SZRBX v Minister for Immigration

[2012] FMCA 1197

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRBX & ANOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1197

MIGRATION – Review of decision of the Refugee Review Tribunal – alleged  failure by the Tribunal to address the ‘totality’ of the applicant’s claims in their context – distinction between evidence and a claim – Tribunal decision said to be arbitrary, unreasonable, illogical or irrational – no jurisdictional error – application dismissed.

Migration Act 1958 (Cth), ss. 420, 424A, 424AA, 430, 476
Federal Magistrates Court Rules 2001 (Cth), r.11.11

Minister for Immigration & Citizenship v Buadromo [2012] FCAFC 101
Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247
MZWPDv Minister for Immigration & Anor (2006) FCA 1095
SZGUW v Minister for Immigration & Anor (2008) FCA 91
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138
W352/01 v Minister for Immigration & Multicultural Affairs [2002] FCA 398
Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611
Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
SZQYU v Minister for Immigration & Anor& SZQYV v Minister for Immigration & Anor [2012] FMCA 1114

First Applicant: SZRBX

Second Applicant: SZRBY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 128 of 2012

Judgment of: Nicholls FM

Hearing date: 10 September 2012

Date of Last Submission: 17 September 2012

Delivered at: Sydney

Delivered on: 19 December 2012

REPRESENTATION

Counsel for the Applicants: Mr LJ Karp (direct access)

Counsel for the Respondents: Mr JD Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 19 January 2012, and amended on 3 July 2012, is dismissed.

2. The first named applicant pay the first respondent’s costs set in the amount of $9,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 128 of 2012

SZRBX

First Applicant

SZRBY

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 19 January 2012, and amended on 3 July 2012, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 22 December 2011, which affirmed the decision of the delegate of the first respondent to refuse the grant of protection visas to the applicants.

Background

1. The applicants are citizens of Sri Lanka. The first named applicant (“the applicant”) is the father of the second named applicant who is a minor (“his daughter”). [An order pursuant to r.11.11 of the Federal Magistrates Court Rules 2001 (Cth) was made appointing the applicant as the litigation guardian for his daughter.]

2. On 31 August 2010, the applicants applied to visit Australia as sponsored family visitors (Court Book – “CB” – CB 1 to CB 32). Extensive supporting documentation was provided with that application (CB 33 to CB 83). On 15 February 2011, the applicants arrived in Australia.

3. On 28 March 2011, the applicant applied for a protection visa (CB 101 to CB 125). He included with that application a statement setting out his reasons to fear persecution (CB 86 to CB 100). His daughter also applied for a protection visa as a member of the applicant’s family unit (CB 126 to CB 132). Supporting documentation was provided with the protection visa applications (CB 133 to CB 182).

The Claims to Protection

1. The applicant’s claims for a protection visa were set out in a statement attached to his protection visa application form (CB 86 to CB 100).

2. He claimed that he was an ethnic Tamil who was accused by the Sri Lankan Army of supporting the Liberation Tigers of Tamil Eelam (“LTTE”) and that, separately, he was harassed by the LTTE to support their cause. The LTTE stole his cash and possessions. He claimed that Sri Lankan paramilitaries questioned and threatened him. Further, he claimed that a politician, Minister Karuna (“Karuna”), had attempted to “extort” his farm by threatening him with life imprisonment.

The Delegate

1. The applicant was interviewed by the delegate on 26 May 2011 (CB 183 to CB 184). On 10 June 2011, the delegate wrote to the applicant informing him that he, and therefore his daughter, had been refused protection visas (CB 192 to CB 207). The delegate found that, although the applicant was a Sri Lankan Tamil male, country information indicated that the treatment of that particular group had changed and, therefore, the applicant was not at risk of harm if he were to return to Sri Lanka (CB 205 to CB 206). The delegate also noted the applicant’s delay, after his arrival in Australia, in applying for a protection visa (CB 204.9).

The Tribunal

1. On 1 July 2011, the applicants applied to the Tribunal for review of the delegate’s decision (CB 208 to CB 211).

2. The Tribunal invited the applicants to a hearing, which was

   
   

   re-scheduled and then adjourned on a number of occasions (CB 213 to CB 214, CB 217, CB 264 to CB 267 and CB 270 to CB 271). The applicant provided written submissions, dated 30 September 2011, to the Tribunal (CB 221 to CB 249). Further, he wrote to the Tribunal on 23 November 2011 with comments on certain issues raised at the hearing (CB 276 to CB 278).

3. On 22 December 2011, the Tribunal affirmed the decision under review. The applicants were informed of that outcome by letter dated 23 December 2011 (CB 279 to CB 311).

4. The Tribunal ultimately found that the applicant was “not truthful or credible in relation to his Convention claims” ([105] at CB 307.6).

