SZRRQ v Minister for Immigration
[2013] FMCA 82
•22 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRRQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 82 |
| MIGRATION – Review of decision of the Refugee Review Tribunal – show cause hearing held pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) – no arguable case – application dismissed. |
| Migration Act 1958 (Cth), ss. 36, 65, 425, 476 Federal Magistrates Court Rules 2001 (Cth), r.11.11, 44.12 |
| Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818; (2002) 126 FCR 467 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22 NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| First Applicant: | SZRRQ |
| Second Applicant: | SZRRR |
| Third Applicant: | SZRRS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1656 of 2012 |
| Judgment of: | Nicholls FM |
| Hearing date: | 8 February 2013 |
| Date of Last Submission: | 8 February 2013 |
| Delivered at: | Sydney |
| Delivered on: | 22 February 2013 |
REPRESENTATION
| The Applicants: | In person |
| Appearing for the Respondents: | Mr C Barlow |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 30 July 2012 and amended on 26 October 2012 is dismissed pursuant to Rule 44.12 of the Federal Magistrates Court Rules2001 (Cth).
The first and second named applicants pay the first respondent’s costs set in the amount of $5,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1656 of 2012
| SZRRQ |
First Applicant
| SZRRR |
Second Applicant
| SZRRS |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
I have before me an application made on 30 July 2012, pursuant to s.476 of the Migration Act 1958 (Cth), and amended on 26 October 2012, seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 June 2012, which affirmed the decision of a delegate of the respondent Minister to refuse protection visas to the applicants.
The application for an order to show cause in these proceedings was set down for hearing. With reference to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth), and for the reasons set out below, I am not satisfied that the grounds as pleaded in the application raise an arguable case for the relief claimed.
Background
The applicants are citizens of Sri Lanka. The first and second named applicants are husband (“the applicant”) and wife (“the applicant’s wife”). The third named applicant is their son. On 28 May 2011 the applicants arrived in Australia as holders of visitor visas (Court Book – “CB” – CB 13)
On 12 July 2011, the first named applicant (“the applicant”) applied for a protection visa. The second and third named applicants applied for protection visas as members of the applicant’s family unit. Supporting documentation was provided with the applications (CB 1 to CB 93).
Claims to Protection
The applicant’s claims to protection were set out in a statement attached to his protection visa application (CB 41 to CB 60).
The applicant claimed that he was a Tamil in Sri Lanka (CB 52.8). His father owned farms in Sri Lanka (CB 52.8). The Liberation Tigers of Tamil Eelam (“LTTE”) were recruiting Tamil youths to their cause. In context, this appeared to be in or around 1979 (CB 53.1). When the applicant refused to become a member the LTTE attempted to abduct him (CB 53.6).
The applicant claimed that he left Sri Lanka to obtain employment overseas (CB 53.8). However, also at this time, the LTTE “…took control of Jaffna Peninsula and all of the [the applicant’s] siblings were forced to work under the LTTE orders… [and his] father was forced to give half the profits from all his farms” (CB 53.7 to CB 54.1). Consequently, the applicant claimed that he had returned to Sri Lanka and relocated to Vanni with his family. However, when the LTTE became prominent in that area he was “ordered” to work with the LTTE (CB 54.9) and “send them money” (CB 55.1).
He left Sri Lanka to work in Kuwait. He spent many years outside of Sri Lanka (in Kuwait), although he returned to Sri Lanka for short period. On one such return in 2004 he was abducted by the LTTE and “was beaten severely for not sending money as demanded”. He was detained until a bribe was paid (CB 55.3).
After his release from detention, the applicant claimed that he travelled to Colombo, but was arrested before boarding his flight for Kuwait by police officers and the paramilitaries because he “…was identified as an LTTE cadre who was travelling overseas to collect funds for the LTTE” (CB 55.5). He claimed that during his subsequent detention he had been beaten and was told that the authorities “… planned to prosecute [him] and to send [him] to jail permanently as they had enough witnesses” (CB 55.7). The applicant claimed that he was released after paying a bribe, at which time he was told by his wife that the paramilitaries had threatened to abduct her unless she paid them money (CB 55.8).
