SZSRG v Minister for Immigration

[2014] FCCA 173

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 173

Catchwords:
MIGRATION – Whether s.424A of the Migration Act 1958 (Act) applied to require Tribunal to give to applicant particulars of perceived inconsistencies in applicant’s evidence – whether Tribunal was obliged under s.425 of the Act to give applicant notice of perceived inconsistencies and, if so, whether Tribunal gave such notice – whether applicant made a claim based on membership of a particular social group having shared characteristics – whether Tribunal considered such claim – whether Tribunal was obliged to consider the application of complementary protection provision to a claim whose factual premises the Tribunal did not accept – whether Tribunal made findings without any evidence – whether Tribunal made irrational findings or conclusions – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424AA, 424A, 425, 430, 441A

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZNKO v Minister for Immigration and Citizenship [2010] FCA 297
SZSDP & Ors v Minister for Immigration & Anor [2013] FCCA 1647
SZSRB v Minister for Immigration & Anor [2013] FCCA 1382

Applicant: SZSRG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 540 of 2013

Judgment of: Judge Manousaridis

Hearing date: 20 November 2013

Delivered at: Sydney

Delivered on: 7 February 2014

REPRESENTATION

Counsel for the Applicant: Mr Kumar

Solicitors for the Applicant: Rasan T. Selliah & Associates

Counsel for the Respondents: Ms Mitchelmore

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The title of the first respondent recorded in the application is amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed.

3. The applicant pay the respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 540 of 2013

SZSRG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicant claims the second respondent (Tribunal) committed a number of jurisdictional errors in affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a protection visa.

2. To understand, and thus be in a position to evaluate the applicant’s claims, it will be necessary to first set out in some detail the grounds on which the applicant sought a protection visa and the Tribunal’s reasons for affirming the delegate’s decision.

The applicant’s claim for protection

1. The applicant is a citizen of Sri Lanka and a Tamil. In a statutory declaration that formed part of his application for a protection visa, the applicant claimed that in 1988 his brother had been killed by members of the Special Task Force; in 1993 he was detained and tortured by police because he was suspected of being a member of the Liberation Tigers of Tamil Eelam (LTTE); the applicant remained in detention until October 1994 when he was released as a result of a court order; during 2006 to 2009 the applicant worked in Dubai; when he returned to Sri Lanka the applicant purchased a three wheeler auto, became a member of the Chenkaladay Union, and transported customers he collected from an auto rank; and the applicant continued in this activity until January 2012.

2. In January 2012 the applicant claimed he encountered difficulties which led to his fleeing Sri Lanka and to his fearing persecution if he were to return to Sri Lanka. The difficulties arose out of an incident the applicant claimed occurred between him and a brother of an influential and powerful local politician (the politician). The politician was a member of the Tamil People’s Liberation Party (TMVP) who moved with a retinue of bodyguards.

3. The applicant claimed the incident occurred at the auto rank where he worked. After waiting for two and a half hours, the applicant was about to receive a customer. The brother of the politician, however, approached the customer. The applicant stated to the brother that the applicant had been waiting for two and a half hours. The brother responded that he did not care because he had an influential brother who would look after him.

4. The applicant claims that after this exchange, he was assaulted by bodyguards of the politician as well as by the politician himself; when he reported the matter to the police, the police counselled the applicant not to make a complaint otherwise he might face more trouble; over the next two days the applicant remained at home in fear and heard that the politician and his bodyguards were looking for him; and the politician’s men enquired of the applicant’s whereabouts from the applicant’s wife. The applicant then fled Sri Lanka.

5. The applicant claimed that he fears that if he returns to Sri Lanka he will be harmed by the politician and the men who work for him, the TMVP and by the Sri Lankan police; that he fears harm because the politician and his men are influential and because the applicant is a Tamil and will be accused of having links with the LTTE; and he cannot count on protection from Sri Lankan authorities because he is a Tamil, the politician is in government and is influential, and the Sri Lankan police had tortured him in the past.

The hearing before the Tribunal

1. Before the Tribunal, the applicant claimed he had also been detained and tortured in 1999 but that, apart from that occasion and the occasions in 1993 and 1994, he had not been detained by the Sri Lankan authorities. The applicant said that during his arrest and torture in 1999, the police mentioned a confession the applicant claimed in his statutory declaration was extracted from him when he was arrested in 1993. The applicant also said that he had been issued a passport in 1995 and again in 2006; he did not experience any problems working as a driver between 2009 and January 2012; and that he did not have any problems generally during the period after the Civil War.

2. The Tribunal indicated to the applicant that it might not accept the applicant’s evidence that he was detained in 1999. The applicant did not, in his statutory declaration, refer to that detention and the Tribunal informed the applicant that this may affect the Tribunal’s assessment of the applicant’s credibility. The Tribunal also indicated that the applicant had given inconsistent evidence about whether the confession extracted in 1994 was or was not used when he was detained and tortured in 1999.

3. Also during the hearing, the Tribunal asked questions about the applicant’s account of the difficulties with the politician’s brother, noting potential difficulties the Tribunal had with aspects of that account. The Tribunal asked the applicant to comment on a number of matters including why the brother of a powerful politician would earn a living as a three wheeler driver which, on the applicant’s evidence, yielded an income just sufficient to support the applicant’s family; and why an influential local politician would publicly display the violence against the applicant which the applicant claimed he suffered at the hands of the local politician. The Tribunal also informed the applicant that it had information that the politician was no longer in power.