5. Specifically the Tribunal did not accept that the applicant, or his wife (who remained in Sri Lanka with their younger daughter), had been threatened in the manner claimed (second dot point, [105] at CB 307.8). It found that if they had been, the applicant’s wife and family would not have remained at the family residence after the applicant had departed Sri Lanka (second dot point, [105] at CB 307.8). The Tribunal, also, did not accept that, had the applicant faced serious harm from the Karuna group, he would have continued to have visited his residence after he went into “hiding”, which, incidentally, was also not accepted by the Tribunal (fourth dot point, [105] at CB 308.6). The Tribunal further did not accept that Karuna had told the applicant to transfer his “Nasavantivu property” to him in November 2010, nor that he was threatened if he did not effect the transfer (fourth dot point, [105] at CB 308.8 and [106] at CB 309)

6. Even further, the Tribunal was not satisfied that “members of any group” attended the applicant’s residence in May 2011 to demand money, ask about his whereabouts or ransack the house. It noted that the applicant’s evidence in relation to these incidents, given by the applicant at his interview with the delegate, at the hearing before the Tribunal and in his post-hearing submissions to the Tribunal, was “confusing” (third dot point, [105] at CB 308.6).

7. Also, the Tribunal was not satisfied that the applicant was threatened in March 2010 by “some Karuna group personnel” to make payments, or that in fact he made such payments, nor was he taken away and harmed (fifth dot point, [105] at CB 309.2). This finding was compounded by the Tribunal’s finding that the applicant’s evidence was “unconvincing” in relation to why the Karuna group did not pursue the applicant “more vigorously” when he did not make any payments to them for three months (sixth dot point, [105] at CB 309.5).

8. The Tribunal also considered the applicant’s claim that he would face persecution in Sri Lanka for reason of being a returned failed asylum seeker. However, with reference to country information, the Tribunal was not satisfied that the applicant would suffer such persecution as it noted “… that Tamils returning on Sri Lankan passports, in most cases, proceed through airport control without further investigation” ([106] at CB 309).

Application to the Court

1. The amended application puts forward two grounds with particulars. Those grounds are set out below. All but particular “(a)” to ground two were pressed at the hearing.

Before the Court

1. Mr LJ Karp of counsel appeared for the applicants. Mr JD Smith of counsel appeared for the respondent Minister. Before the Court was the Court Book and written submissions filed on behalf of both parties.

2. The affidavit of Edibert Naveenan Rajadurai, affirmed on 6 June 2012, was taken into evidence. It annexed a transcript (“T”) of the Tribunal’s hearing with the applicant.

3. At the conclusion of the hearing, leave was granted to both parties for the filing of supplementary submissions addressing the relevance of Minister for Immigration & Citizenship v Buadromo [2012] FCAFC 101 (“Baudromo”). Both the applicant and respondent filed supplementary submissions with respect to that case.

Ground One: Submissions

1. Ground one of the amended application is in the following terms:

   “1. The Tribunal erred in failing to address the totality of the applicant’s claims in their context as required by law.

   Particulars

   (a) Failure to address the applicant’s claims:

   (i) To have been forced to assist the LTTE and having been arrested and detained for two months by the Sri Lankan army for having done so.

   (ii) That cadres belonging to the ‘Karuna group’, and Karuna himself, knew of his having materially assisted the LTTE and to have acted in dramas with an anti government message, and were able to use this knowledge to extort money and to attempt to extort property from him.

   (iii) That Karuna himself knew the applicant and the value of the applicant’s land at Nasivantivu.

   and so determine, in the light of those claims, whether his further claims of being targeted for extortion by the Karuna group, and by Karuna himself should be accepted.”

2. Ground one asserts that the Tribunal failed to address the totality of the applicant’s claims, in that it failed to address certain aspects of the applicant’s claims. It is not immediately clear from the particulars, as presented, whether the failure was in relation to the matters itemised there (items (i) to (iii)) or whether, in light of those particulars, the Tribunal failed to address a claim arising from those matters (being targeted by Karuna and his group, or both, or after submissions, something else).

3. I note that in written submission (at [17]), and in relation to ground one, the applicant submits that:

   “[17] In making those abbreviated and unspecified findings the Tribunal did not address the case advanced by the applicant that being,

   (a) That he was known by the Sri Lankan army to have assisted the LTTE.

   (b) That he was known by members of the Karuna Group, and by Karuna himself to have materially assisted the LTTE, because they had until 2004 been in the LTTE.

   (c) That they knew that he had at least occasionally acted in dramas supportive of the LTTE.

   (d) Karuna himself knew that he had valuable property at Nasivantivu, because he had seen it, and met the applicant there.

   (e) That these factors permitted Karuna and his henchmen to be able to accuse the applicant of collaboration with the LTTE, and to threaten him with imprisonment and worse should he fail to comply with their extortionate demands.”

4. The matters referred in [17](a) and parts of (e) are outside the scope of ground one as particularised in the amended application to the Court. Further, I note that the complaint raised in the application to the Court is said to be in relation to the Tribunal’s determination, in light of the three claims particularised in the amended application, “… whether his further claims of being targeted for extortion by the Karuna group, and by Karuna himself should be accepted”. In those circumstances, I cannot see how [17](a), that is that the applicant’s claim that the Sri Lankan army knew he had assisted the LTTE, assists or is relevant to this ground. In relation to [17](e), the matters referred to there are considered below.

5. Given the “intricate” nature of the applicant’s submissions to the Court, it is probably best to set out the principles on which the applicant said he seeks to rely, and as I understood those submissions.

6. First, the Tribunal must address the totality of the case advanced (Sellamuthu v Minister for Immigration & Multicultural Affairs [1999] FCA 247 (“Sellamuthu”)). No real argument arises here. However, the reliance on Hill J at [59] (of Sellamuthu) for the proposition that the Tribunal must consider all the “information” as well as claims before it must, in my respectful view, be now understood in light of the relevant statutory context. In particular, s.420 of the Act (also noting ss.424 and 424A of the Act).

