SZKMS & Anor v Minister for Immigration & Anor - [2007] FMCA 1242

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZKMS & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 1242

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal was required to inform the applicant that he needed to provided documentary evidence in support of his claims – whether the Refugee Review Tribunal found the applicants claims to be false based on hypothetical questions – whether the Refugee Review Tribunal considered all claims made by the applicants.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424; 424A; 424A(1); 474; pt.8 div.2

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184

First Applicant:

SZKMS

Second Applicant:

SZKMT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG 1185 of 2007

Judgment of:

Emmett FM

Hearing date:

26 July 2007

Date of last submission:

26 July 2007

Delivered at:

Sydney

Delivered on:

1 August 2007

REPRESENTATION

Applicants appearing on their own behalf

Counsel for the Respondent:

Mr H. Bevan

Solicitors for the Respondent:

Mr J. Dooley, Sparke Helmore

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1185 of 2007

SZKMS

First Applicant

SZKMT

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 5 March 2007 and handed down on 20 March 2007.
The first applicant was born on 9 July 1982 and claims to be from Sri Lanka and of Sinhalese ethnicity (“the Applicant husband”).
The second applicant is the wife of the Applicant and makes claims of her own of a fear of persecution by reason of imputed political opinion because of her association with the Applicant husband (“the Applicant wife”).
On 10 September 2006, the applicants arrived in Australia, having legally departed from Sri Lanka, on passports issued in their own names and visitors visas.
On 17 October 2006, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”) under the Act.
In his protection visa application, the Applicant husband claimed that he feared persecution due to his membership in the United National Party (“the UNP”). The Applicant husband claimed to be involved in many political activities including making speeches, organising events, house to house visits and assisting UNP politicians in their work. The Applicant husband claimed that on several occasions he was threatened with harm and death if he were to continue in these activities.
The Applicant wife provided a statement in support of her protection visa application. In particular, the Applicant wife claimed a fear of persecution arising from her relationship with the Applicant husband and a particular incident on 30 March 2005. On that occasion both applicants claimed that the house they shared was broken into by opposing members of the political candidate being supported by the applicants and threatened the Applicant with rape and death if she reported the matter to the authorities. The applicants both stated that the Applicant wife was home alone at the time of this alleged incident.
On 27 November 2006, a delegate of the First Respondent (“the Delegate”) refused the applicants’ application for a protection visa on the basis that the applicants are not people to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 1 December 2006, the applicants lodged an application for review of the Delegate’s decision by the Tribunal. The applicants provided further material in support of the review application. On 5 March 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 12 April 2007, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

