SZFXP v Minister for Immigration - [2006] FMCA 1292

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFXP & ORS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1292

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958, s.424A

Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 131
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547
Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27
Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Re Ruddock & Anor; Ex parte Applicant S154/2002 (2003) 201 ALR 437
SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109
W148/04 v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 185 ALR 703

Applicant:

SZFXP, SZFXQ & SZFXR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG688 of 2005

Judgment of:

Barnes FM

Hearing date:

24 August 2006

Delivered at:

Sydney

Delivered on:

8 September 2006

REPRESENTATION

Solicitors for the Applicant:

Chandra Jayawardena, Solicitor

Counsel for the Respondents:

Mr T. Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG688 of 2005

SZFXP, SZFXQ & SZFXR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 22 February 2005 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, citizens of Sri Lanka, are husband, wife and their son. Only the applicant husband made claims under the Refugees Convention and for convenience he is referred to hereafter as the applicant.
In his protection visa application the applicant claimed that he had been a member of the Janatha Vimukthi Peramuna (the JVP) and that his life would be in danger from the armed forces, police and government authorities because of his past revolutionary activities and connections with the JVP. He claimed that during a period of violence in Sri Lanka in 1989 five members of the one family in his village were killed by an unknown armed group and that the five brothers of one of the murdered persons thought that the killing was carried out by JVP rebels and that the applicant was involved. He claimed that these brothers were working in the Sri Lankan Army, had started investigations and that most of the JVP youths in the village had been killed by this “army group and the police”. His house had been searched but he went to his sister’s place and survived. He claimed that when his father died in October 1989 he could not attend, as the army and the police had taken his two elder brothers into custody, assaulted and tortured them and threatened to kill them unless he surrendered. The applicant claimed he had surrendered to the army in October 1989. He remained in the custody of the intelligence branch of a named army camp for a five month period during which time he claimed he was mistreated. After April 1990 he was sent to detention camps and then in August 1990 sent to a rehabilitation camp for one year. He escaped and returned to his home but was still threatened, so in fear for his life he travelled to Singapore where he remained for five years before returning to Sri Lanka. He returned to Sri Lanka but claimed that the army group that had been searching for him in 1989 and the police were still expecting his return. He claimed that he hid in another part of Sri Lanka and that “they” had come to that place to kill him several times.
The applicant came to Australia in July 2003 to seek medical treatment for his son. He claimed that he returned to Sri Lanka on 21 April 2004 for the funeral of his elder brother (who had died in an accident).

He claimed that on 26 April 2004 Sri Lankan police came to catch him but that he managed to escape and returned to Australia. He claimed that he had no way of returning to Sri Lanka as there was no appropriate security situation for him and that the local police station and the army would be waiting to arrest him.
The application was refused and the applicant sought review by the Tribunal. The applicant attended a Tribunal hearing.

Tribunal decision

In its reasons for decision the Tribunal summarised the claims made by the applicant in connection with his protection visa application and also the claims made by the applicant at the hearing. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal reasons for decision.
In light of the grounds relied on in these proceedings it is necessary to refer to the Tribunal account of the hearing in some detail.

