SZSED v Minister for Immigration

[2013] FCCA 1588

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSED v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1588

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

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(b), 91X, 474

Minister for Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211
Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703

Applicant: SZSED

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2601 of 2012

Judgment of: Judge Lloyd-Jones

Hearing date: 15 April 2013

Delivered at: Sydney

Delivered on: 18 October 2013

REPRESENTATION

Solicitor for the Applicant: Mr. M. Jones of Parish Patience Immigration Lawyers

Solicitors for the First Respondent: Mr R Baird of Clayton Utz

The Second Respondent:  The Second Respondent filed a submitting notice of appearance

ORDERS

1. The name of the First Respondent be amended to read “Minister for Immigration and Border Protection”.

2. The Application filed 9 November 2012 is dismissed.

3. The Applicant is to pay the First Respondent’s costs and disbursements of and incidental to the Application.

The Applicant in these proceedings is not to be identified pursuant to s.91X of the Migration Act 1958 (Cth) and has been given the pseudonym SZSED.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2601 of 2012

SZSED

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review in respect of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1206873, a decision of Tribunal Member J. Godfrey dated 5 October 2012, affirming the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the “Minister”), to refuse to grant the applicant a Protection (Class XA) visa.

2. In accordance with the Court’s orders of 29 November 2012, the solicitors for the Minister were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”), marked Exhibit “A”.  The applicant sought to file and rely on the affidavit of Asha D’Silva, affirmed 15 April 2013, annexing the transcript of the applicant’s Tribunal hearing of 11 September 2012.

3. The applicant was granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 1 February 2013. The applicant elected not to file an amended application.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.

2. The applicant is a citizen of Sri Lanka of Sinhalese ethnicity.  He arrived in Australia on 6 July 2009 as the holder of a student visa and subsequently applied for a Protection visa on 29 July 2011.

3. The applicant set out his claims to be at risk of harm upon return to Sri Lanka in a written statement lodged with his Protection visa application (CB 26-44).  He gave further details of his claims and expanded upon them at an interview relating to his Protection visa application on 27 March 2012 (CB 92-109).  He did so again at the Tribunal hearing held on 11 September 2012 (CB 200-201).

4. The applicant claimed to be the only child of a wealthy Sinhalese family.  He claimed to have worked for his father’s construction business from the time of the Sri Lankan tsunami in December 2004 onwards.  The business employed labourers of Tamil ethnicity, among other people.

5. The applicant detailed a history of adverse attention from Sri Lankan security forces beginning around October 2005.  Ultimately, he was suspected of assisting in the transport of arms to Tamil fighters.  Tamil employees of the business were detained and tortured, and the applicant was interrogated on multiple occasions.  The applicant feared for his safety due to his association with the Tamil employees employed by his father’s company.  The applicant’s fears caused him to depart Sri Lanka for Australia in 2009.

6. In 2011 the applicant visited Sri Lanka to see his parents and his girlfriend, and to meet his girlfriend’s parents.  He claimed that upon arrival in Sri Lanka he was detained and interrogated.  He was accused of smuggling arms in support of Tamil fighters.  He was severely beaten and forced to sign a confession.  He was taken with his girlfriend to see two Tamil employees of the business who had been detained, and witnessed them being beaten.  After his release he was warned that he must remain in Sri Lanka.  Despite this, after marrying his girlfriend, his father was able to arrange for his departure from Sri Lanka.

7. After returning to Australia, the applicant applied for a Protection (Class XA) visa.

The Tribunal’s Findings and Reasons

1. The Tribunal’s Findings and Reasons were set out at [80]-[94] of its Decision Record (CB 198-202).

2. The Tribunal found that information given by the applicant in his Student visa application was inconsistent with his claims in support of his Protection visa application concerning events in Sri Lanka between 2005 and 2008.  The Tribunal gave reasons for finding that the information given in the Student visa application was genuine.  It did not accept that the events described by the applicant during this time had, in fact, occurred (CB 199 at [84]). 

3. The Tribunal noted the applicant’s delay in applying for a Protection visa and found the reasons he gave for the delay not to be credible (CB 200 at [87]).

4. At [89]-[90] of the Decision Record, the Tribunal set out its conclusions relating to the applicant’s claims about events in Sri Lanka (CB 200-201).  It referred to, and rejected, each significant aspect of the applicant’s claims.  It concluded as follows:

   90.  I find, on the basis of the information before me, and on the basis of my findings about the applicant’s credibility, that there is not a real chance that the applicant would suffer serious harm for reason of his imputed political opinion as a supporter of the LTTE should he return to Sri Lanka now or in the reasonably foreseeable future and that his fear is not well-founded.

   (CB 200-201)

5. Having made the finding noted above at [14], the Tribunal referred to the applicant’s claim that Sri Lankan police and paramilitary groups have a practice of targeting for extortion wealthy Sri Lankans returning from Australia (CB 201 at [91]).  At [91] of the Decision Record the Tribunal stated:

   91.  … I have not found the applicant to be credible and while it follows that I do not accept him to be credible when discussing this claim I have nevertheless considered whether the applicant would suffer serious harm for reason of his membership of the particular social group ‘members of wealthy families in Sri Lanka’ ‘or children of business people’ or any similar formulation should he return to Sri Lanka now or in the reasonably foreseeable future.

   (CB 201-202)

6. In short, despite completely rejecting the applicant’s claims concerning events in Sri Lanka, the Tribunal went on to consider whether the applicant was at risk of harm upon his return to Sri Lanka from Australia by reason of his family’s wealth.  In that context, the Tribunal made a finding at [92] of the Decision Record rejecting any such claim (CB 202).  This finding is the focus of the applicant’s complaints in these proceedings, although it is characterised by the applicant as relating to his claims generally.

7. The Tribunal then considered the applicant’s claims in light of the complementary protection criterion in s.36(2)(aa) of the Migration Act. The essence of the Tribunal’s findings in this respect were set out in [96]-[97] of the Decision Record as follows:

   96. …I have dealt with the claims that the applicant has a well-founded fear of persecution in Sri Lanka in detail in paragraphs 80 to 94 above.  I have found that, even when the claims are considered cumulatively, there is not a real chance that the applicant would be persecuted for a Convention reason now or in the reasonably foreseeable future and that his fear of persecution in Sri Lanka is not well-founded.

