MZZQI v Minister for Immigration - [2015] FCCA 2177

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQI v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 2177

Catchwords:
MIGRATION – Application for review of a decision by the Refugee Review Tribunal – Applicant claims Tribunal failed to consider an integer of his claim and to consider aspects of his profile cumulatively – Court satisfied Tribunal considered Applicant’s claims singly and collectively – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
MZYQU v Minister for Immigration and Citizenship and Anor (2012) 133 ALD 276
MZYXR v Minister for Immigration and Citizenship and Anor (2013) 141 ALD 276
WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612

Applicant:

MZZQI

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1243 of 2013

Judgment of:

Judge Whelan

Hearing date:

19 March 2015

Date of Last Submission:

19 March 2015

Delivered at:

Melbourne

Delivered on:

19 August 2015

REPRESENTATION

Counsel for the Applicant:

Ms Levine

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Brown

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Amended Application for Review filed on 5 February 2015 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1243 of 2013

MZZQI

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 2 July 2013.[1] In its decision, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection (“the First Respondent”) not to grant the Applicant a Protection (Class XA) visa.
[1] Court Book filed 26 September 2013 at pp.200-227.

Background

The Applicant is a Sri Lankan citizen of Tamil ethnicity. He arrived in Australia on 24 July 2012 and applied for a protection visa on

6 November 2012.[2]
[2] Ibid at pp.20-46.
The application was refused by the delegate on 15 March 2013.[3] On

19 March 2013, the Applicant applied for a review of that decision by the Tribunal.[4] The Applicant attended a hearing on 27 May 2013. On

2 July 2013 the Tribunal affirmed the delegate’s decision[5] and on

8 August 2013 an application for judicial review was lodged. That application was amended on 5 February 2015.
[3] Ibid at pp.95-111.
[4] Ibid at 113-118.
[5] Court Book filed 26 September 2013 at pp.200-227.

The Applicant’s claims

In his Irregular Maritime Arrival Entry Interview,[6] the Applicant claimed to fear for his safety in Sri Lanka because in 2003 he was suspected of doing work for the Liberation Tigers of Tamil Eelam

(“the LTTE”) in his mechanical workshop. Twice the Applicant was taken into custody by authorities and later released. There were also further visits to the Applicant’s workshop where he was asked to give information about the LTTE.
[6] Ibid at pp.2-18.
In a statement attached to his visa application,[7] the Applicant stated that:
·The Sri Lankan Army suspected Tamils, living in Jaffna, of being supporters of the LTTE and having anti-government political views;[8]
·He had been interrogated and tortured in 2003 and accused of being an LTTE supporter.[9] Visits to his business and similar interrogation and torture sessions occurred almost weekly from 2003 until 2007. After this, the Sri Lankan Criminal Investigation Department (“the CID”) only came once per month until September 2011;[10]
·He feared being abducted and detained by the CID under suspicion of being involved in the LTTE;[11]
·He also feared being arrested and interrogated for leaving his country illegally;[12] and
·He gave as the reasons why the CID might suspect him of being an LTTE supporter, his Tamil ethnicity and because he repaired motorcycles for LTTE members.[13]
[7] Ibid at pp.47-50.
[8] Ibid, p.47 at para.11.
[9] Ibid, p.48 at para.13.
[10] Ibid at para.14.
[11] Ibid at para.19.
[12] Ibid at para.20.
[13] Court Book filed 26 September 2013, p.49 at para.22.
In written submissions put to the Tribunal,[14] the Applicant’s representative put that the Applicant feared persecution because of his:
·Tamil race;
·Imputed political opinion (as a supporter of the LTTE and opponent of the government); and
·Membership of a particular social group (failed asylum seekers).[15]
[14] Ibid at pp.135-181.
[15] Ibid at p.135.
It was put that the Applicant would be perceived to be opposed to the government because of his:
·Involvement in repairing motorcycles for the LTTE;
·Sister-in-law’s membership of the LTTE;
·Tamil ethnicity; and
·Status as a failed asylum seeker.[16]
[16] Ibid.
Of particular relevance to the proceedings before the Court is the following paragraph in those submissions:
The different aspects of [the Applicant’s] profile (his identity as a relative of an LTTE member, as someone who has repaired motorbikes for members of the LTTE, and as a failed asylum seeker) cannot be considered in isolation; rather, the profile that he will possess as a result must be considered cumulatively. Even though the Sri Lankan authorities ceased visiting [the Applicant] prior to his departure (and did not raid his house), this may plausibly be explained by the fact that they believed that they had sufficiently intimidated him so that he would not provide further assistance to LTTE members, or oppose the authorities’ rule. However, [the Applicant’s] circumstances have changed significantly since that time: his treatment prior to his departure cannot be considered an accurate yardstick of how he will be treated upon his return. His cumulative profile will be substantially boosted by his status as a failed asylum seeker, as evidenced by continuing official harassment of his family since his departure (forcing them to abandon their home and live in hiding). This harassment indicates that his increased profile will be sufficient, upon his return, to expose him to serious harm.[17]
[17] Court Book filed 26 September 2013, p.140 at para.17.
The submission also referred to a UK document, Freedom from Torture, Sri Lankan Tamils tortured on return from the UK,[18] which referred to a “combination of residence in another country” with “past actual or perceived association with the LTTE” as exposing “individuals to risks of torture and inhuman and degrading treatment in Sri Lanka”.[19]
[18] Freedom from Torture, Sri Lankan Tamils tortured on return from the UK, 13 September 2012, available at: [accessed 26 April 2013].
[19] Court Book filed 26 September 2013, p.140 at para.19.

