally face some harassment and harm on their return.  However, the Tribunal did not accept that the applicant would suffer serious or significant harm on return to Sri Lanka, or that laws of general application would be applied against him in a discriminatory way.  The Tribunal did not accept that the applicant’s previous political activity was such as to give him a profile that would make him of interest to the authorities.

3. The Tribunal concluded that the applicant did not face a real risk of serious or significant harm if he returned to Sri Lanka.

Ground 1

1. The first ground of review in the application filed on 17 July 2013 and amended on 24 October 2014 is:

   The Tribunal failed to undertake its task of review pursuant to s414 of the Migration Act as it made findings without engaging in any evaluative assessment of the evidence

   Particulars

   (a)The Tribunal concluded that the applicant had “no real political profile in his country.”

   (b)In reaching this conclusion, the Tribunal failed to consider or evaluate the submissions made by the applicant’s advisors, supported by a substantial body of country information, that supporters of the UNP or “political dissidents” were also at risk of serious harm.

2. The finding impugned in ground 1 occurred at paragraph 42 of the Tribunal’s reasons for decision.  That paragraph relevantly said:

   The Tribunal accepts that the applicant and his father/family members were supporters of the UNP and participated in UNP activities.  The Tribunal finds however that the applicant had/has no real political profile in his country; this was the applicant’s evidence to the Tribunal. … he agreed that he did not have much of a profile with the UNP or politics in Sri Lanka.

3. Consequently, it appears that the Tribunal concluded that the applicant did not have “a real political profile” or “much of a profile” because the applicant told the Tribunal that.  The applicant did not suggest to the court that he had not said those things to the Tribunal.  Rather, the applicant submitted that his case to the Tribunal was not that he had a significant political profile, but that UNP supporters and political dissidents face serious harm.

4. That may be so, but it does not mean that there was any error in the Tribunal concluding that the applicant had “no real political profile”, when he had said substantially that himself.  This ground has no real prospect of success.

Ground 2

1. The second ground of review in the application filed on 17 July 2013 and amended on 24 October 2014 is:

   The Tribunal failed to consider the applicant’s claim that he was at risk of persecution by reason of being a supporter of the UNP and/or a “political dissident”.

   Particulars

   (a)     The applicant refers to and repeats ground [1].

   (b)The Tribunal failed to ask itself whether the applicant was, or would be considered to be, a “political dissident”.

2. The applicant’s adviser submitted to the Tribunal a substantial body of country information (CB202-207) and concluded (at CB207) that:

   … political dissidents – such as the Applicant – are at risk of persecution in Sri Lanka.

3. The Tribunal said at paragraph 38 of its reasons for decision:

   The Tribunal also accepts that country information consulted by it supports in a general way the applicant’s claims that those viewed as political dissidents are at risk of serious/significant harm from the authorities in Sri Lanka. (emphasis added)

4. That means that, in the Tribunal’s view, to be at risk of serious or significant harm, it was not enough to be a political dissident.  It was necessary to be perceived to be a political dissident.  That makes sense, because if a person is not perceived to have a relevant characteristic, it is difficult to see how they could be targeted for harm.

5. The Tribunal went on to note that, although it accepted that country information generally supported the applicant’s claims, it was necessary to look at his specific circumstances.  The Tribunal then noted that the applicant had no real political profile and that his family over four generations of supporting the UNP had experienced only minor problems, at least until the applicant attended the protest in February 2012.