   97. I have also considered whether the claimant would suffer significant harm in terms of the wording of s. 36(2A) (a), (b), (c), (d) and (e).  I have considered whether there are substantial grounds for believing that there is a real risk that he will be targeted for reason of his family’s wealth for kidnapping or extortion.  For the reasons outlined in my consideration of this matter above, I do not accept that there are.  There is nothing in the findings I have made on the facts in this case to satisfy me that the claimant would be arbitrarily deprived of his life, that he faces the death penalty, that he will be subjected to torture, that he will be subject to cruel of inhuman treatment or punishment, or that he will be subjected to degrading treatment or punishment, should he return to Sri Lanka now or in the reasonably foreseeable future.

   (CB 202-203)

8. The Tribunal found that for the same reasons that the applicant’s claims did not satisfy the Refugees Convention criteria for a Protection visa, they did not satisfy the complementary protection criterion.  The applicant’s claims did not satisfy the Refugees Convention criteria because they were not believed; the Tribunal did not accept that any of the applicant’s claims were true.  It was inevitable from that finding that the applicant’s claims would also fail to satisfy the complementary protection criterion.  As described above, the Tribunal also was not satisfied that there was any risk of harm to the applicant on the basis of his being a member of a wealthy Sri Lankan family returning from Australia.  Therefore, the Tribunal did not accept that there was a risk to the applicant of significant harm on that basis for the purpose of the complementary protection criterion.

Current Proceedings

1. In these proceedings, the Court has power to set aside the decision of the Tribunal only if it is affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. In the absence of jurisdictional error, the Tribunal’s decision is a “privative clause decision” and not amenable to judicial review (s.474 of the Migration Act).

2. The Application filed in this Court on 9 November 2012 seeks the following orders:

   1. A writ of certiorari removing into this Court to be quashed the purported decision of the Second Respondent made on 5 October 2012.

   2. A declaration that the decision is void and of no effect.

   3. An order by way of mandamus that the Second Respondent reconsider the application for review in accordance with law and any directions of the Court.

   4. An order that the First Respondent pay the Applicant’s costs.

3. The Application raises a sole ground of review of the Tribunal’s decision, namely:

   1. The Tribunal failed to give proper consideration to the full extent of the Applicant’s claims in respect of the relationship between the police and paramilitary groups in his home country.

   Particulars

   The Applicant claimed that he would be harmed by police and paramilitary groups working together.  The Tribunal found that the Applicant could get protection against the paramilitary groups from the police, without considering his claim that they were working together.

Applicant’s Submissions  

1. The applicant relies on a single ground of challenge to the decision of the Tribunal; that the Tribunal failed to give proper consideration to the full extent of the applicant’s claims in respect of the relationship between the police and paramilitary groups in his home country, Sri Lanka.

2. The applicant claims to be a Sri Lankan of Sinhalese ethnicity. He stated that his father was a building contractor with 20 to 25 employees.  His father travelled to different districts in Sri Lanka during the course of his work.  His parents were supporters of a political party referred to as the UNP (United National Party) in Sri Lanka.  They earned good money.  Following the tsunami that struck Sri Lanka in December 2004, his father was offered contracts by NGOs (Non-Government Organisations) in the Galle, Batticaloa, Trincomalee and Jaffna districts.  He was famous among the NGOs and was working around the clock, including in charity work.

3. The applicant’s father employed Sinhalese, Tamil and Muslim workers and did not discriminate between them.  After the tsunami of 2004, the applicant travelled with his father to the affected districts and introduced him to the NGO officers.  When his father was busy he would ask the applicant to travel with his friends and sometimes to oversee the work of the labourers while his father was away.

4. The applicant stopped going to school in 2005 and his father asked him to accompany the labourers in trucks to and from Colombo collecting materials.  The reason for this was the danger presented by “corrupt police officers, the LTTE and the Karuna/EPDP paramilitaries who would divert the lorries to other areas if the driver and labourers transported themselves” (CB 37).

5. After ceasing to do this work for some time after witnessing atrocities carried out by the Sri Lankan Army (“SLA”), he again commenced working for his father’s business in July 2008 around the Colombo area in the company of two Tamil employees.  Following a suicide attack on 31 December 2008 the police stopped the truck and detained the two Tamils.  Despite calling on all of his contacts, the applicant’s father was unable to find out what had happened to them.  As a result, the applicant decided that he did not wish to stay in Sri Lanka and applied for a visa to study in Australia.  While waiting for the visa to, a group consisting of both paramilitaries and police officers came to the applicant’s house and took him and his father away for interrogation.  After being interrogated about the two Tamils by both the police and paramilitaries (CB 40), the applicant was released and left Sri Lanka to go to Australia.

6. The applicant, after arriving in Australia, was told by his father that both paramilitaries and police officers had come to the house to question him.  His father warned him that “the paramilitaries who were LTTE cadres serving with the LTTE military wing are criminals working for the SLA and police and they are used by the authorities to abduct and murder people who would not adhere to their demands such as bribery and extortion” (CB 41).

7. After nearly two years in Australia the applicant decided to return to Sri Lanka as his father had told him that the paramilitary had not returned after being paid money.  He missed his parents and girlfriend.  On his arrival at Colombo airport he was taken aside and interrogated.  He was beaten by both the police and paramilitary.  His father contacted a Sri Lankan Government Minister and realised that “the police officers and the paramilitaries were planning to frame false charges and the only way was to bribe them and send me out of the country permanently” (CB 42).  He was unable to leave the country until his father “paid the police and the paramilitaries”.

8. In support of his claims for a Protection visa, the applicant provided a bundle of documents relating to the situation in Sri Lanka.  One report referred to extortion being carried out by both the police and paramilitary groups (CB 65).