The hearing before the Tribunal and the Tribunal’s findings and reasons are accurately summarised in paragraphs 15 to 28 of the written submissions of counsel for the First Respondent, Mr Bevan, as follows:
“14. By letter dated 7 January 2007, the Applicant’s representative wrote to the Tribunal to provide further submissions and information. In that letter, the Applicant’s representative stated that the Applicant-Husband’s mother had:
(a)attempted to obtain further information from the police regarding complaints he had made but that she had been told “to come back later”;
(b)told the Applicant-Husband that some people had come looking for him;
(c)told the Applicant-Husband about two other people he knows, named Pereira and Firaaz, who had also experienced difficulties with political opponents CB 93-94, CB 212.5).
15. The Applicants, together with their representative, attended a hearing before the Tribunal on 18 January 2007 (CB 95-96) which was adjourned to allow the Applicants to comment on information.
16. During this first hearing, the Tribunal:
(a)questioned the Applicant-Husband about his specific roles and positions with the UNP, including the amount of time devoted to his political activities at a time when he was in paid employment (CB 212.8-213.3);
(b)asked the Applicant-Husband whether he was singled-out, whether others faced similar difficulties, as well as whether the UNP documented incidents against their supporters (CB 213.5-215.6);
(c)questioned both Applicants about the claimed home invasion on 30 March 2006, including as to whether it was an isolated incident, its location in a UNP area, the timing of the invasion relative to the announcement of the results and the Applicant-Wife’s apparent lack of knowledge concerning the results (CB 215.8-216.9).
17. By letter dated 23 January 2007, the Tribunal wrote to the Applicant’s, pursuant to s 424A of the Migration Act 1958 (the Act), and set out the information given by the Applicants at the hearing concerning the claimed home invasion. The Tribunal stated that the information appeared in certain respects to lack plausibility and set out the Tribunal’s areas of concern (see paragraph 16 (b) and 16 (c) above) (CB 108-109, CB 217).
18. A response, consisting of a covering submission from the Applicant’s representative, a two-page response to the Tribunal’s concerns prepared by the Applicant-Husband and supporting documentation, was provided to the Tribunal on 5 February 2007 (CB 110-139, CB 218-219.5).
19. At the second hearing on 14 February 2007, the Tribunal asked whether the Applicant-Husband could provide evidence about people in similar circumstances, including any evidence from the UNP. The Applicant-Husband referred to Firaaz but said that he did not think the UNP would be of any assistance and that he had asked his mother and brother as they were the only ones he could trust (CB 219.6-220.4)
20. The Tribunal provided the Applicants with a further opportunity to provide further information which was received on 26 February 2007 (CB 140-192, CB 220.5-7).
21. The Tribunal accepted that the Applicant-Husband was involved with the UNP-linked National Youth Front between 2001, or 200, and 2005 (CN 220.9-10). However, the Tribunal placed no weight on this involvement because the Applicant-Husband’s claims were based on his work undertaken directly for the UNP and not on his involvement with the National Youth Front. In particular, the Tribunal did not accept the material concerning his involvement with the National Youth Front as evidence of his claimed activities as a UNP supporter (CB 221.1-4).
22. The Tribunal stated the Applicants’ claims of harm and harassment were “entirely unsupported” and found that the reasons for being unable to provide any documentary evidence were “unimpressive and evasive” (CB 221.3-4). The Tribunal considered the explanations provided by the Applicant-Husband as to the difficulties encountered in obtaining information to be “unreliable” (CB 221.5). The Tribunal placed no weight on the Applicant-Husband’s claim about only being able to ask his mother and brother (CB 221.5). The Tribunal was not satisfied that the Applicant’s had made genuine attempts to gather relevant evidence (CB 221.6). The Tribunal considered the Applicants could not provide evidence of their specific problems because they could not do so as the Tribunal considered the Applicant-Husband’s claims about his political activities to be fabricated (CB 221.6).
23. The Tribunal placed no weight on the Applicant-Husband’s claim that the UNP were not interested in documenting incidents involving their supporters because this was inconsistent with both independent country information and information provided by the Applicants (CB 221.7-8).
24. With respect to the claimed home invasion on 30 March 2006, the Tribunal considered that the Applicant’s accounts lacked credibility (CB 221.9). In particular, the Tribunal considered the following elements to be implausible:
(a)     the Applicant-Wife’s lack of knowledge of the results of the election;
(b)     the Applicant-Husband’s claimed knowledge of the political motivation of the invaders from their description;
(c) the Applicant-Husband’s inability to provide any information about whether any colleagues experienced similar treatment;
(d)     the Applicant-Husband’s explanations concerning the lack of follow-up incidents (CB 221.9-222.2).
25. The Tribunal placed no weight on the Applicant-Husband’s claims concerning Pereira and Firaaz (CB 222.3). The Tribunal also considered the Applicant-Husband’s claims to have devoted significant time to political activity whilst in paid employment to be far-fetched (CB 222.4).
26. The tribunal did not accept that the Applicant-Husband had any genuine, ongoing interest in politics in Sri Lanka. Further, the Tribunal did not accept that the Applicants had any significant relationship with the UNP, or any other political party (CB 222.5).
27. The Tribunal found that the Applicants were unreliable witnesses (CB 222.6).
28. Accordingly, the Tribunal was not satisfied that the Applicants faced a real chance of persecution for a Convention reason in Sri Lanka. The Tribunal concluded that the Applicant’s claimed fear was not well-founded (CB 222.7).”