7. Second, the applicant submits that that core principle (that the Tribunal address the “totality of the case”) applies in a number of “different contexts in different factual situations” (with reference to MZWPDv Minister for Immigration & Anor (2006) FCA 1095 (“MZWPD”) at [41] per Weinberg J, particularly in relation to the failure of the Tribunal in that case to take into account the “full ambit”, or true nature, of the applicant’s claim).

8. I should note that the applicant conceded that, in MZWPD, the Tribunal in that case “accepted” virtually all of the applicant’s husband’s claims about past mistreatment (MZWPD at [53]). That is different to the current case (see further below). I note that the applicant’s submission is that it is a “slightly” different context.

9. The applicant also relied on MZWPD for the proposition that the Tribunal is required to consider the “evidence” as a whole and in a way that goes beyond setting out each complaint, even in detail, and then “adjudicating on each complaint individually”.

10. Third, SZGUW v Minister for Immigration & Anor (2008) FCA 91 (“SZGUW”) at [52] – [53] per Jacobson J was relied on by the applicant for the proposition that, in the exercise of its duty to review, the Tribunal is under a duty to consider the totality of the case put forward. That includes the “background” to the claims, as well as the individual claims put forward.

11. How that sits with NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No.2) [2004] FCAFC 263; (2004) 144 FCR 1 (“NABE (No.2)”) and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 (“WAEE”) was never explained by the applicant. That is, the line between what is “background” and what is a claim expressly made, or “clearly arising” from the circumstances presented. Unless, of course, the “background” referred to falls within the latter understanding. That was not made clear in the applicant’s submissions.

12. Fourth, the need for the Tribunal to consider the “whole context” was emphasised in SZGUW per Reeves J for the proposition that, even if a Tribunal comprehensively rejects all claims made by an applicant, it will fall into jurisdictional error unless it considers those claims in the context in which they were put.

13. In written submissions the applicant emphasised that the Tribunal made vague and imprecise findings about past events and concluded that persecution had not occurred. Relying on the principle that claims must be considered in their “full context”, the applicant’s assertion here is that the Tribunal did not give “proper, genuine and realistic consideration” to the applicant’s claim of past harm and therefore found that the applicant’s claims of recent persecution were not made out.

Ground One: Consideration

1. It must be said that, before the Court at times, the applicant’s references to, and recounting of, his claims before the Tribunal appeared to range into matters of background detail which went beyond what was meant in the authorities he relied on, as to what constitutes the “context” in which claims are made. For example, that LTTE cadres came and took away coconuts from his family’s farming properties was far more detail than was required to make the simple point that the context which gave rise to his claim of future harm had its genesis, in great part, in the applicant’s contact and cooperation with the LTTE, in and about 1995, arising from his farming business which was in LTTE controlled areas at relevant times.

2. The applicant’s claim before the Tribunal was that he was compelled to assist the LTTE, the Sri Lankan army came to know of this and that this led to his arrest in 2001. He was held in an army camp for nearly two months. He was released in early-2002 when a peace accord was signed between the government and the LTTE. Notwithstanding that accord, the LTTE ordered him to give work to its cadres on his farm. They threatened to take over his farm if he refused. He gave in to their demands, his labourers left and the LTTE-cadres took over.

3. Sometime in 2004 the local LTTE commander, Karuna, cut his ties with the LTTE, and started to fight them. Those who had taken over the applicant’s land, which was also used for training purposes, supported Karuna and, given their previous involvement with the LTTE, knew of the applicant’s own previous cooperation with the LTTE.

4. Further, as part of the “context”, the applicant referred the Court to his evidence before the Tribunal that he had, for some time, been interested in theatre and had acted in plays in support of the LTTE, particularly in their “Heroes Day” celebrations. That was said to have been an explicit claim at the hearing with the Tribunal.

5. In summary, the applicant’s attack before the Court is that the Tribunal approached its findings on the basis of being “simply impressionistic” and, in particular, failed to consider certain events, and claims, arising in the past which were part of the context.

6. The applicant appears to have confused matters of detail with context. I do not respectfully understand any of the authorities on which he relies to require the Tribunal to set out, and address, every matter of detail put to it. The context to which the authorities refer is the context from which the applicant’s fear of persecutory harm arises.

7. For example, whether his farm grew coconuts was a matter of detail. The applicant did not fear persecution because he grew coconuts. What the applicant grew made no difference. The context that was relevant to his claims of persecutory harm was that he had a farm and that that led to his cooperation with the LTTE, the designs of Karuna on his land, and the perception by the authorities (which would be known to Karuna’s supporters) that he had assisted the LTTE and was

   
   

   pro-LTTE. This also involved extortion from paramilitaries linked to the Sri Lankan army. A similar example can be seen with the details of his thespian ambitions. The relevant context is that he appeared in

   
   

   pro-LTTE plays which would lead to the authorities imputing to him a political opinion in support of the LTTE.

