SZSMN v Minister for Immigration

[2013] FCCA 604

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSMN v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 604

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – whether Tribunal failed to put matters to the application – whether the decision was made on no evidence – whether the Tribunal assessed the applicant’s claims in relation to complementary protection – whether the decision was irrational and illogical – applicant advanced various oral complaints at the hearing – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 424A, 424AA, 425, 425A, 426A, 441A, 441C, 441G, 476
Migration Regulations 1994 (Cth), r.4.35D

Minister for Immigration & Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415
SZFWB v Minister for Immigration & Citizenship [2007] FCA 167
VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350
WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Sutharsan Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
SZOYU v Minister for Immigration & Anor [2012] FMCA 316

Applicant: SZSMN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 43 of 2013

Judgment of: Judge Nicholls

Hearing date: 17 June 2013

Date of Last Submission: 17 June 2013

Delivered at: Sydney

Delivered on: 27 June 2013

REPRESENTATION

The Applicant: In person

Appearing for the Respondents: Mr R Baird

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 14 January 2013 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,200.00

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 43 of 2013

SZSMN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 14 January 2013, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 11 December 2012, to affirm the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

Background

1. The applicant is a citizen of Sri Lanka of Tamil ethnicity (Court Book – “CB” – CB 3 and CB 110.3). He arrived in Australia as an “irregular maritime arrival” (CB 1 to CB 15). On 5 July 2012, with the assistance of representatives (item 16 at CB 31 and CB 75 to CB 77), the applicant applied for a protection visa (CB 24 to CB 100, including attachments).

2. The applicant provided various documents in support of that application, including a Statutory Declaration in which he set out his claims to protection (CB 87 to CB 92). Relevantly, the applicant claimed that:

   1)While studying at a “Technical College” which was only attended by “Hindu and Muslim Tamils”, he was told by police officers that he was required to attend a political demonstration in support of his country and in “solidarity” with the Mayor of his district ([5] – [6] at CB 87). The applicant did not attend that demonstration ([7] at CB 87).

   2)The following morning, four armed police officers came to the applicant’s home and “demanded” that he accompany them to the police station ([9] – [10] at CB 88). The applicant went with them to the “main police station” in his district ([11] at CB 88).

   3)On arrival at the police station, his wallet was taken and he was placed in a “cell” ([12] at CB 88). He was subsequently interrogated (again by four police officers) as to his “alleged involvement with the LTTE” ([13] at CB 88). The applicant was also physically assaulted by the police officers ([16] – [19] at CB 89).

   4)The applicant was released the following afternoon, however he “could hardly walk” ([22] at CB 89). He was told by a police officer to attend a public demonstration that was occurring on that day ([23] at CB 89). Because of his “physical state”, the applicant did not attend that demonstration ([24] at CB 90).

   5)The applicant’s parents were concerned for his safety and, as a result, he spent the night at his aunt’s home ([25] at CB 90). While there, his brother telephoned to tell him that the police, as well as “a group of men in plain clothes”, had come looking for him ([26] – [28] at CB 90).

   6)The applicant fled the next morning to Colombo and decided he had to leave Sri Lanka ([29] – [31] at CB 90).

   7)The applicant feared that if he returned to Sri Lanka he would “suffer significant harm including arrest, detention, torture and death” ([33] at CB 91), specifically from the Sri Lankan authorities ([34] at CB 91). That was said to be because of his race and imputed political opinion ([35] at CB 91).

The Delegate

1. The applicant attended an interview with the Minister’s delegate. Following that interview, the delegate found that the applicant was not a person to whom Australia owed protection (CB 125).

2. The delegate was not satisfied “on the whole” that the applicant was a reliable witness, nor that “he was recalling evidence from within his personal experience” (CB 111.6). Given the “strong inconsistencies” in the applicant’s evidence, and the delegate’s adverse credibility finding, the delegate was not satisfied that the applicant was of “ongoing interest to the Sri Lankan authorities”.

3. In light of that finding, the delegate was not satisfied that the applicant met the criterion at s.36(2)(a) of the Act for the grant of a protection visa on the basis of his race or his imputed political opinion (CB 120.5 to CB 121.3). Nor was the delegate satisfied that the applicant faced a real risk of serious harm as a returning “failed asylum seeker” (CB 121.5).

