SZQIL v Minister for Immigration

[2012] FMCA 109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQIL v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 109

MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to comply with s.425 of the Migration Act or erred in its consideration of particular social group.

Migration Act 1958 (Cth), ss.36, 424A, 425

Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225; [1997] HCA 4
Chen Shi Hai v Ministerfor Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Huang v Minister for Immigration & Multicultural Affairs [2000] FCA 820
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263
Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60
Selvadurai v Minister for Immigration and Ethnic Affairs and Another (1994) 34 ALD 347
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709
SZGOP v Minister for Immigration and Citizenship [2007] FCA 836
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZFTJ v Minister for Immigration and Citizenship [2007] FCA 1193
SZGUW v Minister for Immigration & Citizenship [2008] FCA 91
SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169
SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486
SZLNW v Minister for Immigration and Citizenship and Another (2008) 102 ALD 614; [2008] FCA 910
SZNVE and Others v Minister for Immigration and Citizenship and Another (2010) 114 ALD 247; [2010] FCA 251
SZOYL & SZOYM v Minister for Immigration & Anor [2011] FMCA 236 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630, [2003] FCAFC 184

Applicant: SZQIL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1203 of 2011

Judgment of: Barnes FM

Hearing date: 6 December 2011

Date of Last Submission: 22 December 2011

Delivered at: Sydney

Delivered on: 22 February 2012

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Rasan T. Selliah & Associates

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1203 of 2011

SZQIL

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) dated 13 May 2011 affirming a decision of a delegate of the first respondent not to grant the application a protection visa.  The applicant, a citizen of Sri Lanka who was born in 1987, arrived in Australia in August 2010 and applied for a protection visa in October 2010.  He claimed to fear persecution by reason of his Tamil ethnicity; the fact that he was from the Vanni area in northern Sri Lanka which he claimed was “the one-time stronghold and headquarters of the [Liberation Tigers of Tamil Eelam] the LTTE”;  his active involvement with the LTTE student member movement during his schooling;  his “youthful age”;  and the fact that he had undergone training under the LTTE after being “forcefully conscripted”. 

   
   

   He claimed that he would be persecuted and harassed due to the suspicion that he was a member of the LTTE or a collaborator.  He also claimed to fear persecution based on his relationship with a named third party who had been a classmate who was “taken” by the Sri Lankan army and found to have been an LTTE collaborator.  The applicant claimed to fear he would be persecuted by the police, the Sri Lankan army and pro-government paramilitary groups. 

2. The application was refused and the applicant sought review by the Tribunal. He attended a Tribunal hearing. After the hearing the Tribunal wrote to the applicant under s.424A of the Migration Act 1958 (Cth) (the Act) inviting him to comment on or respond to information. The applicant responded through his solicitor/migration agent.

The Tribunal Decision

1. In its findings and reasons the Tribunal set out in detail the claims made by the applicant in connection with his protection visa application, in a Departmental interview, in a written submission to the Tribunal of 4 April 2011, at the Tribunal hearing on 6 April 2011, in documents provided thereafter and in his response to the s.424A letter.

2. In its findings and reasons the Tribunal summarised the applicant’s claim to be a Tamil Hindu born in the Vanni area of Sri Lanka who, during his primary school days, had been actively involved in the LTTE student movement.  He claimed that in 2002 he was sent to stay with his maternal grandmother in Vavuniya and that he continued his schooling, undertaking his GCE examination in high school in 2007. 

3. The Tribunal recorded that in his written statement the applicant claimed that from August to November 2007 he undertook part-time computer studies at a private institute.  He claimed that one day, on his way home, he was detained by the Sri Lankan army (the SLA) and taken to a camp where he was beaten and tortured.  He claimed that a former associate from the LTTE student movement who worked for the Eelam People’s Democratic Party (EPDP) “negotiated [his] release for the sum of Rs.400,000, of which Rs.100,000 was to be paid immediately and the balance paid within three weeks but the balance was never paid”.  He also claimed that a few days after his release he gave a classmate a lift on his bicycle, but that same day the classmate was detained in connection with an attack on a Sri Lankan army vehicle.  The friend’s classmates were then investigated.  The applicant claimed that the Special Task Force (STF) came to his home while he was out so he later fled to his home town and worked voluntarily at his former primary school from January 2008 to December 2008. 

4. He also claimed that the LTTE “began to compulsorily enlist persons to their military, taking one youth from each family”, and that as he was “hunted for conscription…he went into hiding in the homes of relatives and friends, and in the jungle”.  He claimed that he was captured by the LTTE and taken to their training camp, but that he managed to escape. He fled to the house of his uncle who contacted a named person to arrange for him to be sent to a foreign country.  The applicant claimed that his “uncle arranged for him to be smuggled in a fisherman’s boat to Tamil Nadu in India”.  His “brother recently told him that people from the EPDP [we]re still looking for him”.

5. The Tribunal, for reasons which it gave, did not find the applicant to be a witness of credit.  It did not accept that he was persecuted by the Sri Lankan Army or the STF, that he was actively involved in the LTTE after 2007 or that he was pursued by the EPDP or a former associate who negotiated his release. 

6. The Tribunal had regard to the fact that the applicant had acknowledged to it that he had “provided false information about when he went to India, where he lived in India and how he was supported financially while in India” (after information was put to him in this respect at the hearing and then in the s.424A letter.) It observed that in his oral evidence to the Tribunal the applicant had first claimed that he “went to India in February 2009”, was there for one year and four months at a particular address with a friend of his uncle and that he was financially supported by his grandmother who sent money each month.  He had also claimed that he did not have any relatives in India, that “the only time he ever went to Chennai [in India] was for three days…on his way to Australia” in August 2010 and “that his family in Australia did not know about his problems until he came to Australia”.

