SZSZW v Minister for Immigration

Case •

[2015] FCCA 402

•

26 February 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 402
Catchwords:
MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether the Tribunal failed to consider a claim expressly made or clearly arising – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.46A, 476
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
SZSSC v Minister for Immigration and Border Protection [2014] FCA 863
SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
SZQPA v Minister for Immigration & Anor [2012] FMCA 123
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
Chen v Minister for Immigration & Ethnic Affairs (1995) 58 FCR 96; 130 ALR 405
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [ 2003] FCAFC 59
Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510
Applicant: SZSZW
First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG 1469 of 2013
Judgment of: Judge Nicholls
Hearing date: 27 October 2014
Date of Last Submission: 27 October 2014
Delivered at: Sydney
Delivered on: 26 February 2015

REPRESENTATION

Counsel for the Applicant: Mr L J Karp
Solicitors for the Respondents: Mr L Dennis of Sparke Helmore

ORDERS

  1. The application made on 28 June 2013 and amended on 16 April 2014 is dismissed.

  2. The applicant pay the first respondent’s costs set in the amount of $ 5400.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1469 of 2013

SZSZW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 28 June 2013 and amended on 16 April 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 May 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

Background

  1. The evidence before the Court is contained in a bundle of relevant documents filed by the Minister in these proceedings (“Court Book” – “CB”). The following is relevant as background.

  2. The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia as an “irregular maritime arrival” on 7 March 2012. The Minister subsequently exercised his discretion, pursuant to s.46A(2) of the Act, allowing the applicant to make an application for a protection visa. The applicant made such an application on 22 June 2012 (CB 16 to CB 42). A delegate of the Minister refused to grant him a protection visa on 7 November 2012 (CB 112 to CB 132).

  3. The applicant applied for review to the Tribunal on 16 November 2012. He was assisted by a registered migration agent (CB 133 to CB 139). The applicant appeared at a hearing before the Tribunal on 26 February 2013 (CB 154). Written submissions were submitted to the Tribunal by his migration agent on 27 February 2013 (CB 159 to CB 170). The Tribunal affirmed the delegate’s decision on 30 May 2013 (CB 173 to CB 194).

  4. Ultimately, before the Tribunal, the applicant’s claims to fear harm from the Sri Lankan authorities were said to arise from his Tamil ethnicity, including that he would be imputed with a particular political opinion as an LTTE supporter, suspected links to the LTTE arising from some of his family circumstances, and as a failed asylum seeker. The personal and family circumstances were said to involve his family’s relocation to an LTTE area during the war, his brother’s detention in 2006 as a suspected LTTE supporter, his sister’s and cousin’s known involvement with the LTTE, the questioning of his family by the Sri Lankan authorities since his departure from Sri Lanka and because of scarring on his body.

  5. The Minister’s written submissions filed in these proceedings provide a concise, and in my view, reasonable account of the Tribunal’s findings. I adopt these paragraphs for the purposes of this judgment ([5] – [9] of the respondent’s written submissions):

    “[5] The Tribunal accepted much of the applicant’s evidence about past events, including that his sister was forcibly recruited to the LTTE (CB 178: [18]-[19]), that his brother was detained and question in or around 2006 for suspected involvement in the LTTE (CB 178: [20]), and that he was questioned by the Sri Lankan Army (SLA) in 2009 about his scars which were the result of wounds inflicted in 2007 and 2009 from shrapnel and a bullet (CB: [22]).

    [6] However, the Tribunal was ultimately not satisfied that, when the applicant left Sri Lanka for Australia in November 2011, he had an adverse profile with the Sri Lankan authorities, or that any of his claims gave rise to a real chance of serious harm in Sri Lanka in the reasonably foreseeable future (CB: [13], [28]).

    [7] The Tribunal found that there was no evidence that the applicant, or any of his family members, have maintained an adverse profile or have experienced any harm in Sri Lanka as a result of any imputed LTTE connections (CB 176-183: [13], [18], [20]-[25], [28], [34], [36]-[39]).