4. The delegate then turned to consider the complementary protection criterion in s.36(2)(aa) of the Act. However, the delegate was not satisfied that the applicant faced a real risk of significant harm (CB 123 to CB 124).

The Tribunal

1. On 30 August 2012 the applicant applied to the Tribunal for review of the delegate’s decision (CB 126 to CB 156). He continued to be represented, albeit by a different migration agent. The migration agent who represented the applicant before the Tribunal, was also a lawyer (CB 129). The applicant was invited to attend a hearing before the Tribunal, scheduled for 23 October 2012 (CB 169 to CB 171). The applicant, and his representative, attended that hearing (CB 203 to CB 205).

2. Prior to that hearing, on 19 October 2012, the applicant’s representative provided written submissions to the Tribunal (CB 181 to CB 202). Those submissions reiterated the applicant’s claims, as well as responded to the delegate’s decision. Following the hearing, on 23 October 2012, the applicant’s representative provided further supporting documents to the Tribunal (CB 206 to CB 218).

3. On 11 December 2012, the Tribunal decided to affirm the delegate’s decision (CB 223). The Tribunal’s findings and reasons were set out in its decision record ([53] at CB 234 to [70] at CB 238), a copy of which was provided to the applicant by letter addressed to his representative, and dated 11 December 2012 (CB 219).

4. The Tribunal found that the applicant had not “provided a truthful account of events” ([54] at CB 234). In support of this finding the Tribunal noted various “contradictions” in the applicant’s evidence ([54] at CB 234 to [60] at CB 235). As a result of its adverse credibility finding, and rejection of the applicant’s claims regarding his

   
   

   non-attendance at the protest and subsequent arrest, interrogation and physical assault, the Tribunal was not satisfied that the applicant had a well founded fear of harm for a Refugees Convention reason ([61] at CB 235). Further, the Tribunal was not satisfied that the applicant faced a real risk of serious harm if returned to Sri Lanka by reason of his ethnicity as a Tamil ([62] at CB 235 to [64] at CB 236).

5. Despite rejecting the applicant’s factual claims as to the protest and his arrest, the Tribunal considered whether the applicant’s “background” resulted in his having an “actual or imputed political opinion as an LTTE supporter and/or anti-government supporter” ([65] – [66] at CB 236). The Tribunal rejected that claim, including the claim that the applicant would be imputed with such a political opinion if he were to be returned to Sri Lanka as a failed asylum seeker ([66] at CB 236).

6. Similarly, and with reference to country information, the Tribunal was not satisfied that the applicant faced a real risk of serious harm “...due to his membership of a particular social group, being a failed asylum seeker and having exited Sri Lanka illegally” ([67] at CB 237).

7. Having found that the applicant did not satisfy the Refugees Convention criterion for the grant of a protection visa (s.36(2)(a) of the Act), the Tribunal considered whether the applicant met the complementary protection criterion (s.36(2)(aa) of the Act) ([69] at CB 237 to [70] at CB 238). The Tribunal was not satisfied that the applicant faced a real risk of significant harm if he was to return to Sri Lanka ([70] at CB 237 to CB 238).

Application to the Court

1. The grounds of the application to the Court are as follows:

   “1. The Refugee Review tribunal constructively failed to exercise it’s powers and thereby is in breach of ss 424 (A) and (AA) of the Migration Act of 1958.

   Particulars

   A part of the decision given by the Refugee Review Tribunal was not given to the Applicant for comment and therefore the Applicant is still unclear as to the issues of the decision.

   2. The Refugee Review Tribunal based it’s decision on purported evidence which does not exist.

   Particulars

   The credibility finding against the Applicant involving a wallet was based on no evidence. The applicant intends to provide transcript of Entry and Refugee Status Determination interviews.

   3. The Refugee Review Tribunal constructively failed to assess the claims of the Applicant under the complementary protection obligations as a prospective failed asylum seeker returning to Sri Lanka in light of the country information.

