SZSKE v Minister for Immigration
[2013] FCCA 969
•31 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSKE v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 969 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal failed to consider the process of investigation or interrogation upon arrival at the airport if the applicant was returned to Sri Lanka – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 48A, 414, 476 |
| SZQPA v Minister for Immigration & Citizenship & Anor [2012] FMCA 123 Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 SZQJH v Minister for Immigration and Citizenship [2012] FCA 297 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 Fang Wang v Minister for Immigration [2003] FCA 1044 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 DZACG v Minister for Immigration & Anor [2012] FMCA 377 Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 |
| Applicant: | SZSKE |
| First Respondent: | MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2990 of 2012 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 11 June 2013 |
| Date of Last Submission: | 11 June 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L J Karp |
| Solicitors for the Applicant: | Success Barristers and Lawyers |
| Counsel for the Respondents: | Mr M P Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 14 December 2012 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6471.00
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2990 of 2012
| SZSKE |
Applicant
And
| MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 14 December 2012, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 16 November 2012, which affirmed the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant.
The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia in March 2010, by boat and without travel documentation (Court Book – “CB” – CB 14). He made an application for a protection visa on 14 June 2012. [There was no issue before the Court concerning s.48A of the Act.]
Before the Court
Before the Court, Mr LJ Karp appeared for the applicant. Mr MP Cleary appeared for the respondent Minister.
The Application to the Court
The sole ground of the application to the Court raises one issue (noting that particular (a) was not pressed at the final hearing):
“1. The Tribunal failed to conduct a review pursuant to section 414 of the Migration Act.
Particulars
(a) Failure to consider the applicant’s claim that his father was thought to have assisted the LTTE.
(b) Failure to consider a claim that clearly arose on the materials before the Tribunal, that being that the applicant might be persecuted by the Sri Lankan police or CID in the course of their determining whether he might have LTTE connections.”
The applicant asserts in written submissions that the Tribunal failed to consider his evidence and submissions in relation to the question as to whether he may face persecution on return to Sri Lanka during the process undertaken by the Sri Lankan authorities to determine whether he has LTTE connections. That is, that there is a distinction between the outcome of any such process and the process itself (see SZQPA v Minister for Immigration & Citizenship & Anor [2012] FMCA 123 (“SZQPA”) per Judge Driver at [29]) and the applicant alleges that the Tribunal failed to consider the process in and of itself.
Background
Given the issue before the Court, it is important to note that the applicant’s argument before the Court was the claimed failure by the Tribunal to consider whether the interrogation and questioning of the applicant on arrival in Sri Lanka, with reference to the possibility of “future” persecution, would, in and of itself, amount to a well founded fear of persecution.
Understanding the nature, character and extent of the applicant’s relevant claims for protection is obviously central to the disposition of this case.
The applicant’s claims to protection were initially set out in his protection visa application and the attached statement signed by him (CB 1 to CB 58).
The applicant claimed to fear harm from the Sri Lankan army (and associated government agencies) because he was of Tamil ethnicity, of Hindu religion and “the fact that [his] father has disappeared…” ([3] at CB 47).
The applicant claimed that, in April 2008, his father travelled to the north of Sri Lanka and did not return. The applicant did not see his father again ([8] at CB 48).
The applicant also claimed that because his father did not return, his father did not register with the Sri Lankan authorities in Colombo as he was required to do. Further, he claimed the authorities were “suspicious” because his father did not return and they started to look for his father ([10] at CB 48).
The “suspicions” were said to be based on an assumption that the father had remained in the north of Sri Lanka and was involved in activities with the LTTE. That is, that he was supplying goods to the LTTE, utilising his transport business for that purpose. There was, at that time, a government “embargo” on such activities ([9] – [11] at CB 48).
The applicant claimed that, as a result, the Sri Lankan army started to follow him and other member of his family. They came to their house and asked questions about his father ([12] at CB 48).
The applicant claimed that, “around” April 2009, he was detained by the Sri Lankan army for two days during which time he was beaten and denied food. He “understood” that his family was suspected of supporting the LTTE ([13] at CB 48).