    [8] The Tribunal also accepted that, as a failed asylum seeker, the Applicant was likely to come into contact with the Sri Lankan authorities upon his return to that country, but that there was no evidence (including country information) that being a returned failed Tamil asylum seeker would impute him with any particular political opinion or give rise to a real chance of serious harm (CB 182-183: [37]; CB 186: [48]).

    [9] For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion under section 36(2)(a) of the Act (CB 186: [48], [51]). On the same bases, the Tribunal was not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm and accordingly found that he failed to satisfy the complementary protection criterion under section 36(2)(aa) of the Act (CB 186 [49]-[51]).”

Application Before the Court

  1. The application, as amended, contains three grounds. All were pressed before the Court:

    “1. The Tribunal failed to consider a claim made specifically in the applicant’s migration agent’s submission at CB 93, that being that the applicant was in danger of being detained and persecuted at the airport upon his return to Sri Lanka as a failed asylum seeker during the course of investigation as to whether he had supported or assisted the LTTE.

    2. The Tribunal failed to consider a claim made specifically in the applicant’s migration agent’s submissions at CB 162-3, that being that the applicant was in danger of being detained and persecuted at the airport upon his return to Sri Lanka as a failed asylum seeker because of visible scarring.

    3. The Tribunal failed to address a claim made in submissions to it (at CB 165) that the applicant may be the victim of extortion at the airport upon his return to Sri Lanka.”

The Grounds of the Application

  1. While the applicant has pleaded his case in three grounds, in essence, the assertion of jurisdictional error is that that the Tribunal failed to consider, or to address a claim, or an integer of a claim, in three instances, including claims contained in a submission to the Tribunal. The applicant relied on a number of legal principles to make his case.

  2. First, the Tribunal is obliged to consider claims, and integers of claims, to fear harm made by the applicant (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [7] and [42]). What can be added to that is the proposition from NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 at [68] (“NABE (No.2)”, that the Tribunal’s obligation is to consider those claims expressly made, and clearly arising from the circumstances presented.

  3. Further, I note that in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”), the relevant obligation on the Tribunal is to consider all substantial and clearly articulated claims, relying on established facts, expressly made or clearly arising from the circumstances presented.

  4. Second, the Tribunal’s task of assessing and determining what might happen to the applicant on return required “…a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant” (Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [38]).

  5. Third, the Tribunal is obliged to consider and determine a “submission of substance” (SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 (“SZSSC”) at [75] and see the reference to Dranichnikov there and SZRBA v Minister for Immigration and Border Protection [2014] FCAFC 81 at [11]). The relevant test is “whether there were in fact relevant submissions of substance which were clearly articulated and were made by or on behalf of the applicant which were not evaluated by the Tribunal…” (SZSSC at [82]).

  6. In my view what can be added to this is what Robertson J also made clear in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 (“SZRKT”) at [97] that “merely to ignore ‘relevant material’ does not establish jurisdictional error”. Further, ([111] – [112] of SZRKT):

    “[111] In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

    [112] As the Full Court said in VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [77] whether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims. To the extent that the Minister’s submissions involved the contention that it is always the case that these matters may be dealt with without reference to the Tribunal’s reasons I do not agree.”

  7. What I respectfully understand from SZRKT is as drawn from what is set out in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [29]:

    “The relevance of the distinction between claims and evidence and the authorities relied on by the Minister are considered later in this judgment. It is sufficient to note at this stage that the Minister did not directly challenge the correctness of Robertson J’s recent analysis of the relevant principles in this area in Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 (SZRKT), which was cited with approval by the Court in MZYTS at [68]-[70]. The approach favoured in SZRKT and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.”

    [Emphasis added.]

  8. Fourth, the Tribunal’s decision is to be read fairly and “...[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error...” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ).