The Tribunal’s decision

In its decision, the Tribunal referred to the evidence given by the Applicant at the hearing and the matters put to him by the Tribunal. From paragraphs 46 to 76 of its reasons for decision,[20] the Tribunal dealt with country information including extensive material on failed asylum seekers returning to Sri Lanka and the current position of Tamils in Sri Lanka. The Tribunal found that the Applicant’s evidence was not credible with respect to aspects of his claims and considered him to have also “embellished and exaggerated aspects of his claims”.[21]
[20] Ibid, pp.209-219.
[21] Ibid, p.219 at para.79.
At paragraph 82 of its decision, the Tribunal made the following findings:
Country information (above) suggests that particularly during the period of hostilities up until 2009, Tamils in the Northern part of Sri Lanka were treated adversely. This is consistent with the applicant’s initial assertion at hearing that such treatment continued until 2009, and the Tribunal accepts this was the case prior to 2009 for the applicant. On that basis the Tribunal is prepared to accept he was the subject of some adverse official attention and mistreatment from 2003 during the period of conflict, which ended in 2009. It is not however satisfied such mistreatment continued after that time, or that he was experiencing such mistreatment in April or September 2011 as claimed at different stages of the protection process, or that he was of any adverse interest to authorities at that time. It also finds he was of no adverse interest to authorities when he departed

Sri Lanka in July 2012. Given this finding, the Tribunal also rejects his assertion that since his 2012 departure, authorities in Sri Lanka have been harassing his family or making enquiries with his family about his whereabouts, or that such authorities maintain an ongoing file on him or that he is now of any adverse interest to Sri Lankan authorities for any reason.[22]
[22] Court Book filed 26 September 2013, p.220 at para.82.
The Tribunal summarised the Applicant’s claims to fear harm as being for the following reasons:
·His Tamil ethnicity,
·His relationship to his sister in law, who he asserted was an LTTE member known to authorities.
·His imputed political opinion as a suspected member or supporter of the LTTE through his work as a repairer who had worked on LTTE motorcycles, and as someone who had been the subject of past attention from authorities.
·His status as a failed asylum seeker being returned from Australia.[23]
[23] Ibid, pp.220-221 at para.85.
The Tribunal dealt with each of these claims. The Tribunal found, with respect to his ethnicity, that the Applicant did not fit into any of the profiles identified by the United Nations High Commissioner for Refugees (“the UNHCR”) as persons who might still be in need of international refugee protection and that it was not satisfied that he would be imputed to have a political opinion opposed to the government “simply because of his Tamil ethnicity”.[24]
[24] Ibid, p.221 at para.86.
The Tribunal rejected much of the evidence given by the Applicant concerning his sister-in-law. The Tribunal accepted that there was some material provided post-hearing which supported the claim that she was affiliated with the LTTE. The Tribunal therefore decided:
Whilst the Tribunal has not had the opportunity to speak to that person or explore the contents of their statement, it proceeds on the basis the sister in law of the applicant did work in a medical unit of the LTTE as claimed.[25]
[25] Court Book filed 26 September 2013, p.222 at para.89.
The Tribunal did not accept, however, that the Applicant’s relationship with his sister-in-law, or her past work or profile, was sufficient to give rise to a real chance that he would be persecuted should he return to