8. This issue can also be viewed through the prism of the distinction between evidence and claims. A claim is the expression of the fear of persecutory harm. Evidence is the basis on which such fear can be said to arise (SZHKA v Minister for Immigration & Citizenship [2008] FCAFC 138 at [103] per Gray and Besanko JJ)

1. Further, care must be taken to note s.430 of the Act, directing, as it does, what should be included in a decision record. There is no direction there to include the entire factual matrix of what an applicant puts to the Tribunal. The requirement is to make findings of fact and to set out those findings and the evidence and material on which they are based.

2. In discharging its obligation to review the delegate’s decision the Tribunal is required to focus on, and deal with, the claims, expressly made or clearly arising, as to why an applicant fears persecutory harm (NABE (No.2) and WAEE). The context that the Tribunal is required to properly consider is defined by those claims.

3. The Tribunal accepted some factual elements of the applicant’s claims. Relevantly, that he was the owner of farms, the farm in question was a valuable property that he had problems in the years of ongoing strife in

   
   

   Sri Lanka, he had been asked to provide donations to various groups, asked to assist the LTTE years ago by allowing them access to his farm and crop, and that he was part of a drama group and performed in some shows over the years.

4. However, the Tribunal did not accept other key aspects of the applicant’s claims. The Tribunal found that the applicant had not been approached by Karuna and threatened that if he did not sign over his land he would be imprisoned or seriously harmed. Nor that he was being targeted because he was suspected of being an LTTE supporter, nor that his wife had been threatened in May 2011.

5. The Tribunal’s adverse findings were based on a series of other findings which led it to find that the applicant was not credible on some key aspects of his claims, and which then led the Tribunal to conclude that he was not truthful or credible in relation to his Refugees Convention claims. These matters are dealt with extensively at [105] (at CB 307 to CB 309) of the Tribunal’s decision record.

6. The flaw in the applicant’s argument can be seen, or illustrated, in his attack before the Court on those matters which the Tribunal accepted. I specifically note what is set out above (in particular, at [38] - [42]).

7. The applicant says that the Tribunal, as an example of its lack of contextual consideration, failed to specify what the problems were that it said it accepted the applicant had experienced in the past (with reference to [105] at CB 307.3). It is not clear how that reveals jurisdictional error. The Tribunal accepted that the applicant had had problems in the past. It “specified” what those problems were throughout its decision record (see for example [23] at CB 284 to CB 285, [30] at CB 288, [50] – [51] at CB 294 and [59] – [62] at CB 296). In these circumstances it was not necessary for the Tribunal to, again, set out these “problems” for a second time in its subsequent analysis. Its general reference in the analysis plainly encompassed the claims set out earlier.

8. The applicant also complains, for example, that in accepting that the applicant had appeared in some “shows”, it did not specify what the “shows” may have been (with reference to [105] at CB 307.4). The “specification” is, again, to be found throughout the decision record (see, for example, [32] at CB 289).

9. That the Karuna cadres, who had become paramilitaries when Karuna changed loyalties, knew of the applicant’s past involvement with the LTTE is plainly also recorded with references to his dramatic performances: “… The paramilitaries told me that they had seen my drama at LTTE Heroes Day condemning the government through my acting” ([23] at CB 285.5). See further in a similar vein at [53] (at CB 294.9 to CB 295.2): “He said in December 2009, Karuna group members captured him…He said he went to the camp with them… Karuna people spoke to him and two policemen were also present. He said he was accused of supporting the LTTE and they mentioned his drama appearances.”

10. In summary, there are, therefore, two matters relevant here. First, as set out above, the “context” which requires attention by the Tribunal is that which frames the claims to fear persecutory harm. Second, where the Tribunal sets out findings of fact and those findings plainly relate to claims and evidence set out elsewhere in the Tribunal’s decision record, it cannot be said that the Tribunal failed to consider those claims, nor failed to consider the totality of those claims.

11. The Tribunal’s decision record is plainly divided into various sections for ease of presentation and to assist comprehension. There is no failure to consider a claim where the Tribunal simply does not repeat in its “Findings and Reasons” the particular level of detail (the “totality” if you like) already comprehensively set out under the heading of “Claims and Evidence”. If anything, the distinction between the two sections in the decision record mirrors what is distinguished in s.430(1)(c) and (d) of the Act.

12. There are clearly cases where mere recitation in the “Claims and Evidence”, particularly cases where the Tribunal “scans” or reproduces claims verbatim under that heading, have led to a finding that the Tribunal did not give proper consideration to those claims. This is not such a case. The Tribunal’s comprehensive and careful analysis under the heading of “Findings and Reasons” is, when plainly read, clearly referrable to the claims set out, in detail, earlier in the decision record.

13. It must be said that, having regard to the applicant’s particulars and the applicant’s submissions, when viewed with what is set out above, the complaint really amounts to an assertion of jurisdictional error on the part of the Tribunal because it did not repeat in “Findings and Reasons” the relevant totality of the claims already set out under the heading of “Claims and Evidence”.

14. The flaw in the applicant’s case can also be seen with reference to the authorities on which he relied. Here I can only agree with the Minister’s submission that, in effect and for different reasons, the applicant’s reliance on the authorities he puts forward is misplaced.