The applicant claimed that he was released after his uncle paid a bribe ([14] at CB 49). He subsequently went to Malaysia to seek protection, however, while he was in Malaysia, he did not register with the relevant international agency ([15] – [19] at CB 49).
After overstaying his Malaysian visa, he was located by the Malaysian authorities and deported to Sri Lanka ([20] at CB 49). He said that when he arrived at Colombo airport he was detained, interrogated exhaustively for a day and a half and was beaten by the “CID” (in context, Sri Lankan police or security authorities). He said that he “sensed they were scalding [him] for being Tamil and for running away from the country” ([20] at CB 49).
The applicant’s account was that his uncle, again, paid a bribe for his release ([21] at CB 49). His uncle subsequently arranged for his travel by boat to Australia via India ([24] at CB 50).
The applicant’s claimed fear on return to Sri Lanka was said to be that he would be detained, or killed, because “…I already have a record with the military and they know me and my family” ([27] at CB 50).
Before the Court the applicant drew attention to written submissions made on his behalf, by his representative, in support of his protection visa application (CB 59 to CB 72). In particular, (CB 62.8):
“Tamil men who have previously been suspected of LTTE involvement continue to be at risk of arbitrary arrest and detention. Even if you are inclined to conclude that [the applicant] would be ultimately released after a period of investigation by the CID, we submit, as per the Court’s reasoning below, that the very process of interrogation and detention itself will likely amount to serious harm under s 91R(2) of the Act.”
[Emphasis in original.]
The applicant also drew the Court’s attention to those parts of the representative’s submissions that referred to a number of “case studies” involving Tamil asylum seekers. In particular, and for example, CB 68.6 to CB 69.4:
“A March 2008 RRT Research response found that:
In fact rather than being supported on return, returning asylum seekers may instead be vulnerable to corrupt immigration officials or criminals. Hotham Mission has heard of at least two incidences wherein people returning were cornered into paying bribe money to immigration officials in order to pass through the airport unhindered. Abductions for ransom of wealthy business people are occurring nationwide, so people returning from overseas may be a target, as it will be assumed that they have money. (Emphasis added).
….
Furthermore, the Edmund Rice Centre wrote in 2010:
On the ground in Sri Lanka, the attitude held by the authorities is that any Tamil who fled the country in an unauthorized way must be an LTTE sympathiser, or if they are Singhalese, then they must be a traitor…On our most recent visit, we found that all asylum seekers returned to Sri Lanka in recent months, are handed over to the CID, the Sri Lankan Police, and taken into custody. Some are detained, some have been assaulted. One man who is still in jail has lost the hearing in one ear given the severity of the assault he suffered, and another has received damage to his sight.”
[Emphasis in representative’s written submissions. Footnotes omitted.]
Before the Court, the applicant also explained that the relevance of these “case studies” was that they showed that there was evidence before the Tribunal to support his representative’s submission that he would be in danger of harm upon arrival at Colombo airport, or even “immediately thereafter”, whether or not he was actually suspected of LTTE association. That is, that he would be at risk of such harm during the process of investigation and interrogation.
The Minister’s delegate refused the application for a protection visa on 23 August 2012 (CB 85 to CB 111). Before the Court, the applicant drew attention to the following parts of the delegate’s record:
1)CB 88.2:
“●CX291271: SRI LANKA: SEP campaigns in a Sri Lankan fishing village, World Socialist Web site (WSWS), 9 February 2009”
2)CB 101.6:
“While Udappu is nowhere near the frontlines of the civil war, the conflict nevertheless reaches into every aspect of life. As Tamils, the fishermen are automatically treated by the security forces as supporters of the LTTE and suspected of smuggling. Heavy restrictions have been place on their fishing activities, leading to a loss of income. Locals are subject to constant harassment by police and military personnel who conduct frequent sweeps through the village. Over the past year, several people have been murdered or abducted-in all likelihood by military-sponsored death squads that have killed or ‘disappeared’ hundreds throughout the island [CX291217].”
The applicant asserted that those parts provided a reason as to why the Sri Lankan authorities may wish to investigate him on return to Sri Lanka. That is, that they “inform the environment” at the airport at Colombo.