The Tribunal’s reasons

1. The Tribunal concluded there was no real chance the applicant will encounter serious harm or persecution due to his being a Tamil or to his being imputed with a political opinion on account of a connection with the LTTE.[1] The Tribunal based its conclusion on matters which included the following:

   a)The Tribunal had doubts about whether the applicant had been detained as he claimed in 1993 and 1994.[2] The principal source of those doubts was the applicant’s reliance on what he claimed to be a document he received from a Sri Lankan Court. The Tribunal had concerns about that document’s authenticity because it was in English and it contained language which was sympathetic towards the applicant.[3]

   b)The Tribunal did not accept the applicant’s evidence that he was detained in 1999 because the applicant first made the claim at the hearing in circumstances when he had previously been extensively questioned about his time in Sri Lanka.[4]

   c)Even if, however, the applicant had been detained on the occasions he claims to have been detained, the Tribunal found that the applicant’s evidence that he had no difficulties after the conclusion of the Civil War indicated that the applicant did not encounter problems due to his ethnicity or any suspected links to the LTTE.[5]

   d)The Tribunal accepted that the applicant may have been forced to sign a confession in Sinhalese if he had been apprehended in 1993, but there was no real chance it would be used because the confession, if made, was made twenty years ago.[6]

   [1] CB256 [72]

   [2] CB257 [77]

   [3] CB257 [76]

   [4] CB257-8 [81]

   [5] CB257 [78]

   [6] CB258 [82]

2. The Tribunal did not accept the applicant’s claim that he was victimised by the politician and his henchmen.[7] It had doubts that a person in the position of the politician’s brother would work in a lowly paid job as that of a driver; that an influential politician would assault a person in public; and that the politician had been in power.[8] The Tribunal also found the applicant gave inconsistent and implausible evidence about visits to his home made by persons associated with the politician and the period for which he hid in his home after the incident with the politician’s brother.[9] Accordingly, the Tribunal found that the applicant did not have a well-founded fear of persecution based on the applicant’s claimed victimisation by the politician or the politician’s brother.[10]

   [7] CB256 [75]

   [8] CB256 [74]

   [9] CB256 [74]

   [10] CB256 [75]

3. The Tribunal also considered whether the applicant had any well-founded fear of persecution or harm because (as the Tribunal accepted) the applicant had left Sri Lanka illegally. The Tribunal concluded the applicant did not have such well-founded fear. That conclusion was based, in part, on country information and, in part, on the Tribunal’s finding that, if the applicant had been detained, that occurred in 1993 and (based on the Tribunal’s not accepting the applicant’s claim he was detained in 1999) the applicant had not been of any interest to Sri Lankan authorities after his release in 1994.[11]

   [11] CB258 [84] [85]

Ground 1: failure to comply with s.424AA

1. The first jurisdictional error the applicant claims the Tribunal made is that stated in paragraph 1 of the grounds of the amended application:

   The Refugee Review Tribunal committed a jurisdictional error by failing to disclose information that was part of the reason for affirming the decision under review in the manner required by the Migration Act 1958 (Cth) s 424AA(b)(i)-(iii).

2. Because this ground relies on s.424AA of the Migration Act 1958 (Act), it will be necessary for me to examine the meaning and scope of s.424A and s.424AA of the Act before I consider the applicant’s claim.

Sections 424A and 424AA

1. Subsection 424A(1) of the Act provides that, where there is “any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”, the Tribunal must:

   a)provide to the applicant “clear particulars” of the “information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”;

   b)“ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision”,

   c)“invite the applicant to comment on and respond to it”; and

   d)where the applicant is not in immigration detention, give “the information and invitation” by one of the methods specified in s.441A of the Act, which means that the information and invitation must be recorded in a document that the Tribunal must give to the applicant in one of the methods specified in s.441A.

2. The duty to do the things required by s.424A(1) does not arise if the information is that specified in s.424A(3) of the Act, namely:

   (a)information “that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member”; or

   (b)information “that the applicant gave for the purpose of the application”; or

   (ba)information “that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)information “that is non-disclosable information”.

3. The duty to do the things specified in s.424A(1) of the Act also does not arise in the circumstances provided for in s.424A(2A), namely, if, when the applicant is appearing before the Tribunal because of an invitation under s.425 of the Act, the Tribunal orally gives to the applicant “clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review” pursuant to s.424AA(a) of the Act. In those circumstances, however, the Tribunal will be relieved of its duty to do the things specified in s.424A(1) only if the Tribunal does what is required by s.424AA(b); that is to say, only if the Tribunal:

   a)ensures, “as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review” and

   b)orally invites “the applicant to comment on or respond to the information” and

   c)advises “the applicant that he or she may seek additional time to comment on or respond to the information”; and

   d)if “the applicant seeks additional time to comment on or respond to the information”, the Tribunal adjourns “the review, if the Tribunal considers that the applicant reasonably needs additional time to comment or respond to the information”.

4. The central notion in the operation of s.424A and s.424AA is that contained in the expression “any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”; and there are a number of matters to note about this expression.

5. First, the expression does not simply refer to “information”; it refers to information of which the Tribunal is aware and which, therefore, it has in its mind. That follows from the words “that the Tribunal considers” which immediately follow the word “information”.