The proceeding before this Court

The applicants were unrepresented before this Court, although had the assistance of an interpreter. The Applicant husband submitted to the Court that the Tribunal had not considered his documents, in particular police reports. When this Court explored this assertion with the Applicant husband, he confirmed on more than one occasion that he had not given any police reports to the Tribunal because they were still in Sri Lanka, although, he could obtain them for this Court. I explained to the applicants that if these police documents were not given to the Tribunal for its consideration, then it cannot be an error going to the Tribunal’s jurisdiction for the Tribunal to fail to have regard to them.
However, the Applicant husband’s complaint appears to be that the Tribunal did not ask him for copies of the police reports and that therefore he did not appreciate that he should have provided them in support of his claims. The Applicant husband stated that he answered all questions put by the Tribunal and provided information in response to the Tribunal’s letter, dated 23 January 2007. The Applicant husband stated that the Tribunal’s questions were not relevant to his problems and that he had given all relevant information to the Tribunal.
Before this Court, the Applicant wife reiterated her claim of the invasion of her home on 30 March 2006 by opposition members of the candidate supported by her husband at the local elections and also made reference to the fact that the Tribunal asked her the date of the election and who won the election. Whilst the Applicant wife did not articulate a complaint, I understand she was suggesting that it should not have been held against her by the Tribunal that she did not know the outcome of the election.
The applicants confirmed that they relied on a document entitle “Applicant’s Submission” as disclosing the grounds upon which they relied before this Court. The grounds identified in that document are as follows:
“1. Ground One
RRT decision is infected with jurisdictional error in that RRT misunderstood the well-founded fear test.
It was he(sic) evidence of the applicant that he was involved in politics from 2002. He said that he joined the UNP youth front in 2002 and was in the UNP since that time. The tribunal is unclear in its finding. The tribunal writes at one stage: The tribunal accepts that the Applicant husband was in some way active with the National Youth Front up to the year covered in the material he has submitted. Whereas the tribunal accepts that the Applicant was involved with the National Youth front from 2001, or from 2002 to 2005, Tribunal gives no weight to this involvement. Court book: page 220)
It is the submission of the Applicant that during this period the Applicant faced a lot of problems. It is the submission of the applicant that based on his activities from 2002 until 2005, the tribunal could have found that the Applicant faced persecution from his political enemies in Sri Lanka.
2. Ground two
The RRT erred in law, with this error being a jurisdictional error, in the sense that the RRT did not inform the Applicant in writing that the Applicant needs to provide documentary evidence to support his claims.
The tribunal says that the Applicant’s claims are entirely unsupported. Altohugh (sic) the tribunal makes this comment in its decision, in the section 424 letter which the tribunal wrote to the Applicant the tribunal did not raise this issue.
The Applicant therefore respectfully submits that the RRT ought to have informed the Applicant in writing that he should provide documentary evidence to support his claims.
It is also submitted that section 424 letter is issued in relation to the contradictions that may arise in an pplicant’s (sic) evidence. The issue is if the Tribunal based its decision on the fact that the applicant did not provide any evidence to support his claims, the (sic) tribunal had the chance of mentioning this to the Applicant in its section 424 letter, which it did not.
3. Ground three
The tribunal erred in law as it asked hypothetical questions and based on the anwers (sic) to those hypothetical questions it rejected the claims of the applicant. The (sic) tribunal asked the applicant as to why the persecutors of the applicant-husband did not follow up with further attacks on he applicant. As the Applicant did not know why the persecutors did not attack him further, the tribunal concluded that the applicant’s claims were false.
4. Ground Four
Tribunal failed to explore the claim by the Applicant wife that she was threatened with rape or murder.
The Applicant wife submitted that she was threatened with rape and murder by the political enemies of the applicant husband. There seems to be no finding in this regard by the tribunal.”

Ground 1

Ground 1 appears to be a disagreement with the finding of the Tribunal that the Applicant husband has “any genuine, ongoing interest in politics in Sri Lanka.”
The Tribunal found that the Applicant husband did not have any significant relationship with the UNP or any other political party of a sufficient profile that could lead to Convention related persecution. The Tribunal found the Applicant husband’s evidence to be “confused and unimpressive” in relation to his explanation as to why there was no further follow-up incident following the 30 March 2006 incident. The Tribunal found that the Applicant husband’s claims that the UNP were unwilling or unable to speak in his support to be inconsistent with his claim of having worked so closely and positively with politicians of the UNP.
The Tribunal found the Applicant husband’s claims generally to be “wholly unsupported” and noted that it had indicated to the applicants that it was concerned about the lack of relevant supporting evidence and on two occasions gave the applicants an opportunity to provide further material.
As well as its letter, dated 23 January 2007 identifying particular concerns of the Tribunal about the applicants’ evidence, the Tribunal noted that it invited both applicants to listen to each others evidence as recorded on the hearing tapes Moreover, the Tribunal also adjourned the hearing in order to give the applicants an opportunity to address the Tribunal orally in respect of these concerns.
The Tribunal noted the documents that were provided by the Applicant husband in response to the letter, dated 23 January 2007 were made up of various pieces of independent information relating to the electoral and political violence in Sri Lanka. The Tribunal noted that the Applicant husband’s submission accompanying that independent information did not disclose any link “whatsoever” between the applicants and the “events, episodes or parties referred to in the attachments.”
The Tribunal found that independent evidence submitted by the applicants about the violence between supporters of opposing parties only “drew further attention on the Tribunal’s part to the lack of documentary evidence about his political career and politically related misfortunes.”
In particular, the Tribunal noted that the applicants did not provide any evidence to support their claims about the alleged incident on the election night on 30 March 2006. The Tribunal noted that it asked both applicants about the incident at the hearing and invited them to provide more information in writing about the incident. The Tribunal identified its concerns about the Applicant husband’s claims of this incident being politically motivated and noted the applicants’ responses. In particular, the Tribunal noted that this incident occurred before the official election result had been handed down.