Although the applicant did not take the Court to it, what is also relevantly found in the delegate’s decision, and is of interest, is the following (CB 106):
“I have considered whether the ‘process of detention and interrogation would expose the applicant to a risk of serious harm amounting to persecution, having regard to the country information available to him about the arbitrary nature of detentions occurring, of human rights abuses during detention and interrogation and of the impunity of those responsible’ and conclude that he would not face a real chance of persecution for this reason on return to Sri Lanka. That is because I have found that the applicant does not possess and will not be found to possess a real or imputed LTTE profile of any kind. He will be one of those who are screened but are ‘safe’ in words of the Temple University adjunct professor [LKA103815.E].”
[Emphasis omitted.]
Ultimately, the delegate found that the applicant was not owed protection under any criterion in s.36(2) of the Act (CB 111).
The applicant sought review of the delegate’s decision by the Tribunal on 29 August 2012 (CB 112 to CB 118). He continued to be represented (CB 112). The applicant, with his representative, attended a hearing before the Tribunal (CB 142). The Tribunal found that the applicant was not owed protection obligations by Australia. The imputed parts of the Tribunal’s decision are considered below.
Consideration
The applicant’s ground asserts that the Tribunal failed to conduct the review pursuant to s.414 of the Act because it failed to consider a claim that clearly arose on what was before it. That claim was that the applicant might be persecuted by the Sri Lankan authorities on return, during the course of them determining whether or not he had LTTE connections.
It is the case that such a failure, if found, may be revelatory of jurisdictional error (Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, see also SZQJH v Minister for Immigration and Citizenship [2012] FCA 297 per Rares J at [32] – [34] for a review of relevant authorities).
Three further matters require exposure before considering the Tribunal’s analysis to see if it addressed the matter of whether the applicant may be persecuted by the Sri Lankan authorities in the course of determining whether he had LTTE connections.
First, as the applicant submitted, “firm” regard must be had to what the High Court said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [30] and the reference there to Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280. That is, that a Tribunal’s decision record is “...not to be construed minutely and finely with an eye keenly attuned to the perception of error”. In light of this, however, a “fair” reading of the Tribunal’s reasoning does not mean that any ambiguity can simply be excused (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9). Further, the Tribunal’s language used in expressing its reasoning is not to be construed other than what it intends to mean (Fang Wang v Minister for Immigration [2003] FCA 1044 at [15]).
Second, given the applicant’s argument in the current case, it is well to be reminded that the relevant test as to a well founded fear of persecution is a forward looking test. However, any suggestion in the applicant’s submissions that the past is irrelevant must be rejected. While of course the test looks to the future, it is well established that the past can help inform the possibility of “future” persecution (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559, Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 and Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510).
Third, it must be said that, in the circumstances presented by the applicant to the delegate and then the Tribunal, I have some difficulty in seeing the applicant’s submissions as to what may “inform the environment” at Colombo airport (see [19] – [23] above) as being any thing more than the advancement of an argument now in relation to the merits of his claim to protection. Whether that claim was advanced additionally before the Tribunal is dealt with below.
The applicant attempts to link claims relating to Tamil fisherman in the north of Sri Lanka, his father’s transport business and his own origins in the north of Sri Lanka with what he says is likely to happen to him, on arrival, at Colombo airport. What was left expressly unexplained however, both before the Tribunal and the Court, was how these elements in the applicant’s case could “inform the environment” at Colombo airport. Indeed, what was also left without satisfactory explanation before the Court was what was exactly meant by the phrase “inform the environment.”
It is the case that the delegate found that “the applicant’s father worked in an aspect of the fishing industry” (as did the applicant “for a while”) (CB 101.8). The Tribunal found that the applicant’s father “had a transport business” transporting goods between the northern district of Sri Lankan and Colombo ([48] at CB 173). Further, that the “applicant worked in his father’s transport business locally around Chilawa [the applicant’s home village] from 2007 until he went to stay with his uncle in about April 2008” ([49] at CB 173).