The Tribunal recorded that it asked the applicant whether he encountered difficulties on his return to Sri Lanka in 2004. It recorded that the applicant stated that he was unable to attend his brother’s funeral because three people had made enquiries about him to his relatives. At the funeral his brothers were approached by people asking about his whereabouts. The Tribunal recorded that when asked if he knew who those people were, the applicant stated that he did not and nor did his brothers. The applicant told the Tribunal that from the questions they asked he surmised that they were connected to the 1989 incident.
When asked if anything else had happened in the month he was in Sri Lanka in 2004 the applicant told the Tribunal that while he was in a town other than his birth place staying with his daughter and sister, two persons had approached his sister and asked about his whereabouts and why he had not attended the funeral of his brother. The applicant is recorded as having told the Tribunal that his sister did not know who these people were, but that they approached her house on a motorbike. The applicant told the Tribunal that his sister gave these people her telephone number and suggested that they telephone him but that they did not do so.
The Tribunal also recorded that the applicant stated that since he had returned to Australia, “these same people or such like people” had continued to make enquiries about his whereabouts. He stated that he had not experienced any difficulties entering and exiting the airport.
The reasons for decision record that when the applicant was asked what he feared about returning to Sri Lanka he stated:
…… that from these incidents he believed that the group are still looking for him and that they will kill him should he return. The applicant was asked whether he could describe to the Tribunal who or what this group was. The applicant stated that he believed the group to consist of five army officers, a couple of policemen from the police station in his birth place … The applicant was asked whether he meant that it was the army and police who were looking for him or whether it was these specific people who happened to be policemen and army personnel. The applicant was not clear in his response to this question but stated that it was particular people that were looking for him.
The Tribunal recorded that it asked the applicant whether an arrest warrant had been issued for him or whether these police and army personnel were looking for him in an official capacity, that is “whether they had some authority to arrest or detain” him. The applicant told the Tribunal that they did not but were seeking revenge in relation to the killing in 1989 of family members related to the army officers in which he was thought to have been involved. The Tribunal recorded discussions about the applicant’s past involvement in the JVP, that he stated that he no longer had any active involvement with the JVP and that in 1990 he had surrendered when the state of emergency was declared, questioned in respect of the 1989 deaths and cleared of any responsibility or involvement with violence. He was held in detention and after the investigation sent to a rehabilitation camp.
He claimed that “these people” continued to seek to harm him because they were opposed to the JVP and that they had warned and threatened him.
The Tribunal also discussed with the applicant what had happened to him in the 15 years between the 1989 incident and his arrival in Australia in 2003. The applicant told the Tribunal that he had lived in Singapore from 1991 to 1995 and then in three different parts of Sri Lanka from 1995 until 2003. During this time he had been in charge of a security firm and he and his family had moved to different locations as required to by his work. He came to Australia because his son required medical treatment.
The Tribunal recorded that it put to the applicant that in the eight years he had been in Sri Lanka from 1995 to 2003 no harm had befallen him at the hands of the group. It recorded that the applicant stated that this was because they did not get the opportunity to do so, but that he had received several threats by telephone and had constantly moved around to avoid harm. He was also recorded as having stated “that he did feel fear for his safety. He stated when he return to Sri Lanka as he was unable to attend his brother’s funeral and he had been unable to attend weddings and funerals in his own village in the past because he feared harm from the local police”.
When asked (given that the threats were said to be from particular individuals who happened to be the local police and some army personnel) whether he had reported the incidents to any authorities, the Tribunal recorded that the applicant “was ambivalent in his answer but eventually stated that the had written a letter to the Police Commissioner and that the Police Commissioner had informed him that an investigation would be carried out, but in fact nothing had happened”.
The Tribunal recorded that it put to the applicant that given that he had lived in Sri Lanka for eight years without experiencing any harm whatsoever, it had reservations as to whether he faced a real chance of harm on his return. It also raised the issue of state protection.
The applicant’s wife was recorded as confirming her husband’s claim and stating that “at times when she was at home, these men had come to her house searching for her husband whilst he was at work”. The Tribunal recorded that the applicant reiterated that he feared harm from “these people because they were opposed to JVP” and that he feared they would organise to secretly kill him rather than arrest him. Finally the Tribunal recorded that: “The Applicant was asked whether given that he knew that the people who were seeking to harm (sic) were local police officers whether he knew their names. The Applicant stated he did not. The Applicant stated that the original group consisted of army officers and local police he thought perhaps there were more people involved in the group now.”
In the findings and reasons part of its decision the Tribunal summarised the applicant’s claim to fear that he would be killed on his return to

Sri Lanka by reason of events in his village in 1989 when he was a member of JVP. However the Tribunal was not satisfied that there was a real chance of the applicant being persecuted by reason of an imputed political opinion or for any other Convention ground on return to