6. Second, the expression does not only refer to information of which the Tribunal is aware; the expression also refers to a chain of reasoning that is in the mind of the Tribunal and of which the information forms part. The chain of reasoning is one that has as its conclusion the affirmation of the decision the Tribunal is reviewing, and which has the information as the reason or part of the reason for that conclusion.

7. Third, the chain of reasoning the Tribunal must have in mind must be conditional or provisional. That is to say, it must be chain of reasoning the Tribunal formulates in advance of its determination of the application for review which it intends to apply; but subject to the possibility that the Tribunal will decide not to apply it after the Tribunal considers any comment or response the applicant may make after the applicant is given particulars of the information, and the Tribunal takes steps to ensure, as far as practicable, that the applicant understands why the information is relevant to the review and of the consequences of the Tribunal relying on the information.

8. Fourth, the “information” to which s.424A(1) applies “does not encompass the Tribunal’s subjective appraisal, thought processes or determinations”; nor “does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps”.[12] The meaning of “information” is “related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.[13]

   [12] VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at 477 (Finn and Stone JJ) quoted with approval by the High Court in SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 ([18]).

   [13] SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 ([18]).

9. Fifth, the “material in question should in its own terms contain a “rejection, denial or undermining” of the review applicant’s claim to be a refugee”. [14] In other words, the information to which s.424A(1) applies must be information which, if accepted by the Tribunal, amounts to a rejection, denial or undermining of an applicant’s claim for a protection visa.

   [14] Minister for Immigration and Citizenship v SZLFX (2009) 238 CLR 507 at 513 ([21]) referring to SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 615 ([17])

10. Sixth, assuming all of the reasons on which the Tribunal relies for affirming a decision are contained in the written statement the Tribunal prepares under s.430 of the Act, the only circumstance in which an applicant will be in a position to show that the Tribunal made a jurisdictional error by failing to comply with s.424A is if it is apparent from the written statement that the reason, or part of the reason for which the Tribunal affirmed the decision was its reliance on a document or other evidentiary material which rejects, denies or undermines the applicant’s claim for protection.

11. From these observations, it can be said that the Tribunal will breach the duties imposed by s.424A(1) and s.424AA(b) of the Act, and hence commit a jurisdictional error,[15] if:

    a)the Tribunal affirms the decision under review;

    b)the reason, or part of the reason for which the Tribunal affirmed the decision was its reliance on a document or other evidentiary material which rejected, denied or undermined the applicant’s claim for protection;

    c)the document or other evidentiary material was not information of the sort specified in s.424A(3); and

    d)the Tribunal did not, in relation to the documents or other evidentiary material, do the things prescribed in s.424A(1) or, if the Tribunal orally gave the particulars of the information contained in the documents or evidentiary material in the manner provided by s.424AA(a), the Tribunal did not do the things prescribed by s.424AA(b).

    [15] A failure to comply with s.424A constitutes a jurisdictional error - SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 294

The Applicant’s claim

1. The applicant identifies the information, particulars of which the applicant claims the Tribunal failed to provide to him, in paragraph 1.4 of the particulars to ground 1:

   The Tribunal used the Applicant’s statutory declaration and matters contained therein (as information, (at CB 53 – 59) and without complying with s424AA asserted there were inconsistencies in the Applicant’s evidence regarding whether the applicant was visited by people associated with [the politician].

2. From these particulars, it appears that the applicant claims that the relevant information is the inconsistencies the Tribunal found existed between what the applicant stated in his statutory declaration and the evidence the applicant gave at the hearing before the Tribunal. Those inconsistencies are identified in paragraph 74 of the Tribunal’s reasons.

   During the hearing the tribunal raised concerns that it had regarding the credibility of this evidence regarding the dispute overall. . . . [F]ourthly, apparent changes to the applicant’s evidence regarding when he was visited at his home by people associated with [the politician], with the applicant’s evidence appearing to change. That is, in his written statement the applicant did not refer to people associated with [the politician] visiting his home premises during the two-day period immediately following the incident. However, during the hearing the applicant said that he was visited on several occasions during this initial two days at his home.

1. The Tribunal’s perception of inconsistency between what the applicant said in his statutory declaration and what he said to the Tribunal is not “information” for the purposes of s.424A or s.424AA of the Act. It is not a document or evidentiary material; nor is it information that, by its terms, denies, rejects, or undermines the applicant’s claim.

2. In his written submissions, the applicant appears to have submitted that the “relevant information is the Applicant’s statutory declaration (CB 53 – 59)”.[16] In oral address, counsel for the applicant identified the relevant information to be the information contained in the statutory declaration about which the Tribunal asked the applicant the questions as set out in lines 262 to 290 of the transcript of the hearing before the Tribunal.[17] From these lines of the transcript, it appears the Tribunal asked questions about the matters stated in paragraphs 38-42 of the statutory declaration.

   [16] Applicant’s written submissions, [48]

   [17] T8.15

3. If that is what the applicant intended to submit, the information contained in the statutory declaration also does not constitute “information” within the meaning of s.424A(1). It is not information that, if accepted by the Tribunal, amounts to a rejection, denial or undermining of an applicant’s claim. And even if it was such information, it was information the “applicant gave during the process that led to the process of review” and, therefore, because of s.424A(3)(ba) of the Act, was not information which could have engaged the duty imposed by s.424A(1).

