SZGKX v Minister for Immigration - [2006] FMCA 535

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGKX & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 535

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a Protection (Class XA) visa – no reviewable error – application dismissed.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.91X, 483A

Minister for Immigration v SGLB (2004) 207 ALR 12
Minister for Immigration v Singh (1997) 72 FCR 288
NABE v Minister for Immigration [2004] FCAFC 263
NADH v Minister for Immigration (2004) 214 ALR 264
SAAP v Minister for Immigration [2005] HCA 24

First Applicant:

SZGKX

Second Applicant:

SZGKY

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1392 of 2005

Judgment of:

Lloyd-Jones FM

Hearing date:

29 March 2006

Delivered at:

Sydney

Delivered on:

5 May 2006

REPRESENTATION

Counsel for the Applicants:

Mr B Zipser

Counsel for the Respondents:

Ms S McNaughton

Solicitors for the Respondents:

Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as a second respondent.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1392 of 2005

SZGKX & ANOR

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”) filed in the Sydney Registry of the Federal Magistrates Court on 30 May 2005, for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 11 April 2005 and handed down on 4 May 2005, affirming the decision of the delegate of the first respondent made on 25 August 2004, refusing to grant the applicant a Protection (Class XA) visa. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to s.91X of the Act and have been given the pseudonyms “SZGKX” (applicant husband) and “SZGKY” (applicant wife).
The applicants have not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].

Background

The Tribunal decision of Janet Duckmanton (Reference no: NO4/49870) contains the following background information concerning the applicants. The applicants claim to be citizens of

Sri Lanka, arriving in Australia on 30 June 2004. On 29 July 2004, they lodged an application for Protection (Class XA) Visas under the Act with the Department of Immigration. On 25 August 2004, a delegate of the Minister refused to grant Protection (Class XA) Visas and on 21 September 2004 the applicants applied to the Tribunal for review of the delegate’s decision. (Court Book (“CB”) 195)

Applicants’ claims

A brief summary of the applicants’ claims are contained in the written submissions prepared on behalf of the applicants by Mr Zipser of counsel, and I adopt paragraph 12 of his written submissions for the purposes of this judgment:
One of the applicant’s principal claims was as follows:
a) On 6 April 1999, in the course of observation activities at a polling booth in Colombo on the day of an election, the applicant video taped a gang of people (who the applicant recognized “as some politicians from the then Government (Peoples Alliance)”) assaulting some people from the JVP. (CB 33)
b) The gang, on seeing the applicant video taping and witnessing the assault, assaulted the applicant and snatched his camera. (CB 33.10)
c) The applicant made a complaint to the police. (CB33.10) A copy of the complaint is at CB 44-45.
d) The police subsequently found the applicant’s camera and appear to have found one or more members of the gang and mounted a trial. However, “on the trial day…the exhibit as well as the relevant case file were vanished”. (CB 34.4)
e) On the day the applicant returned from a study tour in the United States (which appears to be 20 May 2004 – see CB 184) the applicant switched on his mobile phone and received several anonymous death threats. (CB 199.5) The threats continued until at least 23 June 2004. On 23 June 2004 the applicant reported the threats to the police. The police report records the following complaint by the applicant: (CB 47)
“I received a threat even after the election [in April 2004]. I visited America on 2 May and returned to Sri Lanka end of May. After that, I received number of anonymous phone calls to my mobile phone threatening and humiliating me…Today ie 23.06.2004 I received a phone call reminding me of the incident which took place at Gonakovila saying that “Remember you coming to Gonakovila with Karu Jayasooriya during the last General Election and how we assaulted you. That day you escaped from us, but this time we will destroy you. Kill you and put your remains into the lake…”
f)   On 30 June 2004 (CB 195.1) the applicant, in fear of the death threats, left Sri Lanka and came to Australia.
g) Following the applicant’s flight from Sri Lanka, members of his family continued to receive threats connected to the applicant. Specifically:
·    The applicant’s father received threats. In August 2004 he made a report to the police. A copy of the report is at CB 125 (Sri Lankan original) and 134 (English translation).
·    The applicant’s step daughter received threats. The applicant explained: (CB 121.6)
“My stepdaughter who is a program produced of Ceylon TV is receiving threats from unknown people due to my political opinion.”

Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons was contained in the first respondent’s written submissions prepared by Ms McNaughton, and I adopt paragraphs 5 to 9 of those submissions for the purposes of this judgment:
5.A hearing was conducted by the Tribunal on 19 January 2005. The Tribunal summarised the evidence provided by the application at pages 201-203.
6.The Tribunal accepted that the applicant had been assaulted in 1997 by an unidentified gang; that the 1999 incident involving the taking of his camera had occurred, and that he had been media secretary to the Sri Lankan Foreign Minister for 2 years and had travelled to a number of countries. It found, however, that there was “no credible evidence” that the 1997 and 1999 assaults were politically rather than criminally motivated.
7.Further, the Tribunal found the applicant’s evidence in relation to anonymous death threats to be “confused and inconsistent”. For reasons it set out on page 206, the Tribunal did not accept he had received a threat on 1 May 2004 (the day before his trip to the USA).
8.In relation to the death threats claimed to have been received on the applicant’s mobile phone after his return from the USA, the Tribunal noted that at page 207.3: “none of the complaints either he or his father had lodged with the police made any reference to a political motive for such threats. The applicant reluctantly accepted this to be the case and I find it to be entirely implausible that the reason for the omission from the police complaints of a “political motive” was because the applicant feared for his life; feared the police; and feared that he would be shot”.
9.The Tribunal also noted despite the applicant’s claim that he was a “strong politician” he had never held political office. Further “in light of the foregoing”, it did not accept that his claimed fear of persecution arising from his political opinions had any foundation. The Tribunal also noted that the applicant had returned to Sri Lanka each time after foreign travel and had planned to travel to Australia because he had not been there before. Accordingly, the Tribunal found that the applicant did not hold a genuine fear of persecution in Sri Lanka because of his political opinions. It then concluded that the applicant had never suffered persecution for a Convention-related reason in Sri Lanka and does not have a well-founded fear of so suffering in the reasonably foreseeable future.

Application for review of the tribunal’s decision

On 30 May 2005, the applicants filed an application for review under s.39B of the Judiciary Act. On 27 September 2005, the applicants filed an amended application which contained the following grounds:
1.The Tribunal found that the applicant’s “claimed fear of persecution arising from his political opinions [does not have] any foundation”. The Tribunal fell into jurisdictional error in making this finding.
Particulars
a)    The applicant claimed that an assault he observed and video taped in April 1999 was by “some politicians from the then Government (Peoples Alliance)” against “persons…from the JVP”. Whether the assault was by politicians from the Peoples Alliance against persons from the JVP was relevant to whether the threats received by the applicant in late May to June 2004 were for reason of political opinion. Yet the Tribunal failed to make a finding on this important question. On this basis, the Tribunal fell into jurisdictional error.
b)    The applicant claimed that his “stepdaughter who is a program producer of Ceylon TV is receiving threats from unknown people due to my political opinion”. This claim was relevant to whether the threats received by the applicant in late May to June 2004 were for reason of political opinion. Yet the Tribunal failed to deal with this claim in its findings, giving rise to jurisdictional error.
c)    The applicant found that the threats received by the applicant in late May to June 2004 were not for reason of political opinion on the basis that the applicant’s “claimed fear of persecution arising from his political opinion” did not have any foundation. This test is too narrowly stated. On this basis, the Tribunal fell into jurisdictional error.
2.The Tribunal found that “at the time of his departure from Sri Lanka in June 2004…the applicant did not hold a genuine fear of persecution in Sri Lanka because of his political opinions”. If this was meant to be a finding that the applicant did not have a genuine fear of persecution, the Tribunal fell into jurisdictional error in making this finding.
Particulars
a)    The relevant question is whether the applicant had a genuine fear of persecution at the time of the decision-maker’s decision, not at the time the applicant left his or her country of nationality.
b)    The Tribunal, by limiting its finding to “his [ie the applicant’s] political opinion”, again too narrowly states the proper test, giving rise to jurisdictional error.