6. The Tribunal then said, at paragraph 45 of its reasons for decision:

   Not without some doubt about the matter, the Tribunal accepts that in February 2012 the applicant participated in a protest about fuel prices with a group from the community in his local area but the Tribunal does not accept as true that he had any role in the protest other than attending at it.  In the Tribunal’s view he has given confused accounts of his role in the protest.  When the Tribunal asked the applicant at the hearing whether the protest was by the UNP or the local community he said that it was a protest by those in the local community although he states in his statement made 7 July 2012 that the protest was organised by the UNP.  He told the Tribunal at the hearing that he organised the protest and got an order to organise it three days before from a local MP whom he named.  When the Tribunal asked the applicant how he went about organising the protest he said that he went house to house collecting people in the area and got about 30 to 40 people together in a place which he named in the village.  Given the applicant’s age and lack of profile with the party the Tribunal does not accept as true that the applicant organised, or was ordered to organise, the protest in February 2012.  Further the Tribunal does not accept as true that the applicant was targeted for harm by those supporting the government, or that men came looking for the applicant at the family home and injured his father, in March 2012, after the protest, or that men came looking for him at any time thereafter, including at his aunt’s home, or while he has been in Australia, for the reasons that the applicant claims.  The Tribunal also does not accept as true that the applicant left the family home and went to stay with his aunt and uncle each for a week or so prior to coming to Australia because he was so targeted for harm.  In the Tribunal’s view these claims are not consistent with the applicant’s lack of profile and activities with the UNP, with his evidence that his father essentially withdrew from politics in 2010, and his evidence that he essentially went about his usual activities for nearly two weeks following the protest.  He claims that the protest was peaceful with police present and that he remained living at the family home from the date of the protest on 28 February 2012 until around 10 March 2012 when he went to stay the night with his aunt to fix her computer.  He told the Tribunal that he attended his job as an accountant at his father’s business at a sawmill until 5 March and then only stopped working there because the saw mill closed for a month for stocktaking purposes.  In the Tribunal’s view if the applicant became of interest to authorities/the Sri Lankan government because of his role or attendance at the protest he would have been located sooner at his usual residence or usual place of work.  He did not reasonably explain to the Tribunal why he was not so located.  His adviser submitted that it would have taken time to gather data on who was involved and at that time the Sri Lankan authorities were under international scrutiny and the applicant said that the authorities could not take action without “a plan” but in the Tribunal’s view if the applicant were of the interest to the Sri Lankan government/authorities that he claims to be, of such interest that he claims he had to leave the country to avoid harm there, those authorities and/or their supporters would have located him at his home/his work sooner after the protest.

7. In that paragraph, the Tribunal, in effect, said that the applicant did not face a real risk of serious or significant harm because he did not have the profile of a political dissident, that is, he was not perceived to be a political dissident, and because, notwithstanding his and his family’s support for the UNP, they had not been harmed in the past.

8. Consequently, it seems that the Tribunal did consider the relevant matters.  This ground has no real prospect of success.

Ground 3

1. The third ground of review in the application filed on 17 July 2013 and amended on 24 October 2014 is:

   The Tribunal made critical findings that were unreasonable and/or made without evidence.

   Particulars

   (a)The Tribunal made the following findings: (i) the applicant had not organised, or was not ordered to organise, the February 2012 protest; and (ii) the applicant was not targeted for harm by those supporting the government and men did not come looking for him at any time.

   (b)     These findings were critical to the applicant’s claims.

   (c)The findings were unreasonable and/or made without evidence.

2. This ground concerns paragraph 45 of the Tribunal’s reasons for decision, which is set out above.

3. A well-known statement of the circumstances in which illogicality or irrationality will amount to jurisdictional error is at [130] to [131] of Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 115 ALD 248; (2010) 266 ALR 367; [2010] HCA 16 where Crennan and Bell JJ said:

   In the context of the Tribunal's decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

4. However, the applicant argued that, in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 139 ALD 181; (2013) 297 ALR 225; [2013] HCA 18, the High Court moved away from the SZMDS test and propounded a new one, at [75] to [76]. Those paragraphs are as follows:

   75.In Peko-Wallsend, Mason J, having observed that there was considerable diversity in the application by the courts of the test of manifest unreasonableness, suggested that “guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion”. House v The King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as where a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.(footnotes omitted)

   76.As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. (footnotes omitted)

5. The applicant also relied upon Minister for Immigration and Border Protection v Singh (2014) 139 ALD 50; (2014) 308 ALR 280; [2014] FCAFC 1, at [44], where the Full Court of the Federal Court said:

   In order to understand how the standard of legal unreasonableness is to be ascertained, it is important to see where the concept fits in terms of the court’s supervisory powers over executive or administrative decision-making. In Li, the judgments identify two different contexts in which the concept is employed. Legal unreasonableness can be a conclusion reached by a supervising court after the identification of an underlying jurisdictional error in the decision-making process: Li at [27]–[28] per French CJ, at [72] per Hayne, Kiefel and Bell JJ; compare Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 ; 266 ALR 367; 115 ALD 248; [2010] HCA 16 at [39] per Gummow ACJ and Kiefel J. However, legal unreasonableness can also be outcome focused, without necessarily identifying another underlying jurisdictional error. The latter occurs in what French CJ (in Li at [28]) calls “an area of decisional freedom”: it has the character of a choice that is arbitrary, capricious or without “common sense”. See also the plurality at [66] referring to an area within which a decision-maker has a genuinely free discretion. The plurality in Li described this as an inference to be drawn because the court cannot identify how the decision was arrived at. In those circumstances, the exercise of power is seen by the supervising court as lacking “an evident and intelligible justification”. Gageler J also uses language suggestive of review for legal unreasonableness being concerned with an examination by the supervising court of the outcome of the exercise of power (in Li at [105]):

   It is, of course, true that, as a measure in fact of time, space, quantity and conduct, reasonableness is a concept deeply rooted in the common law: and so, in such cases, is the power of a court to say whether a particular decision of that fact is or is not within the bounds of reason”: Giris Pty Ltd v FCT (1969) 119 CLR 365 at 383–384; [1969] ALR 369 at 380; [1969] HCA 5. Review by a court of the reasonableness of a decision made by another repository of power “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process” but also with “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick [2008] 1 SCR 190 at [47].