At best for the applicant, therefore, it appears that the suggestion is that the country information (see [22] above) could have formed the basis for saying that Tamil fishermen are “automatically” treated by the Sri Lankan security forces as supporters of the LTTE (CB 101.6). The applicant’s father, and at some time the applicant, were involved in transporting fish and were, therefore, in some way linked to the Tamil fishermen. It must be said that this has elements of seeking to construct now, before the Court, an argument as to the merits of the applicant’s claims that should have been put to the Tribunal. Any lack of clarity and definition in the representative’s written submissions to the Tribunal, in this regard, cannot be remedied now.
It may also be that, by referring the Court to these matters, the applicant sought to draw some factual parallels with the situation in SZQPA (see further below at [43] ff).
The applicant relies on SZQPA (per Judge Driver) at [29]:
“In my view, the error in the Reviewer’s approach was to focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role. It would be arguably possible to characterise the error as a failure to address part of the applicant’s claims, or as a finding for which there was no evidence or which was illogical or irrational or as a failure to have regard to relevant evidence. Those grounds are, however, pointers to the real problem. The real problem was that, except in relation to the issue of arms caches, the Reviewer focused on the ultimate outcome of interrogation and detention rather than the process of detention and interrogation itself.”
Justice Gilmour rejected the Minister’s appeal in that case (Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 “SZQPA (FCA)”). In SZQPA, at first instance, the Court found that the Independent Merits Reviewer had asked the wrong question in directing his attention only to whether the applicant in that case was suspected of being an LTTE supporter by the Sri Lankan authorities.
On appeal, the Court saw the applicant’s fear of persecution as (SZQPA (FCA) at [39] per Gilmour J):
“… being questioned as someone suspected of supporting or having an association with the LTTE, a fear emanating from the accepted facts of the killing of two of his brothers and the detention and disappearance of another two of his brothers all at the hands of the Sri Lankan Army; his actual assistance given to the LTTE which would be known to the authorities; his coming from an area once under the control of the LTTE; the recent detention and interrogation of his son who was asked as to his whereabouts; and the established practice of torture and ill-treatment of those merely suspected of an involvement with the LTTE.”
Justice Gilmour agreed with Judge Driver that the decision maker had asked the wrong question (SZQPA (FCA) at [45]):
“… namely, whether the first respondent would be at risk of serious harm from State authorities assuming he was not an active member of the LTTE. The question he should have asked in light of the claims made by the first respondent and the country information which he had was whether he was at risk of serious harm from State authorities by reason of his imputed political opinion if he was “suspected” of having links or an association with the LTTE.”
The proposition, which is obviously binding on this Court (given the appeal and the superior Court’s decision), is that, in considering the likelihood of persecution in the future, there is a distinction to be drawn between the process of interrogation, and any attendant conduct by authorities in the country of claimed persecution, and the outcome of any such process. That is, for example, could any detention, interrogation, beatings and the like amount to serious or significant harm.
In considering whether that occurred in the current case, it is of assistance to note a judgment of this Court, handed down before the appeal in SZQPA (SZQPA (FCA) was handed down on 20 September 2012). That is, DZACG v Minister for Immigration & Anor [2012] FMCA 377 (“DZACG”) per Judge Raphael. In that case, the Court proceeded on the basis that the proposition in SZQPA was correct. However, Judge Raphael proceeded to distinguish SZQPA from the circumstances in DZACG.
As noted above, it may be that the applicant in the current case sought to emphasise the village from which his family came, his Tamil ethnicity, the connection with Tamil fishermen, his other claimed activities and his father’s disappearance to draw on the similarity with the circumstances found in SZQPA. In that case, the decision maker accepted that the applicant’s four brothers were imputed with an association with the LTTE and that the applicant had spent considerable time in LTTE controlled areas and would be seen as a returned asylum seeker (SZQPA at [25]). Further, in that case the decision maker found that the applicant was at a high level of risk of being suspected of being an LTTE supporter.
In the current case, the Tribunal accepted some of the applicant’s claims as to past events to such an extent that the applicant has been able to, at least, raise an arguable case for the relief that he seeks.
The Tribunal understood the applicant’s claim to fear persecutory harm if he were to return to Sri Lanka on the basis of his Tamil ethnicity, his father’s activities (which were perceived to be pro-LTTE) and his own mistreatment by the Sri Lankan authorities in the past because of his father’s perceived connection with the LTTE ([37] at CB 171).