Sri Lanka nor that he would be imputed to be an opponent of the government simply because of his relationship with her.[26]
[26] Ibid at para.90.
The Tribunal accepted that the Applicant was a motor cycle repairer and, as such, “may have repaired and worked on motor cycles owned by the LTTE”.[27] It was also prepared to accept that the Applicant may have been interrogated and assaulted by authorities from about 2003 and prior to cessation of hostilities in 2009.[28]
[27] Ibid, p.223 at para.92.
[28] Ibid.
Given the changed circumstances, the Tribunal did not accept that such mistreatment would recur.[29] While the Tribunal was prepared “to accept that the applicant had come to the adverse attention of authorities during the conflict in Sri Lanka, it [did] not consider this would bring him within the category of persons who may still face significant harm”[30] in Sri Lanka nor did it consider that his work as a motor cycle repairer would cause him to be “imputed to have a political opinion opposed to the government”.[31]
[29] Ibid at para.93.
[30] Ibid at para.94.
[31] Ibid.
The Tribunal considered country information with respect to the treatment of returning failed asylum seekers. The Tribunal concluded that it was not satisfied that the Applicant, “who lacks other current personal risk characteristics or profile beyond having illegally departed Sri Lanka or being a Tamil”, faced a real chance of persecution for reasons of his “illegal departure ... or his status as a failed asylum seeker”.[32]
[32] Ibid, p.224 at para.98.
The Tribunal concluded:
Having considered the claims of the applicant both individually and cumulatively, the Tribunal is not satisfied he has a

well-founded fear of persecution for reason of his own (actual or imputed) political opinion, his Tamil ethnicity, membership of a particular social group, (being failed asylum seekers or returnees who left Sri Lanka illegally), or any other Convention reason if returned to Sri Lanka now or in the reasonably foreseeable future. It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).[33]
[33] Court Book filed 26 September 2013, p.225 at para.101.

The grounds of review

While the application for review contained two grounds, only the first was pressed by the Applicant:
Ground 1
The Tribunal failed to consider an integer of the Applicant’s claim with respect to a real risk of persecution in Sri Lanka and therefore constructively failed to exercise its jurisdiction and/or failed to discharge its statutory [sic] with respect to the criterion for protection in s 36(2)(a) of the Migration Act.[34]
[34] Amended Application filed 5 February 2015 at p.3.

The Applicant’s submissions

The Applicant submitted that the Tribunal failed to consider an integer of the Applicant’s claim being that the “various aspects of the applicant’s unique profile needed to be considered cumulatively or in combination”.[35] The Applicant took the Court to the transcript of the Applicant’s interview with the delegate[36] in support of a submission that, from the first interview, the Applicant maintained that whereas his previous work in motorcycle repairs for customers who were