Sri Lanka or in the reasonably foreseeable future and was not satisfied that the applicant had a well-founded fear of persecution under the Refugees Convention.
The Tribunal stated that its reasons were that it considered “the Applicant’s evidence in respect to why persons were wishing to harm him, how he knew that this was so and who those persons are, to be tenuous, highly speculative and unconvincing”. It recorded that the applicant claimed that he believed persons wished to harm him because at various points in time various members of his family, including his wife at their home address, “had received visits and phone calls from strangers asking about the Applicant’s whereabouts”. However the Tribunal found that “The applicant’s evidence in respect to how these strangers are connected to several army men and some local police whom he believes wish to avenge the death of a family in his village in the 1989, when the Applicant was at that time a member of JVP, was vague and ambivalent”. It also noted that the applicant was unable to provide any relevant detail on these persons, claiming on the one hand that they included the local police officer but when asked the name of this local police officer stating that he did not know his name.
The Tribunal also had regard to the fact that the applicant had resided unharmed in Sri Lanka for eight years prior to his arrival in Australia. It considered it implausible that over this period strangers continued to track the applicant down and enquire after him through family members, including visiting his wife at home while he was at work, but that at no time had such strangers managed to locate or harm him.
Accordingly the Tribunal did not accept that the applicant had been subject to threats of harm by reason of his past associated with the JVP. As it did not accept that the applicant was threatened, it did not accept that there existed a real chance that the applicant faced harm by reason of an imputed political opinion on his return to Sri Lanka.
As the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations, it was not satisfied that the applicant’s wife and child satisfied the criteria for the grant of protection visas.
The applicant sought review by application filed in this Court on

18 March 2005. He relies on an amended application filed on 30 May 2005. In written submissions (and as confirmed in oral submissions) the solicitor for the applicant told the Court that ground 2 in the amended application (Wednesbury unreasonableness) was not pressed.

Whether jurisdictional error in reaching conclusion

The first ground relied on in the amended application is:
The Tribunal made a serious jurisdictional error by making the following conclusion contrary to facts and all the information constructively available on file thus refuting the credibility of the applicant openly and acting biasly.
The particulars of this ground refer to the Tribunal’s finding:
The Tribunal is not satisfied that there is a real chance of the Applicant being persecuted by reason of an imputed political opinion or any other Convention ground on return to Sri Lanka or in the reasonably foreseeable future.
In oral submissions the solicitor for the applicant told the Court that he no longer wished to rely on the words “and acting biasly”. In written submissions the solicitor for the applicant had suggested that he would “amalgamate” grounds one and four, but he decided in oral submissions to address each of these grounds separately, while indicating that the main issue involved in both grounds related to the fact that the Tribunal had found that there existed no real chance that the applicant would face harm by reason of his imputed political opinion and that the fear was not well founded.
Under the heading “Applicant’s comments” in relation to ground 1 in the amended application it was submitted that the Tribunal made a “grave error and misconception” about the reasons given by the applicant in his statement accompanying his protection visa application and his oral evidence at the Tribunal hearing. It was contended that the Tribunal failed to give proper weight to the applicant’s claims based on imputed political opinion as a result of him being a long-standing member of the JVP and that his life was threatened “as a political revenge”. It was said that hence the Tribunal failed to use the correct procedure for assessing the applicant’s written claims and that whether or not the application would be successful this had caused a serious jurisdictional error.
It was submitted for the applicant that his claim was that his fear arose because of threats levelled at him by the army and police who wished to avenge the deaths of members of a family related to the army officers. However it was contended that the Tribunal failed to consider the applicant’s argument that even during his visit to Sri Lanka in April 2004 the police had come to his house in search of him and that the Tribunal had failed to realise that even 15 years after the killings the threat to the applicant’s life had not diminished and that the police and army were still looking for him. In those circumstances it was submitted that the Tribunal’s conclusion that there was no real chance of the applicant being persecuted was made in error because the threat was ongoing and current. It was submitted that the Tribunal failed to carry out its jurisdictional commitment to “satisfy the relevant test in terms of s.91R of the Migration Act”.
It was also contended that the Tribunal had assessed the evidence in a negative way in finding that the applicant’s evidence was “vague and ambivalent” and wrongly assessed the possible threat to his life contrary to the principles said to have been adopted by Wilcox J in a case which was described in the written submissions as “SZYAT v Minister for Immigration & Multicultural & Indigenous Affairs (FCA) 858/2005 (24 June 2005)” where, according to the submissions, his Honour is said to have stated:
The RRT is committed jurisdictionally to evaluate the extent of the threat to the applicant’s life or the risk as per sec 91R(2)(a) of the Migration Act 1958 and the Tribunal’s failure to do so amounts to jurisdictional error.
It appears that this is intended to be a reference to the decision of Wilcox J in SZAYT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 857. It appears that the “quotation” attributed to Wilcox J is in fact not a quotation but rather part of the applicant’s submissions, although his Honour did state (at [31]) that:
Persecution is not established merely by proof that somebody has made a statement (the ‘threat’) about an intention to kill the person seeking recognition as a refugee. The relevant decision-maker must evaluate the ‘threat’ and determine whether it amounts to “serious harm” within the meaning of s.91R(2)(a) of the Act. That evaluation needs to take into account all the surrounding circumstances …
Wilcox J found (at [35]) that in that case the Tribunal had fallen into jurisdictional error in failing to consider the seriousness and likely effect of a threat to kill the appellant.
It was submitted that similarly the Tribunal in this case made no effort to make an evaluation to ascertain the degree of the threat complained of by the applicant, but merely stated that:
Accordingly the Tribunal does not accept that the Applicant has been subject to threats of harm by reason of his past association with the JVP. As the Tribunal does not accept that the Applicant was threatened, the Tribunal does not accept that there exists a real chance that the Applicant faces harm due to his imputed political opinion on his return to Sri Lanka.