The Tribunal also understood that the applicant additionally claimed to fear harm because he would be viewed as a returned asylum seeker of Tamil ethnicity. Further, that he was a Tamil returnee who had previously been deported from Malaysia and, even further, that he had previously been detained and was known to the Sri Lankan authorities ([38] at CB 171).
In relation to this, the Tribunal specifically referred to the applicant’s claim that ([38] at CB 171 to CB 172):
“…he will be detained and investigated and ill treated at the airport on arrival in Sri Lanka and also be at risk of further harm in Sri Lanka after he leaves the airport. It is also submitted that in addition to being detained, questioned and handed over to the Terrorist Investigation Department and/or the CID at the airport, the applicant will be asked to pay a bribe amounting to extortion.”
This is not a case, therefore, where the Tribunal can be said to have overlooked, or misunderstood, a claim made, or any integer of a claim.
The applicant argued that his representative before the Tribunal made written submissions, with reference to evidence, that the applicant may be persecuted in the course of determining whether he had LTTE connections (see the representative’s written submissions at CB 62 to CB 63, the “case studies” at CB 146 to CB 150, the specific reference in the submissions to SZQPA and the country information in the delegate’s decision as set out above at [22] and [24]).
Any suggestion that the Tribunal ignored the representative’s written submissions, in the sense of failing to acknowledge or having overlooked them, must be rejected. The Tribunal specifically recorded that the submissions were made (see [27] at CB 168 to [31] at CB 169).
Importantly, the Tribunal made specific references to elements in those written submissions that went to the process of determining whether the applicant had LTTE connections (as opposed to simply the outcome of that process).
The Tribunal said:
1)Paragraph 28 at CB 169:
“It is submitted that the applicant has a heightened and continuous risk of being investigated and suffering harm both during arrival at the airport and afterwards in Sri Lanka because of his prior history of arrest and detention in Sri Lanka and because he had been deported to Sri Lanka in the past…”
2)Paragraph 29 at CB 169:
“It is submitted that country information, which is referred to, supports the conclusion that there is an ongoing risk for Tamils accused of LTTE affiliation and also former detainees; there continues to be a risk of arbitrary detention and arrest including pursuant to the Prevention of Terrorism Act and torture and ill treatment of Tamils with an actual or perceived association with the LTTE.”
3)Specifically in reference to the “process”, at [30] at CB 169:
“It is submitted that there is a real chance that the applicant will be interrogated, detained and possibly tortured on arrival in Sri Lanka as a failed asylum seeker of Tamil ethnicity. Country information is cited in relation to risk factors which would increase the likelihood of a person being detained at the airport on arrival in Sri Lanka, including Tamil ethnicity, actual or perceived association with the LTTE, previous criminal record, illegal departure from Sri Lanka, having made an asylum claim abroad. It is submitted that in addition to being detained, questioned and handed over to the Terrorist Investigation Department, the applicant will be asked to pay a bribe amounting to extortion; relevant country information is referred to.”
The reference in the Tribunal’s “Findings and Reasons” at [38] (at CB 171, see [47] above) must be read, fairly, as having been said in the context of these written submissions. That is put beyond doubt when regard is had to what the Tribunal said in the next paragraph (“Although in submissions from the applicant’s adviser it is submitted….” – [39] at CB 172).
The Tribunal’s subsequent reference to country information also reveals it was focussed, amongst other things, on this aspect of the applicant’s claim (and his representative’s written submissions). See [42] at CB 172:
“In the Tribunal’s opinion country information consulted by the Tribunal and referred to above, in relation to the situation for returned Tamil asylum seekers, is, in some respects, inconsistent. Although advice from the UK and Danish governments for example appears to indicate that returnees may be routinely questioned, it is concluded that Tamils are not at any particular risk unless they are suspected of having a connection with the LTTE. At para of13.1 of Home Office UK Border Agency, Sri Lanka Policy Bulletin, issued October 2012, it states, The Agency does not accept that Tamils in general would be at risk on return to Sri Lanka. This position was also supported by Mr Justice Wilkie at the injunction hearings for the September charter flight. It is noted that the FCO reported that two returnees on the flight of 19 September [see section 9.2.4] were detained for suspected LTTE links by the Sri Lankan authorities on arrival, but were released within four hours of the other returnees departing from the airport. The Tribunal accepts however that there is also some information from human rights organisation, including that referred to in the UK Border Agency, Sri Lanka Policy Bulletin, issued October 2012, which indicates that some Tamil returnees have suffered harm on return to Sri Lanka.”