Reasons

Counsel for both parties filed written submissions, which were supported by oral submissions during the hearing.
Mr Zipser, appearing for the applicants, states that when the applicant husband arrived in Australia, he made two separate claims. Firstly, he was involved in politics and he had some problems in relation to that involvement. Secondly, he claimed that on one occasion, he observed and video taped a gang of people assaulting some people working in a polling booth. As a result of observing that assault, he had ongoing problems and feared further attacks against him. It is only in respect of the second claim that the applicant husband claims that the Tribunal made a mistake in its decision-making.
Mr Zipser submits that the Tribunal accepted the applicant husband’s evidence that in 1999 he was a supporter and candidate director of the UNP candidate, Mr Jayasooriya, at a location called Gonakovila. The applicant video taped a gang assaulting people in red shirts and the attackers saw him video taping their assault. They snatched his camera, damaged his vehicle and absconded. The applicant husband reported this incident to the police, indicating the attackers were politicians from the then government (Peoples Alliance) against people from the opposition party, the Janatha Vimukthi Perumana (“JVP”). The applicant claims that he received death threats following this incident. Mr Zipser submits that the best evidence of these threats is found in a “Extract from information book of Mount Lavinia Police Station”, which is a contemporaneous record of a complaint made by the applicant husband to the police (CB 47).
Mr Zipser submits that the following is relevant information (CB 47.3):
I received a threat even after the election [in April 2004]. I visited America on 2nd May and returned to Sri Lanka end of May. After that, I received number of anonymous phone calls to my mobile phone threatening and humiliating me…Today ie 23.06.2004, I received a phone call reminding me of the incident which took place at Gonakovila saying that “Remember you coming to Gonakovila with Karu Jayasooriya during the last General Election and how we assaulted you. That day you escaped from us, but this time we will destroy you. Kill you and put your remains into the lake…
Mr Zipser poses the question “How does the Tribunal deal with that claim by the applicant?” Mr Zipser submits that the relevant passage is found in the Tribunal’s “Findings and Reasons” commencing at CB 205.8. The Tribunal did consider this matter over the next two pages and came to the conclusion (CB 206.9):
In the light of the Applicant’s foregoing evidence to the Tribunal I am satisfied that he did not receive a “threat” on 1 May 2004.
Mr Zipser submits that the Tribunal did not reject the applicant husband’s claim that he received threats, but merely that he did not receive a threat on 1 May 2004. The Tribunal notes that the applicant husband claimed he received untraceable death threats on his mobile phone on his return from the USA at the end of May 2004, and that these were a consequence of his political opinion and political association. The Tribunal member continues (CB 207.2):
As I advised the Applicant at the hearing, even if it were to be accepted that he had received threatening phone calls dating back to the “incident” in 1999, none of the complaints either he or his father had lodged with the police made any reference to a political motive for such threats. The Applicant reluctantly accepted this to be the case…
The Tribunal then comes to the conclusion (CB 207.5):
I do not accept that his claimed fear of persecution arising from his political opinions has any foundation.
Mr Zipser submits that the Tribunal did not reject the applicant husband’s claim that he received untraceable death threats, but even if he did, any fear of persecution he has, is not for the reason of political opinion. Mr Zipser submits that the applicant husband has three complaints about this finding.
The first complaint is that the applicant husband claimed that the assault he observed and video taped in April 1999, was by politicians from the then government, Peoples Alliance, against persons from the JVP. Mr Zipser submits that that evidence appears in paragraph 26 of the applicant husband’s statutory declaration. (CB 33) Further, in another “Extract from the information book of Mount Lavinia Police Station”, dated 6 April 1999, there is a compliant by the applicant husband to the police which states (CB 45.4):