9. At the hearing before the Tribunal, the applicant stated that he had done everything he could to get out of Sri Lanka because he feared “the police or the paramilitary are in the habit of keeping a watchful eye on the people who have gone to Australia”, including himself, and that “they” wanted to take him into custody “to see that they get their share of the money” (Transcript 32.35-38).  He added that “the police and the paramilitary they knew that I’m the only child in the family so they could get money from dad” (Transcript 32.47-48).  Later, the applicant stated that his wife, who was still in Sri Lanka, had been warned by “paramilitary and the police” to let them know when he returned from Australia (Transcript 33.33-34).

10. The Tribunal noted the claims made by the applicant at the hearing concerning the police and paramilitary groups (CB 201 at [91]).

11. Despite the applicant’s consistent references to collusion between the police and the paramilitary groups, the Tribunal concluded:

    92. …While I accept the country information, including in the UK Border Agency Report cited above, that there are criminal groups operating in Sri Lanka, including those associated with paramilitary groups, I also accept that well off Sinhalese families would be able to access and receive state protection from the pre-dominantly Sinhalese police and judiciary if they were threatened in this way by those groups…

    (CB 202 at [92])

12. It is to be noted the materials referred to by the Tribunal support what the Tribunal “accepted” in respect of well-off Sinhalese families.

13. In considering the “complementary protection” provisions in s.36(2)(aa) of the Migration Act, the Tribunal found that there were no “substantial grounds for believing there is a real risk that he will be targeted for reason of his family’s wealth for kidnapping or extortion”, based on “the reasons outlined in my consideration of this matter above” (CB 203 at [97]). The reference to the Tribunal’s previous reasoning is assumed to be to the passage quoted at [32] above.

14. The applicant’s claims had consistently linked the police to paramilitary groups describing them as operating together. It is contended that at no point in its reasons does the Tribunal deal with this claim, however, before being able to “accept” that families such as the applicant’s would have access to state protection through the police and the judiciary, the Tribunal needed to consider the claim of collusion to decide whether, for the purposes of s.36(2)(a) of the Migration Act, the applicant’s fear was well-founded: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, or for the purposes of s.36(2)(aa) in the light of s.36(2B)(b), there was a real risk of significant harm: Minister for Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211 at [35].

15. In relation to both the Refugees Convention and the complementary protection considerations, the applicant submits the Tribunal constructively failed to exercise its jurisdiction in determining whether the applicant was a person to whom Australia owed protection obligations.

Minister’s Submissions

1. The Minister submits the Tribunal comprehensively rejected all of the applicant’s claims which related to events alleged to have occurred in Sri Lanka, including claims about activities of the Sri Lankan police and paramilitary groups, based on its assessment of the applicant’s credibility and relevant information before it.  This conclusion was set out at [88]-[90] of the Decision Record (CB 200-201).  The Tribunal went onto consider whether the applicant might nonetheless be at risk of harm, which the applicant claimed could lead to his being targeted for extortion if he returned to Sri Lanka.  At [92] of the Decision Record, the Tribunal did not accept that there was a risk of harm to the applicant in any relevant sense by reason of his family’s wealth.

1. The Minister submits for the reasons below that the applicant’s pleaded ground of review is misconceived and should fail. 

2. The Minister argues that the applicant’s allegation that the Tribunal failed to deal fully with his claims is not sustainable.  The Tribunal expressly rejected every aspect of the applicant’s claims concerning events in Sri Lanka (CB 200 at [89]).  It expressly found that he did not have a well-founded fear of persecution when he left Sri Lanka (CB 200 at [88]).  There was no “real chance” or “real risk” that the applicant would face harm, in any relevant sense, for any Refugees Convention or complementary protection reason, upon his return to Sri Lanka (CB 201-203 at [90], [94], [97]-[98]). 

3. The applicant’s Application and written submissions focus on the Tribunal’s finding contained in [92] of the Decision Record.  The applicant takes this finding out of context and treats it as though it related to the applicant’s claims generally.  In fact, the finding in [92] concerned a specific claim by the applicant to be at risk upon his return to Sri Lanka by reason of his family’s wealth.  The Tribunal considered this claim in light of its rejection of the applicant’s claims concerning events in Sri Lanka.

4. The Tribunal found the applicant not to be credible in respect of this further claim.  It did not accept that the applicant would be targeted by reason of his family’s wealth, while other members of his family were not (CB 202 at [92]).  It was not satisfied with the applicant’s response when it put this concern to him (CB 202 at [92]).  Further, despite already having made findings sufficient to dispose of this claim, the Tribunal considered that the applicant would be able to access state protection from police in respect of this kind of criminal activity (CB 202 at [92]). 

5. The applicant also raises a complaint that the Tribunal rejected his claims in light of the complementary protection criterion by reference to the finding contained in [92] of the Decision Record.  In the Minister’s submission, [96]-[97] of the Decision Record (CB 202-203), which set out the Tribunal’s findings relating to the complementary protection criteria, must be read together as a whole.  Read in this way, it is clear that the Tribunal rejected the applicant’s claims against complementary protection criterion for the same reasons that it rejected his claims against the Refugees Convention criteria.  That is, the Tribunal rejected all of the claims concerning events in Sri Lanka, and for that reason those claims were not capable of satisfying the complementary protection criterion.  It also did not accept that the applicant would be targeted for extortion by reason of his family’s wealth and, again, for that reason this claim could not satisfy the complementary protection criterion.

6. The Minister submits that the Tribunal did not make any error in proceedings as alleged in the Application.  The Tribunal understood the applicant’s claims and considered them fully.  Accordingly, it is the Minister’s submission that the Applicant before this Court should be dismissed with costs.

Consideration

1. The Tribunal, in its Decision Record under the heading “Findings and Reasons”, included a section on the credibility of the applicant at [81] – [83] (CB 198-199) (it should be noted paragraph 82 does not appear in the Decision Record) in the following form:

   81.  When determining whether a particular applicant is entitled to protection in Australia, the Tribunal must first make findings of fact on the claims he has made.  This may involve an assessment of the credibility of the applicant.  When assessing credibility, the Tribunal should recognise the difficulties often faced by asylum seekers in providing supporting evidence and should give the benefit of the doubt to an applicant who is generally credible but unable to substantiate all of his claims.  However, it is not required to accept uncritically each and every assertion made by an applicant.  Further, the Tribunal need not have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.  Nor is it obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.  See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547.