15. First, cases such as MZWPD, SZGUW (per Jacobson J), W352/01 v Minister for Immigration & Multicultural Affairs [2002] FCA 398 at [21] per French J, Khan v Minister for Immigration & Multicultural Affairs [2000] FCA 1478 at [31] per Katz J and the like as in the applicant’s submissions (at [10]), are distinguishable from the current circumstances. In part, in his submissions, the applicant appeared to note this but failed to recognise, or apply, its significance.

16. In the context of considering what amounted to persecution the approach taken by each of the relevant decision makers, generally common to those cases, was the acceptance that a series of claimed instances of harm had occurred. That was then followed by a separate analysis of each, with a finding that each did not amount to “serious harm” in the sense of being persecutory harm. The error found was that the relevant decision-maker had not considered the “totality” of the claims in the sense that the individual incident, or instances, transcended their individual focus to create a whole which amounted to a well founded fear of persecutory harm. It is in this sense that the “totality” or “context” was important. For the reasons already set out above, the current case is not such a case. If nothing else, the Tribunal said plainly at [106] (at CB 309):

    “The above matters collectively lead me to reject the applicant’s claims that he will be persecuted if he returns to Sri Lanka.”

    [Emphasis added.]

17. What further distinguishes this case, including, importantly, from the case most strongly relied on by the applicant (SZGUW per Reeves J), is that the Tribunal here, while accepting some elements of the applicant’s factual account of past events (his land ownership, theatre participation and the like), comprehensively rejected the applicant’s claims to fear persecutory harm on credibility grounds. On that basis, the Tribunal rejected each integer as to why the applicant claimed to be in need of protection in Australia as a “refugee” (see contra, and in particular, SZGUW at [27] per Reeves J and, for that matter, see MZWPD at [55] per Weinberg J).

18. Second, in submissions before the Court, the Minister made reference to Baudromo, a case not on his list of authorities. The applicant sought, and was granted, the opportunity to make written submissions on that case.

19. It is probably best to start with what the applicant understood the Minister’s submissions to be, as the applicant says that Baudromo does not stand for the proposition that the Minister contends. The applicant understood that proposition to be that a Court may infer that evidence, or a claim, has been considered if it is mentioned “somewhere” in a Tribunal’s reasons for decision.

20. I did not understand the Minister to have stated, let alone relied on, any such proposition. The Minister’s position was confirmed in subsequent written submissions. The reference to Baudromo was to remind this Court of relevant authorities considered there. In particular, the Minister’s position, and the proposition he relied on, was that which was relevantly said in WAEE at [47] per French, Sackville and Hely JJ:

    “The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.”

21. With reference, specifically, to the particulars of this ground, the following is ultimately relevant.

22. The applicant’s claim to have been forced to assist the LTTE in the past was accepted by the Tribunal. However, while what is likely to happen in the future will often depend on past events, such events are a guide to the future and are not determinative of the assessment of future risk in their own right. (Sometimes they are not even a certain guide – see generally Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559.)

23. The applicant claimed that he fled Sri Lanka in February 2011 because of threats of harm and assaults from Karuna and Karuna-cadres who knew of his previous pro-LTTE activities. In the applicant’s argument before the Court, and as set out in the particulars, the relevance of this was that it was the knowledge of this by Karuna and his men that made the threat emanating from them more potent.  Further, that Karuna himself knew the applicant and the value of his land.

24. The error said to be committed by the Tribunal, therefore, was that it failed to consider, in light of the above, whether the applicant’s claims of being targeted, including for extortion by Karuna and his group, should be accepted.

25. The simple and obvious answer to the applicant, and one which he appears to have overlooked, is that the Tribunal rejected the applicant’s claim to have been approached for the purpose of extortion by the Karuna men in December 2009. It also rejected his evidence that he had otherwise been threatened or harmed by them, that he had been spoken to personally by Karuna, or that he was threatened by Karuna to hand over his property. Whether the Karuna cadres knew of his previous involvement with the LTTE or not became irrelevant once the Tribunal made findings that he was not targeted by Karuna and his group from December 2009, nor that he suffered at their hand. In effect, that he was not of interest to the Karuna group from, at least, that time.

26. The reason for this was that the Tribunal found that the applicant did not tell the truth about these matters. In coming to this conclusion the Tribunal did not overlook, or fail to deal with, any aspect of the applicant’s claims relevant as to why he said he feared serious harm if he were to return. The totality (“collectively”) of those claims, and the relevant context from which it was said they arose, was assessed and considered.

27. The Tribunal’s adverse credibility finding was within jurisdiction. The Tribunal gave cogent, and it must be said comprehensive, reasons for its finding that the applicant was not telling the truth (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67] per McHugh J). The applicant’s “real” complaint therefore is a challenge to the Tribunal’s credibility findings. No matter how convoluted the presentation, it cannot mask an attempt to entice the Court to indulge in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). The ground, therefore, is not made out.

Ground Two: Submissions

1. Ground two is in the following terms:

   “2. The Tribunal’s decision was arbitrary, unreasonable, illogical or irrational so as not to amount to a lawful exercise of power.

   (a) The Tribunal’s lack of satisfaction that the applicant’s having acted in dramas sympathetic towards Tamils would have attracted the adverse attention of any group could not reasonably, logically or rationally have resulted in a finding that he was not a credible witness.

   (b) The Tribunal’s finding that, ‘had the applicant been threatened with serious harm and had his wife been threatened as claimed she would not have remained in the family home after the applicant departed Sri Lanka’ was arbitrary or unreasonable.