   Particulars

   The Applicant fears that he will be tortured and mistreated by the Sri Lankan authorities on return to Sri Lanka as he embarked on the journey to Australia by boat.

   4. The RRT made a decision to it’s satisfaction but the decision is illogical and unreasonable.

   Particulars

   The RRT made it’s decision on the wrong premise that four persons would not be necessary to arrest a single person.”

   [Errors in the original.]

Before the Court

1. At the first Court date in this matter the applicant appeared in person and was assisted by an interpreter in the Tamil language.

2. At that time I explained to the applicant that the Court could not consider whether he should be granted a protection visa. Rather, the Court was concerned with whether, in coming to its decision, the Tribunal had made a particular error of law (jurisdictional error).

3. On that occasion the applicant had indicated his willingness to participate in the Court’s “RRT Legal Advice Scheme”. In light of that, I urged the applicant to attend, and listen carefully, to the lawyer on the panel of that scheme assigned to assist him. I note a Certificate on the Court’s file from that panel lawyer, certifying that he met with the applicant and provided him with written advice.

4. Further, orders were made providing the applicant with the opportunity to file an amended application, and any evidence in support. Nothing further has been put by the applicant before the Court.

5. At the final hearing, the applicant again appeared in person and was assisted by an interpreter in the Tamil language. Mr R Baird appeared for the respondent Minister.

Consideration: The Applicant’s Complaints

1. The applicant confirmed that he was ready to proceed with the final hearing of his case. He raised the matters set out immediately below. Although he made no attempt in submissions to link these to the grounds of the application, it is clear that, in some part, they are referrable to those grounds.

2. The first matter is that the applicant made a general complaint that the Tribunal “did not consider certain points” in his case. This was further explained as being with reference to the way the Tribunal dealt with the email address (on a letter from the college in Sri Lanka) and its claimed failure to give the applicant an opportunity to explain that email address.

3. As set out above, the background to this complaint is as follows. The applicant’s claim, as presented to the Tribunal, was that he was a student at a particular college in Sri Lanka (attended by ethnic Tamil students) and that police had attended and ordered them to attend pro-government “demonstrations”. (More accurately perhaps, “rallies” in support of the government).

4. At the hearing, the Tribunal asked the applicant about his attendance at the college (see [24] at CB 227). The applicant gave certain evidence in this regard. The Tribunal referred to a letter from the college submitted by the applicant through his representative to the Tribunal (see CB 209 for the copy of the original letter and CB 214 for the translation).

5. The Tribunal’s account of the hearing records the following ([24] at CB 227):

   “…The Tribunal raised that the e-mail address was different from the e-mail address that the Tribunal had sourced from the College website. The tribunal asked the applicant if he would like to comment. The applicant said this was a letter that had been given to him by the college. When asked who had signed the applicant said it was Vice Principal ‘Vigayajh’.”

6. In its analysis the Tribunal put forward seven reasons in support of its finding that the applicant had not provided a truthful account of events in Sri Lanka (see [54] at CB 234 to [60] at CB 235). In relation to the email address matter the following is relevant ([55] at CB 234):

   “Secondly, the applicant said that he did not attend the protest because his exams where in four months and he was concerned that members of the TNA may see him. This reasoning is weak when compared with a direction from the police to attend. [On a related point, the tribunal has given very limited weight to the letter allegedly from the applicant’s college stating that he was in attendance on the 17 March 2012. This is because the email address is different to that found on the college website (as raised by the member during the hearing), and the signature is illegible. In addition, although the agent was asked to forward an email chain to the tribunal, the origin of the email from the applicant’s ‘representative’ providing by the agent and accompanying the letter from Batticaloa Technical College does not identify who sent the email to the agent, apart from listing Sivaganam Kavishanth at Gmail, and the bottom of the page outlines a confidentiality clause referring to Fragomen (Australia). This does not support a finding that the email was sent from an independent source in Sri Lanka.]”

7. Before the Court, the applicant did not link this complaint to any of his grounds. In any event, the following stands in answer to his complaint.

8. One, contrary to his assertion now, the Tribunal did give the applicant the opportunity at the hearing to comment specifically on what it said was the discrepancy between the email address as it appeared on the letter and what the Tribunal obtained from the college website (see further below in relation to s.424A and s.424AA of the Act).