LTTE members placed him at risk, the interest of the authorities in him would now be higher as someone who was also a failed asylum seeker.[37]
[35] Transcript of proceedings of 19 March 2015, p.3 at lines 37-39.
[36] Affidavit of Ms A Jannetto filed 18 March 2015 at Annexure A.
[37] Affidavit of Ms A Jannetto filed 18 March 2015, Annexure A at p.16.
The claims made in the written submission to the Tribunal[38] were also put in the context of the Applicant’s:
·Tamil ethnicity;
·Imputed political opinion; and
·Status as a failed asylum seeker.
The imputed political opinion was put as the cumulative effect of the Applicant’s work repairing motor bikes for members of the LTTE and his wife’s sister’s political affiliations.[39]
[38] Court Book filed 26 September 2013 at pp.135-181.
[39] Ibid, p.139 at para.14.
The Applicant submitted the Tribunal accepted:
(a)“the sister in law of the applicant did work in a medical unit of the LTTE …”;
(b)“the applicant was a motor cycle repairer … and as such may have repaired and worked on motorcycles owned by the LTTE”;
(c)“he may have been interrogated and assaulted by authorities in the period from about 2003 …”;
(d)“the applicant had come to the adverse attention of authorities during the conflict in Sri Lanka”;
(e)“he left Sri Lanka in July 2012 without a passport and … not in accordance with Sri Lankan law …”;
(f)“if he returned, he is likely to be identified as a person who unsuccessfully claimed asylum overseas…”[40]
[40] Submissions of the Applicant filed 5 March 2015, pp.3-4 at para.10(a)-(f).
However, each of these was dealt with individually and there was no analysis of the cumulative effect of these aspects of the Applicant’s profile. The Applicant referred the Court to MZYQU v Minister for Immigration and Citizenship and Anor (2012) 133 ALD 276 at paragraph 80 and MZYXR v Minister for Immigration and Citizenship and Anor (2013) 141 ALD 276 at paragraph 19 in support of a submission that “mere recording of evidence or a statement”[41] of the applicant’s (in this case, claims) “without analysis or resolution would not amount to “consideration” in the relevant sense”[42] and the Court needed to consider the “structure and methodology of the decision”[43] to determine whether a statement is formulaic or “supported by any earlier reasoning”.[44] The Applicant submitted that the Tribunal’s conclusions in paragraph 101 of its decision[45] should be approached in this way.
[41] (2012) 133 ALD 276 at para.80.
[42] (2012) 133 ALD 276 at para.80.
[43] (2013) 141 ALD 176 at para.19.
[44] Ibid.
[45] Court Book filed 26 September 2013 at p.225.
The Applicant submitted by reference to relevant paragraphs of the decision that the Tribunal analysed each of the Applicant’s claims distinctly and considered only whether each claim, or aspect of the Applicant’s profile, in and of itself, exposed him to risk of persecution. The Applicant submitted that “nowhere in the decision is there any evidence of engagement with the cumulative aspects of the applicant’s profile”.[46]
[46] Transcript of proceedings of 19 March 2015, p.13 at lines 9-10.

The First Respondent’s Submissions

The First Respondent accepted that it was well-established that the Tribunal must construe and consider each claim and each integer of each claim made by an applicant. This required the Tribunal to give “proper, genuine and realistic consideration to the evidence before it” and the claims made by the Applicant that constituted a “substantial, clearly articulated argument relying on established facts”.[47]
[47] First Respondent’s Outline of Submissions filed 12 March 2015, p.2 at para.7.
However, the First Respondent contended that the Applicant’s claim simply amounted to a bare submission that the particular aspects of his profile needed to be considered cumulatively.[48] “[N]owhere does the applicant set out how his cumulative profile increases his risk of persecution or provide any evidence to support this particular claim”.[49]
[48] Ibid at para.8.
[49] Ibid, p.4 at para.10.
The Applicant’s claim centred on imputed political opinion of being an anti-government supporter of the LTTE, based on his:
·Ethnicity as a Tamil from Jaffna;
·Contact with the LTTE through his bike repair business;
·Sister-in-law’s involvement in the LTTE; and
·The fact that he had left Sri Lanka illegally.[50]
[50] First Respondent’s Outline of Submissions filed 12 March 2015, p.3 at para.9.1.
The First Respondent submitted that the Tribunal had considered the Applicant’s profile and concluded, based on the UNHCR guidelines that the Applicant did not fit within any of the profiles of persons considered to be a risk of exposure to harm on being returned to

Sri Lanka.[51]
[51] Court Book filed 26 September 2013, p.221 at para.86.
What evidence the Applicant did refer to as supportive of his cumulative claim – the ongoing harassment of his family since he had left Sri Lanka – was not accepted by the Tribunal. Further, the Tribunal did not accept that the Applicant had experienced maltreatment by

Sri Lankan authorities in April or September 2011 or was of any adverse interest to authorities between then and when he left Sri Lanka in July 2012. The Tribunal also rejected his claim that the authorities maintained an ongoing file on him or that he was now of any adverse interest to them.
The Tribunal also considered if this was likely to be the case in the future and gave weight to the changed circumstances in Sri Lanka in its conclusion that it was not satisfied that he was at risk of harm in the foreseeable future should he return to Sri Lanka.[52]
[52] Ibid, pp.223-225 at paras.93-100.