   83.  I also accept that where there are clear inconsistencies, or where some claimed history is far-fetched or unrealistic, it may be that those claims, after careful consideration, cannot be accepted as being true.  In this case I found that the applicant not to be a reliable witness.  In considering the applicant’s claims I observed during the course of the review a number of very significant inconsistencies and discrepancies in the central components of the applicant’s evidence that significantly detract from both the plausibility of the applicant’s claims and his overall credibility.  At the interview, as discussed above, I raised my concerns about his credibility on several occasions and I told him that if my concerns persisted that it might mean that I could not accept all his claims.  I also gave him the opportunity to comment or respond to my concerns on a number of occasions.  In addition I provided the applicant with an opportunity to comment or respond to those concerns in writing.  He chose not to respond in writing.  I have therefore considered his comments and responses at the hearing.  I do not accept his explanations to be plausible.  I do not find the applicant to be credible.

   (CB 198-199 at [81],[83])

2. The assessment of credibility is a matter for the Tribunal par excellence:  Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]. In W148/00A v Minister for Immigration and Multicultural Affairs (2001) 185 ALR 703, their Honours Tamberlin and RD Nicholson JJ stated at [64]-[65] (with Lee J dissenting):

   64. The Tribunal decision turned on the question of credibility. A finding as to credibility is a finding of fact and, as the authorities indicate, a reviewing body must not set aside such a finding simply because it thinks that the probabilities of the case are against, or even strongly against, the finding. As the High Court stated in Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 (per Brennan, Gaudron and McHugh JJ):

   "If the trial judge's finding depends to any substantial degree on the credibility of the witness, the findings must stand unless it can be shown that the trial judge `has failed to use' or `has palpably misused his advantage' or has acted on evidence which was `inconsistent with facts incontrovertibly established by the `evidence' or which was `glaringly improbable'".

   See also Abalos v Australian Postal Commission [1990] HCA 47; (1988) 171 CLR 167 at 179. This latter case was concerned with the scope for review of a decision founded in part on demeanour where the Court at first instance had an opportunity to observe witnesses and form an impression as to the reliability of evidence given in response to questioning. Often a conclusion as to the credibility of a witness will depend not only on the body language and general impression conveyed by a witness in the way in which questions are answered but also on a careful consideration of the factual background or available information, coupled with ordinary experience as to likely patterns of response. Such an impression cannot be communicated by consideration of the transcript alone.

   65. It is important to identify, in this case, the precise question for determination by the Minister and the Tribunal. The relevant question is whether the Minister and the Tribunal could be "satisfied" that the case for refugee status has been made out: see s 65 and s 415 of the Act. The High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 275-277 (per Brennan CJ, Toohey, McHugh and Gummow JJ) considered this requirement of satisfaction and observed that the decision under review is of a subjective nature and is not the same as a review of an entirely objective determination of refugee status. This distinction underlies the need for care when viewing the decision of the Tribunal, especially in relation to the question of credibility, because the review is as to the satisfaction of the Minister or his delegate and not as to the determination of the Minister or the delegate.

   (emphasis in original)

3. Their Honours Tamberlin and RD Nicholson JJ at [67] in W148/00A v Minister for Immigration and Multicultural Affairs (supra) went on to make the following important observation:

   67. There is one aspect of the approach taken by the decision-maker in the present case which gives us some cause for concern. It is this. Where the question of credibility is determinative of a Tribunal decision, to simply assert that the Tribunal considers the applicant's account to be "implausible" or "highly unusual" does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant.

4. Mr Jones, representing the applicant, claimed that there was a failure to consider the full extent of the applicant’s claims and, specifically, this had to do with the claim repeated by the applicant on a number of occasions. Mr Jones claimed that from the very beginning of this application for a Protection visa, the applicant stated that he feared certain paramilitary organisations with which the police were colluding in seeking to extort money from and cause harm to him. These claims coming both under the scope of the Refugees Convention, in terms of membership of a particular social group, and under the complementary protection provisions, specifically s.36(2)(aa).

5. Mr Jones highlighted that this claim was not something that the applicant had come up with at the last minute.  Mr Jones submitted that the applicant had, from the time he lodged his Protection visa in July 2011, made this claim.  Mr Jones took the Court to p.37 of the Court Book, which is the statement attached to the applicant’s Protection visa application, where he states:

   …It was dangerous to permit the labourers to bring the goods on their own with the drivers due to corrupt police officers, the LTTE and the Karuna/ EPDP paramilitaries who would divert the lorries to other areas if the driver and labourers transported themselves…

   (CB 37)

   The applicant goes on to further explain that while he was waiting for his visa:

   … [T]hree paramilitaries and the police officers entered our home to interrogate us…

   (CB 40)

6. Mr Jones submitted that even after the applicant arrived in Australia, he stated that he was contacted by his father who told him that the paramilitaries and local police officers were still coming to the house.  His father had contact with a Minister of the Sri Lankan Government and the Minister had told him that (in respect of the applicant):

   … [T]he paramilitaries would not allow me (the applicant) to stay peacefully and would convince the police officers that I was involved with Kannan and Vadivel.  My father paid the police officers and the paramilitaries as the Minister suggested to keet (sic) them away from me to silence them…

   (CB 41)

7. Mr Jones then took the Court to p.65 of the Court Book where there is a printout from the website of an organisation by the name of TamilNet, which claims:

   Meanwhile, police personnel stop lorries and other vehicles transporting sand for construction of building with the permits issued by Divisional Secretaries demanding money from them citing several reasons, according to people engaged in building construction in the district.

   (CB 65)

   Mr Jones stated that this extract shows that the police in Sri Lanka have been demanding money.  Mr Jones referred to the subsequent paragraph of the printout, where there is a reference to extortion and intimidation by armed forces and paramilitary groups and, as such, all persons affected by such extortion and intimidation would avoid making complaints to the police, fearing threats to their lives.  Mr Jones argued that this was some corroborative material that the applicant produced at the time of his application that referred to collusion on a criminal level between the police and the paramilitary groups.  Mr Jones argued that this claim was made before the Minister’s delegate.