9. Two, it is important to note the Tribunal’s actual finding in relation to the letter from the college, and the email address on that letter, was but one part of the seven grounds for finding adversely to the applicant’s credibility.

10. In essence, the Tribunal’s relevant finding in relation to the letter was that it gave “limited weight”, for the reasons it gave at [55] (at CB 234) of its decision record (see [26] above), to the letter. The weight to be attributed to a piece of evidence is for the Tribunal. No relevant legal error is revealed where the Tribunal’s assignment of weight was open to it on what was before it and for which it gave reasons (Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164, NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (“WAEE”)).

11. Before the Court, the applicant complained that the Tribunal had relied on the fact that there was nothing to show who had emailed the letter from the college to the applicant’s representative (see [55] at CB 234). Again, no legal error is revealed in circumstances where the Tribunal gave the applicant’s representative the opportunity to provide evidence of the relevant “email chain”. That the Tribunal found “deficiency” in what was provided does not reveal error in circumstances where this was reasonably open to the Tribunal to so find.

12. The second matter about which the applicant complained to the Court was that the Tribunal proceeded to a particular conclusion having misunderstood his evidence. This is explained with reference to [58] (at CB 235):

    “On a fifth point, the applicant said that during the period he was apprehended he was threatened, beaten, kicked, had his face held to an exhaust pipe of a car, and was threatened with a gun due to his having missed the demonstration, and that he was instructed to attend a further demonstration on the day of his release. Despite reporting this behaviour by the police, when asked to describe the resulting injuries that he received, the applicant reported pains in the head and stomach, (but did not report things such as broken bones, fractures, and/or a burn on the face from the exhaust pipe). The applicant’s explanation of his resulting injuries does not match his evidence regarding his treatment in detention. This again raises doubts as to the truthfulness of the submissions.”

    The applicant’s complaint is that he did not tell the Tribunal that his face was burned by the exhaust pipe.

13. As the Minister submitted, the Tribunal did not misunderstand the applicant’s evidence. The applicant told the Tribunal at the hearing (and he made no complaint to the Court that the Tribunal misunderstood him here) that “his face [had been] held to an exhaust pipe of a car” ([58] at CB 235).

14. The Tribunal took the view that this would have resulted in some burn to the applicant’s face. However, the applicant did not report any such injury. While it is the case that the Tribunal proceeded on the basis that the car engine was turned on and the exhaust pipe was hot, in context, that was a reasonable assumption to make given that the applicant complained that he had been mistreated.

1. In these circumstances, it was reasonably open to the Tribunal to take the view that the applicant would have suffered some physical harm, but did not report any resultant and relevant injury. Noting further that, despite opportunity, the applicant has not put any transcript of the Tribunal hearing before the Court to support his assertions now of what he says he told, and did not tell, the Tribunal. In those circumstances, the only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal’s own record as contained in its decision record ([22] at CB 226 to [32] at CB 228).

2. A third matter raised by the applicant concerned the Tribunal’s finding as to the inconsistency of the evidence in relation to the return of the applicant’s wallet by the police at the time of his claimed detention by them. These submissions appeared to be linked to ground two of the application to the Court and are dealt with below.

3. Finally, the applicant complained that he had been told by friends who had been in migration detention with him (in Australia) that they had had a number of “interviews” in relation to their claims to protection. The applicant complained that he had not been given the opportunity of a “second interview” by the Tribunal.

4. The Tribunal’s obligation was to invite the applicant to a hearing pursuant to s.425 of the Act. The Tribunal did so (CB 169 to CB 174). The invitation met all of the relevant statutory and regulatory requirements (s.425, s.425A, the reference to s.426A, s.441A(4), s.441C(4), s.441G of the Act and r.4.35D of the Migration Regulations 1994 (Cth)). The only account of the hearing in evidence before the Court is the Tribunal’s own account. It reveals that the issues dispositive of the review were exposed and that the applicant was given a meaningful opportunity to respond (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (“SZBEL”)). In the circumstances, there was no obligation on the Tribunal to invite the applicant to a “second” hearing.