It was contended that the Tribunal failed to understand that it was not that the applicant’s current imputed political opinion that was “risking his life”, but his past membership of the JVP and that the army officers were trying to avenge the killing of members of a family related to them. Hence it was submitted that “the threat was persisting and was sponsored by the officers of state and had an authoritative influence over it (sic).”
In oral submissions it was contended that the Tribunal had failed to consider the applicant’s claims on all the information available. Mr Jayawardena for the applicant took issue with what was said to be the Tribunal’s assessment of the applicant’s evidence and its understanding that his claim related to a particular group of persons (referred to as the army group) who had sought him in relation to the 1989 killings. It was contended that the Tribunal made a “basic error” because the applicant had very clearly said he was a member of the JVP and the Tribunal accepted that. When asked to clarify this ground Mr Jayawardena contended that the Tribunal failed to consider the applicant’s claims in a constructive and articulate manner on the facts and information constructively available.
It was also contended that, contrary to the Tribunal findings, it could not be said that the applicant’s evidence was “vague” or “ambivalent” or “unclear” and that the Tribunal had operated on an “assumption” that the evidence of the applicant was vague and ambivalent when that was not the case. It was submitted that the Tribunal had not challenged the applicant that his evidence was weak during the hearing.
It was suggested that while the applicant had made a clear claim in relation to a particular group, the Tribunal had found that it was not the same group and that while the Tribunal had referred to “strangers” the applicant had never said anything in relation to strangers. It was contended that the findings of the Tribunal were not available on the evidence before it.
Mr Reilly, counsel for the first respondent, confessed to having some difficulty understanding quite what ground one was said to be. It was contended for the respondent that it was clear from the Tribunal decision that it considered and understood the claims before it that the applicant had been subject to threats of harm because of his past association with the JVP, but for reasons that were open to it did not accept such claims. This was said to be a factual conclusion that the Tribunal was entitled to come to for the reasons it gave. It was submitted that nothing said for the applicant went beyond seeking merits review. In written submissions it was contended for the first respondent that credibility was a matter for the Tribunal. It was also submitted that the particulars provided in support of the allegation that the Tribunal failed to give proper weight to the evidence merely sought to challenge the fact that the Tribunal found the applicant’s claims not credible and that the weight to be given to evidence was also a matter for the Tribunal.
First, insofar as the applicant seeks merits review, merits review is not available in this Court. Secondly insofar as it is suggested that the Tribunal did not “challenge” the strength of the applicant’s evidence during the hearing, there is no transcript of the Tribunal hearing before the Court. On the evidence before the Court it is not possible to draw inferences as to what did not occur at the Tribunal or the precise words used during the Tribunal hearing in the manner contended for by the applicant.
More generally, it has not been established that the Tribunal misunderstood or misconceived the applicant’s claims. The Tribunal did not assess the applicant’s claim as based simply on his current imputed political opinion, as is clear from its summary of his main claims as a fear “that he will be killed on his return to Sri Lanka by reason of events in his village in 1989 when the applicant was a member of JVP.” The Tribunal also described his claim that “these people” and the “army group” continued to seek to harm him because they were opposed to the JVP, but, for the reasons it gave, did not accept that he had been subject to threats of him “by reason of his past association with the JVP.” It addressed the relationship between his claimed fear, the events of 1989 and his past membership of JVP. However while the Tribunal understood and considered the applicant’s claims, for reasons that were open to it on the material before it, it was not satisfied that his claims about threats on this basis were credible. Credibility is a matter for the Tribunal par excellence (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
The suggestion that the Tribunal failed to give proper weight to the applicant’s claims does not establish jurisdictional error. The weight to be given to particular items of evidence is a matter for the Tribunal and as long as the Tribunal’s credibility findings were open to it (which they were in this instance) no error is demonstrated in its conclusions (see Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558-559 and W148/04 v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 185 ALR 703 at [64] – [69] per Tamberlin and RD Nicholson JJ).
Insofar as the applicant complains about the fact that the Tribunal did not accept that he had been subject to threats of harm by reason of his past association with the JVP as claimed, this does not establish jurisdictional error but seeks merits review. The Tribunal addressed the applicant’s claims that people were looking for him because of his past association but rejected it.