The Tribunal noted the Applicant husband’s response that the thugs who broke into his house did so because they knew their candidate was going to lose the election.
The Tribunal noted that it expressed its concern about the plausibility of the Applicant husband’s claim that any home invasion was because of any political opinion imputed to the Applicant husband.
The Tribunal noted that the Applicant husband stated that he had guessed that the home invaders were after him for political reasons from his wife’s physical description of the men that had to be workers for the opposing political party.
The Applicant wife also told the Tribunal that she described the men to her husband and that he said they had to be political opponents. As it explored these matters with the Applicant husband, the Tribunal found that “this detail existed in something of a vacuum”. In making that finding, the Tribunal noted that the Applicant wife did not know who won the election because she was not involved in politics. The Tribunal noted that it put to the Applicant wife its concern about her evidence of not being able to tell whether the home invaders were celebrating a victory or seeking revenge for defeat.
The Tribunal noted the Applicant husband’s response to the Tribunal’s concerns as to why he was singled out in relation to the home invasion. The Applicant husband had responded that the mayor had become unpopular amongst some voters during the lead up to the election and that some other supporters were also attacked. He posited other theories as to why he may have been attacked, including because he was close to UNP politicians. However, the Tribunal noted that the Applicant husband provided no evidence to support his claim of being close to UNP politicians. The Tribunal noted that the Applicant husband had not “provided any supporting evidence about being closely linked or associated with any politicians of any political colour.” The Tribunal also noted that the Applicant husband had been unable to provide evidence of a direct link with the National Youth Front (“the NYF”) up to 2005 and had not provided any evidence of a direct link with the UNP.
The Tribunal noted that it asked the Applicant husband if he could provide any evidence about other people in similar relevant circumstances suffering similar relevant treatment. In response, the Applicant husband named two people. The first, a man named Pereira whose uncle had been killed by political opponents eight years ago; and, second, a man named Firaaz who was assaulted. The Applicant husband told the Tribunal that he learned about Firaaz’s assault from his mother who had heard from “friends”.
The Tribunal noted that it asked the Applicant husband if he had any evidence to support his claims in respect of Periera and Firaaz or to support that their experiences were relevant to his own case.
The Tribunal noted that it asked the Applicant husband if there were any reports in the media about the attack on Firaaz. The Tribunal noted the Applicant husband’s response that he had telephoned his mother and that she had tried to telephone Firaaz. The Applicant husband responded that he did not know and the Tribunal observed that he gave the impression of not having tried to find out. In particular, the Tribunal noted that the Applicant husband responded that he could not trust anyone other than his mother and brother as a source for information. The Tribunal found the Applicant husband’s evidence that he could provide no information let alone any specifics as to whether any colleagues experienced treatment similar to the home invasion he claimed to have suffered on 30 March 2006 to be “incredible”.
When the Tribunal asked him if his lack of trust included his UNP party colleagues, it noted that the Applicant husband replied that his party colleagues were “busy”, that he had called the party once in 2006 and that the UNP had “used him and forgotten him”. The Tribunal noted that it explored with the Applicant husband if he had tried to gain any other relevant evidence from the UNP itself. The Tribunal noted the Applicant husband replied that the UNP was “no help”. The Tribunal also noted that the Applicant husband provided no evidence of any involvement with the NYF since 2005.
The Tribunal found the Applicant husband’s claim to have known that the home invaders were politically motivated just by his wife’s description of them to be “implausible”.
Whilst the Tribunal accepted that the applicants’ claimed experiences of harm and harassment resembled the kind of treatment of political workers as described in independent country information, the claims of the applicants of such treatment were “entirely unsupported.”
The Tribunal found that the applicants’ reasons for being unable to provide any documentary evidence to be “unimpressive and evasive”.
Whilst the Tribunal accepted that the Applicant husband may have been affiliated with the NYF in the past, it was not satisfied that such affiliation was evidence of the Applicant husband’s “claimed activities and/or personal suffering as a UNP supporter.” The Tribunal noted that the Applicant husband himself did not place significant weight on any connection in respect of his claims of harm arising from his affiliation with the NYF.
The Tribunal also noted that the Applicant husband conceded that not all supporters of the UNP faced harm in Sri Lanka, however, he consistently claimed that the harm he faced, and still faces, was specifically for reasons of his electoral and other project work undertaken directly on behalf of named UNP politicians. In the Tribunal’s words, the Applicant husband’s claims were “for reasons of a profile that he depicted as going far above and beyond being part of the UNP’s national youth wing.” The Tribunal was not satisfied of that assertion having regard to the total lack of supporting evidence linking any harm suffered by the Applicant husband to any political involvement with the UNP.
The Tribunal found both applicants to be “unreliable witnesses”.
The Tribunal’s lack of satisfaction that the Applicant husband “faced persecution from his political enemies in Sri Lanka” was open to it on the evidence and material before it and for which it provided reasons. In the circumstances, the Tribunal’s finding that the Applicant husband does not have “any genuine, ongoing interest in politics in Sri Lanka” was open to it on the evidence and material before it and for which it provided reasons.
Accordingly, Ground 1 is not made out.