The applicant claimed that he travelled back to Sri Lanka in 2010 in order to locate his parents (CB 56.6). The applicant claimed that, on return, he was approached by a paramilitary official who informed him that his parents had been interned in a camp and would be released if the applicant agreed to their demands (CB 57.1). The applicant claimed that he accompanied the paramilitary who then detained the applicant at a camp where he was questioned and beaten (CB 57.3). The applicant claimed that the officers (at CB 57.5)
“… started to kick [him] stating that their men had collected evidence about [him] and identified [him] as an informant and an agent of the LTTE who had been representing the LTTE and collecting funds overseas from expatriates to fund the LTTE to purchase arms.”
The applicant claimed that the officers told him “… that [his] family members [including siblings] were transferred to another camp and [he] would not be permitted to meet them till investigations were over” (CB 57.6). The applicant also claimed that the officers told him that they were ordered to detain him, along with other LTTE suspects, and that, even if they did let the applicant go, he could not leave the area without their assistance. The applicant claimed that he had offered to bribe the officers (CB 57.7). The officers demanded 15 Lakhs and that he depart the Sri Lanka. He feared if he remained they could demand more money. He returned to Kuwait with his family (CB 58.4).
The applicant claimed that he could not return to Sri Lanka because of the “atrocities” that have taken place (CB 58.5).
The Delegate
On 20 September 2011, the delegate wrote to the applicant inviting him to attend an interview scheduled for 17 October 2011 (CB 94 to CB 96). The applicant attended.
On 22 November 2011, the delegate wrote to the applicant informing him that his, and his family’s applications for protection visas had been refused (CB 97 to CB 112). Essentially, with reference to extensive country information, the delegate accepted that there was (CB 111.6):
“…a poor human rights situation in the Vanni region of Sri Lanka… [but found] that it does not apply to the applicant personally given that he spent the last 30 years abroad and was not involved in any activities with the LTTE.”
Notwithstanding this, the delegate also noted that the applicant could reasonably locate to Colombo (CB 111.7).
The Tribunal
On 19 December 2011, the applicants applied to the Tribunal for review of the delegate’s decision (CB 113 to CB 118). The applicant and his wife ultimately attended a hearing before the Tribunal (CB 119 to CB 120 and CB 121 to CB 122).
The Tribunal did not find the applicant to be a witness of truth and therefore did not accept that he “…is a person suspected by the army or the paramilitary or the police of having LTTE connections, or of having paid the LTTE or of having been a member of the LTTE” ([100] at CB 193). That finding was based on inconsistencies between the applicant’s written statement attached to his protection visa application and his oral evidence to the Tribunal ([101] at CB 193).
Specifically, the Tribunal found the applicant’s evidence “confusing and inconsistent” with regard to the applicant’s siblings whereabouts in 2010 and their efforts to locate the applicant’s parents. The Tribunal was “… of the view that the claiming [sic: claim] [the applicant] returned in 2010 to look for his family to help them leave Vanni is quite different to [his] evidence that he went back to look for his parents and he could not see everyone (his siblings) at this time” ([101] at CB 193, and see also [102] at CB 194).
It also found the applicant’s evidence “confusing” in regard to whether his siblings had attended the camp where the applicant’s parents were allegedly held. The Tribunal noted at [103] (at CB 194) that the “… applicant’s evidence has shifted over time” and, consequently, it did ([103] at CB 194):
“… not accept that if their parents were missing, the applicant would not have been in contact with his siblings before he went looking for his parents or, if his siblings were also missing, that the applicant would not have looked for them at the time he looked for his parents”
The Tribunal did not find persuasive the applicant’s explanation for why he delayed his return to Sri Lanka until July 2010 to look for his parents ([105] at CB 194). It noted that the applicant had not explained how his parents would have sought safety as was claimed, why he only felt able to return in 2010 and not after the war ended in 2009, and why he had not contacted his siblings to establish if they could locate his parents ([105] at CB 194 to CB 195).