7. The Tribunal had put to the applicant “information on the Departmental file [which] indicate[d] that the applicant’s uncle who was living at the same address as the applicant’s aunt…where the applicant now lives, [had] made 21 payments to a person of the applicant’s name at an address in Chennai [in India] from 25 January 2008 to 22 July 2009”. At the hearing the applicant had disputed the accuracy of this information and reiterated that he only went to India in February 2009. However in response to the Tribunal’s s.424A letter the applicant admitted that he had gone to India in December 2007, that he “went to India using his own passport, which he obtained in one day, and [that] his departure from Sri Lanka to India was arranged by an agent”.  He admitted he had “presented inaccurate dates and concealed certain details in respect of his stay in India”, which he said was on his migration agent’s instructions on the basis that a “foreign government” may decide he could stay permanently in India if he admitted that he had stayed there for the best part of three years.  The applicant also admitted that he had lived at two addresses in India, including in Chennai, where he received money from his uncle and later from his grandmother and aunt.

8. In its reasons for decision the Tribunal had regard to the fact that “[t]he applicant ha[d] admitted that he [had given] false evidence” and that he in fact went to India in December 2007 (not in February 2009).  

   
   

   He had “previously given evidence about events which he claimed occurred [in Sri Lanka] in 2008 and 2009, which caused him to fear for his safety”.  The Tribunal found, on the applicant’s own evidence, that he was living in India from December 2007.  Therefore it did not accept his claims that he “went into hiding towards the end of 2008, to avoid conscription by the LTTE, or that he was caught and arrested in January 2009, and taken to a camp…from which he escaped, or that he fled to India in February 2009”.

9. The Tribunal addressed the applicant’s claim that all the asserted incidents of persecution in Sri Lanka were true and that he had “only given incorrect information about when these events occurred” on the advice of his agent.  However the Tribunal did “not accept this explanation, as the applicant ha[d] not said why he stayed in India for 3 years or why a foreign government would believe that he had a right to continue to stay in India if he lived there for more than 3 years” as he claimed his agent had advised.  It had regard to the fact that “[i]f the applicant could have accessed protection in India…[he] may well not be owed protection [obligations] by the Australian government” (see s.36(3) to (5) of the Migration Act) and to the fact that “[i]f the applicant could not access protection in India, then he ha[d] not explained why he gave false information [in connection with his protection visa application] about when he went to India and when he was persecuted in Sri Lanka or why he lied about the period of time that he was in India”.

10. The Tribunal considered the events which the applicant now claimed occurred prior to December 2007, but was “not satisfied that these events [had] occurred…because the applicant ha[d], on his own evidence, given false information”, because the Tribunal did “not find [him] to be credible” and because his “evidence about when the events occurred [wa]s now not consistent”.

11. The Tribunal considered the applicant’s claims about key events described as his detention on the road by the SLA and being taken to a camp and released the next day after paying a bribe; the detention of his classmate four days later and investigation of his classmates so that the applicant fled back to his home town; voluntary work at his old school for a year; his claim that he went into hiding because the LTTE wanted to conscript someone from each family, and his claims that he was captured and taken to a training camp but escaped and fled to India after staying with his uncle for a few weeks.

12. The Tribunal had regard to the fact that the applicant had not said when all the claimed events did occur, except for maintaining that he was initially detained, gave a lift to his classmate and fled to his home town in 2007.  The Tribunal found that if, as he now claimed, the applicant went to India in December 2007, it was not clear when he had gone into hiding to avoid conscription or capture by the LTTE or when he had been taken to a training camp.  It had regard to the fact that the applicant had claimed initially that after he had fled back to his home town following the arrest of his classmate, that he worked in his old school for about a year and that it was thereafter that, the events involving the LTTE occurred.  However the Tribunal found that if the applicant had worked in his old school for about a year, it was not feasible that all the events he had described could have occurred in 2007.  It found that insofar as he claimed that he did voluntary work at his school in the holidays in 2006 (not in 2008 as stated in the letter signed in the name of the school principal which was later conceded to have been written by the applicant’s agent) this would mean that he had worked at his old school before he was detained by the SLA and the alleged events involving his classmate occurred in 2007. 

13. The Tribunal also had regard to the General Certificate of Education provided by the applicant which stated that he sat the Advanced Level Examination in August 2007.  The Tribunal was of the view that this indicated that this was when the applicant completed high school, consistent with his oral evidence that he completed high school in August 2007.  The Tribunal found that if the applicant finished high school in August 2007 and went to India in December 2007 this cast “strong doubt” on his claims that the events in question all occurred in 2007, having regard to the applicant’s evidence that he was not involved in any LTTE activities while he was at high school and that he was not persecuted or threatened with harm while he was at high school. 

14. The Tribunal was of the view that the applicant finished high school in August 2007 and went to India in December 2007. It did not accept that he “came to the adverse attention of either the authorities or any paramilitary organisation between August and December 2007”. 

15. The Tribunal also had regard to what it regarded as an inconsistency between the applicant’s written evidence and a contemporaneous submission about the timing of events and whether he worked at his old school for a year or went into hiding to avoid conscription. 

16. The Tribunal found that the applicant had given “deliberately misleading and false evidence about when he went to India” and “inconsistent evidence about when the events which he claimed [had] caused him to fear persecution” occurred.  It did “not accept [his] explanation for why he gave false evidence” and did not find him to be a witness of credit.  The Tribunal did “not accept that the applicant was held in [a camp by the SLA] and that he had to pay a bribe for his release, and that he still owe[d] part of the bribe” or that he was “still being pursued by the EPDP or any other authority or paramilitary organisation or person for this reason”.  Nor did it accept “that after his release, the applicant had to return to his home town because he was a person of interest as he had given…a lift” to a classmate who was “later suspected of involvement in an attack on an army truck”. 

    
    

    It did not accept that he “went into hiding because the LTTE wanted to conscript a person from each family or that he was caught and taken to a training camp from which he later escaped”.  The Tribunal did “not accept that the applicant was of adverse interest to the authorities or the SLA or STF or the EPDP or the Karuna Group because he was suspected of being involved in the LTTE”.

17. The Tribunal “considered the applicant’s claims that he was involved with the LTTE when he was in primary school”.  It found that even if this was true, such “involvement was many years ago, when the applicant was a child, and [that his] evidence [wa]s that nothing [had] happened to him during his 5 subsequent years at secondary school”.  The Tribunal did “not accept that the applicant would be persecuted because of any involvement with the LTTE when he was in primary school”.

18. The Tribunal also addressed the applicant’s claim to fear persecution because he had “travelled to Australia on a forged passport” and had departed from India illegally.  He claimed that this would “attract adverse interest from the Sri Lankan authorities if he returne[d] as a failed asylum seeker and as a young Tamil male from the north” of Sri Lanka.