I saw that gang was threatening and starting to assault Mr Wimal Weerawanse who is from Janatha Vimukthi Peramuna (JVP).
Mr Zipser submits that on the evidence, it was open to the decision-maker to conclude that the group carrying out the assault was doing so for the reasons of political opinion.
The applicant husband claims the attackers then wanted to either eliminate or threaten witnesses to the event. The Tribunal accepted that he was a witness and did not deny that there was a death threat. Mr Zipser submits that this gives rise to the question of whether the threat by the attackers against the applicant husband, who was a witness to the event, was by reason of political opinion. The submission is that the applicant husband raised the issue, which the Tribunal failed to address, and for that reason there is a jurisdictional error. Mr Zipser submits that jurisdictional error arose because the reasoning adopted by the Tribunal was irrational, illogical and not based on findings or inferences of fact supported by logical grounds: Minister for Immigration v SGLB (2004) 207 ALR 12 at [38] per Gummow and Hayne JJ; NADH v Minister for Immigration (2004) 214 ALR 264 at [132]-[136] per Moore, Tamberlin and Allsop JJ.
Mr Zipser’s second submission relates to the applicant husband’s claim that his stepdaughter who is a program producer of Ceylon TV received threats from unknown people due to his political opinion. (CB 121.6) While the Tribunal did refer to this in a summary (CB 200.1), it did not deal with this evidence in its findings. The Tribunal is not required to deal with every piece of evidence in its findings, however, when it fails to deal with an important piece of evidence it may fall into jurisdictional error. Mr Zipser submits that in light of the relevance of whether the threats experienced by the applicant husband were for reasons of political opinion, his evidence concerning the motivation behind the threats received by his stepdaughter are also important. The submission is that the Tribunal’s failure to deal with this matter in its findings resulted in jurisdictional error.
The third complaint is that if the incident observed by the applicant husband in April 1999 involved an attack by politicians from the Peoples Alliance against persons from the JVP, death threats subsequently made by the attackers to him (presumably because he was a witness to the event) can be persecution for the reason of political opinion. Mr Zipser submits that this is so because it was likely that the politicians from the Peoples Alliance attacked persons from the JVP because of political opinion, including the political opinion of the attackers. The attackers who subsequently threatened the applicant husband were presumably motivated by the same political opinion in covering up the evidence.
Mr Zipser refers to the Tribunal decision (CB 207.5):
I do not accept that his claimed fear of persecution arising from his political opinions has any foundation.
Mr Zipser contends that the Tribunal limited its finding to the applicant husband’s political opinion. In many cases, the question of whether a person suffers harm for reason of a political opinion turns on whether that person has suffered harm for reason of their political opinion. However, a person may also suffer harm for reason of their attacker’s political opinion. Mr Zipser submits that the Tribunal interpreted the proper test too narrowly, giving rise to jurisdictional error.
Ms McNaughton, appearing for the respondents, indicated to the Court that she relied on her written submissions in response to the issues raised by the applicants, but wished to emphasise several points. In respect of the first ground of review, concerning the incident which happened in 1999, which involved the video taping of the attack at the polling booth, the Tribunal made certain findings in favour of the applicants. Critically, the Tribunal found, as an overall conclusion, the following (CB 205.6):
However, as there is no credible evidence to support the Applicant’s claim that either the assault on him in 1997, or the assault and theft in 1999, [the polling booth incident], or the alleged assault in March 2004, was politically (rather than criminally) motivated, I am not satisfied that this claim has any foundation.
Ms McNaughton contends that what the Tribunal refers to in the term “this claim” is the essence of the applicants’ claim for refugee status. That is, they have a well-founded fear of persecution in Sri Lanka because of the applicant husband’s political opinions.