8. Mr Jones referred the Court to the Tribunal hearing of 11 September 2012.  A copy of the transcript of the hearing was attached to the Affidavit of Asha D’Silva, affirmed 15 April 2013 (the “Transcript”).  At p. 8 of the Transcript, it states:

   Applicant (Interpreter):  I had the greatest fear about my death, my life.  I had death threats so I just wanted to get out of the country.  I did everything possible to go out of the country because I had the fear that the police or the paramilitary people will get hold of me.  I never expected to deceive or mislead anyone.  I only had the fear about my life.

   (Transcript, p.8, l.4-8)

   Mr Jones claimed that the subject was returned to later in the interview, at pp. 32-33 of the Transcript, where it states:

   Applicant (Interpreter): So the police and the paramilitary are in the habit of keeping a watchful eye on the people who have gone to Australia and they were just keeping an eye on me too.  So what they wanted to, want to take me into custody and also to see that they get their share of the money…

   …

   Applicant (Interpreter):  The police and the paramilitary they knew that I’m the only in the family so they could get the money from dad.  So they were keeping a watchful eye on me.  So they are all over the place including the airport.

   …

   Applicant (Interpreter):  Paramilitary and the police has warned my wife to inform the day, once he (the applicant) return to Sri Lanka.  So they have been warned a number of times saying, paramilitary people saying that to inform as soon as he (the applicant) land in Sri Lanka and either he (the applicant) will be sent to gaol or they will eliminate him, and my now wife says not to come back to Sri Lanka because there’s going to be trouble.

   (Transcript, p.32-33)

9. Mr Jones argued that the applicant continuously referred to the collusion between police officers and paramilitary groups in his claims.  Mr Jones took the Court to the Tribunal’s Decision Record at [91] where it states:

   …the applicant said that that the police and the paramilitary groups are in the habit of watching people who have been to Australia and that included him…

   (CB 201)

10. Mr Jones then took the Court to [92] of the Tribunal’s Decision Record, where, in his submission, the Tribunal failed to give proper consideration to the full extent of the applicant’s claims in respect of the relationship between the police and paramilitary groups.  The Decision Record states:

    92.  I noted at the hearing that if his family was perceived as wealthy as claimed it would be logical for me to assume that action might have been taken against the family by the people he claims he fears would threaten him on return.  The applicant responded that he is a younger man than his father.  I do not accept this explanation.  While I accept the country information, including in the UK Border Agency Report, cited above, that there are criminal groups operating in Sri Lanka, including those associated with paramilitary groups, I also accept that well off Sinhalese families would be able to access and receive state protection from the pre-dominantly Sinhalese police and judiciary if they were threatened in this way by those groups.  I find that there is not a real chance that the applicant would suffer serious harm for reason of his membership of the particular social group ‘members of wealthy families in Sri Lanka’ ‘or children of business people’ or any similar formulation should he return to Sri Lanka now or in the reasonably foreseeable future and that his fear is not well-founded.

    (CB 202)

11. Mr Jones argued that he had not been able to find any reference in the Transcript where the applicant made that comment.  Mr Jones took the Court to p.36 of the Transcript where it states:

    Member:  There are but they’re also released at least 200,000 Tamils back into the community and they’re releasing more and more people out of those closed camps all the time.  You mentioned a couple of times in the last little while of this interview about the fact that the paramilitaries are after money and if you go back you’ll be at risk because they’re after money, which leads me to question well your father and your mother and your wife are all still living in Sri Lanka.  Wouldn’t they be just the same sort of target for kidnapping or extortion?

    Applicant (Interpreter):  So my dad has a bit of influence in the area, known to politicians et cetera.  And wife had been warned a number of times by paramilitary people, and their main target is me.  They are just chasing because I was associated with Tamils…

    (Transcript, p.36, l.9-23)

12. Mr Jones argued that the Tribunal’s finding at [92] of the Decision Record (reproduced above at [53]) is not covered in the UK Border Agency Report which is summarised at [77] of the Decision Record (CB 196-197).  Mr Jones contended that the Tribunal’s finding is at odds with the central element of the applicant’s claim and at no time does the Tribunal say why it does not accept it.  Mr Jones contended that the Tribunal did not deal with that element of the applicant’s claim – that there is collusion between the police and paramilitary groups in Sri Lanka on a criminal level. 

13. Mr Jones argued that this is relevant to the claim of being a member of a particular social group member of wealthy families, but also, to the complementary protection provisions of the Migration Act. Section 36(2) states:

    Section 36 - Protection visas

    …

    (2) A criterion for a protection visa is that the applicant for the visa is:

    …

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    …

    (2B)  However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

    …

    (b)  the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

14. Mr Jones contends that the Tribunal did not exercise its jurisdiction when considering the claims that were put to it by the applicant.  Mr Jones argued that the Tribunal stated that there was no reason why the applicant or his family could not get protection from state authorities.  Mr Jones also contends the Tribunal, at [97] of the Decision Record, did not accept that there are substantial grounds for believing that there is a real risk “that [the applicant] will be targeted for reason of his family’s wealth for kidnapping or extortion …” (CB 203).

15. Mr Jones took the Court to Minister for Immigration and Multicultural Affairs v Yusuf (supra) at [69] where McHugh, Gummow and Hayne JJ stated:

    It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.

    (Footnotes omitted)

1. Mr Jones argued that the Tribunal did not consider the applicant’s claims about collusion between the police and paramilitary groups, which was an essential part of the applicant’s claim.  Mr Jones contends that the Tribunal, in failing to consider that claim, was failing to fully exercise its jurisdiction.

2. Mr Jones referred the Court to Minister for Immigration and Citizenship v MZYYL (supra), which identifies the relationship between ss.36(2)(aa) and 36(2)(b). Mr Jones submitted that the standard that is applied to the concept of real risk still needs to be determined. Mr Jones argued that the Minister, in this case, did not challenge the view that the real risk was essentially the same as the real chance test.