Nor is it established on the material before the Court that the Tribunal misunderstood either the fact that the applicant initially made claims that a particular group of persons (five of whom included named army officers) held him responsible for the 1989 killings or his subsequent evidence. Mr Jayawardena suggested that the Tribunal made findings which reflected such a misunderstanding, but the parts of the Tribunal reasons for decision to which he referred form part of its account of what occurred in the Tribunal hearing. Insofar as the applicant takes issue with the accuracy of such record there is no other evidence before the Court as to the conduct of the Tribunal hearing.
Thus, for example, it was suggested that there was a misunderstanding by the Tribunal as to the applicant’s claims arising out of the fact that, when asked about what he feared upon returning to Sri Lanka, the Tribunal recorded that the applicant stated that from the incidents he had described (of people looking for him) he believed that ‘the group’ were still looking for him and that they would kill him should he return. The Tribunal stated:
The Applicant was asked about what he feared about upon returning to Sri Lanka. The Applicant stated that from these incidents he believed that the group are still looking for him and that they will kill him should he return. The Applicant was asked whether he could describe to the Tribunal who or what this group was. The Applicant stated that he believed the group to consists of five army officers, and a couple of policemen from the Police station in his birth place, Dodangondo. The Applicant was asked whether he meant that it was the army and police who were looking for him or whether it was these specific people who happened to be policemen and army personnel. The Applicant was not clear in his response to this question but stated that it was particular people that were looking for him.
It is notable that the incidents of people looking for the applicant involved people who were said to be unknown to him or to those of his family members who were approached by such persons (and hence accurately described by the Tribunal as “strangers”). The Tribunal asked the applicant to describe the group he feared. He is recorded as having described it as consisting of five army officers and a couple of policemen from the police station in his birth place. This is consistent with his original claims. The subsequent exchange does not demonstrate a misunderstanding of this claim by the Tribunal.
No error is demonstrated in the fact that the Tribunal recorded that when asked whether this meant that it was the army and police who were looking for him or whether it was these specific people who happened to be policemen and army personnel “The applicant was not clear in his response to this question but stated that it was particular people who were looking for him”. Insofar as the applicant takes issue with the Tribunal statement that the applicant was “not clear” in his response, in the absence of a transcript of the Tribunal hearing this does not establish any misconception or misunderstanding or in any way establish a jurisdictional error on the part of the Tribunal. Rather the Tribunal statement as to the clarity of the applicant’s response is an assessment by it of the applicant’s evidence.
Mr Jayawardena also took issue with the Tribunal description of the applicant’s evidence as ‘ambivalent’ in its record of what occurred in the Tribunal hearing. The Tribunal asked the applicant whether, given the threats were from particular individuals who happened to be local police and army personnel, he had reported these incidents to any authorities. This question suggests that the Tribunal did in fact understand that the applicant had originally claimed that the threats were from particular individuals who happened to be the local police and some army personnel. The Tribunal recorded that the applicant was “ambivalent” in his answer. Again this was a matter of assessment for the Tribunal and does not establish jurisdictional error on the material before the Court.
It was also contended that the Tribunal reference to “strangers” asking about the applicant’s whereabouts demonstrated jurisdictional error. However the reference to “strangers” is, in fact, consistent with the evidence the applicant is recorded as having given at the Tribunal hearing. There is nothing in the Tribunal reasons for decision to suggest that the Tribunal misunderstood or was confused about whether strangers or a particular army group were the persons feared by the applicant. The reference to “strangers” was to those unknown persons said to have approached the applicant’s family members.
Insofar as the applicant relies on what was said by Wilcox J in SZAYT, I note that the Tribunal in that case accepted that the appellant was a truthful witness and that a particular threat had occurred. It was in those circumstances that it was necessary for the Tribunal to evaluate the threat to determine whether it amounted to serious harm within s.91R(2)(a) of the Act. However in this case the Tribunal did not accept that the applicant had been subject to threats of harm by reason of his past association with the JVP. Having rejected the claim that such threats had occurred, there was then no reason for the Tribunal to evaluate the threats to determine whether they amounted to serious harm.