19. In this context the Tribunal had regard to the applicant’s submission disputing country information to which the departmental delegate had referred in relation to the response of the authorities to returning refugees and to young Tamil men from the north and to the submission that none of this information referred to persons with a profile similar to that of the applicant, that is, a young Tamil from a named place in the Vanni area of northern Sri Lanka who had participated in LTTE activities and was individually targeted by the authorities and the paramilitary.  It recorded that he claimed that “the Sri Lankan authorities and the paramilitary ha[d] imputed a political opinion to him” and that it was “common knowledge that any association [he] had with the LTTE in the past, no matter how minimal, only enhance[d] the chance of persecution”.

20. Having regard to the independent country information before it the Tribunal found that the human rights and security situation in Sri Lanka had improved following the end of the conflict in May 2009 and hence that Sri Lankans originating from the northern part of the country were no longer in need of international protection from indiscriminate harm and that “there was no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the northern part of the country”.  It referred to the US Department of State Human Rights Report and the Eligibility Guidelines from the UNHCR dated July 2010 which stated that refugee status determinations of Sri Lankan asylum seekers of Tamil ethnicity should be assessed upon five potential risk profiles, including persons suspected of links to the LTTE.  However the Tribunal did not accept that the applicant was a person suspected of having links to the LTTE.  The Tribunal addressed the news articles and reports submitted by the applicant, but it was satisfied that they did not apply to him or to his circumstances. 

21. The Tribunal reiterated that it “rejected the applicant’s claims and [did] not accep[t] that he [wa]s of adverse of interest to the authorities or that he [wa]s suspected of having links to the LTTE”.  The Tribunal found that “if the applicant were to return to Sri Lanka now or in the reasonably foreseeable future, there [wa]s no real chance that he [would] be arrested, detained, tortured or killed because of his Tamil race or any political opinion imputed to him on the basis of his race, or because he [wa]s a young Tamil male from the north or because he [wa]s suspected of having links with the LTTE”.

22. The Tribunal had regard to the fact that the applicant had told it that he left Sri Lanka “using his own passport”, which the Tribunal found indicated that “although he [had] departed from India using fraudulent documents, he [had] departed Sri Lanka legally”.  It was “therefore not satisfied that the applicant’s departure from Sri Lanka would attract the attention of the authorities on his return”. 

23. The Tribunal addressed the applicant’s claim that his profile would attract the adverse interest of the authorities on his return, but had regard to independent country information that, in general, Tamils returning to Sri Lanka were subject to the same screening procedures as other citizens of Sri Lanka.  It did not accept that the applicant would be of interest as a person suspected of links to the LTTE and did not accept that he had an alert against his name, such that he would be taken for further questioning and subjected to further checks.  The Tribunal was “of the view that on his return to Sri Lanka, the applicant would be treated by the authorities like any other returning Sri Lankan”.

1. Finally, the Tribunal considered evidence provided by the applicant regarding his brother.  The applicant claimed that “although his brother was not involved with the LTTE he surrendered because he was afraid”.  The Tribunal accepted that “the applicant’s brother was released from rehabilitation into the care of his mother on 26 March 2010” consistent with the documentation provided by the applicant, but found that those documents also indicated “that his brother was rehabilitated on the basis that he was a child affected by war”.  The Tribunal was of the view that “the applicant’s circumstances [we]re different to his brother’s”.  The applicant had not claimed to have been involved in any of his brother’s activities.  Further, the applicant had claimed that his brother was not involved in the LTTE.  The Tribunal also had regard to the fact that the applicant was living in India from December 2007 and that as the documents he had provided indicated that his brother was in a rehabilitation camp in 2009 and 2010 and was released in 2010, this meant that he underwent rehabilitation while the applicant was in India.  The Tribunal accepted the applicant’s brother might still be monitored, but had regard to the evidence that the brother was living with his parents and had resumed studying and had been monitored by the Red Cross. 

2. The Tribunal accepted that the applicant had no involvement in his brother’s activities and, in any event, that the applicant claimed that his brother was not involved in the LTTE.  Taking into account the fact that the applicant was living away from Sri Lanka at the time his brother came to the attention of the authorities, the Tribunal was not satisfied that the applicant would be of adverse interest to the authorities or the army because of his brother.

3. The Tribunal accepted that the applicant was unaware of information that had been provided to the Department and Tribunal by his aunt and mother.  The Tribunal stated that it had not made any findings on the basis of this information. 

4. The Tribunal stated it had considered all the applicant’s circumstances individually and cumulative in concluding that, for the reasons given, it did “not accept there [wa]s a real chance that…[he would be persecuted] for reasons of his race or any political opinion imputed to him on the basis of his race or the fact that he [wa]s returning from abroad”.  Nor did it accept that he had been or would be “harmed by the Sri Lankan security forces or paramilitary groups such as the SLA, EPDP or STF or the Karuna Group for the reason of his race, religion, nationality, political opinion, membership of any particular social group, or any other Convention reason”.  The Tribunal was not satisfied that the applicant’s fear of persecution was well-founded.  It affirmed the decision not to grant him a protection visa.

5. The applicant sought review by application filed on 10 June 2011. 

   
   

   He relies on an amended application filed on 7 December 2011. 

6. After the hearing, the applicant’s counsel sought to bring to the attention of the court the decision of Spender J in SZGOP v Minister for Immigration and Citizenship [2007] FCA 836. The parties were given the opportunity to make post-hearing written submissions in relation to this decision.

The Passport Issue

1. The first ground in the amended application is that:

   …the Tribunal failed to take into account a relevant consideration and/or failed to ask correct questions or allow the applicant to address in (sic) important dispositive issues and/or breached s 425 in relation to departure and/or passport.

2. The particulars to this ground are as follows:

   The Applicant had travelled to Australia on fraudulent Indian passport from India.  The Applicant claimed that he is likely to suffer harm upon return to Sri Lanka from Australia.  The Tribunal has failed to address this claim, instead addressing the general treatment of Tamils in the East and North (CB 184 – 185) rather than addressing and dealing with the specific claim raised by the Applicant.