Consequently, the Tribunal found ([106] at CB 106):
“… that the applicant gave inconsistent evidence about the whereabouts of his siblings at the time he returned to Sri Lanka in 2010 and that he fabricated his evidence about his siblings efforts to look for his parents in response to the Tribunal indicating her concerns about why the applicant had gone to Sri Lank to look for their parents when he has five siblings who live in Sri Lanka… The Tribunal finds that the applicant has changed his evidence over time about which family members were missing and what efforts had been made to locate his parents. The Tribunal does not accept that the applicant went to camps looking for his parents when he returned to Sri Lanka in 2010. The Tribunal therefore does not accept that the applicant was recognised by the paramilitary as an LTTE member when he returned to Sri Lanka in 2010 or that he was detained or beaten, or had to pay a bribe for his release. The Tribunal does not find the applicant to be a witness of credit.”
The Tribunal also noted country information at [112] to [113] (at CB 197), and accepted that Sri Lankan Tamil males who were suspected of being members of, or being involved in, the LTTE may be at risk of harm from the authorities or paramilitary organisations working with the government. However, it did not find that the applicant fell into that group at risk of persecution solely on the account of his Tamil ethnicity ([113] at CB 197). Further, with reference to country information regarding the treatment of unsuccessful asylum seekers returning to Sri Lanka, the Tribunal was not satisfied that there was a real chance that the applicants would be subjected to anymore then questioning at their airport on arrival, which in itself did not amount to persecution for a Refugees Convention reason ([113] at CB 197).
Consequently the Tribunal affirmed the delegate’s decision not to grant protection visas to the applicants ([115] at CB 198). The Tribunal also considered whether the applicants should be granted protection visas on complementary protection grounds pursuant to s.36(2A) of the Act ([116] – [118] at CB 198) but, ultimately, it was not satisfied that there were substantial grounds that they would suffer significant harm if returned to Sri Lanka ([118] at CB 198).
Application to the Court
The grounds in the amended application are as follows:
“1. The second respondent fell into jurisdictional error by:
(i) making a decision that is flawed as there is no probative material upon which the Tribunal based its finding on credibility; and/or
Particulars:
The Tribunal made an erroneous decision when it rejected the Applicant’s claims in his original statement of claims and in his oral evidence on the grounds of his failure to meet his siblings before his arrival back to Kuwait.
(ii) by coming to a conclusion that was so illogical or irrational that no reasonable independent merits reviewer could have reached it.
Particulars:
The Tribunal completely rejected all the Applicants submissions and claims just because he did not give the answers to the questions put to the Applicant as to his siblings whereabouts in Sri Lanka. This decision is illogical and irrational as the Tribunal never took into consideration the Sri Lanka political situation at the time of the Applicant’s arrival in Sri Lanka, the capture of the LTTE whom he feared during his earlier visits and the siblings difficulties in relocating to escape from police and army harassment which made them to relocate to unknown places even after the capture of the LTTE.
2. The second respondent fell into jurisdictional error by failing to have regard to all relevant material.
Particulars:
The Tribunal should have considered the relevant materials in relation to the political situation after the capture of the LTTE and the continuous harassment of the Tamil minorities having LTTE profile in the past, the Applicant’s claims as to his harassment during his old trips with the LTTE and the paramilitary and the authorities.
3. The second respondent fell into jurisdictional error by identifying a wrong issue and asked wrong questions when considering the Applicants’ fear of persecution based on the claims.
Particular:
The Tribunal ignored the claims as to the Applicants fear of persecution but identified wrong issues such as Applicant’s failure to meet the siblings when he went in search of his parents, why the Applicant failed to search for the siblings, and why the Applicant returned back without meeting the siblings. These issues were not related to the Applicant’s claims and these wrong questions are in any way related to the Applicant’s fear of persecution.