4. The applicant relied on the decision of Flick J in SZNKO v Minister for Immigration and Citizenship.[18] The applicant in that case claimed fear of persecution because he was a Christian. The applicant supported his application with a letter written by the Chairman of a Union Council in Bangladesh. The Tribunal member, however, had become aware as a result of his reviewing a different case of a letter written by a different person from a different Union Council which was otherwise identical to the letter on which the applicant relied. The Tribunal informed the applicant of the existence of such letter without giving details of the author or the Union Council or the identity of the Union Council, and informed the applicant that the Tribunal might consider the letter on which the applicant was relying to have been “written to order” and, hence, not be genuine.

   [18] [2010] FCA 297

5. Flick J found that not only was the letter “information”; so too was the “similarity in the content of the two letters such as to provoke concern as to whether the letter relied upon by the now Appellant was “made to order””.[19] His Honour further found that, being information, the Tribunal, in order to comply with s.424A(1) or s.424AA(b), had to give particulars of the author of the letter, the capacity in which the author wrote the letter, and the date of the letter.[20]

   [19] At [20]

   [20] At [25]

6. With respect, his Honour in SZNKO gave a much broader meaning to “information” than that given by the High Court in SZBYR v Minister for Immigration and Citizenship.[21] The letter of which his Honour held the Tribunal was required to give particulars was not a letter which, if accepted by the Tribunal, would on its terms have constituted the undermining, rejection or denial of the applicant’s claim.

   [21] (2007) 235 ALR 609

7. If the meaning his Honour apparently gave to the expression “information” is correct, I would have upheld the applicant’s contention that the Tribunal’s perception of the inconsistency between what he said in his statutory declaration and what he said to the Tribunal was “information” within the meaning of s.424A(1). I am bound, however, to apply the narrower meaning I consider the High Court in SZBYR gave to the expression “information”. On the basis of that meaning, the inconsistencies the Tribunal perceived between what the applicant said in his statutory declaration and what he said to the Tribunal are not information and, therefore, s.424A(1) was not engaged.

8. Finally, I should note that counsel for the Minister perceived that the applicant submitted that the relevant information of which the Tribunal was obliged to give particulars was the information the applicant gave orally to the Department of Immigration and Citizenship and on the basis of which the statutory declaration was prepared. I am not satisfied that counsel for the applicant intended to make such a submission. If he did, however, I would have rejected it. The information would not be information for the purposes of s.424A(1). And there is no evidence that suggests the Tribunal was aware of such information, which means the Tribunal cannot have considered that information.

9. For these reasons, ground 1 of the application fails.

Ground 2: failure to comply with s.425

1. The second jurisdictional error the applicant claims the Tribunal made is that stated in paragraph 2 of the grounds of application:

   In the alternative to Ground 1, the Tribunal committed jurisdictional error in failing to accord procedural fairness and thereby breached s 425 of the Act.

2. The applicant relies on the same particulars as those on which he relies for ground 1. The applicant’s second ground, therefore, is that the Tribunal was obliged to inform the applicant of the inconsistencies which the Tribunal perceived between what the applicant said in his statutory declaration and what he said to the Tribunal, the relevant inconsistencies being those the Tribunal identified in paragraph 74 of its reasons.

3. In my opinion, assuming the Tribunal was obliged to give notice to the applicant that it perceived inconsistencies between what the applicant stated in his statutory declaration and what he said to the Tribunal, the Tribunal did give the applicant adequate notice. That is apparent from the following extract from the transcript of the hearing before the Tribunal:[22]

   [22] Q262-Q285

   TMy understanding is that you then stayed at home for two days, is that correct?

   AYes.

   TDuring that two day period, did anyone come to your house when you were at home?

   AYeah, they came searching for me and they came, they went to in, in my parking spot they went searching for me and my friends called me and say that they are looking for me so I went hiding.

   TOkay. So the two day period you remained at home immediately after the alleged incident, did they come to your home during that period?

   AYes, they came to my home.

   TDuring the two days that you were home?

   AYes.

   TWhat happened when they came to your home when you were there?

   AThey came in (indiscernible speech at 00:09:41 CD1). My wife, she opened the door and she actually told them that I’m not there. I left for Colombo for work.

   TAnd where were you?

   AI was inside the room, in the room.

   TAnd how many times did that happen during the two days? Was it just once or more than once?

   ATwo times.

   TDuring the two days it happened twice?

   AYes.

   TSo what you say in your written statement is at paragraph . . . 38, “the police persuaded me not to make a complaint otherwise I might make, might face more trouble.” 39: “I stayed home for the next two days because I was afraid of going to work. I heard from my friends at the auto rank that [the politician] and his men were searching for me at the auto rank. I feared to go back to work. I then hid at my mother’s house in . . .” This is different from the evidence you’re giving me now which is that when you were, during that, at home during that two day period the men came and searched for you twice.

   AI was at home and then only I went to mother’s house.

   TOkay. The period I’m asking you about is the two days immediately after you had had a dispute with [the politician]. What the –

   AI was at home on those two days.

   TYes, and now you have said that men came to the house searching for you during those two days on two separate occasions. However in your written document, it doesn’t say that that’s what happened.

   AIt’s true they came searching for me.

   TWhy do you think there’s a contradiction [sic] between your evidence then?

   AI told them, when we were preparing, I told them.