   Further particulars

   (i) There was no claim, or finding, that the applicant’s wife was in any danger whatsoever prior to the applicant’s leaving Sri Lanka.

   (c) the Tribunal’s finding that it was not satisfied that members of the Karuna group had gone to the applicant’s home on any occasion, because the applicant had not mentioned an alleged incident that occurred on 22 May in his interview with the delegate, was arbitrary or unreasonable.

   Further particulars

   (i) Contrary to the Tribunal’s comment to the contrary at CB 308.3, the applicant did say at his interview with the delegate that his wife gave money to members of the Karuna Group.

   (ii) The delegate did not ask the applicant questions that that could have elicited a further description of the events of 22 May 2011.

   (d) The Tribunal’s findings that if the applicant had feared serious harm from the Karuna Group he would not have continued to visit his home, which led to the lack of acceptance that Karuna had told the applicant to transfer property to him, or that members of the Karuna Group were looking for him, was arbitrary or unreasonable.

   Further Particulars

   (i) In making this finding the Tribunal ignored or chose not to address the applicant’s reason for visiting his family home – that being that he wished to see his children.

   (e) The Tribunal’s finding that had the applicant been ordered to pay money by the Karuna Group, and had failed to do so, he would have been pursued more vigorously is arbitrary and unreasonable.

   (i) In making this finding the Tribunal ignored or chose not to address the applicant’s explanation, that being that the area of his home was inundated by a flood at the relevant time.”

   [Particular “(a)” was not pressed.]

2. This ground (the four “surviving” particulars and one raised in the applicant’s written submissions) asserts that the Tribunal decision was arbitrary, unreasonable, illogical or irrational such that there was not a lawful exercise of the power conferred on the Tribunal. The applicant put forward five instances to make good his assertion.  

3. While some reference is made in written submissions to the joint judgment of Gummow ACJ and Kiefel J in Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611 (“SZMDS”), the applicant agreed that the prevailing view of what is required to make out unreasonableness and the like is that arising from the judgment of Crennan and Bell JJ (at [130] – [131]), and the sympathetic view as expressed by Heydon J (at [78]). That is, that such a decision requires a finding in respect of which reasonable minds could not differ.

4. However, in submission before the Court the applicant also made reference to Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 (“Eshetu”) per Gummow J, seemingly to emphasise the question of arbitrary or capricious decision-making. In reality, that appeared to be the thrust of the applicant’s complaint.

5. Before the Court, the Minister suggested that this may be an attempt by the applicant to broaden his attack beyond the question of whether the Tribunal’s decision was illogical, unreasonable or irrational to one where specific findings made by the Tribunal are alleged to be arbitrary and capricious and therefore to demonstrate the species of error referred to in Eshetu.

6. The respondent submitted that: “… the focus of the relevant discussion in [Eshetu] was on a jurisdictional fact, namely the satisfaction of the decision-maker, rather than facts anterior to it” ([7] of the Minister’s written submissions). On that basis, it was the Minister’s submission that (at [7] of written submissions and with reference to Eshetu and SZMDS):

   “… attention must be paid to whether the decision is one which is capricious or arbitrary, illogical or unreasonable. On that basis, because the applicants only address individual findings of fact, there is a logical gap between the principles relied on by the applicants and their apparent application to the facts of this case.”

   [Emphasis in the original.]

7. In reply, the applicant referred to Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 (per McHugh and Gummow JJ) as to discussion between dividing facts into primary and ultimate facts. Further, the applicant submitted that it was “left open” in SZMDS, with reference to the judgment of Crennan and Bell JJ, whether a finding of preliminary fact that was unreasonable or irrational in the sense explained by the High Court in that case could lead to jurisdictional error.

Ground Two: Consideration

1. In my respectful view, what was relevantly said as applicable to the entire scope of the applicant’s attack now, by Crennan and Bell JJ (at [130]) stands as the direction to this Court in the current matter:

   “In the context of the Tribunal's decision here, ‘illogicality’ or ‘irrationality’ sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required unders 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is ‘clearly unjust’ or ‘arbitrary’ or ‘capricious’ or ‘unreasonable’ in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.”

   [Emphasis added with reference to the applicant’s attack now.]

2. I respectfully also understand what Heydon J said in the same case to be sympathetic in approach and application.

3. Justice McKerracher in SZOOR (at [84] – [85]) also provides, in my respectful view, clear direction here:

   “[84] In SZMDS, none of the three majority judges discerned illogicality in the reasoning of the Tribunal. The test which emerged as to the circumstances in which illogicality would give rise to jurisdictional error emphasises that a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable simply because one conclusion has been preferred to another possible conclusion (Crennan and Bell JJ at [131]). As stated subsequently (at [135]):

   Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision maker might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if a decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn.

   [85] What was said by Heydon J at [78], cited above (at [54]), in my view, while differently expressed, is not at odds with what was said by Crennan and Bell JJ. Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision. See, for example, SZOCT (at [84]) per Nicholas J and SZMWQ (at [55]) per Rares J.”

   [Emphasis added.]