4. The second respondent fell into jurisdictional error by failing to have regard to all relevant material and considered materials that are irrelevant in relation to the country’s political situation.
Particulars:
The Tribunal quoted information as to the arrest and torture of the refugees returned by the British government but failed to have regard to all the relevant information and materials as to these returnees’ further persecution in Sri Lanka by the authorities and materials relating to the same returnees arriving in Britain with evidence of torture on their return. The Tribunal mentioned about the Tamils returning to Sri Lankan forcibly or voluntarily facing interrogation at the airport and possible detention overnight but failed to have regard to the relevant materials and information in relation to those Tamils undergoing torture and trauma in the hands of the authorities and their existence becoming unknown in due course.
5. The second respondent failed to consider all substantial claims and information dealt with wrong issues.
Particulars:
The Tribunal failed to consider the substantial claims in relation to his arrest, abduction and threat to his life but concentrated on the Applicant’s failure to meet his parents and siblings which are wrong issues.
6. The second respondent denied the applicant procedural fairness and thereby fell into jurisdictional error
Particulars:
The Applicant was not given the opportunity to clarify the reasons why the Applicant had to leave Sri Lanka in a hurry leaving his wife and child behind and further failed to clear the doubts the Tribunal had as to the Applicant’s siblings such as why he couldn’t meet them, why he had to flee in fear of persecution, why his siblings couldn’t meet him or he couldn’t meet them and the political circumstances prohibiting to search for any of them either his parents or his siblings.”
[Emphasis in the original.]
Before the Court
The applicant and his wife first appeared before the Court on 15 August 2012. At that time they were assisted by an interpreter in the Tamil language. The third named applicant did not appear at that time. As the third named applicant is a minor, the applicant was appointed as his litigation guardian pursuant to r.11.11 of the Rules.
At the first Court date I explained to the applicants the process of judicial review, and the different role the Court played to that of the Tribunal. I emphasised that the grounds as pleaded did not reveal jurisdictional error on the part of the Tribunal and that the Court did not have the jurisdiction to determine if the applicants were refugees or not. Consequently the applicants were referred to a lawyer on the Court’s “RRT Legal Advice Scheme”. I emphasised at that time the importance of the applicants attending to the lawyer who was assigned to them. I note from the Court’s file that a Certificate has been issued by Ms Joanne Kinslor, solicitor, indicating that she met with the applicants and gave them written advice.
Also at that time, I made orders giving the applicants an opportunity to file and serve, if they wished, an amended application and any evidence in support. Consequently, on 26 October 2012, the applicants filed an amended application. It was apparent from this document that all the applicants had done was add particulars to the existing grounds which were pleaded in their original application.
On 31 October 2012, the matter came back before the Court for mention. At that time the solicitor for the Minister, requested that the matter be dismissed as it had no arguable case for the relief sought. I set the matter down for a “show cause” hearing.
At the hearing the applicant and his wife appeared in person and were assisted by an interpreter in the Tamil language. Mr C Barlow appeared for the first respondent.
The Minister confirmed that he pressed his application that the amended application revealed that the application had not raised an arguable case for the relief sought and should proceed to a show cause hearing.
It was quite clear that, despite efforts by the Court at the first Court date and at the hearing, the applicants were unable, or unwilling, to understand, or accept, the limited nature of the review that they had initiated in this Court. Such review, of course, cannot encompass the merits of the Tribunal’s decision.
The applicants confirmed that the application and the amended application had been drafted by them with the assistance of their extended family. None of those persons were lawyers.