   The Tribunal had not given the Applicant opportunity to address the determinative issue of the passport;  the delegate had no issue with the passport issue.

3. There was some lack of clarity in the applicant’s submissions in relation to ground one, in particular as to whether it related to the applicant’s departure from India on an Indian passport (as appears from the particulars to this ground) and/or to the circumstances of the applicant’s departure from Sri Lanka, as appeared to be suggested in oral submissions in relation to the “dispositive issues” and s.425 aspect of this ground (notwithstanding that ground four would appear to address that issue). I have considered both possibilities.

4. First, the applicant’s evidence to the Tribunal was that he left Sri Lanka using his own passport, that he departed by boat and travelled to India where he obtained a false Indian passport via a third party with the assistance of an agent.  This was contrary to the claim articulated by his adviser in the submission of 4 April 2011 that the applicant departed Sri Lanka using a fraudulently obtained Indian passport in a false name and that, on that basis, he feared persecution on return.  It is contended that the Tribunal failed to take into account the applicant’s claim to fear persecution because he travelled to Australia on a forged Indian passport and that his illegal departure from India would attract adverse attention from the Sri Lankan authorities.

5. The applicant submitted that the Tribunal had looked at the issues in relation to this claim from the perspective of Tamil returnees generally, notwithstanding that the applicant had departed India using a fraudulent Indian passport.  It was submitted that the Tribunal had not found that the applicant’s claim that, at least in primary school, he was involved in some LTTE activities was untrue and had addressed the wrong question when it had attempted to assess whether the circumstances of his departure and return to Sri Lanka would place the Sri Lankan authorities on alert.  It was also submitted that the Tribunal did not consider the situation of the applicant as someone who had used a fraudulent passport and was subsequently returned to Sri Lanka.  In other words it was said that the Tribunal had failed to address whether the applicant’s return to Sri Lanka from Australia would result in him facing a risk of harm in circumstances where the records were that the applicant went to India from Sri Lanka.  The applicant submitted that the Tribunal identified and addressed a wrong issue, namely Tamils returning to Sri Lanka, rather than the situation of a failed asylum seeker who had travelled to Sri Lanka from a country other than the country he departed from.

6. It was said that this concern had been raised by the applicant’s adviser in the written submission of 4 April 2011.  I note, however, that in those submissions (referred to in written submissions in these proceedings) the adviser stated:

   A profile such as the applicant who is a person suspected of having links with the LTTE is good enough to attract persecution and further the applicant departed Sri Lanka (sic) using a fraudulently obtained Indian passport in a false name, surely he runs the risk of persecution on return.

7. Contrary to the applicant’s submission, this did not raise a concern about the applicant’s departure from India on a fraudulently obtained Indian passport but rather about his departure from Sri Lanka. The claim that the applicant made about his departure from India on a forged passport attracting the adverse interest of the Sri Lankan authorities if he returned as a failed asylum seeker was made in the context of the subsequent submission that he was a Tamil youth and was suspected by the authorities as a person who was a sympathiser/member of the LTTE. This claim made in this respect was expressed as follows in his adviser’s response of 30 May 2011 to the Tribunal’s s.424A letter:

   We humbly submit that the applicant is a Tamil youth and were suspected by the authorities as a person who is a sympathiser/member of the LTTE.  Further he had travelled to Australia on a forged passport and the illegal departure from India will attract adverse interest of the Sri Lankan authorities if he returns as a failed asylum seeker.  The applicant states that he is still wanted by the EPDP and the SLA in Vavuniya, Sri Lanka.  The applicant had failed to settle balance bribe money to EPDP but instead escaped to India without their knowledge.  The SLA strongly suspects that the applicant had link with the LTTE and escaped to India thereafter able to travel to Australia on forged documents.  He genuinely fears that he will be arrested and killed if he returns to Sri Lanka. 

8. In any event, the Tribunal set out and considered the claims in relation to both the circumstances of the applicant’s departure from Sri Lanka and his departure from India.  It rejected the applicant’s claim that he was suspected of having links to the LTTE or that he would be persecuted because of any involvement with the LTTE when in primary school.  It did not “simply” address the general treatment of Tamils in the east and north.  It was relevant to consider such issues, insofar as the applicant relied not only on his asserted profile as an LTTE sympathiser or member (a claim rejected by the Tribunal) but also on the fact he was a Tamil from the north.  The Tribunal considered, but did not accept, the claim that the applicant had a profile of a young Tamil from the north who “was individually targeted by the authorities” in finding it appropriate to have regard to country information regarding the situation in Sri Lanka and the checks by Sri Lankan authorities undertaken on Tamils returning to the country. 

9. Importantly, the Tribunal had regard to the fact that the applicant had told it that he left Sri Lanka using his own passport. The Tribunal found that this indicated that “although he departed from India using fraudulent documents, he departed Sri Lanka legally”.  It was open to the Tribunal on this basis to find that the applicant’s departure from Sri Lanka would not attract the attention of the authorities on his return. 

   
   

   It went on to consider the wider claim that the applicant’s profile would attract the interest of the authorities on his return.  

10. It has not been established that the Tribunal failed to have regard to this aspect of the applicant’s claim or that it asked itself the wrong question in relation to the “passport issue”.  The Tribunal did not confine itself to asking whether returning Tamils were likely to face risk. 

    
    

    It considered the applicant’s particular circumstances, including his evidence of legal departure from Sri Lanka but use of a fraudulent Indian passport to depart India.  Having considered country information about Tamils and the human rights situation in Sri Lanka and having rejected the applicant’s claims to be a person suspected of links to the LTTE, the Tribunal considered the claim that the applicant’s profile would attract adverse interest of the authorities.  The applicant claimed to fear persecution “because he travelled to Australia on a forged passport and his illegal departure from India will attract adverse interest from the Sri Lankan authorities if he returns as a failed asylum seeker and as a young Tamil male from the north”.  The Tribunal did not accept he had an alert against his name and was of the view that on return as a Tamil he would be treated by the authorities like any other returning Sri Lankan. 

11. The other aspect of ground one is a contention that the Tribunal breached s.425 of the Act by failing to raise a determinative issue, being the “passport issue”, with the applicant.