Ms McNaughton submits that with respect to the polling booth incident, there was a contemporaneous complaint made to the police, a translation of which is at CB 45. The applicant husband also made his own claims in his statutory declaration provided to the Minister’s delegate (CB 31-40), and repeated in very similar terms to the Tribunal (CB 114-122), that the attackers were from a particular political group. Ms McNaughton submits that in the police report, there was no such identification that the attackers, as opposed to the victim, had any political affiliation at all. Ms McNaughton drew my attention to the following extract (CB 45.3):
As I saw a huge gang consisting about 250 civil persons is disrupting near the poling booth, I went down there with my assistant Suranga Bopitiya. I saw that gang was threatening and starting to assault Mr Wimal Weerawanse who is from the Janatha Vimukthi Perumana (JVP).
In that complaint, the applicant husband identified the political affiliation of the victim, Mr Wurawanthi, but said nothing about the political affiliation(s), if any, of the 250 civil persons, or “the gang” as he called them (CB 45.7):
When we reaching to inform this incident to the Mayor we saw “the gang” was coming towards him by telling off “attack him also”. But the Security officials could get rid of the Mayor from “the gang” and took him away from the spot. At that time some dreadful weapons and grenades were with them…I do not know who are they but I can identify them if I see them later on and also I can easily identify the persons who assaulted me.
Ms McNaughton submits that the applicant husband also complained that he received untraceable death threats on his mobile phone on his return from the United States at the end of May 2004. He claims that these threats were a consequence of his political opinion and political associations. It was because of these telephone death threats that the applicants fled Sri Lanka in June 2004 in fear of the applicant husband’s life.
Ms McNaughton refers to a second complaint made by the applicant husband in June 2004, which relates to threatening phone calls which also refer to the polling booth incident.(CB 46 to 47) There was no reference that incident being political. There is another police complaint, this time by the victim’s father.(CB 134) Again, there was no reference to political affiliation of the people making the threats. Ms McNaughton submits that it was quite open to the Tribunal to come to the conclusion it did, that is, that there was no political motivation for the problems suffered by the applicants. The Tribunal set out further reasons for that finding. Although the applicant husband claimed to be a “strong politician”, in fact he had never held political office. Further, he continually returned to Sri Lanka in the face of his claimed problems and chose not to go back to the United States. He instead came to Australia, even though he still held a valid visa for the United States.
The second limb of the applicants’ first ground concerns the failure of the Tribunal to deal with whether or not the stepdaughter had received threats for political reasons. Ms McNaughton submitted that in the applicant husband’s first statutory declaration at CB 31 there was no reference to any threat by anyone against the stepdaughter. The applicant husband’s second statutory declaration dated 27 October 2004 was sent to the Tribunal. Paragraphs 1 to 56 are almost identical to the original statutory declaration. However paragraph 57 onward introduces details. At paragraph 64, the applicant states (CB 121):
My stepdaughter, who is a program, producer of Ceylon TV is receiving threats from unknown people due to my political opinion.
After the Tribunal hearing, which was held on 19 January 2005, the applicants submitted further material to the Tribunal in the form of the police report made by the applicant husband’s father as mentioned above at [26], and another statutory declaration of the applicant husband.(CB 135-136) Both these documents relate to threats that the applicant husband’s father had received. In the applicant husband’s statutory declaration he claims (CB 135.3):
Even after I came to Australia my father has received threats…
Ms McNaughton submits that nowhere in that statutory declaration was there mention of a threat made to the stepdaughter. The only mention of a threat to the stepdaughter remains in the statutory declaration to the Tribunal dated 22 October 2004 (CB 121).
Ms McNaughton contends in her written submissions:
12.Second, the applicant points to the absence of a finding as to the threats to his stepdaughter as indicative of jurisdictional error. As conceded by the applicant, it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by the applicant: WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at [45]-[47]. This piece of evidence was vague and lacking in detail or corroborative material. Further, it readily fell into the category of evidence which has been subsumed in findings of greater generality…