1. I also note the Minister’s reference, and caution to this Court, that concepts (or “epithets”) such as “unreasonable” and “arbitrary” cannot be used to disguise disagreement with an administrative decision makers fact finding (Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [34] per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

2. Further, I note that in Minister for Immigration & Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51at [20] per North and Lander JJ, their Honour’s found that questions of illogicality and irrationality are not relevant to intermediate findings of fact (see also SZQYU v Minister for Immigration & Anor& SZQYV v Minister for Immigration & Anor [2012] FMCA 1114 at [39] per Cameron FM).

3. In any event, taking each of the particulars which the applicant says reveal jurisdictional error as presented (noting that particular “(a)” to ground two was not pressed), I will consider each in turn.

4. At “(b)” the applicant takes issue with the Tribunal’s finding at [105] (second dot point, [105] at CB 307):

   “… It is my view that had the applicant been threatened with serious harm and had his wife been threatened, as claimed, she would not have remained in the family home after the applicant departed Sri Lanka. I do not accept that the applicant or his wife were threatened with serious harm, as claimed.”

5. The applicant’s complaint was that there was no claim, or finding on any claim, that the applicant’s wife was in any danger whatsoever prior to the applicant leaving Sri Lanka. The attack therefore is that, in that light, the Tribunal’s finding above was arbitrary or unreasonable.

6. Before the Court the applicant conceded that this point could not be maintained when the Court referred to the applicant’s statement made in support of his protection visa application (CB 99.4):

   “… I am worried about my wife as the paramilitaries had threatened that unless I surrender I would be killed.”

7. The applicant’s “worry” about his wife in the context of paramilitaries visiting her, provides the basis for the Tribunal’s finding in relation to his wife. In any event, as the Minister submitted, the threats directed to him prior to his departure, and any “visits” by the Karuna group after his departure, further provide the basis for the Tribunal’s finding in this regard.

8. In any event, the wife’s departure from the family home in August 2011 was found by the Tribunal not to have been occasioned by the reason advanced by the applicant. The Tribunal found that she left because a woman in the neighbourhood, living alone, had been stabbed by an unidentified man. This was, in light of the applicant’s own evidence that the Karuna group had been to the applicant’s house on some two to three occasions in May 2011, after the applicant left Sri Lanka in February 2011. His claim to the delegate at the interview was that, in May 2011, Karuna group people went to his family home and threatened to shoot his wife. All of that provides the answer to the applicant’s complaint.

9. This latter evidence was the subject of discussion at the hearing with the Tribunal. It provides the context for the applicant’s complaint at particular “(c)”:

   “(c) the Tribunal’s finding that it was not satisfied that members of the Karuna group had gone to the applicant’s home on any occasion, because the applicant had not mentioned an alleged incident that occurred on 22 May in his interview with the delegate, was arbitrary or unreasonable.

   Further particulars

   (i) Contrary to the Tribunal’s comment to the contrary at CB 308.3, the applicant did say at his interview with the delegate that his wife gave money to members of the Karuna Group.

   (ii) The delegate did not ask the applicant questions that that could have elicited a further description of the events of 22 May 2011.”

10. However, before the Court, the applicant made no reference to particular “(c)”. Instead the applicant moved from “(b)” to “(d)” and “(e)”, which he said were the two “strongest” particulars. In any event, I agree with the Minister’s submissions that the issue raised by “(c)”, that is whether or not there was evidence before the delegate that the Karuna group demanded money from his wife in May 2011, was clearly not an issue for the Tribunal. The absence of submissions in relation to particular “(c)” is therefore, to some extent, explained.

11. In particular “(d)” the applicant asserts that the Tribunal found that if the applicant feared harm from the Karuna group then he would not have continued to visit his home after he said he left to avoid being found by them. This, it is said, then led the Tribunal to find that it did not accept that Karuna told the applicant to transfer property to him, or that members of the Karuna group were looking for him. This was said to be arbitrary, capricious and, although not clearly put, unreasonable. Particularly, and further, in circumstances where the Tribunal ignored the applicant’s evidence that he visited his house because he wanted to see his children.

12. The thrust of the applicant’s complaint focused on the reason found by the Tribunal as why the applicant went into hiding, and that the Tribunal’s failure to consider the applicant’s explanation that he visited his home (because of his children) was arbitrary and capricious.

13. In seeking to focus on Eshetu in the way that he has, the applicant has sought to divert attention away from the relevant test formulated by Crennan and Bell JJ in SZMDS, the reasoning behind that formulation, and its application, and the approach taken by Heydon J in the same case, and as further explained by McKerracher J in SZOOR. Those authorities lead to the question, as submitted by the Minister, as to whether the Tribunal’s relevant reasoning was open to it on what was before it.

14. The essence of the Tribunal’s reasoning here was that the applicant’s visits to his home, where he was known to live by his claimed persecutors (who he said were looking for him), was inconsistent with his claim to fear harm, and therefore, along with the other relevant findings, meant that he was not in fear of serious harm.

15. That finding was reasonably open to the Tribunal on what was before it. That, as the Minister submits and in application of the test in SZMDS, means that the decision was not arbitrary or capricious or unreasonable or, for that matter, irrational or illogical.