3. At [39] of Minister for Immigration and Citizenship v MZYYL (supra) their Honours Lander, Jessup and Gordon JJ stated:

   39.  Section 36(2B)(b) poses the question whether, in obtaining protection from the receiving country, the protection is such that there would not be a real risk that the non-citizen would suffer significant harm if returned. The section proceeds from an assumption (correctly made) that there will be circumstances where the protection offered is not sufficient to remove the fact that there is a real risk that the non-citizen will suffer significant harm.

4. Mr Jones submits that Minister for Immigration and Citizenship v MZYYL (supra) places emphasis on the need for the decision maker to look at the situation, to look at what is claimed by the applicant and to see whether, if the harm that the applicant is claiming is significant harm, there is a level of state protection that is sufficient to actually remove the risk or reduce it to below the level of a real risk.

5. Mr Jones submits that the Tribunal has not given any consideration to the claim about collusion between the police and paramilitary groups. Mr Jones contends that the Tribunal has simply made an assumption for which it gives no evidence, and it is the applicant’s submission that the Migration Act requires more than that.

6. Mr Jones submits that it is clear enough that there is a significant difference between the wording of s.36(2)(a), relating to the Refugees Convention and s.36(2)(aa), which appears to be more of an onus on the Minister.

7. Mr Baird, appearing for the Minister, submitted that the claim that the applicant says was overlooked was in fact considered and addressed by the Tribunal when it rejected the applicant’s credibility as a witness of truth and rejected the entirety of his claims of suffering in Sri Lanka.  Mr Baird took the Court to [83]-[90] of the Decision Record (CB 199-201).  The Tribunal stated at [83]:

   83. … I do not find the applicant to be credible.

   (CB 199)

8. Mr Baird submitted that the following paragraph of the Decision Record set out the reasons for the above finding.  Mr Baird contended that in [84], the Tribunal noted the only favourable finding made to the applicant:

   84. … I accept that the applicant’s father has a successful construction company… I accept that the applicant’s father employed Tamil workers on his construction projects…

   (CB 199)

9. The Tribunal, however, rejected the applicant’s claims to have had anything to do with that business.  The Tribunal concluded that, based on the applicant’s evidence of his studies, given in connection with his visa application, the Tribunal did not accept at [85] that:

   85. …the applicant had any significant role to play in his father’s business while studying between 2005 and 2008…

   (CB 199)

10. Mr Baird submits that there is a further adverse finding of credibility, where the Tribunal noted that, on his own evidence, the applicant:

    85. …was prepared not to raise the matter at his medical because he was afraid it might affect his chances of obtaining a student visa.

    (CB 200)

11. Mr Baird also took the Court to [86] of the Decision Record, where it states:

    86.  The applicant claimed to have been detained in December 2008 at a checkpoint in Colombo when one of his father’s vehicles in which he was travelling with a Sinhalese driver and two Tamil men.  The two Tamil men were detained…  I do not accept that the applicant suffered any harm as a consequence of his being stopped at the checkpoint.  I do not accept that his being stopped in a city wide cordon and search operation aimed at suspected LTTE bombers would have caused him to have come to the adverse attention of the Sri Lankan authorities. 

    (CB 200)

12. Mr Baird then referred the Court to [88]-[89] of the Decision Record.  The Tribunal noted that there were two accounts of the applicant’s life in Sri Lanka that had been given to the Department of Immigration. One account was given with the applicant’s Student visa application when he was studying between 2005 and 2008 and the other was his claims set out in his Protection visa application, with the Tribunal preferring the evidence submitted on the first occasion.  Mr Baird submits that [89] of the Decision Record is significant as the Tribunal is attempting to cover the field.  At [89] of the Decision Record, the Tribunal stated:

    89.  It follows therefore that I do not accept his claims:

    - that the applicant was stopped at a checkpoint in 2005 while travelling in a truck with two employees of the family business;

    - that his name was recorded by the Sri Lankan authorities at that time;

    - that his father obtained the release of the two Tamil men;

    - that the applicant was stopped at a checkpoint after the Wattala bombing in December 2008 while again travelling with the same two Tamil men;

    - that the applicant came to the adverse attention of the Sri Lankan Government for his imputed political opinion as a supporter of the LTTE;

    - that the applicant came to the attention of paramilitary group, including Tamil paramilitary groups for any reason;

    - that his father had to pay bribes for him to be able to leave the country in 2009;

    - that on return to Sri Lanka in 2011 the applicant was immediately detained by the Sri Lankan authorities because of his activities between 2005 and 2008;

    - that on return to Sri Lanka in 2011, he was detained, beaten and arrested by the authorities, transported to Boosa Prison to confront the two Tamil men he claimed he was travelling with in 2005 and 2008;

    -  that his father had to pay bribes to enable him to leave the country in 2011;

    - that his wife was threatened by the paramilitaries; and

    - that his wife was forced to go to Boosa prison to interrogate Tamils.  

    (CB 200-201)

13. Mr Baird submitted that the Tribunal, by listing all the broad topics relating to the applicant’s claims, was attempting to cover the field and leave none of the applicant’s evidence standing relating to what had happened to him in Sri Lanka.

14. Mr Baird then referred the Court to [90] of the Decision Record where the Tribunal stated:

    90.  I find, on the basis of the information before me, and on the basis of my findings about the applicant’s credibility, that there is not a real chance that the applicant would suffer serious harm for reason of his imputed political opinion as a supporter of the LTTE should he return to Sri Lanka now or in the reasonably future and that his fear is not well founded.

    (CB 201)

15. Mr Baird next turned to the applicant’s submissions that the purported collusion between police and paramilitary groups was not addressed by the Tribunal.  The significance of this is that the only source from which the claim could have arisen was the applicant’s own oral evidence.  Mr Baird argues that given that that oral evidence was rejected by the Tribunal in its entirety, there is nothing left standing.

16. Mr Baird responded to the submission made by Mr Jones about the printout from TamilNet Website at CB 65 (see at [50] above). Mr Baird submits that there is nothing in the document that suggests that there is collusion between the police and paramilitaries, such that the police would be unavailable to provide protection to a person in the same position as the applicant, being a wealthy individual from a Sinhalese family.