4. Further, the applicant understood that the Tribunal perceived discrepancies between what the applicant said in his statutory declaration and the evidence the applicant gave to the Tribunal, and that this might be a matter the Tribunal might take into account when considering whether to accept the applicant’s account of the incident with the politician’s brother and the politician. The Tribunal adjourned the hearing for a short time to give the applicant an opportunity to consult with the applicant’s agent (who was present at the hearing). When the hearing resumed, the applicant volunteered evidence which appears to have been intended to address the inconsistencies to which the Tribunal referred earlier in the hearing. The evidence the applicant volunteered was as follows:[23]

   [23] Q355-Q357

   AAfter the incident where the, his people who came to search for me, I have mentioned it like after two days but it’s actually happened within a week, I couldn’t, I couldn’t remember properly. It’s actually within a week period, that incident happen.

   TAre you saying they searched for you on two occasions within a week of the period, within a week of the incident happening?

   AYes.

5. There is one other matter I should address. In paragraph 43 of its reasons, the Tribunal said (emphasis added):

   The Tribunal raised that the applicant’s written statement did not reflect this, despite being quite detailed, it did not say that men came during this period, and instead suggested that they came after the applicant had left. The Tribunal raised that the conflict in information raised doubts as to the credibility of the applicant’s evidence. The applicant said he told people of this when he was preparing his case.

6. The transcript does not show that the Tribunal said to the applicant words to the effect that the conflict between what the applicant said in his statutory declaration and the evidence he gave to the Tribunal “raised doubts as to the credibility of the applicant’s evidence”. As I have concluded above, however, the Tribunal gave sufficient notice to the applicant that the discrepancy did raise doubts in the Tribunal’s mind about the credibility of the applicant’s evidence.

SZBEL

1. I have so far dealt with ground 2 on the assumption that the Tribunal was obliged to notify the applicant that it perceived discrepancies between what the applicant said in his statutory declaration and the evidence the applicant gave to the Tribunal, and that the Tribunal might have regard to those discrepancies when considering whether to accept the applicant’s claim. Whether or not, however, the Tribunal was obliged to disclose information under s.425 of the Act, and if so, what information, depended on the operation of the principles discussed by the High Court in SZBEL v Minister for Immigration and Multicultural Affairs.[24]

   [24] (2006) 228 CLR 152

2. Even though the applicant did not refer to SZBEL, counsel for the Minister relied on SZBEL submitting that, on the authority of that case, there was sufficient questioning of the applicant to have put him on notice that the Tribunal might not accept the applicant’s account. Accordingly, I will consider whether, under the principles discussed in SZBEL, the Tribunal complied with its obligations under s.425 of the Act.

SZBEL - principles

1. In SZSRB v Minister for Immigration & Anor[25] I summarised the principles the High Court articulated in SZBEL as follows:[26]

   a)At common law, a duty to accord procedural fairness consists in providing to the person likely to be affected by the decision an opportunity to put information and submissions to the decision-maker in support of the outcome the persons seeks; and to rebut or qualify by submitting further information and comment and submission in relation to material that is adverse to the person.[27]

   b)The duty extends to the decision-maker identifying to the person likely to be affected “any issue critical to the decision which is not apparent from its nature or the terms under which it is made”, and advising the person to be affected “of any adverse conclusion which has been arrived at which would not obviously be open on the known material”.[28]

   c)Section 425 of the Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal.[29] It requires the Tribunal to invite the applicant to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa.[30]

   d)The issues that arise in relation to the decision are to be identified by the Tribunal. If “the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.”[31]

   e)There may be cases where the Tribunal’s statements or questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.

   That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. . . . But where . . . there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.[32]

   [25] [2013] FCCA 1382

   [26] At [46] and [48]

   [27] SZBEL at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

   [28] SZBEL at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

   [29] SZBEL at [33]

   [30] SZBEL at [34]

   [31] SZBEL at [35]

   [32] SZBEL at [47]

2. When applying these principles to the circumstances of the application before me, three questions must be considered. The first is whether the Tribunal’s not accepting the applicant’s account of the incident with the politician’s brother and the politician was a matter on which the Tribunal relied in affirming the delegate’s decision. The second is, assuming it was an issue on which it relied, whether the Tribunal was obliged to inform the applicant that it was an issue and invite the applicant to make submissions and give evidence. Third, assuming the Tribunal was so obliged, whether the Tribunal gave the applicant notice or sufficient notice in that regard.

Did the Tribunal rely on its not accepting the applicant’s account of the incident with the politician?

1. The Tribunal did rely on its not accepting the applicant’s account of the incident with the politician in affirming the delegate’s decision. That is demonstrated in paragraph 75 of the Tribunal’s reasons:[33]

   After considering the evidence before it the Tribunal finds that the alleged event with [the politician] and/or his brother did not occur. As a result the Tribunal finds that the applicant does not have a well-founded fear of persecution in the reasonably foreseeable future based on [the politician] and/or his brother and/or the TMVP arising from an alleged incident between the applicant and [the politician’s] brother.

   [33] CB256-257 (emphasis added).

Was the Tribunal obliged to inform the applicant it might not accept his account?

1. Whether or not the Tribunal was obliged to inform the applicant that it might not accept the applicant’s account of the incident with the politician’s brother and the politician depends on whether the delegate considered as dispositive the non-acceptance of the applicant’s account.

2. The non-acceptance of the applicant’s account was not dispositive of the applicant’s claim before the delegate. That is so because the delegate accepted the applicant and his claims to be credible.[34]

   I have considered the applicant’s claim and accept them as credible. The applicant’s claims during the Protection visa interview were coherent and consistent with information he has previously given to the department. He was able to answer my questions convincingly such that I am satisfied that he was recalling events from his own experience.