Procedural Fairness and s.424A of the Migration Act 1958

The next ground relied on by the applicant (ground three in the amended application) is that the Tribunal was ‘procedurally unfair’ and failed to comply with s.424A(1)(a) and (c) of the Migration Act, making a serious jurisdictional error by concluding:
The Applicant’s evidence in respect to how these strangers are connected to several army men and some local police whom he believes wish to avenge death of a family in his village in the 1989 when the applicant was at the time a member of the JVP was vague and ambivalent.
In the amended application it was submitted that there was “no indication” whatsoever during the hearing or afterwards towards the applicant by the Tribunal that his evidence was either vague or ambivalent, that this being a credibility issue the “onus” was on the Tribunal to have confronted this issue during the hearing and that the failure to do so was a grave error committed by the Tribunal and therefore amounted to a jurisdictional error.
As contended for the first respondent, insofar as the applicant relies on what occurred in the Tribunal hearing to allege a lack of procedural fairness, there is no transcript of the hearing before the Court. No lack of procedural fairness or other jurisdictional error arising out of the conduct of the hearing is established on the material before the Court. It cannot be inferred on the material before the Court that the Tribunal failed to put any particular issues to the Tribunal. In any event, the Tribunal recorded that it put to the applicant that given he had lived in Sri Lanka for eight years “without experiencing any harm whatsoever” it had “reservations” as to whether he faced a real chance of harm in Sri Lanka as well as issues of the availability of state protection.
Moreover the Tribunal’s finding that aspects of the applicant’s evidence were “vague and ambivalent” cannot, on the information before the Court be said to be an “adverse conclusion not obviously open on the known material” or otherwise such as to require it to be put to the applicant as an incident of procedural fairness, consistent with the principles in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 – 592 (see Applicant M189 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 131).
Insofar as it is contended that the Tribunal failed to deal with aspects of the applicant’s claims, it is important to note that while the written submissions for the applicant referred to a number of aspects of the applicant’s claims in relation to the identity of the persons searching for him in 1989 (the so-called army group), the Tribunal did not reject what the applicant claimed had occurred to him as a JVP member in 1989 or 1990 or that he had a past involvement with JVP. Rather it was not satisfied and did not accept that the applicant had been subject to the claimed threats of harm. On that basis the Tribunal was not satisfied there was a real chance of the applicant being persecuted by reason of his imputed political opinion or for any other Convention reason on his return to Sri Lanka.
Contrary to the contention for the applicant, the fact that the applicant “reiterated” in the hearing a claim that he feared the army group is not inconsistent with the Tribunal finding that his evidence in certain respects was “vague and ambivalent”. This assessment was made of the applicant’s evidence, not in relation to the underlying claims about the events of 1989 or the army group, but rather how the unknown persons (who the Tribunal described as ‘strangers’) who had been said to have asked after the applicant were connected to such army group. Further, it is not established that the Tribunal in some way “threw away” some of the applicant’s evidence in its findings as to the vagueness and ambivalence of particular aspects of the evidence.