12. Insofar as this is intended to relate to the applicant’s departure from Sri Lanka, it appears from the delegate’s reasons for decision that the applicant claimed to the delegate that he departed Sri Lanka unlawfully without a passport.  The delegate had regard to the fact that the applicant’s “unofficial departure from Sri Lanka may also be of concern to authorities”.  Such a claim was also made in the applicant’s adviser’s submission of 4 April 2011.  However in the adviser’s letter of 3 May 2011 the applicant claimed that he went to India from Sri Lanka using his own passport which he got in one day.  The Tribunal accepted this evidence.  It was not obliged in such circumstances to provide the applicant with an opportunity to comment on his own claim in this respect or on any inconsistency in the claims, even though in the earlier submission of 4 April 2011 the adviser had claimed that the applicant departed Sri Lanka “using a fraudulently obtained Indian passport in a false name”. 

13. The fact that a claim was made that was inconsistent  with an earlier claim about the circumstances of the applicant’s departure from Sri Lanka did not have to be put to the applicant in a further hearing or otherwise.  The Tribunal did not rely on this particular inconsistency, but accepted the applicant’s evidence that he left Sri Lanka using his own passport.  The Tribunal was not obliged to provide the applicant with a running commentary on, or evaluation of, his evidence.

14. Insofar as this aspect of ground one is intended to relate to the applicant’s use of a fraudulent Indian passport to depart India, it has not been established that this was a determinative issue.  The Tribunal accepted that the applicant travelled to Australia on a fraudulent passport.  It was under no obligation to put to him such information which it accepted. 

15. If  this ground is intended to suggest that the Tribunal should have put to the applicant its reasoning about the use of a fraudulent passport at the Tribunal hearing, the Tribunal understood the distinction between the applicant’s departure from Sri Lanka and his departure from India.  As the applicant’s own evidence was that he left Sri Lanka using his own passport, it was not necessary for this matter to be raised with him, whether by way of hearing or otherwise.  The Tribunal was not bound to treat the applicant’s case before it as identical to the case presented to the delegate (SZJUB v Minister for Immigration & Citizenship [2007] FCA 1486 at [19]). As Edmonds J stated in SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14]:

    The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings.

16. See The issue of his departure from India on a fraudulent passport was discussed with the applicant at the hearing as, indeed, were the circumstances in which he travelled to India.  The particulars to ground one do not identify any determinative issue in the sense considered by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63.

17. No jurisdictional error has been established on any basis contended for in ground one of the amended application. 

Particular social group issues

1. The applicant’s submissions dealt with grounds two and three together.  Both rely on the same particulars.  Ground two is:

   The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicant’s particular social group  being a young Tamil from North (Vanni District), former member of the LTTE (Maniam) with friends in EPDP and whose family members have been of interest to the Sri Lankan regime.  The Tribunal has not carried out this exercise of recognising the Convention-related claim of a particular social group and dealing with it.   The Tribunal accordingly has been procedurally unfair and made decision turned on (sic) unidentified social group ((RRT 29) at [107]) instead of clearly identifying the social group and dealing with the relevant social group[s] the Applicant was advancing (and ought to have provided the Applicants (sic) proper opportunity to deal with that group) and dealt with other social groups. 

   Particulars

   The Tribunal failed did not (sic) identify the relevant characteristics/attributes [first] (sic) Applicant is a former LTTE activist in at least the schools.

   The Applicant claimed the characteristics of a particular social group such as young Tamil male from the Vanni district with previous membership of LTTE who upon return would be persecuted and discriminated against by the regime instead assessing a broadly (sic) social group of Tamil Sri Lankan from Northern areas.

   The RRT decision does not address issue of social group that was clearly recognisable on the basis of the claim.  The RRT erred in not addressing the issue of social group in its decisions (sic).

   Applicant’s claim was that he was young Tamil from North (Vanni area),  former member of the LTTE (Maniam) with friends in EPDP.  The Tribunal committed jurisdictional error when it made finding ((RRT decision, p29) at [109]) that the Applicant is unlikely to suffer harm upon returning to Sri Lanka without supporting evidence (no evidence).

2. It was suggested that the Tribunal made its decision turning on an “unidentified social group” instead of “clearly identifying” a social group and “dealing with the relevant social group[s] the Applicant was advancing” and that it ought to have provided the applicant with a “proper opportunity to deal with that group”. 

3. The third ground is that:

   The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicant’s particular social group failing to follow proper procedural steps / manner when dealing with social group.

4. The particulars to ground two are repeated in ground three. 

5. It was submitted that while other Refugee Convention bases were also advanced by the applicant, on the information presented to the Tribunal, the issue of a particular social group arose (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263). The applicant was said to have claimed to have the characteristics of a particular social group, such as young Tamil males from the Vanni district with previous membership of LTTE who upon return would be persecuted and discriminated against by the regime.

6. It appears to be contended that the Tribunal erred in considering a broad social group of Tamil Sri Lankans from northern areas, insofar as it addressed the Convention nexus of being a member of a particular social group.  It was submitted that the Tribunal should have dealt with the group identified by the applicant and not the general northern Tamil population which was said not to represent the particular social group to which the applicant’s claim related.

7. The applicant contended that where a particular social group was identified the risk of persecution ought to be assessed as against that group (see Chen Shi Hai v Ministerfor Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 and Huang v Minister for Immigration & Multicultural Affairs [2000] FCA 820. It was submitted that, while the Tribunal looked at the issues from the perspective of Tamil returnees generally, the applicant’s claim was that he was a young Tamil from the north of Sri Lanka (Vanni area) who was a former member of the LTTE (Maniam) with friends in EPDP.

   
   

   It was said that the Tribunal was obliged to deal with a discrete basis for protection put forward by the applicant and also that it erred in not considering particular social group as a Convention basis for the applicant’s claim. 

8. It was submitted that the Tribunal failed to identify the relevant characteristics and attributes of the applicant such that it failed to properly identify, assess and address the social group or the risk of harm in respect of the claimed particular social group in the manner stated in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 and SZNVE and Others v Minister for Immigration and Citizenship and Another (2010) 114 ALD 247; [2010] FCA 251.