Ground 2

To the extent that Ground 2 asserts that the Tribunal did not inform the Applicant husband in writing that he needed to provide documentary evidence to support his claims, on 18 December 2006 the Tribunal sent a letter to the applicants adviser informing her that the Tribunal had considered the material before it in relation to the application but was unable to make a decision in favour of the applicants on that information alone. The letter requested the adviser to send any new documents or written arguments she wished the Tribunal to consider.
Further, the Tribunal sent the applicants’ adviser a letter, dated 23 January 2007, identifying particular concerns arising out of the applicants’ evidence following the first Tribunal hearing and inviting the applicants to comment. The Tribunal had regard to the adviser’s response, including a further statement by the Applicant husband.
In particular, the Tribunal informed the applicants that it was a matter of concern that there was no relevant supporting evidence in respect of the applicants’ claims and adjourned the hearing suggesting that the applicants listen to the hearing tapes of each other’s evidence. The Tribunal provided the applicants a further two weeks to provide further relevant material as well as resuming the hearing on 14 February 2007 to allow them time to make further oral submissions
In any event, there is no obligation on the Tribunal to require particular documentary evidence from the applicants. The Tribunal’s obligation is to consider claims made by the applicants and material provided in support of those claims, to invite the applicants to attend a hearing to make oral submissions and present arguments, to make findings arising out of the evidence and material before it, to apply the relevant law to those findings and to reach conclusions based on those findings in accordance with the law. The Tribunal undertook those tasks without error.
The Tribunal’s finding that the Applicant husband’s claims were “entirely unsupported” was open to it on the evidence and material before it and for which it provided reasons. The Tribunal had regard to the independent information provided to it by the applicants but found that it was of a general nature and was not corroborative evidence of the claims made by the applicants of particular harm suffered by them.
To the extent that Ground 2 complains that the Tribunal did not raise the fact that it regarded the applicants’ claims as “entirely unsupported” in its letter, dated 23 January 2007, there was no obligation on the Tribunal to do so. Those findings were made in the course of assessing the evidence and material. They reflect the Tribunal’s thought processes in the conduct of its obligatory task of evaluating the evidence and material before it and making relevant findings based on that evidence and material.
The Tribunal discharged its obligations of providing the applicants with a fair hearing. It complied with its statutory obligations as reflected in s.422B of the Act.
The Tribunal found the applicants’ explanations as to why they could not provide any other supporting material to be “unimpressive and unreliable.” As stated above in these Reasons, that finding was open to the Tribunal on the evidence and material before it and for which it provided reasons.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal considered all material given to it by the applicants for the purposes of their review, including their oral and written evidence, as well as independent country information sourced by the Tribunal. The Tribunal with its statutory obligations in making its decision, including the conduct of its review. The lack of evidence supporting the applicants’ claims is not “information” which gives rise to obligations under s.424A(1) of the Act (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17] to [22]).
Accordingly, Ground 2 is not made out.