The applicants’ submissions before the Court, for the most part, sought impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)). Assertions that they would be in danger, or killed, if returned to Sri Lanka challenge the factual findings made by the Tribunal. Concerns (in one sense, quite understandable) about an education for their child did not, and cannot, assist in elevating the grounds of the amended application beyond the level of “no arguable case”. The applicant’s wife’s request for “justice” from the Court can only be seen as a challenge to the outcome, that is, the Tribunal’s decision, rather than a challenge to the process before the Tribunal (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).
The applicant also submitted that the Tribunal “prejudged” their case. No evidence was referred to in this regard, let alone proffered. As is the case with such serious charges of bias and the apprehension of bias, going to the integrity of the decision maker, such charges must be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and at [127] per Kirby J, SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
In any event, it was clear that the applicant used the word “prejudged” as an explanation as to why the Tribunal found against them and, in particular, found adversely to the applicant’s credibility.
The applicant’s repetition in submissions on what he said was the Tribunal’s focus on his parents and siblings while ignoring the “real” situation for Tamils in Sri Lanka is dealt with further below. For the reasons set out there, that submission also did not advance the applicants’ case beyond the “no arguable case” level.
Ground One
Ground one asserts that the Tribunal’s decision is “flawed” for two reasons.
First, it is said there was no probative basis on which the Tribunal based its credibility findings. That can immediately be rejected on a factual basis. On any plain reading of the Tribunal’s decision record and the relevant material in the Court Book, the probative basis of the Tribunal’s finding on credibility was the applicant’s own evidence and the documents he submitted in support of his application for a protection visa. The Tribunal’s finding, and the relevant findings that informed its conclusion on credibility, were reasonably open to it on what was before it.
It is established that credibility findings are for the decision-maker par excellence (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). Further, inconsistencies within an applicant’s evidence are a matter which the Tribunal can consider when assessing an applicant’s claims (Kamal v Minister for Immigration & Multicultural Affairs [2002] FCA 818; (2002) 126 FCR 467 at [36] per Mansfield J).
The particular to this complaint seeks to challenge the Tribunal’s decision on the basis that it was not open to the Tribunal to reject the applicant’s claims to fear persecutory harm on the basis that he failed to meet his siblings on the relevant occasion before he departed Sri Lanka for Kuwait.
There are, at least, two obvious answers to this. First, as set out above, the Tribunal did not reject the applicant’s claims simply, or only, for this reason. It comprehensively rejected all of the applicant’s claims to fear persecution on the basis that it found the applicant to not be credible in all his claims.
Second, it is the case that the applicant’s evidence in relation to the whereabouts of his siblings and their efforts to locate their parents, was a part of the Tribunal’s analysis and part of the set of findings that led to the Tribunal’s adverse credibility finding (see [101] at CB 183). However, the applicants’ challenge, in the circumstances, is no more than a challenge to the merits of the Tribunal’s findings. Given that the Tribunal’s findings concerning the applicant’s evidence about his siblings were reasonably open to it on what was before it (the applicant’s inconsistent evidence in this regard) the particular seeks impermissible merits review (Wu Shan Liang).
The second limb of this ground asserts that the Tribunal’s decision was so illogical, or irrational, that no reasonable person could have made that decision. Again, the particulars focus on the Tribunal’s findings in relation to the applicant’s siblings.
Direction for this Court in relation to complaints of this type is provided by the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”), and the “sympathetic” judgment of Heydon J in the same case, and by the Full Federal Court in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; (2012) 202 FCR 1.
In essence, such a finding is not illogical or irrational where “logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence (SZMDS at [131] per Crennan and Bell JJ). That is, where minds might (reasonably) differ.
In the current case, it was open to the Tribunal to conclude that the applicant was not a credible witness given the inconsistencies in his various accounts and his inability to explain these inconsistencies.
Before the Court the applicants’ real complaint became clearer. In essence, this was that the Tribunal should not have focussed on what were irrelevant matters, such as the whereabouts of the applicant’s parents, his siblings’ role, if any, in searching for them and the like. Rather, the Tribunal should have focused on the situation generally, and including the political situation for Tamils in Sri Lanka.