It emerged in oral submissions that the applicant’s submission in relation to s.424A of the Migration Act was that it was contended that the Tribunal’s reference to “strangers” approaching the applicant’s family members must be information that the Tribunal had obtained from some other source as the applicant had never said anything about “strangers”. First, as indicated above, in the absence of a transcript of the Tribunal hearing it is not possible to conclude that the applicant never referred to strangers in the hearing. In any event the Tribunal record of what occurred in the hearing makes it clear that the applicant claimed that people he did not know had approached his brothers asking about his whereabouts at the time of his brother’s funeral and that his sister did not know who the people were who approached her and asked about his whereabouts. Given such claims it is clear that this is what the Tribunal was referring to when it described the applicant’s claims that “he believes that persons wish to harm him because of various points in time various members of his family, including his wife at their home address, received visits and phone calls from strangers asking about the applicant’s whereabouts”.
No s.424A issue is raised by the Tribunal reference to “strangers”. The finding in issue was based on information discussed at the Tribunal hearing which falls within s.424A(3)(b). Because the claims about unknown persons (or “strangers”) looking for the applicant in 1994 were claims made by the applicant at the Tribunal hearing, no issue arises as to the application of principles considered in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 and Minister for Immigration & Multicultural & Indigenous Affairs v Al Shamry (2001) 110 FCR 27 in relation to any information about “strangers”.
In any event, as counsel for the first respondent submitted, the Tribunal’s thought processes are not “information” within s.424A(1) of the Migration Act. (See Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [54] and Paul v Minister for Immigration & Multicultural Affairs (2001) 113 FCR 396 at [95]). Hence it is not necessary to consider the operation of s.422B of the Act (but see Lay Lat v Minister for Immigration & Multicultural Affairs [2006] FCAFC 61).
More generally the contention that the applicant’s evidence in the statement of claims and oral evidence at the hearing was in fact consistent and clear, seeks merits review which is not available in this Court.

Manifest unreasonableness

The last ground relied on by the applicant is that the Tribunal was “manifestly unreasonable” in concluding that it did not accept that the applicant had been subject to threats of harm by reason of his past association with the JVP and that as it did not accept that he was threatened it did not accept there existed a real chance that he faced harm by reason of imputed political opinion on his return to Sri Lanka. It was contended that this conclusion was manifestly unreasonable because:
the Tribunal has failed to give reasons as to why it did not accept the applicant’s evidence unless the Tribunal was satisfied that the Applicant was has (sic) fabricated evidence to prove his case or else the evidence was unreliable because he was lying. The Tribunal’s failure to inform as to why it did not accept the Applicant’s evidence or why they were rejected was manifestly unreasonable and therefore amounts to a jurisdictional error committed by the Tribunal.
It was therefore contended that therefore the Tribunal had “failed to assess the Applicant’s claims” in keeping with the criteria in the Refugees Convention and that “it was highly unreasonable” when it concluded that there was no real chance that harm would befall the applicant in Sri Lanka in the future due to his imputed political opinion. Insofar as the applicant seeks merits review by taking issue with the Tribunal’s conclusion, merits review is not available in this Court. The applicant’s solicitor did not make submissions on how the notion of “manifest unreasonableness” (in relation to which no authority was cited) differs from the ground of Wednesbury unreasonableness which was not pressed. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41, Mason J (as he was then) stated:
…it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power … I say “generally” because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is ‘manifestly unreasonable’