1. Paragraph [47], although obiter, is also noteworthy:

   This question highlights the distinctions made between reasonableness review which concentrates on the outcome of the exercise of power, and reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power. Although it is not necessary for the purposes of this appeal to resolve the question whether those should be seen as two different kinds of review and what might flow from that, we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. It is not, as in House v R (1936) 55 CLR 499; 10 ALJR 202, on an appeal from an exercise of a judicial discretion, for the court to re-exercise the discretion. If a supervising court goes outside the reasons given by a decision-maker for another justification for the exercise of power, that court might then be seen to be placing itself in the position of the repository of the power and therefore acting impermissibly. Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable.

2. The first impugned finding is that the applicant had not organised, or was not ordered to organise, the February 2012 protest.  The Tribunal supported this conclusion firstly by saying that the applicant had given confused accounts of his role in the protest.  The first example of confusion given by the Tribunal was that the applicant told the Tribunal it was a protest by the local community whereas in his statutory declaration, the applicant had said that it was a protest organised by the UNP.  I do not detect any inconsistency in those statements.  Clearly, a protest could be carried out by members of the local community even though it was organised by a political party.

3. The Tribunal then said that the applicant claimed at the Tribunal hearing that he had organised the protest.  In paragraph 45 of its reasons for decision, the Tribunal did not expressly contrast this statement with anything.   However, the applicant said in his statutory declaration that he was “involved” in the protest and that “the protest I participated in was organised by the United National Party”.  These claims were noted at paragraph 25 of the Tribunal’s reasons for decision.  Also, at paragraph 45 of the Tribunal’s reasons for decision, the Tribunal noted in a slightly different context that the applicant claimed that the protest was organised by the UNP.

4. It is true that in Singh, the Full Federal Court said in obiter that the supervising court should look at the expressed reasons of the decision maker, rather than reasons that might be constructed after the event.  However, in this particular case, it appears that the Tribunal meant to say that the applicant gave a confused account of his role in the protest because, in his statutory declaration, he merely said that he had participated in the protest, whereas, in oral evidence to the Tribunal, he said that he had organised the protest.  In the unusual circumstances of this case, I consider that it is appropriate to treat that reason as a reason given by the Tribunal.  It is also a sound example of the applicant giving confused accounts of his role in the protests.

5. The Tribunal then said that it did not accept that the applicant had organised the protest because of his age and lack of profile within the party.  However, it was a protest of 30 to 40 people.  It was not a mass demonstration.  The applicant said that a local MP, who he named, had asked him to organise the protest.  That does not strike me as implausible. 

6. More importantly, the Tribunal has extended the applicant’s concession that he “had no real political profile in his country” and his concession that he “did not have much of a profile with the UNP” to mean that he did not have any profile at all within the UNP.  Really, all that was needed for him to be asked by the local MP to organise a very small protest was that the MP knew his name and locality and knew that he was a willing worker.  That is not a profile as such. 

7. Consequently, I do not accept that “the applicant’s age and lack of profile within the party” were sound reasons for concluding that the applicant had not organised the protest.  On the other hand, the change in the applicant’s evidence, about whether he had merely attended or had organised the protest, was a sound reason for considering that the applicant had not organised the protest.  Therefore, I do not accept that there is a real prospect of success in the argument that the finding that the applicant did not organise the protest was unreasonable.

8. The applicant also argued that the Tribunal made an unreasonable finding when it found that the applicant was not targeted for harm by those supporting the government and men did not come looking for him at any time.  The Tribunal said that these claims, and some others, were not consistent with:

   a)the applicant’s lack of profile and activities within the UNP;

   b)the evidence that his father withdrew from politics in 2010; and

   c)the evidence that the applicant went about his usual business for nearly two weeks after the protest.

9. In referring to the applicant’s activities in the UNP, the Tribunal, in view of its previous findings, must have meant that the applicant had participated in the protest but not organised it.  The issue about the father withdrawing from politics in 2010 related to another matter, namely, the alleged assault on the father.  In relation to the applicant pursuing his usual activities, the Tribunal noted that the applicant had lived at his usual residence and attended his usual place of work until the agents allegedly looked for him at home.  The Tribunal considered that the agents would have found the applicant more quickly if he had been of such interest to them that he had to leave the country to avoid harm.  The applicant said that they went to his house 10 days after the protest.