1. In addition, it was submitted that the Tribunal had been procedurally unfair in making a decision that turned on an unidentified social group, instead of clearly identifying the social group and dealing with the relevant social group or groups the applicant was advancing and that the Tribunal committed a jurisdictional error when it found that the applicant was unlikely to suffer harm upon returning to Sri Lanka “without supporting evidence”, particularly where there was evidence that the applicant had used a fraudulent Indian passport. 

2. In post hearing submissions the applicant sought to rely on the decision of Spender J in SZGOP v Minister for Immigration and Citizenship [2007] FCA 836. In that case the Tribunal had failed to consider a basis for a claimed fear of persecution. The applicant had claimed to fear persecution not only for reason of his political opinion based on a claimed involvement in politics but also as a consequence of his membership of a particular social group, being that sub-group of Indo-Fijians who were lessors of Crown land. The Tribunal had characterised the essence of the applicant’s fears as being founded on his Indian ethnicity. Spender J referred to NABE at [60] and [63] and WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47] and was of the view that the Tribunal findings expressly addressing the ethnicity claim could not be read as of general application to the other claims which were advanced by the appellant and which were not expressly addressed by the Tribunal in its reasons for decision.

3. However in SZGOP what was in issue was a discrete and clearly articulated claim which was not dealt with generally or specifically in the Tribunal findings (and see SZFTJ v Minister for Immigration and Citizenship [2007] FCA 1193 at [22]). This is not such a case.

4. In this instance the applicant submitted that the Tribunal failed to assess his claims against the correct particular social group, being the particular social group comprised of individuals sharing the characteristics of being young Tamils from the north (Vanni district) and/or former members of the LTTE (Maniam) with friends in the EPDP and whose family members had been of interest to the Sri Lankan regime.  However the particulars seem to suggest that there are additional characteristics of what is now said to be a particular social group, such as being former LTTE activists (at least in school).  The submissions in relation to these grounds assert that these characteristics are merely some of the defining attributes of the particular social group.  The applicant did not clearly articulate in these proceedings the particular social group or groups the Tribunal allegedly failed to consider such as to support his contention that the existence of such a particular social group was a “substantial, clearly articulated” argument put before the Tribunal in the sense considered in NABE.

   
   

   It has not been established that the case put by the applicant before the Tribunal sufficiently raised such a posited group so that the Tribunal should have dealt with it (cf SGBB v Ministerfor Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364; [2003] FCA 709 per Selway J and as referred to with approval in NABE and SZGOP).  The applicant’s claims did not raise a “substantial, clearly articulated argument relying upon established facts” (Dranichnikov at [24]) that he had a fear of being persecuted for reasons of his membership of a group of people possessing the attributes asserted in grounds two. The Tribunal dealt with the case presented to it (cf Dranichnikov at [24]).

5. The particular social groups now being advanced by the applicant appear to contain a list of overlapping attributes drawn from the applicant’s claims.  No claim was made to the Tribunal that there was such a particular social group.  Nor did such a claim clearly arise on the material before the Tribunal.  Rather, in the written submission to the Tribunal of 4 April 2011 the applicant’s adviser submitted that the applicant was “a member of a particular social group who run the risk of real chance of harassment and persecution in Sri Lanka”.  If this was intended to be an identification of a particular social group it did no more than define the social group by reference to the risk of harm.Such a group is not a particular social group for the purposes of the Refugee Convention (see Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225; [1997] HCA 4).

6. The submission to the Tribunal went on to suggest that members of the Tamil community, particularly those suspected of affiliation with the LTTE, as well as young Tamil men from northern or eastern Sri Lanka were at grave risk.  Even if this may be seen as raising an assertion of a particular social group, the Tribunal set out and considered the applicant’s claims in that respect, but rejected his claims to have a fear of harm on that basis.  It also considered the applicant’s claim about a fear of the authorities as a young Tamil man from the north from a particular place in the Vanni area who had participated in LTTE activities and was individually targeted by the authorities and the paramilitary.  However, insofar as the last of these characteristics is said to be a defining feature of the asserted particular social group, it was rejected by the Tribunal as not applicable to the applicant at a factual level. 

7. Beyond this, the Tribunal considered the applicant’s claims relating to the treatment of Tamils in Sri Lanka and also the claims based on what was said to be the applicant’s profile (albeit it did not expressly refer in that part of its findings and reasons to the concept of particular social group).  The Tribunal clearly accepted that the applicant was a young Tamil man from the north who had been involved with the LTTE in primary school, but found based on independent country information that there was no fear of persecution for reason of being a person of Tamil ethnicity originating from the northern part of Sri Lanka.  It did not accept that the applicant was a person suspected of having links to the LTTE and also did not accept that he was of adverse interest to the authorities.  The Tribunal also had regard to the applicant’s claims based on his relationship to his brother. 

8. In other words, the Tribunal addressed those claims which are now sought to be articulated in terms of membership of a particular social group, notwithstanding that it did not refer to that concept in that part of its finding and reasons but only in its conclusion.  It did not accept that he would be persecuted because of any involvement with the LTTE when he was at primary school and nor did it accept that he was a person suspected of having links to the LTTE.  It rejected his claims that he was otherwise actively involved in the LTTE.  The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it (see NABE at [61] and see in particular the remarks of Nicholls FM in SZOYL & SZOYM v Minister for Immigration & Anor [2011] FMCA 236). In this case, as in SZOYL, the applicant did not propound to the Tribunal the particular social group now suggested (cf SZNVE). The Tribunal was not obliged to determine whether the group that is now advanced was capable of constituting a particular social group for the purposes of the Refugees Convention as a claim that there was such a particular social group did not arise on the material before the Tribunal. The applicant has not pointed to evidence in the material before the Tribunal that the “particular social group” proposed by his counsel in these proceedings existed in Sri Lanka at the relevant time. The mere recitation of a list of attributes relevant to the applicant in a ground of review does not establish that the Tribunal was obliged to take the steps referred to in Dranichnikov at [26]. As in SZOYL at [50], the “circumstances presented to the Tribunal did not give rise to any such group”.  Insofar as it appears to be claimed that the applicant was a young Tamil from the Vanni area of northern Sri Lanka who had participated in LTTE activities (after primary school) with friends in the EPDP and whose family members had been of interest to the Sri Lankan regime, on the evidence before it the Tribunal rejected the applicant’s claims to have all such characteristics (which would be necessary were he to be a member of any such particular social group). 