Ground 3

To the extent that Ground 3 alleges that the Tribunal’s reason for concluding that the Applicant husband’s claims were false was because the Applicant husband did not know why the home invaders did not attack him further, is not born out on a fair reading of the Tribunal decision. A fair reading of the Tribunal’s decision makes it clear that, in accordance with the submissions made by counsel for the First Respondent, “the Tribunal is not dealing in hypothetical situations but is assessing the reliability and credibility of the Applicant’s claims.”
A fair reading of the Tribunal’s decision makes it clear that the Tribunal had many concerns about the credibility of the applicants’ claims (as referred to above in these Reasons in consideration of Ground 1).
The Tribunal was entitled to have regard to the fact that there were no further acts of persecution claimed by the applicants following the 30 March 2006 incident in considering whether, if any such incident took place, it was politically motivated. The Tribunal made clear that it did not accept the Applicant husband’s assertions that the invasion was politically motivated having regard to the fact that the only evidence was the conclusion made by the Applicant husband based on descriptions of the invaders from the Applicant wife in circumstances where she was, according to the evidence of both applicants, not involved with politics. As stated above in these Reasons, that was a finding that was open to the Tribunal on the evidence and material before it and for which it provided reasons.
A fair reading of the Tribunal’s decision makes it clear that the Tribunal did not reject the claims of the applicants based on the answers provided by the Applicant husband to “hypothetical questions”.
A fair reading of the Tribunal’s decision reasonably suggests that the Tribunal was merely expressing its thought processes arising out of the fact that the applicants themselves did not claim that anything further occurred by way of attack upon them following the 30 March 2006 incident. Significant in the Tribunal’s rejection of the political motivation of any such attack was the fact that it was not satisfied that, on the Applicant husband’s evidence, there was any other person in a similar position to the Applicant husband who suffered similar incidents.
Again, those findings were open to the Tribunal on the evidence and material before it and for which it gave reasons.
In the circumstances, the applicants’ contention, that the Tribunal found the applicants’ claims to be false based on their answers to hypothetical questions, is rejected.
Accordingly, Ground 3 is not made out.

Ground 4

Ground 4 contends that the Tribunal erred in failing to make specific findings about the Applicant wife’s claim to have been threatened with rape or murder during the home invasion on 30 March 2006.
The Tribunal noted that the Applicant wife claimed to have been in the Applicant husband’s home at the time at which the thugs broke into his house and threatened her. Whilst the Tribunal did not identify the terms of the threat allegedly made to the Applicant wife as a threat of “rape and murder”, it is clear that the Tribunal considered whether or not the Applicant wife had a well-founded fear of persecution by reason of being imputed with the political opinion of her husband because of her relationship to him, if she were to return to Sri Lanka now or in the reasonably foreseeable future.
The specific nature of the threat, being rape or murder, is no more than greater detail of the threat. The relevant claim was properly identified and considered by the Tribunal, namely, that the Applicant wife feared persecution arising out of past harm (being the victim of the home invasion and threat of rape or murder by the home invaders on 30 March 2006) suffered by reason of a political opinion imputed to her by reason of her relationship with the Applicant husband. The Tribunal’s rejection of the Applicant husband’s claim of a fear of persecution was based on the fact that the Tribunal was not satisfied that the home invasion was politically motivated.
The Applicant’ husband’s Convention related claim of a well-founded fear of persecution was inextricably linked to the Tribunal being satisfied that the home invasion was politically linked to the Applicant husband’s political involvement. The Tribunal was not satisfied of that claim. Moreover, the Tribunal did not accept, on the evidence before it, that the Applicant husband had any “genuine, ongoing interest in Sri Lanka.” The Tribunal did not accept that on the Applicant husband’s evidence that he had any “significant relationship with the UNP or with any other political party, or that they have any other related Convention related profile.” Those findings and conclusions were open to the Tribunal on the evidence and material before it and for which it gave reasons.
Consideration of the Applicant wife’s claim that she was threatened with rape and murder by the invaders is subsumed in the finding of greater generality by the Tribunal that it was not satisfied that the home invasion was politically motivated (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46] and [47]).
In the circumstances, there was no need for a specific finding relating to whether it found that the allegation of a threat of murder or rape was made. As stated above, the Tribunal considered the claim made by the Applicant wife that she was threatened during the home invasion incident. The Tribunal found that, if the incident occurred, it was not politically motivated. In other words, the Tribunal found there was no Convention nexus between any home invasion, including any threat made to the Applicant wife at that time, and the Applicant’s claim of a well-founded fear of persecution for a Convention related reason. Once the Tribunal made that finding then the Applicant wife’s specific asserted details of the incident do not require a separate finding.
Accordingly, Ground 4 is not made out.

Conclusion

The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court, made by way of application filed on 12 April 2007, is dismissed with costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S. Kwong

Date: 1 August 2007