16. It is here that ground one and two intersect. Any absence of specific reference by the Tribunal to the detail of the claims at this part of its analysis does not necessarily mean that the Tribunal failed to consider the applicant’s explanation. Its absence, at this part of the analysis, is explained in the context of the discussion concerning s.430 of the Act as set out above. The Tribunal made no reference to it here because it was not the basis, or the evidence, on which it relied to make its finding that the applicant would not have visited his house if he was in fear. The Tribunal is only obliged to set out, in respect of each finding, the evidence and the material on which that finding is based. Evidence that may have supported a different finding falls outside the ambit of the direction in s.430 of the Act.

17. The Tribunal referred to this explanation elsewhere in its decision record. In its account of the hearing, the Tribunal recorded that it asked the applicant if he visited his children. The applicant’s answer is set out at [80] (at CB 301). In its analysis, the Tribunal made specific reference to parts of the applicant’s explanation.

18. In any event, the Tribunal plainly had regard to the applicant’s explanation. In my view, its reference to “... after he went into hiding, he continued to visit his home each month…” (fourth dot point, [105] at CB 308.8) is, in the circumstances, sufficient to encompass the applicant’s explanation, when read with the Tribunal’s earlier setting out of that explanation. That is, that he visited his house for the purpose of seeing his children and his wife (see also [80] at CB 301). In theses circumstances, no error is revealed by this particular.

19. Particular “(e)” related to the Tribunal’s finding that the applicant had been ordered to pay money to the Karuna group. The Tribunal reasoned that if that had occurred the applicant would have subsequently been pursued more vigorously than claimed. The thrust of the complaint, in significant part, mirrors the one above. That is, that the Tribunal failed to consider the applicant’s explanation. It fails for the same reasons as set out in relation to particular “(d)”.

20. The applicant gave evidence before the Tribunal that, before he left Sri Lanka and after he had been told to give money to the Karuna group in November 2009, he did not pay the money (see T 92). The Tribunal asked, in this context, how often they had come to his house asking for money. He responded that they came “two three times”, and the last occasion was in February 2010. The applicant gave evidence that: “Mostly they didn’t go [to his house] because there were floods at that time” (T 92.7) and that the area was “inundated” with floods (T 92.8).

21. The complaint, therefore, is that it was arbitrary, capricious and unreasonable for the Tribunal to ignore that evidence when it found that if the allegations were true, they would have pursued him more vigorously.

22. The Tribunal’s actual finding was that if the allegations were true, the Karuna group would have pursued him more vigorously. That finding was based on the applicant’s own evidence in response to how often the Karuna group people were looking for him. Any plain reading of the totality of the relevant exchanges (at T 92 to T 93) provides the basis for the Tribunal’s finding that the applicant’s evidence here was “unconvincing”. In its decision record, the Tribunal made no reference to “inundation” because it was not part of the evidence it relied upon to make the finding. A finding which was reasonably open to the Tribunal on what was before it.

23. In written submission, although not referred to before the Court, the applicant also complains that the Tribunal “said” that the applicant stopped going to his farm because he was frustrated ([105] at CB 309.5):

    “… The applicant also told the Tribunal that he stopped going to his farm because he was frustrated. When mentioned that it would seem that he was not fearful of these people if he was willing to defy them by not going to his farm, he did not say anything. I am not satisfied that the applicant was ordered to operate his farm at Nasavantivu and provide some of the profit to the Karuna group.”

24. The written submissions seek to compare that with the exchange at T 57. The applicant claims that he did say something – he had to earn a living (T 57.4 to T 57.5):

    “M[ember] Yeah. Okay. So you decided to stop going there because you were frustrated with them. So you … you mustn’t have been that frightened of them if you were so brave as to defy them

    I[nterpreter]:    The situation there was such that as far as life was concerned and if we wanted to live we had to do something. If someone did a government job he or she will get a salary each month. But people like me those who were self-employed had to work, do something to derive income.”

25. I can only agree with the Minister that the applicant’s comments were not a response to the Tribunal’s question. What the Tribunal plainly put to the applicant was that he had stopped going to his farm because he had said he was frustrated with the situation. In context, because of the encroachment of the Karuna group. The Tribunal suggested that, if it was only frustration he felt, then he was not saying that he had been frightened. This plainly was relevant to the question of the applicant’s claims to fear persecutory harm.

26. The applicant’s response that he had to earn an income was plainly not responsive to this. He said he had stopped going to the farm. His statement that he had to earn an income, presumably elsewhere, was not responsive to whether he stopped going to the farm because he was frightened.

27. As the Minister submits, the relevant finding by the Tribunal here concerned whether the applicant was ordered to operate the farm such as to provide money to the Karuna group. It found he was not so ordered. That finding was not, in the circumstances, arbitrary, capricious or unreasonable given the evidence before the Tribunal.

28. None of the surviving impugned findings of the Tribunal were arbitrary, capricious or unreasonable. Nor has the applicant revealed how the decision, as a whole, was arbitrary, capricious or unreasonable. For that matter, bearing in mind the relevant test, the Tribunal’s decision was also not shown to be irrational or illogical. Ultimately, when properly understood, the applicant again seeks to challenge factual findings made by the Tribunal which were reasonably open to it on what was before it. Again, the siren call to impermissible merits review is revealed (Wu Shan Liang). Ground two is not made out.

Conclusion

1. Neither of the applicants’ grounds of the application, as amended and as submitted, are made out. It is appropriate that the application be dismissed. I will make an order accordingly.

I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date: 19 December 2012