Consideration: The Grounds

Ground One

1. Ground one appears to assert a breach of s.424A and s.424AA of the Act. It is the case that a failure by the Tribunal to comply with s.424A of the Act reveals jurisdictional error. However, this requires the engagement of the obligation set out in that section of the Act.

2. That is, that the Tribunal must give an applicant “information” that it considers would be the reason, or a part of the reason, for affirming the decision under review (SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 215 ALR 162). In SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 (“SZBYR”) the High Court gave direction as to what constituted “information” for this purpose. Section 424AA is a mechanism by which the Tribunal may discharge this obligation orally at a hearing (SZMCD v Minister for Immigration & Citizenship & Anor [2009] FCAFC 46; (2009) 174 FCR 415).

3. The difficulty for the applicant is that he has not said what “information” (as that term is understood in light of SZBYR) was not given to him. On what is before the Court, no breach of s.424A of the Act is apparent. I should note, as referred to above (at [24] and [28]), the Tribunal made reference to certain information (that is, the email address of the college) that it obtained from a particular website. That information was caught by the exception in s.424A(3)(a) of the Act from the obligation in s.424A(1). Even if that were not the case, s.424AA of the Act would have been engaged when the Tribunal put that information to the applicant at the hearing.

4. The reference in the application to the Court to the Tribunal not giving to the applicant, for comment, “a part of the decision” and that this resulted in the applicant being “unclear as to the issues of the decision”, may be some attempt to invoke s.425 of the Act. It certainly does not assist the applicant in relation to s.424A of the Act.

5. In any event, as is already set out above, the Tribunal complied with its obligations under s.425 of the Act. The applicant was invited to a hearing. As set out above, the hearing invitation complied with all of the relevant statutory and regulatory requirements. Further, as noted above, the applicant has not put a transcript of the hearing before the Court. The Tribunal’s account therefore, in an evidentiary sense, remains unchallenged.

6. As already set out above, that account reveals that the issues, as that term is understood in light of relevant authorities (SZBEL), were exposed with the applicant. In any event, the applicant would have been on notice as a result of the delegate’s decision that his entire factual account in support of his claims was at issue.

7. To the extent that the complaint may be that the Tribunal did not give the applicant a draft of its reasons for comment before making its final decision, then neither s.424A, s.425, nor any other relevant legal obligation compels the Tribunal to do so. Ground one is not made out.

Ground Two

1. In ground two, the applicant complains that the Tribunal’s decision was made without evidence. This is particularised as being the adverse credibility finding made against the applicant in relation to his wallet.

2. At best, this appears to be a reference to the Tribunal’s findings at [57] (at CB 234 to CB 235):

   “Fourthly, the applicant initially submitted that his wallet and identity card had been taken and kept by the police when he was being detained and not returned (agent submission dated 19 October 2012, paragraph 30), but during the hearing he submitted that they had been returned. This contradiction in evidence leads the tribunal to question the truthfulness of the submission.”

3. As the Minister submits, the existence of any evidence, no matter how slight, is sufficient to defeat this complaint (SZFWB v Minister for Immigration & Citizenship [2007] FCA 167 at [31] per Kenny J, VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 at [18] – [19] per Gray, Moore and Weinberg JJ and WAJS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 139 at [11] – [12] per Wilcox, Marshall and Jacobson JJ, and see also SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231; (2003) 77 ALD 402 at [18] – [20] per Mansfield, Selway and Bennett JJ).

4. However, in this case, the circumstances do not present any great difficulty in identifying more than sufficient evidence to support the Tribunal’s finding. The Tribunal indentified that, in submissions made by the applicant’s representative, it was stated that the applicant’s wallet had been taken by the police when he had been detained in March 2012, and he was told that it (and other personal items) would not be returned until he attended a particular pro-government demonstration ([22] at CB 184 and [29] at CB 186). At the hearing with the Tribunal, the applicant gave evidence that his wallet was returned to him when he was allowed to leave the police station, which was prior to any scheduled demonstration([28] at CB 228).