I accept Ms McNaughton’s submission that the claim regarding the stepdaughter is unsupported and, significantly, in vague terms. Given that the Tribunal was not satisfied that the threats that the applicants were receiving did not come about for political reasons, it is appropriate for the Tribunal to simply adopt that finding in respect of the stepdaughter. This constituted a general rejection of political motivation. The Tribunal acknowledges that the threats to the stepdaughter was a claim, but does not accept that the unsupported claim was made for political motivation.
The third issue raised under ground one is that the Tribunal has cited the test too narrowly, by restricting it to the claimed fear of persecution arising from the applicant’s political opinion, rather than the test to include the political opinion of the attackers. Ms McNaughton submits that the applicant husband did not make his claim on this basis.
In the applicant husband’s second statutory declaration dated 27 October 2004, which was provided to the Tribunal he stated (CB 120 to 121):
55Also I state that I have a real chance of persecution in my country due to my political back ground.
56Due to serious death threats we had to leave my country leaving my properties, reputation and my political career. I state that I received those threats because of my political opinion and party politics I was involved with…
58I respectfully state that I received death threat due to my political opinion and as I was a media secretary to Mr Tyron Fernando.
The Tribunal did not make a finding in respect of the attackers’ motivation, and in particular, whether it was political in nature. There was no evidence presented to the Tribunal that would have enabled it to make a decision about the motivation of the gang members who were assaulting Mr Wurawanthi and who, when observed, turned on the applicant husband.
Ms McNaughton also submits that there is no authority cited in support of this argument.
Mr Zipser’s second ground is the issue of subjective fear, which he submits arose from the Tribunal’s finding (CB 207.8):
I am satisfied that at the time of his departure from Sri Lanka in June 2004…the Applicant did not hold a genuine fear of persecution in Sri Lanka because of his political opinions.
Mr Zipser submits that if the Tribunal found that the applicant husband did not have a genuine fear of persecution at the time of his departure from Sri Lanka, then that finding is flawed in two ways. Mr Zipser submits that the relevant question should be whether the applicant husband had a genuine fear of persecution at the time of the decision-maker’s decision, not at the time the applicants left their country of nationality: Minister for Immigration v Singh (1997) 72 FCR 288. Further, that the applicant husband was told after he left Sri Lanka that his father and stepdaughter were continuing to receive threats. Mr Zipser submits that this could be one reason, amongst others, that an applicant might not have a fear of persecution at the time of leaving his or her country of nationality, but might have developed fear of persecution by the time of the decision-maker’s decision.
The other basis of Mr Zipser’s objection is that the Tribunal did not accept that the applicant husband’s “claimed fear of persecution arising from his political opinion has any foundation.”(CB 207) Mr Zipser submits that while the Tribunal referred to the evidence above at [34] in its summary of evidence, it was not dealt with in its findings. The Tribunal is not required to deal with every piece of evidence in its findings, however, when it fails to deal with an important piece of evidence it may fall into jurisdictional error. Mr Zipser argues that the Tribunal’s failure to deal with the subjective fear issue in its findings resulted in the Tribunal falling into jurisdictional error.
Ms McNaughton submits that the two issues that are raised in the applicants’ second ground must fail, namely:
a)whether the applicants had a genuine fear of persecution at the time of the decision-maker’s decision, or at the time the applicants left their country of nationality; and
b)the Tribunal did not deal with this evidence in its findings,
In support of this contention, Ms McNaughton argued that the applicant husband’s claim was clearly on the basis of his fear in Sri Lanka before he left for Australia. It was submitted that this is apparent from his written claims and confirmed at the hearing. Ms McNaughton relies upon the following passage from the Tribunal’s findings and reasons (CB 207.1):
The applicant also claims he had received untraceable death threats on his mobile phone on his return from the USA at the end of May 2004; that these were a consequence of his political opinions and political associations; and that these telephone death threats caused him to flee Sri Lanka in June 2004 in fear of his life. (emphasis added)
In support of her argument, Ms McNaughton referred me to Minister for Immigration v Singh at [26]-[29] per Black CJ, Lee, Von Doussa, Sundberg and Mansfield JJ:
For ease of discussion these reasons have proceeded on the basis that the choice to be made is between the facts existing at the date of the application and those existing at the date of the determination. In selecting the latter date, it must not be thought that the decision-maker, in determining whether a well-founded fear exists, looks exclusively at the facts that exist at that date. Thus in Chan at 399 Dawson J said:
Of course, the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status.
See also per Gaudron J at 414-415. The same point is made by two of the justices who spoke of the date at which recognition is sought, rather than the date of the determination. See per Mason CJ at 387 and per Toohey J at 406.
Ms McNaughton submits that in the impugned passage, the Tribunal was stating no more than its determination of the applicant husband’s claims, essentially, the circumstances in which he fled Sri Lanka. “No substantial change” had occurred since his leaving Sri Lanka. The claimed threats to his father and stepdaughter were merely further instances of the same alleged problem. It was submitted that in any event, the Tribunal did not conclude its consideration of the applicant husband’s status at that point in time. It clearly and correctly determined the application as at the date of the determination as set out in the final paragraph of its findings and reasons in the following terms (CB 207.9):
In summary, after careful examination of all the evidence before me, I am satisfied that the Applicant has never suffered persecution for a Convention-related reason in Sri Lanka, and does not have a well-founded fear of so suffering in the reasonably foreseeable future.
Ms McNaughton submits that in respect of the second issue, that the Tribunal did not in its findings deal with the applicants’ evidence about subjective fear of persecution of the applicant husband because of his political opinion, he did not make his claim in those terms. Any claim that the Tribunal overlooked important pieces of information which led to jurisdictional error cannot be sustained when the claim was not formulated in those terms. The contents of the applicant husband’s claims are considered at [31] above and focus correctly on his own political opinion. I note Ms McNaughton’s submission that counsel for the applicants has not provided the Court with authorities relating to the Tribunal’s approach of this issue.
Mr Zipser argues that the Tribunal’s obligation to consider the applicants’ claim is not limited to what the applicant husband says or submits in his application. Also, there are cases where the Tribunal’s obligation is to consider the claim based on the material evidence before it. Mr Zipser argues that the applicant husband put evidence before the Tribunal in relation to the video taping incident, much of which was accepted, or at least not rejected, by the Tribunal. In circumstances where an applicant is unable to correctly plead his case, it does not mean that the Tribunal is not required to address the broader question. Mr Zipser contends that NABE v Minister for Immigration [2004] FCAFC 263 at [55]-[63] is authority that the Tribunal’s duty is to consider an applicant’s claim, which includes all the evidence before it. That is so even if it was not be stated in an applicant’s pleadings, or raised by an applicant at the Tribunal hearing.
Ms McNaughton submits that the claim explicitly made by the applicant husband was one of persecution based on his political opinion and that Mr Zipser now seeks that this Court find there existed another claim that arose on the evidence that was not explicitly made, but that should have dealt with by the Tribunal. Ms McNaughton acknowledges the authority of NABE v Minister for Immigration, in that the Tribunal has to deal with other claims that arise from the evidence but not explicitly pleaded. The present case does not fall into that category. For this argument to succeed, the Tribunal would have to be satisfied that the actions of the “gang” was motivated by political opinion and were not criminally based. The Tribunal did not find that the attackers, being the members of the gang, had a political motivation nor that their activities were not entirely criminal in nature. The Tribunal accepts that the incident with the unidentified gang had taken place. Also that the applicant husband had video taped the assault, which resulted in the gang turning on the applicant, assaulting him, snatching his camera and damaging his vehicle. The Tribunal also accepts that the applicant husband toured several countries as a media secretary for a Sri Lankan Foreign Minister and that he had held this position for two years prior to the general election held on 2 April 2004. Essentially, the Tribunal made the following findings (CB 205.7):
However, as there is no credible evidence to support the Applicant’s claim that either the assault on him in 1997, or the assault and theft in 1999, or the alleged assault in March 2004, was politically (rather than criminally) motivated, I am not satisfied that this claim has any foundation.
After considering the evidence available to the Tribunal as set out in its decision, and the Court Book, I am satisfied that the Tribunal dealt with the material correctly. Further that the circumstances in NABE v Minister for Immigration differ from these circumstances before this Court.

Conclusion

I find that the grounds asserted by the applicants cannot be sustained and that the application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order the applicants pay the first respondents costs of and incidental to the application.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate:

Date: 3 May 2006