Here some regard must be had to the applicant’s actual circumstances as presented to the Tribunal. The applicant had spent the greater part of the last thirty years of his life outside of Sri Lanka. As the Tribunal found, “…the applicant has not lived in Sri Lanka since 1982 and he had only visited infrequently after 1982…” ([108] at CB 196.3).
The applicant’s claims, in part, derived generally from his Tamil ethnicity. The Tribunal did have regard to this circumstance (see, for example, [112] at CB 197). However, the specifics of the applicant’s claims to fear harm (the instances of past harm) derived from what he said occurred to him on his infrequent visits and, in light of the complaint before the Court, what he said occurred to his parents, his siblings and their situation generally in Sri Lanka.
In this regard, it was not only appropriate, but obligatory, for the Tribunal to consider the evidence the applicant provided in relation to his parents and siblings. That his claims, as they related to them, and his evidence in this regard, was found by the Tribunal to be inconsistent was simply the Tribunal’s evaluation of the evidence before it. No legal error is revealed here.
In all, ground one does not reveal any arguable case for the relief sought by the applicants.
Ground Two
In ground two the applicants complain that the Tribunal should have considered material relevant to the political situation in Sri Lanka after the “capture” (defeat) of the LTTE, including the continuous harassment of Tamil minorities who have an LTTE profile, when considering the applicant’s claims as to his harassment from the LTTE, paramilitaries and authorities on his return trips to Sri Lanka.
In the absence of any particularity as to what specific material the Tribunal should have had regard to, what the Court is left with is a complaint that the Tribunal should have had regard to the applicant’s claim to fear harm as a Tamil and to the political situation in Sri Lanka as it affected Tamils who were perceived to have had an LTTE association.
The short answer is that the applicants, again, appear to have ignored that the applicant’s credit was at issue. The Tribunal did understand that the applicant’s claims were put in the context outlined by the assertion in this ground (see [100] at CB 193). It gave reasons why it did not accept that this applied to the applicant.
Ground two, similarly, seeks to cavil with the Tribunal’s factual findings. What the ground really asserts is that the Tribunal did not accept the applicant’s claims to fear persecution. As such, the ground has not advanced an arguable case.
Ground Three
In this ground the applicants complain that the Tribunal asked the wrong questions by identifying the wrong issues which ultimately were not related to the applicant’s claims. Those “wrong issues” were said to include the applicant’s failure to meet with his siblings when he returned to Sri Lanka to search for his parents, why the applicant failed to search for his siblings, and why he returned to Kuwait before meeting with his siblings,.
The applicant has misunderstood what is involved with a charge of a decision maker, such as the Tribunal, asking the wrong question. The central question the Tribunal was required to answer in the conduct of the review was whether, in the circumstances, the applicant had a
well-founded fear of persecution for a Refugees Convention reason (with reference to Art.1A(2) of the Refugees Convention and ss.65 and 36(2) of the Act) (Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 and Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163). The relevant legislative regime requires the reaching of a requisite level of satisfaction. This is predicated upon, and arises from, questions of degree (SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] per Beaumont, Merkel and Hely JJ and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).
In this context, the Tribunal was required to consider whether the applicant meets the definition of “refugee” such that it has reached the requisite level of satisfaction as set out in the relevant statutory scheme (ss.65 and 36 of the Act). In doing so, the Tribunal is required to ask questions in order to ascertain whether it is so satisfied. The Tribunal is an inquisitorial body not, as is this Court, an adversarial body (SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”), Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 (“Applicant S154/2002”) at [57] per Gummow and Heydon JJ).
Ground three therefore, again, fails to understand that a challenge to the merits of the Tribunal’s decision, without anything else, renders this ground as having advanced no arguable case.
Ground Four
In ground four the applicants complain that the Tribunal failed to have regard to all of the country information which was before it. However, in the amended application the applicants did not give any particulars as to what relevant materials the Tribunal failed to have regard.