5. These two pieces of evidence, above, are sufficient to defeat the applicant’s second ground.

6. The following can also be noted. One, and again as relevant to this point, the applicant has not brought any evidence to the Court, despite being given the opportunity to do so, to challenge the Tribunal’s account. As such, the Tribunal’s account remains as the only evidence before the Court of what was said to have occurred at the hearing.

7. Two, it must be assumed that what was stated in the representative’s submissions was drafted on instructions from the applicant. The representative, who is a migration agent, is also a solicitor. The person signing the submissions describes himself as a solicitor (CB 202). In those circumstances, the applicant’s representative must also be presumed to understand the need to act with, and within, instructions given. In this regard, the applicant’s statement from the bar table that he could not explain why his representative made the submission in the way that he did does not assist him.

8. Three, the Tribunal specifically raised the inconsistency between the written submissions and the applicant’s oral evidence at the hearing. The applicant’s representative was present at the hearing (CB 203). The applicant insisted that his version of the relevant events was correct and that “…he had always said that his wallet had been returned” ([28] at CB 228).

9. If the representative had been mistaken in the instructions given in this regard there is no evidence before the Court that he raised this, even as a possibility, with the Tribunal at the hearing, nor subsequently. The Tribunal hearing was held on 23 October 2012. The decision was not made by the Tribunal until 11 December 2012.

10. Therefore, not only was there evidence to base the Tribunal’s finding, but that finding was reasonably open to the Tribunal on what was before it. That finding, and to the extent that it was a part of the adverse credibility finding against the applicant, was made within jurisdiction and is not susceptible to being set aside (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 and Sutharsan Kopalapillai v Minister for Immigration & Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547).

11. Ground two is not made out.

Ground Three

1. In ground three the applicant complains that the Tribunal failed to assess his claims pursuant to the complementary protection criterion (s.36(2)(aa) of the Act), and in light of country information. The particulars state that the applicant feared he would be tortured and mistreated by the Sri Lankan authorities on return as he embarked on the journey to Australia by boat. In all, therefore, the complaint is that the Tribunal failed to consider a particular claim, and to do so in light of s.36(2)(aa) of the Act.

2. What is of relevance here is that the Tribunal expressly rejected the applicant’s factual account of what he said had occurred in Sri Lanka, relevant to his claimed fear of both serious and significant harm. In relation to significant harm, and s.36(2)(aa) of the Act, this is set out at [70] of the Tribunal’s findings and reasons (CB 237 to CB 238).

3. Implicit in the applicant’s assertion now that he explained to the Tribunal that he embarked on a journey by boat to Australia, is the inference that he left Sri Lanka “illegally”. The Tribunal appears to have implicitly, at least, accepted this claim (see [67] (at CB 237) albeit in the context of considering serious harm (s.36(2)(a) of the Act)).

4. At [70] (at CB 237 to CB 238) when the Tribunal came to consider the question of significant harm (s.36(2)(aa) of the Act) it is clear that the factual findings and analysis leading to those factual findings relating to serious harm, were imported, to the extent possible, into the consideration of significant harm (see “…the reasons for this are set out in the paragraphs above..” – [70] at CB 237). Ground three is not made out.

5. Further, I note that at [70] (at CB 237 to CB 238) the Tribunal found that the applicant would be:

   “…subject to screening processes and interviewed by the Sri Lankan authorities if he returns as a failed asylum seeker, but the evidence before the tribunal does not support a finding that he would be treated differently to anyone else returning by such route, or that there is a real risk of significant harm as a result…”

6. In context, it is tolerably clear that the claimed fear of returning to Sri Lanka as a failed asylum seeker was presented by the applicant, and his representative, as part of what is now described in ground three “as a prospective failed asylum seeker returning to Sri Lanka” who would be “tortured and mistreated by the Sri Lankan authorities as he embarked on the journey by boat”. Even now, before the Court in his oral submissions, the applicant still linked the claimed fear to the manner in which he left Sri Lanka. That is, “illegally” by boat.

7. In any event, in the context as presented to the Tribunal, the complaint of a failure to consider the fear of harm arising from the applicant’s journey to Australia, includes and subsumes the reference to leaving illegally and the seeking of asylum here.