   [34] CB118

3. In these circumstances, the applicant was entitled to assume that the Tribunal would accept the applicant’s account of the incident with the politician’s brother and the politician, unless the Tribunal gave the applicant sufficient notice that it might not.

Did the Tribunal adequately alert the applicant it might not accept his account of the incident with the politician?

1. In my opinion, the Tribunal did adequately alert the applicant that it might not accept the applicant’s account. First, near the beginning of the hearing, the Tribunal said:[35]

   The purpose of the hearing is to enable you to give evidence and present any arguments in support of your application. It’s also to give me an opportunity to ask you questions that are relevant to your matter.

   [35] Q14

2. A little later, and before the Tribunal began to ask questions of the applicant, the Tribunal also said the following (emphasis added):[36]

   I wish to say to you at the outset that once you appeal a matter, everything is reopened for consideration by the tribunal. What that means is, even though things were accepted by the department doesn’t mean that they will be accepted by the tribunal.

   [36] Q34

3. In my opinion, these passages would have made it clear to a person in the position of the applicant that the Tribunal did not accept or would not necessarily accept any part of the applicant’s claim, including that part of the claim which the delegate accepted.

4. Second, the questions the Tribunal asked of the applicant indicated that the Tribunal considered it to be an issue in the application whether it should accept the applicant’s account of the incident with the politician’s brother and the politician. The Tribunal asked questions which manifested a doubt by the Tribunal that a person in the position of the politician’s brother pursued the humble calling of a three-wheel driver:[37]

   [37] Q238-Q243

   TWhy would he be working a job that earns relatively limited income, you’ve said that you could only sustain yourself on the income.

   AHe won’t work with me. It’s, they actually sent him to hire the vehicle so he would come and hire the vehicle and we couldn’t refuse.

   TWas he a driver like you?

   AYes, he is a driver, so he will come and hire the vehicle and he will go.

   TSo what I’m raising with you is that it seems unlikely that someone who is the brother of a powerful, who you’ve said is a powerful person in the community, would be working as a driver when at the same time you’ve said to me that as a driver you can sustain yourself but nothing more.

   AHe . . . had actually to hire the vehicle to be my, I . . . encounter problem, it’s really (indiscernible speech at 00:04:35 CD2).

5. The Tribunal also asked questions which manifested doubt that a politician would display naked violence in a public place:[38]

   [38] Q254-Q260

   TYou’ve previously said that [the politician] came to the rank and pulled a gun on you, is that correct?

   AThat happens after the incident happened.

   TAfter you had a dispute with his brother, is that correct?

   AYes.

   TWhy would he have made such a public display of this, threatening someone with a gun for a [sic] event that’s so insignificant, seemingly so insignificant?

   AIt’s to threaten people, they normally do it in public.

   TThey do do [sic] it in public?

   AYes.

1. And the Tribunal asked the questions which I have set out in paragraphs 40 and 41 of these reasons in relation to inconsistencies the Tribunal informed the applicant it perceived between what the applicant said in his statutory declaration and the evidence.

2. Third, as I have noted earlier in these reasons, the applicant appeared to have been aware that the Tribunal might not accept the applicant’s evidence because, after a short adjournment, the applicant volunteered evidence which sought to address what the Tribunal considered were inconsistencies between what the applicant said in the statutory declaration and the evidence the applicant gave to the Tribunal.

3. Fourth, near the conclusion of the hearing, the Tribunal said:[39]

   I understand that it’s been a difficult hearing today. I, it’s very difficult to have your evidence questioned and basically pulled apart. What I would say is the issues that I have raised, my mind is still open to these issues and I will consider them in light of the information you have previously provided and the information you provided today. I will then make findings of fact and apply the legislation to those facts.

   [39] Q376

4. Thus, if the Tribunal did not made it clear during the course of the hearing that it regarded whether to accept the evidence of the applicant as an issue, this passage ought to have made it clear to a person in the position of the applicant that acceptance of his evidence was an issue.

5. For these reasons, ground 2 fails.

Ground 3: failure to consider claim based on membership of a particular social group

1. The third jurisdictional error the applicant claims the Tribunal made is that stated in paragraph 3 of the grounds of application:

   The second respondent committed jurisdictional error when it failed to consider the Applicant’s particular social group/s.

   Particulars

   3.1The Applicant made claims to be considered as a particular social group of asylum seekers (CB214-217) and the attributes/characteristics are particularly highlighted at (CB214-217).

   3.2The Second Respondent has not considered the Convention nexus claim of social group at all.

2. The claim which the applicant contends was not considered by the Tribunal is, or at least includes, the claim the applicant’s agent made to the delegate which appears in paragraphs 67-74 of a letter dated 2 January 2013 the agent submitted to the Tribunal.[40] In those paragraphs, the agent:

   [40] CB214-217

   a)noted that although the delegate concluded there was no suspicion the applicant had engaged in any activity in relation to the LTTE and, for that reason, found that the chance of the applicant being harmed on his return was remote, the delegate failed to consider “the persecution the Applicant may face in the process of him being determined to be a person not of adverse interest to the Sri Lankan authorities”;[41]

   b)identified country information the agent claimed documented mistreatment of failed asylum seekers who had been forcibly returned to Sri Lanka;[42] and

   c)in particular, claimed that the country information showed that upon arrival at the airport the applicant would be interrogated, in part due to:

   i)the applicant’s Tamil’s ethnicity;

   ii)his imputed LTTE political opinion;

   iii)his illegal departure from Sri Lanka;

   iv)his lack of any original passport or travel documentation;

   v)his application as an asylum seeker in Australia; and

   vi)his signed confession.[43]

   [41] CB214, [68]

   [42] CB215-216, [69]-[72]

   [43] CB216-217, [73]

3. As I understood counsel for the applicant, the applicant submits that the Tribunal was required to, but did not consider whether the applicant was a member of a “social group”, being a group who were at risk of facing interrogation due to the matters I have set out in paragraph 63.