[Emphasis added.]
The Tribunal accepted the applicant’s factual assertion as to a “process” on return, as expressed in the representative’s written submissions to it ([43] at CB 172 to CB 173):
“Having regard to the country information about returned Tamil asylum seekers that the Tribunal had consulted the Tribunal accepts the applicant’s claims that some Tamil asylum seekers returning to Sri Lanka have suffered serious harm on return to that country. The Tribunal accepts that Tamil returnees to Sri Lanka are often questioned and screened on their return to Sri Lanka and accepts that those considered to be supporters of, or affiliated with, the LTTE may be at risk of harm….”
[Emphasis added.]
The Tribunal made it clear that there was country information that “generally” supported the applicant’s claim in that regard ([44] at CB 173). However, and importantly (given the ground before the Court now), the Tribunal sought to distinguish the applicant’s personal circumstances (as accepted by it), from the “generality” expressed in the country information.
It is here that what is set out above at [31] is particularly relevant. The Tribunal accepted some of the applicant’s factual claims as to past events (see [45] at CB 173 to [51] at CB 174). These included the applicant’s ethnicity, his place of birth, his residence, for a period of time, in northern Sri Lanka and his travel to, and subsequent deportations from, Malaysia in 2009. Further, that his father had had a business transporting goods between the north of Sri Lanka and Colombo, that his father went missing, that he worked in his father’s business in the north of Sri Lanka until April 2008 and that his mother and sister continued to live in northern Sri Lanka, apart from some months in the east of Sri Lanka.
However, the Tribunal did not accept the following assertions and claims made by the applicant and his representative on his behalf. The Tribunal did not accept as true:
1)That the applicant’s mother and sister temporarily left the north of Sri Lanka because they did not feel safe there for the reason the applicant gave (visits by the army) ([51] at CB 174).
2)Paragraph 52 at CB 174:
“…that the Army/authorities in Sri Lanka are interested in the applicant because they suspect he has LTTE connections as he claims, including because of his association with his father who went missing.”
3)That the applicant’s family members in Sri Lanka were “having difficulties” with the Sri Lankan authorities ([52] at CB 174).
4)That the applicant was detained by the army as he claimed, or that he left Sri Lanka for Malaysia, and then Australia, “for the reasons that he claimed” ([53] – [54] at CB 154).
5)The applicant’s “claims about his father and his claim he was detained” and “as true the reasons he went to Malaysia was to seek protection there…” ([55] at CB 175). [There is a distinction between the claims that the father had a transport business, that the father went missing and that the applicant did not know what happened to him, and the claimed harm suffered by the applicant, in past, as he said because of this.]