8. I agree with the Minister that the Tribunal’s rejection, in the context of s.36(2)(aa) of the Act, that the applicant would suffer significant harm as a failed asylum seeker on return includes the applicant’s claim that he left “illegally”. That is, the reference to failed asylum seeker in the findings by the Tribunal subsumes the reference to the applicant’s method of departure from Sri Lanka and his journey to Australia (WAEE at [47] per French, Sackville and Hely JJ).

9. The reference to country information in ground three is no more than a challenge to the Tribunal’s findings in relation to its understanding, and application, of relevant country information as set out at [67] of the decision record (CB 237). While the Tribunal dealt with country information in the context of “serious harm”, its analysis was clearly, and subsequently, imported into the complementary protection analysis. The choice of, and weight to be assigned to, country information is for the Tribunal to determine.

10. In essence ground three challenges the Tribunal’s relevant findings of fact in relation to s.36(2)(aa) of the Act and seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259). Ground three is not made out.

Ground Four

1. In ground four the applicant complains that the Tribunal’s decision was illogical and unreasonable. In his particulars, he contends that this was because of a wrong “premise” by the Tribunal that four persons would not be necessary to arrest one person.

2. This appears to be a reference to what the Tribunal said at [56] (at CB 234):

   “Thirdly, according to the applicant’s submissions, after he failed to attend, four police officers attended his residence the next day, at least four officers interview him in detention, and four police officers attended his residence to obtain his passport, and he was then pursued again when he was staying at his aunty’s house. When questioned about this relatively resource intensive use of security force in the days immediately following the demonstration, the applicant said that he was being pursued because they believed that he supported the LTTE. However, after considering the applicant’s response the tribunal still considers this to be an unlikely use of police resources, especially considering that according to the applicant at least some other members of the class may not have attended (as the applicant later submitted that the members of the class made a joint decision not to attend, and it may therefore be assumed that others missed to demonstration too, although this remains unclear, as the applicant was unable to provide evidence on this point).”

   [Errors in the original.]

3. A number of matters are relevant here. First, as set out above, this was only one of seven elements considered by the Tribunal to support its finding that the applicant had not provided a truthful account of events in Sri Lanka (see [54] at CB 234 to [60] at CB 235). The Tribunal’s finding in this regard was not solely, or even significantly, dependent on the matter of the number of police whom the applicant said arrested him.

4. Second, the Minister submits that this was not a positive finding as to whether or not the factual claim was true. Rather it was an expression of doubt on the part of the Tribunal. It may be possible that the Minister’s submissions are directed to the Tribunal’s use of the word “unlikely” as it appears at [56] (at CB 234). On balance, however, I am of the view that the expression of a lack of likelihood was a finding by the Tribunal rejecting the applicant’s claim in this regard.

5. In any event, it matters little given that, third, as was made clear in SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58 and with reference to the plurality in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”), illogicality and irrationality is made out with reference to the final decision, and not necessary to an antecedent finding (SZOYU v Minister for Immigration & Anor [2012] FMCA 316). In this regard, therefore, the reference only to one particular factual claim of many, and the reduction of the applicant’s ground to focus only on this one factual claim, means the ground cannot succeed.

6. Fourth, and in any event, illogicality and unreasonableness, and for that matter irrationality, are not made out in circumstances where the decision was one on which minds may differ (see, for example, SZMDS at [131] per Crennan and Bell JJ and [78] per Heydon J).

7. Here, even just focusing on the impugned finding, there was evidence probative of the Tribunal’s finding. That is, the applicant’s own evidence. The Tribunal’s reasoning was that the relatively resource intensive use of police resources focused on the applicant was “unlikely”, especially in circumstances where, on the applicant’s own evidence, he was not the only one of his class not to have attended the demonstration. While minds may differ, and even if another Tribunal member may have reasoned differently, it cannot be said this was illogical or unreasonable. Certainly not when the Tribunal’s reasoning as a whole is considered. Ground four is not made out.

Conclusion

1. In all, none of the grounds of the application to the Court are made out. Nor do any of the applicant’s oral complaints make out jurisdictional error on the part of the Tribunal. In the circumstances, the application should be dismissed. I will make an order accordingly.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Nicholls J

Associate: 

Date:  27 June 2013