17. In support of this argument, Mr Baird took the Court to [91] of the Decision Record where the Tribunal stated:

    91. …I have not found the applicant to be credible and while it follows that I do not accept him to be credible when discussing this claim I have nevertheless considered whether the applicant would suffer serious harm for reason of his membership of the particular social group ‘members of wealthy families in Sri Lanka’ ‘or children of business people’ or any similar formulation should he return to Sri Lanka now or in the reasonably foreseeable future.

    (CB 201-202)

18. Mr Baird then referred the Court to [92] of the Decision Record, where he argued that two findings were made by the Tribunal rejecting that claim.  The first finding was:

    92. …I find that there is not a real chance that the applicant would suffer serious harm for reason of his membership of the particular social group ‘members of wealthy families in Sri Lanka’ ‘or children of business people’ or any similar formulation should he return to Sri Lanka now or in the reasonably foreseeable future and that his fear is not well-founded.

    (CB 202)

    Mr Baird indicated that the second finding was:

    92. …I also accept that well off Sinhalese families would be able to access and receive state protection…

    (CB 202)

19. Mr Baird submits that there was a finding that no such harm would befall the applicant from which he would require state protection.  Mr Baird argued that once the claim that any harm would be feared in the first place is rejected, which is the factual premise that would have to be accepted in order for the claimed collusion allegation to have any relevance at all, it becomes unnecessary to consider state protection.  Mr Baird submitted that are two responses to this, the first being that the state protection claim in substance is dealt with, in other words, it does not arise.  Second, in regards to the comments in ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [47], where their Honours French (as he then was), Sackville and Hely JJ stated:

    …It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected…

20. Mr Baird submitted that the rejected premise is that there would be any harm feared by the applicant.  Mr Baird argued that there are numerous examples of the Tribunal understanding what is was rejecting when it rejected the applicant’s claims.  Mr Baird pointed out five examples in the Decision Record, where the Tribunal stated at:

    a)60. …The applicant responded that the police and the paramilitary groups are in the habit of watching people who have been to Australia and that included him…(CB 190);

    b)61. …The applicant said that the police and the paramilitary had told his wife to tell them if he ever returned to Sri Lanka…(CB 190);

    c)62. …I found it difficult to understand why his wife would have been taken there given that the paramilitaries who assisted the Sri Lankan authorities were Tamil…(CB 190);

    d)65. …He said that the paramilitaries harass people to get money…(CB 191); and

    e)66. …He said these paramilitary commanders were now Ministers in the Government. (CB 191)

21. Mr Baird argued that there is no dispute that the collusion claim was made and, as shown above, arose clearly on the material.  Mr Baird submits that when the Tribunal rejected the applicant’s evidence, the Tribunal must be taken to have understood that this claim was made and to have dealt with it when it rejected the entirety of the applicant’s evidence.  Mr Baird took the Court to Applicant WAEE (supra) at [47] where the Full Court stated:

    47.  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…

    Mr Baird submits that the claim was identified and dealt with by the Tribunal.

22. In rebuttal to Mr Jones’ arguments, Mr Baird addressed two points made.  First was the contention made by Mr Jones that there was no evidence on which the Tribunal made its finding that a wealthy Sinhalese family would be able to obtain effective protection from the mainly Sinhalese police and judiciary.  Mr Baird argued that this is not a no-evidence case; this is a case about a failure to consider a claim.  Mr Baird argued that the state protection issue could only arise if harm were found to be feared in the first place.   There was no allegation in the grounds of review that this finding was not open on the evidence or that it was irrational.

23. Second, Mr Baird sought to address Mr Jones’ contentions in respect of complementary protection.  Mr Baird submits that the Tribunal’s findings at [97] of the Decision Record (CB 203) are unaffected by any sort of error that could be considered to be jurisdictional error.  Mr Baird argues that what the Tribunal found was that in the context of complementary protection, it said:

    97. …I have considered whether there are substantial grounds for believing that there is a real risk that he will be targeted for reason of his family’s wealth for kidnapping or extortion.  For the reasons outlined in my consideration of this matter above, I do not accept that there are…

    (CB 203)

24. Mr Baird argued that in respect of whether there are substantial grounds for believing there is a real risk of any such targeting, the Tribunal in its Decision Record makes the express finding “I do not accept that there are [real risks that the applicant will be targeted]”.  Mr Baird submits that Mr Jones takes issue with the test applied by the Tribunal, his question, being should a different test be applied for effective protection under complementary protection as opposed to the Refugees Convention.  Mr Baird argued that no error arises because the Tribunal didn’t descend in its reasons to the level where the difference in the standard of test could possibly arise.  The Tribunal found that there was no risk of any harm in the first place, and having found that state protection would be available to the applicant (at [92] CB 202) then the Tribunal did not have to consider it further. 

25. It appears from the material, as it is recorded in the Tribunal’s Decision Record, that there was sufficient material upon which to support the making of a finding that the applicant’s claims lacked credibility.  That is so because of the various inconsistencies identified in the Decision Record and has also been addressed in Mr Baird’s submissions.  Consideration of the material in relation to the various inconsistencies highlighted by the Tribunal means that there was probative material from which it could be logically or rationally inferred that the applicant was not a witness of truth.  That was a conclusion which any rational or logical decision-maker could come to on the evidence before it:  Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611 per Crennan and Bell JJ at [130]. The Tribunal’s various and numerous findings relating to the applicant’s lack of credibility were all reasonably open to it on the evidence before it and the Tribunal gave reasons for this.

26. I now turn to the sole ground of review advanced by Mr Jones on behalf of the applicant, namely that the “Tribunal failed to give proper consideration to the full extent of the applicant’s claims”.  The question of whether failure to give proper and genuine consideration is jurisdictional error was considered by the High Court in  Minister for Immigration and Citizenship v SZJSS & Ors (2010) 243 CLR 164 at [23] – [30] where their Honours held per curiam:

    Was there jurisdictional error?

    23.  General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [13], "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions" is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin[14]:

    "The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

    24. In 1989 with the codification of migration policy the Migration Act was amended significantly. At that time, judicial review of migration decisions was conducted under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act").