The First Respondent referred the Court to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003)

75 ALD 630 at paragraph 47 in support of a submission that the Tribunal had dealt with the Applicant’s claims, the “reasons [were] comprehensive … the key factual substratum of [the] claim [was] rejected” and no issues were “overlooked”.[53]
[53] Transcript of proceedings, 19 March 2015, p.21 at lines 28, 36-37 and 46.
The First Respondent submitted that the cumulative claim did not rise to the level of a substantial, clearly articulated argument relying on established facts.[54] In this case a large number of the ‘facts’ relied upon by the Applicant were rejected by the Tribunal.[55]
[54] First Respondent’s Outline of Submissions filed 12 March 2015, p.4 at para.10.
[55] Transcript of proceedings, 19 March 2015, p.22 at line 29.

Conclusions

The basis of the Applicant’s ground for review is found in the paragraph 7 of the judgment of Merkel J in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244:
While it may be convenient for the Tribunal to deal separately with each element of the claim, that does not relieve it of the task of addressing, cumulatively, all of the essential elements of the claim raised by the material or evidence. In that regard, the Tribunal, in conducting its review of the decision of the delegate under s 414 of the Migration Act 1958 (Cth), is under a duty to address or deal with the case (ie the claim) actually raised by the material or evidence: see Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 and Minister for Immigration and Multicultural Affairs v Sarrazola (2001) 107 FCR 184 at 196, Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294.
A failure to deal with a claim or part of a claim may constitute jurisdictional error. The approach adopted by the Tribunal may reveal that the Tribunal has not dealt with an issue at all[56] or that it has failed to adequately identify and consider an element of a claim.[57] A conclusion that a Tribunal has failed to consider a claim or part of a claim must be considered by reference to the reasons for decision.
In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is “the reality, and not the appearances, which matters”: cf. Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 595 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim involves a decision-maker to engage in “an active intellectual process directed at that representation or submission”: Tickner v Chapman (1995) 57 FCR 451 at 462 per Black CJ. See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, 147 FCR 51. Both Madgwick and Hill JJ endorsed the formulation of Black CJ in Tickner that “an active intellectual process” was required: [2005] FCAFC 134 at [46] per Hill J; see also [2005] FCAFC 134 at [212] per Madgwick J.
A conclusion that a decision-maker has failed to consider a claim or part of a claim is a conclusion to be reached by reference to the reasons for decision. It may be that some reservation should be exercised before such a conclusion is reached where the reasons that have been provided are “otherwise comprehensive”: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184. Again in the context of reviewing a decision of the Refugee Review Tribunal, French, Sackville and Hely JJ there observed:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
These observations have since been applied in respect to a review undertaken by an Independent Merits Reviewer: SZQLS v Minister for Immigration and Citizenship [2012] FCA 1274 at [14] to [15] per Logan J.[58]
[56] (2013) 141 ALD 276.
[57] (2012) 133 ALD 276.
[58] WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612, p.615 at paras.12-13.
In this matter, the Tribunal considered each of the Applicant’s claims in the context of the evidence he gave, some of which was accepted and some rejected, and the country information to which it referred. The Tribunal made specific findings on the question of whether Tamil ethnicity, in itself, was sufficient to give rise to a real chance of persecution and concluded that post the cessation of hostilities this was not the case.[59]
[59] Court Book filed 26 September 2013, p.221 at para.86.
The Tribunal also found that the Applicant’s relationship with his sister-in-law was not a basis for a well-founded fear of harm should he return to Sri Lanka and referred to the fact that since the cessation of hostilities more than 10,000 former LTTE cadre who had been detained had been released and returned to the community.[60]
[60] Court Book filed 26 September 2013, pp.222-223 at paras.90-91.
With respect to his involvement as a repairer of motorcycles which may have been owned by the LTTE, the Tribunal considered that while the Applicant may have been interrogated and assaulted by authorities from about 2003 to the cessation of hostilities in 2009, as a result of changed circumstances the Tribunal did not accept that past mistreatment would reoccur.[61]
[61] Ibid, p.223 at paras.92-93.
At paragraph 50 of its decision, the Tribunal set out the UNHCR’s conclusions on the groups of persons of Tamil ethnicity which might still require international protection.
In December 2012 the UN High Commissioner for Refugees, stated that in light of an improved human rights and security situation, there was “no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country”. It did note however that some groups of persons of Tamil ethnicity may still require international protection:
More specifically, the possible risks facing individuals with the profiles outlined below require particularly careful examination. UNHCR considers that individuals with these profiles – though this list is not exhaustive – may be, and in some cases are likely to be in need of international refugee protection, depending on the individual circumstances of their case.
(i)     persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE);
(ii)     certain opposition politicians and political activists;
(iii)    certain journalists and other media professionals;
(iv)    certain human rights activists;
(v) certain witnesses of human rights violations and victims of human rights violations seeking justice;
(vi)    women in certain circumstances;
(vii)   children in certain circumstances; and
(viii) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals in certain circumstances.[62]
[62] Court Book filed 26 September 2013, p.210 at para.50.
The Tribunal referred to those guidelines, noting that while they were not conclusive, they were useful indicators of those persons who might remain at risk. It noted that the Applicant’s own profile did not fall within any of those categories. Similarly after considering the country information available, the Tribunal did not accept that the Applicant faced a real chance of serious harm because he was a Tamil, an unsuccessful asylum seeker returnee, or a person who left Sri Lanka illegally.
The Tribunal then made the following conclusion:
The Tribunal does not accept the applicant would be targeted by authorities in Sri Lanka after he returned, or because they would want to interrogate him about possible LTTE supporters. Whilst the Tribunal has accepted he was subject to such interrogation in the past, it concludes the considerably changed security circumstances since cessation of hostilities in 2009 means he would no longer be of any real interest to authorities. The Tribunal accepts the December 2012 report from the UNHCR (above) that a significant percentage of persons returned to