9. The Tribunal accepted that the applicant was “a young Tamil from the north” (as his adviser had contended).  This finding implicitly accepted his membership of any such social group. However the Tribunal was not satisfied that the applicant had a well-founded fear of persecution on that basis. The Tribunal findings in this respect were not limited to race and or political opinion (cf SZGOP).  It subsequently considered his separate claims based on membership of his brother’s family. 

   
   

   In this way it addressed the claims specific to the applicant.

10. Insofar as it is asserted that the Tribunal erred in making a finding that the applicant was unlikely to suffer harm on return to Sri Lanka without supporting evidence, it has not been established that there was “no evidence” to support such a finding. It is for an applicant to put evidence before the Tribunal in support of his claims and for the Tribunal to determine whether, on the evidence before it, it is satisfied that the applicant has a well-founded fear of persecution.  In this case the Tribunal had regard to independent country information concerning the human rights situation in Sri Lanka to the effect that, due to the cessation of hostilities, there was no longer any presumption that Sri Lankans originating from the north were in need of protection.  The country information identified certain profiles that might put such a person at risk, including persons suspected of links to the LTTE, but the Tribunal did not accept that the applicant was a person suspected of having links to the LTTE.  The Tribunal proceeded, correctly, to review the application on the basis of the applicant’s own individual circumstances, but rejected virtually all of his material claims. It found that he was not a person of adverse interest to the authorities or a person who had suspected links to the LTTE.  The Tribunal is not required to have rebutting evidence before it before it can find that an assertion by the applicant is not made out on the evidence before it (see Selvadurai v the Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347).

11. Neither ground two or ground three is made out. 

Section 425 of the Migration Act.

1. Ground four in the amended application is:

   The Tribunal committed jurisdictional error when it failed to allow the Applicant proper opportunity to be heard on matters identified in breach of s 425 of the Migration Act 1958 including issues relating to s 36(3) and (4) of the Migration Act, the determinative matters were not put to the applicant. S 36(3) (ability to relocate in India - was not an issue before the delegate.

   The Tribunal committed jurisdictional error when it failed to provide applicant proper hearing in respect of other determinative issues:  ((CB 189) at [101]) and ((CB 190) at [105]) & as regards suspicion of links to LTTE [109].

2. The particulars to this ground are as follows:

   The Tribunal at [111] (CB 192) stated that the Applicant departed Sri Lanka using (sic) and concluded that the applicant “would not attract the attention of authorities ...”.  The Tribunal denied the applicant opportunity to be heard in relation to various issues relating to departure prior to making this finding.

   The Tribunal, at [96]-[98] (CB 188) failed to provide the Applicant an opportunity to clarify issue as to why the foreign government would consider the applicant had continued right of residence (such as fact that India is not a signatory to UN Convention).

   The Tribunal failed to accord procedural fairly in respect of other matters.  The Tribunal at [101] (CB 189) and ((CB 190) at [105];  ((CB 191) at [109]);  these matters were matters that the delegate took into account in making its decision.

3. In written submissions, it was contended that there were a number of specific reasons why the Tribunal rejected the applicant’s claims and that he ought to have been given the opportunity to explain “these matters”.  Reliance was placed on the decision of the Federal Court in SZLNW v Minister for Immigration and Citizenship and Another (2008) 102 ALD 614; [2008] FCA 910 at [39] – [40] in which Cowdroy J found that SZBEL was applicable in the particular circumstances of that case on the basis that SZBEL:

   …makes it plain that if the Tribunal is to determine the application before it adversely to the applicant for a specific reason, it is obliged to put that circumstance to the applicant and to invite the applicant to respond.

4. His Honour referred to the remarks in SZBEL at [47] to the effect that:

   where ... there are specific aspects of an applicant’s account that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.  [emphasis in original]

5. In SZLNW Cowdroy J found the Tribunal’s concerns about an applicant’s inability to identify the persons who might harm him had to be put to him for comment in relation to his claim that he feared persecution from individuals whom he had arrested. His Honour was of the view that as the Tribunal had not specifically asked the applicant to identify such persons at the hearing and had not requested details of such in a s.424A letter, the applicant was not on notice that unless he provided such detail the Tribunal might make an adverse finding against him.

6. SZLNW was relied on by the applicant in support of the proposition that the Tribunal had to put to him its reasoning in relation to whether the circumstances of his departure from Sri Lanka would attract the attention of the authorities. The particulars assert that as the applicant “departed Sri Lanka using” (and this is presumably intended to be a reference to the fact that the applicant told the Tribunal that he left Sri Lanka using his own passport) it was not satisfied that his departure from Sri Lanka would attract the attention of the authorities.  The Tribunal is not required to provide an applicant with an opportunity to comment on its reasoning in relation to his or her evidence (SZBEL at [48]). Insofar as this ground reiterates matters raised in relation to ground one, for the reasons given above it has not been established that the Tribunal was obliged to give the applicant a further opportunity to be heard (whether at a hearing or otherwise) in relation to the circumstances of his departure from Sri Lanka (see SZHBX and SZJUB).  In circumstances where the applicant claimed to the Tribunal that he left Sri Lanka on his own passport there was no obligation on the Tribunal to put to him its conclusion that this indicated he departed Sri Lanka legally and, hence, that it was not satisfied that his departure from Sri Lanka would attract the attention of the authorities on his return.  This is not a case where the applicant’s failure to provide particular details to the Tribunal led to an adverse finding in the manner considered in SZLNW. Nor, more generally, was this an aspect of the applicant’s account that may be open to doubt as considered in SZBEL. 

7. More generally, the applicant was put on notice at the Tribunal hearing that the entirety of his account was in issue (SZBEL at [47]), particularly having regard to the fact that the Tribunal, as it recorded, put to him in the hearing that it had serious concerns that if the information on the Department file suggesting that he might have been residing in India from as early as January 2008 (not from February 2009) was correct, it would indicate that he was in India a year earlier than he had claimed and that this might lead the Tribunal not to accept his claims about what occurred to him in Sri Lanka.