  9. However, this should, relevantly, be viewed in light of SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 (“SZCBT”) at [26]:

    “The Minister urged a ‘beneficial’ construction of the Tribunal’s reasons and referred to comments made in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, in particular at 271-272. The phrase ‘beneficial construction’, as used in Wu Shan Liang has a specific meaning, and was certainly not intended to mean that any ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour. Rather, the construction of the Tribunal’s reasons should be beneficial in the sense that the Tribunal’s reasons would not be over-zealously scrutinised, with an eye attuned to error. In this sense a ‘beneficial’ approach to the Tribunal’s reasons does not require this Court to assume that a vital issue was addressed when there is no evidence of this and, indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked.”

  10. The Minister did not take issue with any part of the applicant’s reliance on the authorities referred to above. The issue in the current proceedings, in each of the three instances set out in the grounds of the application, is whether the Tribunal’s reasons provide evidence that the Tribunal “sufficiently” dealt with the claims and submissions made to it.

  11. Ground one asserts that the Tribunal failed to consider a claim made in the migration agent’s submissions, that the applicant would face persecution during the process of interrogation that would occur at the airport, upon his arrival in Sri Lanka (with reference to CB 93).

  12. The applicant referred to his migration agent’s submissions made to the Tribunal (30 August 2012) and the reliance there on what was said in SZQPA v Minister for Immigration & Anor [2012] FMCA 123 (“SZQPA”) at [29] (at CB 93):

    “In my view, the error in the Reviewer’s approach was to focus on the likely outcome of the possible detention and interrogation of the applicant on return to Sri Lanka rather than to consider the process of interrogation to which he would be subjected and the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter, notwithstanding his family’s connection with the LTTE and his own role. It would be arguably possible to characterise the error as a failure to address part of the applicant’s claims, or as a finding for which there was no evidence or which was illogical or irrational or as a failure to have regard to relevant evidence. Those grounds are, however, pointers to the real problem. The real problem was that, except in relation to the issue of arms caches, the Reviewer focused on the ultimate outcome of interrogation and detention rather than the process of detention and interrogation itself.”

  13. Ground two asserts a similar failure in relation to the submission that the applicant would be detained and persecuted, on return, at the airport as a failed asylum seeker, because he was visibly scarred.

  14. The applicant referred to his agent’s written submissions to the Tribunal of 27 February 2013, and the reference there to certain country information (CB 162.5 to CB 163.2):

    “…In the 2012 UK Operational Guidance Note for Sri Lanka, which cites the English Case of NA v United Kingdom ECHR (2008), the Court found that the following risk factors would increase the likelihood that someone would be detained at the airport:

    1. Tamil ethnicity

    …

    7. The presence of scarring

    …

    11. Having made an asylum claim abroad

    12. Having relatives in the LTTE…”

    [Emphasis in the original, footnotes omitted.]

  15. Ground three also asserts a similar failure, in relation to the submission that the applicant may be the victim of extortion at the airport on return to Sri Lanka.

  16. The applicant referred to his migration agent’s written submissions of 27 February 2013 (at CB 165):

    “…Furthermore, in order to conclude such investigation at the airport, [the applicant] may be asked to pay a bribe. We submit that this would not be a legitimate fine, and may well amount to extortion. A March 2008 RRT Research response found that:

    In fact rather than being supported on return, returning asylum seekers may instead be vulnerable to corrupt immigration officials or criminals. Hotham Mission has heard of at least two incidences wherein people returning were cornered into paying bribe money to immigration officials in order to pass through the airport unhindered. Abductions for ransom of wealthy business people are occurring nationwide, so people returning from overseas may be a target, as it will be assumed that they have money.”

    [Emphasis in the original, footnotes omitted.]

Consideration

  1. In relation to ground one, the applicant submitted that the Tribunal (at [41] at CB 183) made a general reference to the migration agent’s written submissions, but did not address what the applicant now described, as the “specific” claim made in those submissions, that the applicant may be harmed during the process of interrogation.