4. In my opinion, the claim the agent made in its letter dated 2 January 2013 to the Tribunal was that the applicant “is at risk of persecution on return to Sri Lanka for reason of being a failed asylum seeker”.[44] That is the concluding statement in that part of the agent’s letter by which the claim referred to in Ground 3 is made. To the extent, therefore, the applicant claimed before the Tribunal that he had a well-grounded fear of persecution because he was a member of a particular social group, the group of which the agent claimed the applicant was a member was that of failed asylum seekers. The group was not claimed to be that of persons who shared the characteristics referred to in paragraph 63(c) of these reasons.

   [44] CB217 [74]

5. That is how the Tribunal understood the claim. In its reasons, the Tribunal notes that it had asked the applicant why he feared persecution or significant harm, and one of the reasons the Tribunal recorded the applicant gave was “his membership of particular social groups [sic], being a failed asylum seeker, noting that he would have to go through the process of proving that he was not a member of the LTTE and also because he left Sri Lanka illegally, and he had previously signed a confession”.[45]

   [45] CB245 [25]

6. The Tribunal did consider the claim based on the applicant’s being a returned failed asylum seeker.[46] The Tribunal also considered whether the applicant had a well-founded fear because of each of the characteristics referred to in paragraph 63(c), concluding that none of these gave rise to a well-founded fear of persecution. In particular, the Tribunal concluded that the applicant:

   a)did not have a real chance of encountering serious harm due to his “race/ethnicity as a Tamil”;[47]

   b)did not have a well-founded fear of persecution based on the politician or TMVP;[48]

   c)did not have a real chance of encountering serious harm or persecution as a result of being imputed with a political opinion due to his being suspected of having links to the LTTE;[49]

   d)did not have a well-founded fear of persecution due to his having left Sri Lanka illegally;[50] and

   e)did not have a well-founded fear of persecution because he may have signed a confession.[51]

   [46] CB258 [84] [85]

   [47] CB256 [72]

   [48] CB256-257 [75]

   [49] CB256 [72]

   [50] CB258 [85]

   [51] CB257-258 [81] [82]

7. Ground 3, therefore, also fails.

Ground 4: failure to consider complementary protection

1. The fourth jurisdictional error the applicant claims the Tribunal made is that stated in paragraph 4 of the grounds of application:

   The second respondent committed jurisdictional error in failing to assess an integer in relation to complementary protection under the Act.

   Particulars:

   4.1The Tribunal failed to consider under complimentary protection provisions (under s 36(2)(aa) of the Act) in relation to the claim that he may suffer harm at the hands of [the politician] and others and whether there was “real risk” of significant harm as required by the section

2. The Tribunal did not accept the applicant’s account of the incident with the politician’s brother and the politician. It was therefore unnecessary for the Tribunal to consider whether the applicant would face a real risk the applicant will suffer significant harm if he were to return to Sri Lanka because of the claimed incident with the politician’s brother and politician.

3. To the extent ground 4 is intended to extend beyond the applicant’s claim of fear based on the incident with the politician’s brother and the politician, the Tribunal did address issues raised by s.36(2)(aa) of the Act in relation to these other claimed fears.[52]

   [52] CB259 [87]

4. Ground 4, therefore, fails

Ground 5: irrationality

1. The fifth and final jurisdictional error the applicant claims the Tribunal made is that stated in paragraph 5 of the grounds of application:

   The second respondent engaged in legal error by coming to a conclusion that was so illogical or irrational that no reasonable decision maker could have reached it.

   Particulars:

   5.1The Second Respondent came to the conclusion that siblings of influential individuals cannot have lowly paid jobs without any evidentiary basis.

   5.2The Second Respondent came to the conclusion that influential individuals do not have public outbursts of violence without any evidentiary basis.

   5.3The Second Respondent came to the conclusion that the events involving [the politician] did not occur based on the fact that [the politician] no longer holds his position of influence.

2. This ground calls into play the principles which specify when irrationality may constitute jurisdictional error, principles I considered in some detail in SZSDP & Ors v Minister for Immigration & Anor.[53] I there concluded that, when considering a claim for judicial review based on irrationality, the Court should proceed as follows:[54]

   The first thing is for the Court to be conscious throughout its consideration of such a claim that in all but exceptional cases rational decision making is capable of producing a range of conclusions, including conclusions which are inconsistent or even contradictory. This means that the task of the Court is to consider whether the conclusion under review falls within the range of rational conclusions given the reasoning the decision maker employed and the evidence to which the decision maker referred. A finding of irrationality should not be made unless the Court is clearly satisfied that the conclusion claimed to be irrational or illogical cannot be considered as falling within the range of reasonably possible conclusions given the reasoning the decision maker employed on the evidence that was before him or her. To repeat what Crennan and Bell JJ said in SZMDS^[[55]^], the Court “should be slow, although not unwilling, to interfere in an appropriate case”.