8. A number of other issues are raised, or apparently raised, by ground four in the amended application. First, insofar as reference is made to ss.36(3) and (4) of the Migration Act, the application of those provisions was not a determinative issue. This is not a case in which the Tribunal decision was based on any issue about whether the applicant had the protection of a third country. Rather, the Tribunal mentioned these provisions in response to a submission by the applicant that he had lied about the duration of his stay in India because he thought he would otherwise be denied protection on the basis that the government would believe he had a right to continue to stay in India. However, relevantly, the Tribunal had regard to the fact that if he could not access protection in India, he had not explained why he gave false information about when he went to India and when he was persecuted in Sri Lanka, or why he lied about the period of time he was in India. This reasoning did not give rise to an obligation to put to the applicant issues about his ability to relocate to India in the manner contended for by the applicant.

9. Ground four and the particulars refer to what are said to be “issues” identified at particular places in the Tribunal reasons for decision. The first such reference is to a part of the decision ([101]) in which the Tribunal made the point that although the applicant claimed in response to the s.424A letter that all the events he had described had occurred at some time prior to December 2007, he had not said when it was that all the claimed incidents occurred. The Tribunal was not obliged to give the applicant a chance to comment on the view that it took of his testimony or the inadequacy of his evidence or to set out every detail of the reasoning process which it eventually employed (see Re Minister of Immigration and Multicultural Affairs; Ex Parte Applicant S154/2002 (2003) 77 ALJR 1909; [2003] HCA 60 at [54]). Nor was it obliged to invite the applicant’s further comment on why it was minded not to accept as satisfactory the explanations he advanced when the issue of his evidence about the time of his travel to India was raised with him.

10. The next part of the Tribunal reasons for decision referred to in this ground ([105]), is the paragraph in which the Tribunal considered the applicant’s claims that he had a fear of persecution because he was involved with the LTTE when he was at primary school. The Tribunal found that, even if this was true, it was many years ago when the applicant was a child, and that nothing had happened in his subsequent five years at secondary school. The Tribunal did not accept that the applicant would be persecuted because of any involvement with the LTTE when he was in primary school. This finding reflected the applicant’s own evidence and the Tribunal was not obliged by s.425 of the Act (or otherwise) to foreshadow its reasoning to him for comment.

11. The next reference is to a paragraph ([109]) in which the Tribunal considered country information concerning the situation in Sri Lanka in general and in relation to the position of persons of Tamil ethnicity originating from the northern part of the country. It appears from the applicant’s written submissions that it is intended to be suggested that the Tribunal should have discussed with the applicant that he was not a person having a potential risk profile beyond being an asylum seeker of Tamil ethnicity (or, possibly, its conclusion that it did not accept that the applicant was a person suspected of having links to the LTTE). However the Tribunal was not under an obligation to put to the applicant the five potential risk profiles contained in the UNHCR eligibility guidelines for assessing international protection needs of asylum seekers from Sri Lanka which, contrary to the applicant’s submissions, were not dispositive of the issue of suspicion of links to the LTTE (and see s.424A(3) of the Act). The Tribunal’s conclusion that it did not accept that the applicant was a person suspected of having links to the LTTE was a part of its reasoning which did not have to be put to the applicant for comment. In any event, it cannot be said that this issue did not obviously arise on the material and claims made by the applicant. The applicant was put on notice by the delegate’s decision, as evidenced by his written submissions to the Tribunal, of the issue about his suspected links to the LTTE as well as the relevance of country information concerning the position of Sri Lankan returnees. In submissions to the Tribunal he expressly addressed the issue of whether he held a particular profile that would put him at risk of adverse interest and, indeed, referred to the UNHCR guidelines to which this particular concern relates.

1. The other matter particularised in ground four of the amended application refers to “various issues relating to departure”.  These have been discussed above in relation to ground one.

2. Insofar as the particulars refer to the part of the Tribunal findings and reasons which are said to confirm “why the foreign government would consider the applicant had continued right of residence” in India, this appears to proceed on the misapprehension that the Tribunal made a finding pursuant to s.36(3) of the Act or that the provisions in s.36(3) to (5) otherwise gave rise to determinative issues. That is not the case for the reasons set out above.

3. In submissions, counsel for the applicant also appeared to suggest that the applicant’s young age, the area in which he grew up and his activities were matters that were relevant and that ought to have been put to him as determinative issues. If the applicant seeks to raise matters not pleaded in his amended application, he has not sought leave to do so. In any event, the Tribunal’s reasoning in relation to factual matters and the evidence of the applicant is not such that it had to be put to the Tribunal pursuant to s.425 of the Act in accordance with the principles in SZBEL.  This ground is not made out.

The real chance test

1. The fifth ground in the amended application is that:

   The Tribunal committed jurisdictional error in the application of real chance test when it took claim in isolation ((CB 190) at [105]) to assess the real chance test and/or alternatively apply forward looking test. 

2. The particulars to this ground are as follows:

   The Tribunal at [114] (CB 192) stated that the Tribunal had taken the circumstances “cumulatively”;  the claim in fact has been taken in isolation and the Tribunal has not taken subsequent events to draw its conclusion at [105] to arriving at this finding or properly apply forward looking test.  (sic)

3. In written submissions it was contended that although the Tribunal stated that it took a cumulative approach, the reasons did not disclose that the Tribunal had “undertaken interplay of these incident with other incidents to state whether the Applicant’s fear was well founded”. 

   
   

   In particular it was said that to assess the real chance of persecution properly the Tribunal had to consider the applicant’s involvement in LTTE activities at primary school (which it accepted) together with all the other incidents. 

4. The difficulty with this argument is that the Tribunal did not accept the substance of the other claims made by the applicant about past events in Sri Lanka.  It was not necessary for it to consider together all of the claimed incidents the applicant said had occurred to him but, rather, only those events which it accepted had occurred.  The Tribunal did so. It expressly stated that it dealt with the applicant’s claims on a cumulative basis and it clearly engaged in a forward looking assessment considering the totality of the case put forward, insofar as it accepted that case (see SZGUW v Minister for Immigration & Citizenship [2008] FCA 91 at [53] – [54]). No jurisdictional error is established on this basis.

5. As no jurisdictional error has been established the application must be dismissed. 

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  22 February 2012