In this case the applicant’s contentions are said to be based on a failure to give reasons, which is said to indicate a failure to assess the applicant’s claims and a ‘highly unreasonable’ conclusion. However the applicant’s complaints about the findings of fact of the Tribunal do not establish jurisdictional error. As Gleeson CJ and McHugh J said in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [40]:
… Someone who disagrees strongly with someone else’s process if reasoning on an issue of fact may express such disagreement by describing the reasoning as ‘illogical’ or ‘unreasonable’, or even ‘ so unreasonable that no reasonable person could adopt it’ If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.
As contended for the respondent, the Tribunal did give reasons for finding the applicant’s claims (about why persons were wishing to harm him, how he knew this and who those people were) to be “tenuous, highly speculative and unconvincing” and hence for its rejection of the applicant’s claim that “he has been subject to threats of harm by reason of his past association with the JVP”. There is no obligation on the Tribunal to set out every detail of its reasoning process (Re Ruddock & Anor; Ex parte Applicant S154/2002 (2003) 201 ALR 437) or to disclose its mental processes to the applicant as contended (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591). The Tribunal’s findings were open to it on the material before it.
The final submission for the applicant was that the Tribunal failed to consider the applicant’s claims in a “clear substantial articulate and constructive manner” thereby falling into jurisdictional error.
In written submissions it was suggested for the applicant that the principles as to “how the Tribunal should conduct a hearing” were examined by the Full Court of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 219 ALR 27. It was suggested:
Their Honours held [48] – [51] and [55] that failure by a Tribunal to make a finding on (sic) ‘a substantial, clearly articulated manner’ can amount to a jurisdictional error by failure to carry out the review required by sec.415 of the Migration Act.
However Mr Jayawardena for the applicant was not able to take the Court to a reference in NABE to such a statement.
Insofar as reliance is placed on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2), this case is not authority for the proposition that the failure by a Tribunal to make a finding on or in “a substantial, clearly articulated manner” can amount to a jurisdictional error. Nor is there any suggestion in NABE that the Tribunal needs to be “constructive and articulate” in its findings as contended. NABE addressed the issue of a failure to consider a substantial and clearly articulated claim. The Full Court of the Federal Court considered the principle in Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ that where the Tribunal fails to make a finding on “…a substantial, clearly articulated argument relying on established facts” such failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (at [55]). The Full Court of the Federal Court considered the circumstances in which the absence of a finding “of a relevant fact” may amount to jurisdictional error and the scope of the Tribunal’s obligation to deal with the case raised by the material or evidence before it (in particular the issue of “unarticulated” claims). As their Honours stated at [63]:
If the Tribunal makes an error of fact, misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued, its error is tantamount to a failure to consider the claim and on that basis can constitute a jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances.
The requirement in NABE that a substantial, clearly articulated claim be considered does not refer to the manner in which the Tribunal carries out its review as contended. Insofar as it is contended that the Tribunal failed to assess the applicant’s claims in keeping with the criteria in the Refugees Convention this is not established. The assertion that it was “highly unreasonable” when the Tribunal concluded there was no real chance any harm would befall the applicant takes issue with the factual findings of the Tribunal and seeks impermissible merits review. No jurisdictional error has been established in the manner contended for by the applicant.
As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 8 September 2006