10. The impugned finding does not seem to me to be irrational in the necessary sense.  It was open to the Tribunal to conclude that a person who merely attended a protest about fuel prices would not be pursued as the applicant claimed to have been pursued.  It was also open to the Tribunal to conclude that, if the authorities thought that the applicant was such a threat, that they would have located him within a few days, rather than 10.  I am not persuaded that the impugned finding was unreasonable in the necessary sense.

11. The applicant then said that the two findings mentioned above were critical findings made without evidence.  The applicant relied on SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402; [2003] FCAFC 231, where the Full Court of the Federal Court said at [18] to [19]:

    … But the essence of the argument was that there was no information before the tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.

    This argument, if it were made out, would be sufficient to establish that the tribunal had made a “jurisdictional error” so as to found jurisdiction in this Court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error … .

12. However, there is a distinction between positive findings of fact, such as that there was a government in control that would protect an applicant from persecution, and not accepting an applicant’s claims.  As Heerey J said in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105 at [7]:

    A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.

13. In the present case, it was open to the Tribunal to reject the applicant’s claim that he had organised the protest because that claim was inconsistent with his earlier evidence in his statutory declaration.  It was open to the Tribunal to conclude that the applicant was not targeted and the authorities did not come looking for him because he had merely participated in a small protest and he would have been located much earlier if the authorities were really concerned about him.

14. This ground has no reasonable prospect of success.

Ground 4

1. The fourth ground of review in the application filed on 17 July 2013 and amended on 24 October 2014 is:

   In considering the applicant’s failed asylum seeker claim the Tribunal failed to consider whether the applicant was at risk by reason of all of the risk factors identified and/or failed to consider whether he was at risk of persecution by reason of his imputed political opinion/profile.

   Particulars

   (a)The Tribunal did not accept that the applicant was at risk of harm as a failed asylum seeker who left the country illegally.

   (b)The Tribunal did not accept that the applicant had a prior anti-government profile with authorities and did not accept that he would be imputed as anti-government because he had been overseas in Australia.

   (c)The Tribunal failed to consider whether the applicant as a failed asylum seeker who had left the country illegally was at risk of being imputed with an anti-government profile because of the various risk factors identified, including his ethnicity and his own and his family’s previous political involvement and/or support of the AFP.

2. It seems that the reference to the AFP was intended to be a reference to the UNP.

3. The Tribunal dealt with the issues that arose in connection with this ground in paragraph 46 of its reasons for decision.  That paragraph is as follows:

   As referred to above, having regard to the country information consulted by the Tribunal, the Tribunal accepts that Tamils who have left their country illegally and who are returning to Sri Lanka from overseas countries, including Tamil asylum seekers from western countries, are questioned and sometimes investigated and some suffer harm and harassment on their return to Sri Lanka especially if they are perceived to be connected with or assisting the LTTE in either Sri Lanka or in an overseas country.  The Tribunal accepts that the applicant being a person who left the country illegally will be dealt with under relevant laws of Sri Lanka which are laws of general application; it accepts that being a Tamil asylum seeker returning from a western country he will be questioned and encounter some harassment on return to Sri Lanka.  The Tribunal does not accept however that this applicant will be targeted for harm amounting to serious or significant harm on return to Sri Lanka, or that laws of general application will be applied to him with discrimination because he is a Tamil male returnee from overseas/Tamil male who is a failed asylum seeker who left the country illegally.  While the Tribunal accepts that the applicant will come to the attention of Sri Lankan authorities as a returning asylum seeker who departed his country illegally by boat without documents the applicant told the Tribunal at the hearing that his original passport is still in Sri Lanka with his father and that his father has sent him copies of his other identity documents from Sri Lanka.  As discussed above the Tribunal does not accept that the applicant has a prior anti government profile with authorities in Sri Lanka as he claims and it therefore follows that the Tribunal does not accept that the applicant will be of interest to authorities in Sri Lanka for this reason.  Although the Tribunal accepts that the records kept by authorities in relation to those of interest to authorities in Sri Lanka have become increasingly sophisticated as the applicant’s advisor submitted, it does not accept that this applicant is of interest to those authorities as the applicant claims.  The Tribunal does not accept that this applicant has been or will be identified or perceived to be anti government, a political dissident or an LTTE member or supporter, either in Sri Lanka or in Australia because he has been overseas in Australia.

4. The Tribunal expressly considered the applicant’s various attributes and the matters raised by him.  This ground has no reasonable prospect of success.

Conclusion

1. As none of the applicant’s grounds has a reasonable prospect of success, the application for an extension of time will be refused.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Riley

Associate: 

Date:  28 January 2015