   Second, when determining the range of rational conclusions that may reasonably be available on the evidence before the decision maker, the Court may need to consider the kind of reasoning the decision maker employed. If the reasoning purports to be deductive reasoning, the range of rational conclusions available on that reasoning should be relatively limited, or at least determinable under the rules of deductive logic. If, on the other hand, the conclusion is wholly or in part based on inferences from evidence, the range of potentially rational conclusions will be larger. To determine that range the Court will need to identify the evidence on which the inference is based and any express or implicit generalisations or assumptions on the basis of which the inference is drawn.

   Third, it may be necessary to consider the nature of the decision which is claimed to be irrational or illogic. If the conclusion is, for example, a “normative fact”, that is, an assessment of some community standard, such conclusion will fall within a wider range of possibly rational decisions than if the decision was a specific fact.

   [53] [2013] FCCA 1647 at [31]-[51]

   [54] At [48]-[50]

   [55] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

3. Bearing in mind these conclusions, I will consider each of the three respects in which the applicant claims the Tribunal acted irrationally.

Reliance on siblings of influential individuals not having lowly paid jobs

1. The Tribunal did not find or rely on the proposition that “siblings of influential individuals cannot have lowly paid jobs”. What it did was rely on a particular generalisation as a ground for doubting the applicant’s account of the incident with the politician’s brother and the politician. That generalisation is that it is doubtful that a brother of a powerful and influential local politician would have an occupation which yielded an income just sufficient to sustain him and his family.

2. The fact that a decision maker relies on a generalisation to assess testimony or any other evidence does not constitute the making of a finding without evidence. All assessments of evidence depend on a host of generalisations, many of which are not articulated, and which are not, and are not required to be, proved by evidence. The nature and use of such generalisations in fact-finding are discussed by the Australian editor of Cross on Evidence in the following passage:[56]

   Much empirical material is employed in decision making by courts without evidence being received, without judicial notice being taken, without admissions being made, and without any specific warning being given to the party against whom that empirical material is used (though commonly the opposing party or the court will, in final addresses or otherwise, indicate how it may be used). It is material which is part of the make-up of the human beings who form courts arising out of their general common experience of life. That experience has many elements – their personal experiences, what they were taught by their parents and their schools, what others told them about their experiences, and what they learned from newspapers, radio, television, films and books. This general common experience of life causes the minds of courts to be full of many generalisations – right or wrong, crude or subtle, useful or misleading – about the behaviour of humans and about the physical and social world they inhabit.

   [56] J D Heydon Cross on Evidence 9^th Australian ed (2013) at 208 ([3200]) (footnotes omitted).

3. Although relying on such a generalisation does not by itself manifest irrationality, the generalisation itself might be irrational if no rational person would accept it as true and rely on it in making a decision. The difficulty, however, is to specify criteria by which it is possible to determine whether a generalisation on which a decision-maker has relied is irrational in that sense. There are at least two reasons for this difficulty. The first is there is no evidence by reference to which the validity or strength of the generality can be assessed; and any attempt to justify the generalisation will usually appeal to other generalisations equally bereft of proof. Second, the generalisation itself may be based on a number of assumptions and other generalisations which the decision maker has not articulated and on which the decision-maker may not have consciously relied.

4. In the absence of any evidence of the validity of the generalisation itself, the only method available to a judge exercising judicial review jurisdiction to determine whether a generalisation on which a decision maker has relied is rational or not is for the judge to use his or her own knowledge or understanding of human affairs or of the physical or natural worlds, and consider whether, on the basis of that understanding, it was reasonably open to the decision maker to apply the particular generalisation which is claimed to be irrational. In my opinion, it was rationally open to the Tribunal to consider it doubtful that a brother of a powerful and influential politician in Sri Lanka would pursue the humble occupation which, on the applicant’s account, the politician’s brother carried on.

Reliance on influential individuals not having public outbursts of violence

1. The Tribunal did not make a finding or rely on the proposition that “influential individuals do not have public outbursts of violence”. The Tribunal relied on a generalisation, namely, that it is doubtful that a powerful politician would expose himself in a public display of violence in threatening to shoot the applicant in public. The question is whether it was rationally open to the Tribunal to adopt and apply such a generalisation as a ground for not accepting the applicant’s account of the incident with the politician’s brother and politician. In my opinion, it was rationally open to the Tribunal to do so.

Reliance on politician not holding office

1. The applicant submits that it was irrational for the Tribunal to have doubts that the incident with the politician and politician’s brother did not occur because it had doubts about whether the politician held power at the time of the incident.

2. In my opinion, whether or not the politician was in power at the time of the claimed incident was relevant to whether the incident occurred. The applicant’s case was that the politician was a member of the TMVP and the chairman of a local authority. It was open to the Tribunal to rely on evidence which raised doubt about whether the politician was a member of the local authority to doubt the applicant’s evidence that an incident occurred involving a person who was a member of a particular local authority.

3. Ground 5, therefore, also fails.

Conclusion and disposition

1. The applicant has not made out any of his grounds of review. The Tribunal was not obliged to comply with s.424(A)(1) or s.424AA(b) of the Act; the Tribunal complied with s.425 of the Act; the Tribunal considered all of the applicant’s claims; and the Tribunal did not affirm the delegate’s decision on the basis of any irrationality.

2. I therefore propose to dismiss the application and order that the applicant pay the Minister’s costs.

3. I will also order that the application be amended to reflect the Minister’s current title.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  7 February 2014