  2. Further, the applicant submitted that the Tribunal did not address this “specific” claim elsewhere in its decision record. The applicant argued that while the Tribunal made findings of a global nature about what may happen at the airport on return, it did not demonstrate, or give “consciousness” or consideration, to this submission, in the sense explained in the relevant authorities.

  3. As is made clear in the authorities on which the applicant relied, the “central issue” is whether what appears at CB 93 (see [18] above) was a clearly articulated submission of substance made on behalf of the applicant and was not “evaluated” by the Tribunal. The Minister did not seek to distinguish the circumstances in those authorities from the circumstances of this case.

  4. The question that immediately arises is directed to the nature, character and substance of the submission to the Tribunal, in relation to persecution at the airport during the course of the interrogation, or investigation, of the applicant by the Sri Lankan authorities.

  5. That submission, when read fairly, and in the context in which it appears is, in my view, as follows. The applicant feared harm on return to Sri Lanka as a returned asylum seeker (CB 91.5). The submissions referred to various independent reports concerning Tamil returnees to Sri Lanka (CB 91.6 to CB 93.1).

  6. These reports made reference to the detention, and questioning, of Tamil returnees on arrival in Sri Lanka, including the use of torture by the military and the police. It is of note that the detention and questioning was said to be for the purpose of ascertaining connections with the LTTE.

  7. In this context, the applicant’s representative’s submissions to the Tribunal sought to draw on the distinction identified in SZQPA, between a decision focussing on the likely outcome of any possible detention and interrogation, as opposed to a consideration of the process of detention and interrogation itself.

  1. The representative’s submission concluded with the following (at CB 94):

    “…Based on the above mentioned reports and reasoning, we submit that Sri Lankan nationals, notably Tamil men such as [the applicant] are at the risk of being subjected to torture and detention upon return to Sri Lanka by reason of their identity as asylum seekers who have fled Sri Lanka. Further, this risk is exacerbated by the Sri Lankan authority’s existing suspicion of [the applicant] as having links with the LTTE. We submit that [the applicant] has fear of persecution on grounds of being a returned asylum seeker is well founded…”

  2. At [41] (at CB 183), the Tribunal reported on these submissions:

    “The applicant’s representative, in written submissions provided to the Department and the Tribunal, including post-hearing submissions, referred to a range of independent sources addressing the treatment of returnees to Sri Lanka, including failed asylum seekers, highlighting categories reported to have heightened risk profiles and a ‘higher chance of being questioned and even placed in detention on arrival at Bandaranayake International airport’ (Tribunal folio 82). His representative also indicated that his risks are heightened as he would return to Sri Lanka without documentation. The Tribunal accepts that the applicant may return to Sri Lanka without a passport, despite holding a valid current passport which is in the possession of his family in Sri Lanka, and in that sense may be considered to be undocumented.”

  3. The dispute between the parties now turns on how to read the Tribunal’s analysis at [48] (at CB 186):

    “On balance, while the Tribunal accepts that the applicant will, as a returnee to Sri Lanka, go through a process which will bring him into contact with the Sri Lankan authorities, the Tribunal is not satisfied, on the evidence before it, that being a returned Tamil failed asylum seeker who is also undocumented, singularly or in combination with what is accepted of the balance of the applicant’s personal and family profile, would give rise to differential treatment for a Convention reason, or that the process he faces on returning to Sri Lanka as a failed asylum seeker involves, amounts to, reveals or gives rise to a real chance of serious harm, either at the airport in Sri Lanka or on the applicant’s return to his home in either Jaffna or Mannar, or at any point in the reasonably foreseeable future in Sri Lanka. The Tribunal notes the UK Home Office observations (see paragraph 46 above) that two of thirteen reported returnees ‘alleged’ that they suffered mistreatment, however the evidence before it is unclear as to the veracity of testing of such allegations as well as the reason or reasons for any mistreatment suffered in the alleged cases, making such alleged cases of little assistance in assessing the risk of harm faced by a returned Tamil failed asylum seeker in the applicant’s circumstances. On balance, based on the totality of the evidence before it, the Tribunal is not satisfied that the evidence reveals a real chance of persecution involving serious harm for the essential and significant reason of the applicant’s membership of a particular social group characterised by his return to Sri Lanka as a Tamil failed asylum seeker, either singularly or cumulatively, in the reasonably foreseeable future.”