Without such particulars, the ground remains in a state where no arguable case can be discerned.
In any event, I note that the weight to be attributed to country information is a matter for the Tribunal (NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ). Therefore, what the Tribunal took into account in considering the applicant’s complaints was for the Tribunal to determine.
At [82] (at CB 183) to [95] (at CB 192) of the Tribunal’s decision record, it set out the country information which is had before it. At [112] – [113] (at CB 197) of its decision record the Tribunal set out its reasons for accepting certain country information, but particularly it noted at [113] (at CB 197), with regard to country information about the treatment of unsuccessful asylum seekers returning to Sri Lanka, that there was “… somewhat divergent views about the likelihood that such persons experience serious harm, beyond simple questioning over a possibly extended period.” However, regardless, as it noted at the end of [113] (at CB 197), the Tribunal did not find that country information to be relevant to the applicants as it found the applicant was not a person of adverse interest to the Sri Lankan authorities.
Ground Five
Ground five complains that the Tribunal failed to consider certain claims, and focused on irrelevant material. The particular complains that the Tribunal failed to consider the applicant’s claims to have been arrested, abducted and threatened. The applicant says that, instead, the Tribunal focused on the applicant’s failure to meet his parents and siblings (see also in relation to ground one above).
The short answer is that the Tribunal did not fail to address the applicant’s claims of past harm. It did not accept them. This means the complaint, once again, seeks to impermissibly challenge the Tribunal’s findings.
As to the focus in the ground on the applicant’s parents and siblings, matters concerning them and the applicant’s relevant conduct, these were a part of the applicant’s account of past events relevant to his claim of persecutory harm (see as set out above in relation to ground one). In this context, not only was it open to the Tribunal to “concentrate” on these matter, but it was obliged to do so. Ground five does not advance an arguable case for the relief the applicants seek.
Ground Six
In ground six the applicants complain that the applicant was denied procedural fairness because he was not given the opportunity to clarify why he left Sri Lanka “in a hurry” and why he did not meet his siblings and the “doubts” that the Tribunal had about his account of past events concerning his parents and siblings.
In the current circumstances, the Tribunal was obliged, in the discharge of its procedural fairness obligations, to invite the applicant to a hearing pursuant to s.425 of the Act and to give him the opportunity to discuss the issues determinative of the review. That is, issues that were not live issues as a result of the delegate’s decision (SZBEL).
In relation to the latter, even though the delegate rejected the applicant’s factual claims (see, for example, at CB 111.2), given the unsatisfactory (unclear) nature of the remainder of the delegate’s reasoning, it is unsafe to rely on that record as to what were the live dispositive issues as a result of the delegate’s decision.
In any event, on the only account before the Court of what occurred at the hearing before the Tribunal, the Tribunal’s own account in its decision record, it is reasonably clear that the applicant and the applicant’s wife were given the opportunity to present evidence. Further, that the critical issue in their review, their own factual account of what occurred in the past, was discussed (see [41] at CB 175 to [81] at CB 183).
The applicants have not put any other evidence before the Court to challenge the Tribunal’s account. It is not open to the Court to make inferences as to what otherwise may have happened at the hearing.
Further, the Tribunal is not required to give a running commentary during the hearing of what it thinks of the evidence presented (Applicant S154/2002 at [54] per Gummow and Heydon JJ). The applicants’ complaint now, that the Tribunal should have put its doubts to the applicant, cannot assist them.
In any event, the following stands in answer to the assertion that the Tribunal did not do so ([49] at CB 177):
“The Tribunal explained [to] the applicant that the Tribunal has to consider whether she finds his account of what happened to him in Sri Lanka to be credible. The Tribunal has a number of problems with the applicant’s evidence…”
In all therefore, ground six also has not advanced an arguable case.
Conclusion
The application to the Court, as amended, has not revealed an arguable case for the relief sought. In those circumstances, the application, as amended, should be immediately dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 22 February 2013
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