Sri Lanka and released after initial interview may be followed up with a further visit by authorities in their home locations. It does not however accept this demonstrates they were subjected to adverse treatment or harm in the course of such follow up. As a result the Tribunal is not satisfied the applicant faces a real chance of serious harm sufficient to amount to persecution if returned to Sri Lanka now or in the reasonably foreseeable future because authorities would target him after return, or wish to find out about LTTE supporters. It therefore finds his claimed fear of persecution in Sri Lanka for such reasons is not well founded. The Tribunal is also not satisfied there is a real risk he would face significant harm as defined for the purposes of s.36(2)(aa) if removed to Sri Lanka because of those reasons.
Having considered the claims of the applicant both individually and cumulatively, the Tribunal is not satisfied he has a

well–founded fear of persecution for reason of his own (actual or imputed) political opinion, his Tamil ethnicity, membership of a particular social group, (being failed asylum seekers or returnees who left Sri Lanka illegally), or any other Convention reason if returned to Sri Lanka now or in the reasonably foreseeable future. It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).[63]
[63] Court Book filed 26 September 2013, pp.224-225 at paras.100-101.
There may be circumstances where each claim raised by an applicant may not of itself support a conclusion that the applicant had a

well-founded fear of persecution for a convention reason or reasons but, taken collectively or cumulatively, such claims may support such a conclusion. The Tribunal is obliged to consider each of the claims, which in this case it did. It also, however, made specific reference to the Applicant’s ‘profile’ which, it is reasonable to conclude, included all of the matters about which the Tribunal made findings of fact including the Applicant’s:
·Ethnicity;
·Involvement as a motorcycle repairer;
·Relationship by marriage to a person who had been in a LTTE medical unit;
·Interrogation during the hostilities by authorities; and
·The lack of any adverse interest in him by authorities since the cessation of those hostilities.
Further the Tribunal specifically considered the Applicant’s profile in the context of his return to Sri Lanka as a failed asylum seeker who had left the country illegally.
The Tribunal specifically rejected evidence that the authorities had any on-going interest in the Applicant or had had such an interest in him in 2011 or 2012. I am satisfied that in doing so it actively engaged in the consideration of all aspects of the Applicant’s claims both singly and collectively and did not merely pay lip service to a claim that considered cumulatively his claims provided the basis for a

well-founded fear of persecution.
For these reasons the application is dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Whelan

Associate:

Date: 19 August 2015