6)Further, [56] at CB 175:
“…that the applicant left his country, including when he left Sri Lanka to come to Australia via India, for the reasons that he claims, namely because he was of interest to authorities because he was suspected of having LTTE connections due to his father’s work and disappearance…”
7)Paragraph 56 at CB 176:
“…In the Tribunal’s view the applicant did not incur serious difficulties exiting and/or re entering his country on the occasions that he did so; in the Tribunal’s view this is not consistent with his claims that he is of interest to authorities in Sri Lanka because he is suspected of being connected with the LTTE…”
8)Even further, [56] at CB 176:
“…Although the Tribunal accepts that the applicant was questioned at the airport on re entry to Sri Lanka at the end of 2009 and suffered some harassment there at that time it does not accept that he suffered serious or significant harm on re-entry to Sri Lanka or thereafter…”
The parties before the Court each urged a different reading of [57] (at CB 176) of the Tribunal’s decision record:
“Having regard to the country information consulted by the Tribunal, it accepts that Tamils returning to Sri Lanka from overseas countries, including Tamil asylum seekers from western countries, are questioned and sometimes investigated and some suffer harm and harassment on their return to Sri Lanka if they are perceived to be connected with or assisting the LTTE in either Sri Lanka or in an overseas country. The Tribunal accepts that the applicant being a Tamil male returnee from overseas/Tamil male who is a failed asylum seeker could be questioned and encounter some harassment on return to Sri Lanka, but it does not accept that the applicant will suffer harm amounting to serious or significant harm on return to Sri Lanka for the reasons that he claims…”
The applicant said that the Tribunal did not address the question of whether the applicant would suffer serious harm on return in the course of interrogation by the Sri Lankan authorities to discover whether he had LTTE connections. Before the Court, the applicant emphasised that while the Tribunal may have addressed the outcome of any interrogation, it did not focus on the “time gap” between his arrival at Colombo and the outcome of the process of interrogation. One indicator of this was said to be that the Tribunal focussed exclusively on past events and did not look to the future.
First, it must be noted that the Tribunal’s findings as to the past claimed events were all reasonably open to it on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). In any event, the applicant makes no such complaint before the Court.
Second, it must be accepted that past events, as accepted by the Tribunal, can help to inform the likelihood of future harm. To that extent, it is important to note the Tribunal’s findings that the applicant did not suffer serious, or significant, harm in the past when he
re-entered Sri Lanka. In context, that is relevant to the applicant’s claim relating to what may “inform the environment” at the airport in Colombo.
On balance, I accept the Minister’s submissions that, unlike in SZQPA, the Tribunal was not just focussed on the outcome of what would occur on arrival but included in its consideration the “process”.
The Tribunal’s reasoning here was tolerably clear. The Tribunal found that it is those Tamils who have perceived links with the LTTE who, on return, would suffer harm and harassment at the airport or soon thereafter. The phrase “on their return” allows for the focus on the “time gap” (the questioning at the airport) that the applicant says that the Tribunal did not focus on.
The use of the phrase “on return” in the second sentence in [57] (at CB 176) is to similar effect. The first sentence makes clear that those Tamils from overseas sho are perceived to be connected with, or assisting, the LTTE will be questioned and sometimes investigated. Further, that those who are perceived to have LTTE connections may suffer harm and harassment “on their return” to Sri Lanka.
In the applicant’s circumstances, the Tribunal found that, consistent with what would happen, generally, to other Tamil returnees, the applicant may be questioned and even harassed. However, in light of its findings about past events, the Tribunal came to the view that, unlike other returnees who are perceived to have LTTE connections, the applicant would not be so perceived and he would not, therefore, suffer serious, or significant, harm during the process of being questioned, which might even include harassment.
That the Tribunal had focused on what would likely happen at the airport on return is also shown with the reference to [58] (at CB 177):
“…Nor does the Tribunal accept, on the evidence before it, including the country information, that there is a real chance or a real risk that the applicant will suffer extortion at the airport on his return to his country, or thereafter, as is claimed in the applicant’s adviser’s submissions.”
Again, the reference to the representative’s written submissions reveals that the Tribunal was attuned to what the representative had relevantly submitted.
The applicant’s argument that the Tribunal only focused on past events is not made out. At [59] (at CB 177) the Tribunal made clear its focus was the application of the correct test (“…either now or in the reasonably foreseeable future…”). That the Tribunal relied on past events to inform the future does not reveal jurisdictional error.
In all, the gravamen of the Tribunal’s analysis is that a returnee of Tamil ethnicity would only be subject to serious, or significant, harm on return to Sri Lanka if they were suspected of having some LTTE connection. That is, the process of interrogation, or investigation, at the airport in Colombo would only rise to serious, or significant, harm if such a perception existed. The Tribunal found that the applicant would not be so perceived. That was reasonably open to the Tribunal on what was before it and for which it gave cogent reasons. No legal error is revealed in these circumstances.
Conclusion
The sole ground of the application to the Court has not been made out. In light of that, it is appropriate that the application to the Court be dismissed. I will make an order accordingly.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 31 July 2013
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