    25. Grounds for review under s 5(1) of the ADJR Act include the ground that "the making of the decision was an improper exercise of the power conferred" by the relevant enactment. Section 5(2) provides that the reference to "an improper exercise of a power" includes a reference to "failing to take a relevant consideration into account", "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power", and "any other exercise of a power in a way that constitutes abuse of the power". Section 5(2)(f) identifies as a ground for review "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case". Section 6 provides further statutory grounds for review of conduct related to the making of decisions, which include a ground that the making of the proposed decision would be an improper exercise of power conferred by the relevant enactment.

    26. In Khan v Minister for Immigration and Ethnic Affairs, Gummow J considered a migration appeal brought in 1987, when such appeals were decided under the ADJR Act. His Honour construed an improper exercise of power as including a reference to an exercise of a discretionary power in accordance with a rule or policy, without regard to the merits of a particular case. His Honour found that in considering all relevant material placed before him, the Minister's delegate was required to "give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy." 

    27. On 1 September 1994, Pt 8 of the Migration Act was introduced. The new Pt 8 scheme for judicial review differed significantly from the provisions of ss 5 and 6 of the ADJR Act; it contained provisions which sought to exclude judicial review of migration decisions on numerous grounds, which included the grounds of failing to take relevant considerations into account and a breach of the rules of natural justice. Whilst recognising that statutory limits were then prescribed which bore upon the construction of improper exercise of power, in Minister for Immigration and Multicultural Affairs v Yusuf, McHugh, Gummow and Hayne JJ observed that jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power. 

    28. It is sufficient for present purposes to note that from October 2001, Pt 8 as discussed above was repealed and replaced with the current Pt 8, including the privative clause provisions of s 474, which do not protect decisions involving jurisdictional error or oust the jurisdiction conferred by s 75(v) of the Constitution.

    29. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs, the Minister accepted that a statutory provision requiring a Tribunal to give an applicant an opportunity to appear before it and give evidence implies that such evidence is to be given proper, genuine and realistic consideration. The Minister reiterated that position in this case.

    30. In Swift v SAS Trustee Corporation, Basten JA (with whom Allsop P agreed) noted Khan's case and said of the language of "proper, genuine and realistic consideration":

    "That which had to be properly considered was 'the merits of the case'. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review".

    (Footnotes omitted)

1. The Court was referred to the High Court decision in Minister for Immigration and Multicultural Affairs v Yusuf (supra), specifically the passage at [69] therein (which is extracted above at [58]). This authority was advanced in support of the submission that it can be inferred from the Tribunal’s Decision Record that it did not consider material, being the applicant’s claims about collusion between the police and the paramilitary groups. This was submitted to be failure on the part of the Tribunal to consider the claim of collusion and, as a result, failure to exercise its jurisdiction.

2. The other authority relied on by Mr Jones was Minister for Immigration and Citizenship v MZYYL (supra) which in his submissions emphasised the need of the decision-maker to focus on the applicant’s claimed harm or fear thereof, in order to determine the significance of that claim.  The source of that harm was the collusion between the police and paramilitary groups in placing adverse attention on his father’s construction business and the retention of labourers of Tamil ethnicity in their trucking operations which the applicant claimed the authorities suspected were transporting arms to rebel Tamil fighters.  The applicant claimed to be consequently involved in these alleged activities.

3. Significantly, the Tribunal acknowledged the central issue in the applicant’s claim in respect of his imputed political opinion was his employment by his father’s construction business.  At [84] of the Decision Record the Tribunal lists a number of issues that it accepts, however, continues:

   84. … I also note that the DIAC delegate in her decision placed considerable weight on that documentation and concluded that it was not possible for the applicant to have studied as claimed and to have worked for his father as claimed.  At the hearing I said that this called into question the credibility of the claims he made to have worked for his father during the period 2005 and 2008.  I gave the applicant an opportunity to comment or respond.  He responded at the hearing that he had worked on occasional weekends and holidays.  I do not accept that the applicant had any significant role to play in his father’s business while studying between 2005 and 2008.  I do not accept that he was stopped at a roadblock in 2005 and that the Tamil workers were detained. 

   (CB 199 at [84])

4. The Tribunal member again acknowledged and accepted that the applicant had been detained at a check-point in December 2008 together with published details of the Wattala bomb blast at about that time. However, the Tribunal placed a limit on the extent of the consequences of the event in the following finding:

   86.  …I do not accept that the applicant suffered any harm as a consequence of his being stopped at the checkpoint.  I do not accept that his being stopped in a city wide cordon and search operation aimed at suspected LTTE bombers would have caused him to have come to the adverse attention of the Sri Lankan authorities.  

   (CB 200)

5. The applicant’s claim in the current proceedings is that the Tribunal has not given any consideration to his claim about the collusion between the police and paramilitary groups, however, as the extracts above indicate, the Tribunal was not satisfied that the material advanced by the applicant supported the existence of circumstances to indicate the applicant was being intercepted and investigated by these bodies on any regular basis. 

6. In the case of the December 2008 incident the whole area of Colombo was under a city wide cordon and search operation.  It would have been unusual if the applicant had not been stopped by the authorities on that occasion, and for people of Tamil ethnicity, being the object of that operation, their detainment was not unusual.  More importantly no action was taken by the authorities against the applicant prior to this event in the period between 2005 and 2008. The Tribunal formed the view that the applicant was endeavouring to establish that he was routinely involved in his father’s building business, a part of which was the transportation of building material by truck accompanied by Tamil workers, where the verified information from the Australian High Commission indicated that the applicant was predominately involved in his education and was only participating in building activities on some weekends and during holiday periods.  The applicant did not make any claim or provide any evidence of regular interceptions by these authorities.  Consequently, the Tribunal did not accept this claim and the aspects that were not accepted are listed at [89] of the Tribunal’s Decision Record (CB 200-201) (see [68] above).

7. In the absence of any finding of a pattern of interception by the authorities there is an insufficient basis to initiate any enquiry into examination of a claim or suggestion that the police and paramilitary groups were working together to cause harm to the applicant.

8. On the material before the Court I am not satisfied that the pleaded grounds can be sustained and should be dismissed with costs.         

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  18 October 2013