  4. The applicant says that the Tribunal did not consider, in the sense of intellectually engage with, or turn its mind to, the question of whether the applicant would face persecution while being questioned or interrogated at the airport about whether he had any connection to the LTTE, and as to his identity.

  5. It is the case, as stated above, that Tribunal decisions are to be read fairly (Wu Shan Liang). This does not mean, as also stated above, that any ambiguity can be simply resolved in the Tribunal’s favour (SZCBT). Further, while brevity of itself is not revelatory of legal error in any Tribunal decision record, the record, as the primary, and generally only, evidence of the Tribunal’s approach to its consideration of any of the applicant’s claims, in the exercise of its statutory task, must be comprehensive of those claims.

  6. That is, in light of the authorities on which the applicant relies, there must be some basis or evidence that the Tribunal engaged in a process of evaluation of those claims and integers of those claims. This, given the authorities, includes claims of substance as expressed in submissions.

  7. In the current case, the substance of the applicant’s relevant submissions to the Tribunal was that he would be returning to Sri Lanka as a failed asylum seeker without relevant documentation, would be detained at the airport, and would be persecuted there because of the process of detention itself. Further, that he would be seriously harmed, including tortured, during this process.

  8. When fairly read, the Tribunal’s analysis at [48] (at CB 186), which should be read in the context of the entire consideration of the applicant’s claim to fear serious harm as a returned asylum seeker


    ([40] – [48] at CB 183 to CB 186), shows that the Tribunal was focussed, amongst other matters, on the “process” at the airport ([48] at CB 186).

  9. At [48] (at CB 186) the Tribunal found that the applicant faced a “process” on return at the airport, but that process would not “give rise to a differential treatment for a Convention reason”. Nor that it would “amount to …serious harm”.

  10. The Tribunal noted in its antecedent analysis that, for example, returned asylum seekers are ([44] at CB 184):

    “…people also identifiable by the fact that they travel on temporary travel documents; these individuals are taken out of immigration queues and subjected to special questioning by the Police and members of the Terrorist Investigation Department [TID] and are almost always detained…”

  11. I agree with the Minister that the Tribunal’s evaluation was cognisant of, and responsive to, the extent, and scope, of the claim as it was expressed in the written submissions to it. Ground one is not made out.

  12. It should also be noted that the applicant’s submissions to the Court, although expressed in more general terms, appeared to imply that in considering this matter the Tribunal fell into error because it did not engage with, or assess the qualitative aspects of the detention, and interrogation. However, had the Tribunal done so, it would have fallen into the same error as identified in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [28], [30], [42] and [45].

  13. Ground two arises out of the representative’s submission to the Tribunal (see [20] above), that the presence of “scarring” on a failed asylum seeker Tamil returnee, was a risk factor that increased the likelihood of detention and persecution on return at the airport.

  14. In submissions before the Court the applicant directed attention to [22] (at CB 179) and [34] (at CB 181 to CB 182) of the Tribunal’s decision record:

    “[22] The Tribunal also accepts that the applicant acquired wounds in 2007 and 2009 when he was hit by shrapnel/a bullet when going about his daily life and that he retains scars from these wounds. The applicant informed the Tribunal that he was strip-searched on his entry to the Menik Farm camp in 2009 and he was questioned by the SLA about his scars and his family links to the LTTE. The Tribunal accepts that this occurred, yet on his own evidence, despite his family links to the LTTE being known to the SLA and his scars being visible to them, he was subjected to nothing more than verbal questioning in connection to these things cumulatively between 2009 and November 2012 and his family members continue to live in Sri Lanka currently, without harm. His evidence reveals no instances in which he experienced treatment involving persecution involving serious harm as contemplated by section 91R(1)(b) or 91R(2) of the Act, or significant harm as contemplated by section 36(2A) of the Act in connection with his scars or any other reason since his release from Menik Farm in November 2009. The Tribunal considers this to suggest that the applicant does not face a real chance of serious harm in Sri Lanka in connection to the above characteristics, including cumulatively, which were clearly known to the Sri Lankan authorities at the time of his departure from Sri Lanka in November 2011. These characteristics include his Tamil ethnicity, his family links to Mannar and Elaailai in Jaffna, his sister’s death as a forced recruit of the LTTE, his brother’s detention and residence in India, his cousin’s death, his scars, his family’s involvement in Tamil remembrance day activities (which he informed the Tribunal his family has been involved in since 1996) and those factors cumulatively.

    …

    [34] Regarding his scars, the Tribunal accepts that the applicant has the scars claimed, however, as reasoned in paragraph 22 above, the applicant’s evidence indicates that he has been questioned by the Sri Lankan authorities in connection with these scars in the past and that no adverse consequences amounting to serious or significant harm flowed from the Sri Lankan authorities awareness of those scars. The applicant told the Tribunal that he explained to the Sri Lankan authorities the circumstances in which he acquired those scars. His evidence suggests to the Tribunal that his explanations have been accepted by the Sri Lankan authorities and that he has not been imputed with any particular political opinion in connection with those scars. The Tribunal is not satisfied, on the evidence before it, that the applicant’s scars, singularly or cumulatively, will impute him with any political opinion in support of or linked to the LTTE or opposed to the Sri Lankan Government in the reasonably foreseeable future, or they otherwise give rise to a real chance of serious harm in the reasonably foreseeable future.”

  15. Before the Court, the applicant submitted that the representative’s submissions to the Tribunal focussed on what would likely happen at the airport on return. The Tribunal’s consideration about the “scarring” (as at [22] at CB 179 and [34] at CB 181 to CB 182 and see also [41] at C 183) was at a general level, and not directed to the specific submission, as to what would likely happen at the airport, as a result of the scarring. That is, it would result in an increase of the likelihood that the applicant would be detained.

  16. The applicant also submitted that the Tribunal’s relevant reasoning was that the applicant had been questioned previously by authorities in 2009, including in relation to the scarring, and had not faced serious harm. The complaint was that the Tribunal could not assume that the authorities at the airport would take a similar approach.

  17. In relation to this latter point, it is the case that the relevant task for the Tribunal is to make findings of fact to establish whether the applicant’s fear is well founded. The focus of the relevant test is forward looking. That is, as noted, with approval, by the High Court in Wu Shan Liang at [47], it is a “reasonably foreseeable future” test, as it arises from the Refugee’s Convention (see with reference to Chen v Minister for Immigration & Ethnic Affairs (1995) 58 FCR 96; (1995) 130 ALR 405).

  18. However, findings as to what occurred in the past can provide a reasonable and rational basis for the assessment as to whether the Refugees Convention test is satisfied. In Minister for Immigration & Ethnic Affairs v  Guo  Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 574, the High Court found that past events could assist in the assessment of what is likely to occur in the future.

  19. However, and importantly, the past is not to be examined for its own sake, but as a guide to the future (see for example VAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 59). I note also that an applicant does not need to establish persecution in the past so as to be able to demonstrate a well-founded fear of persecution, as it relates to the future (Abebe v The Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510 at [52]). In all, it must not be forgotten that the application of these principles depends on the circumstances presented by an applicant.

  20. In the current circumstances, I do not agree with the applicant that the Tribunal made an “assumption”, and that its line of reasoning failed to consider the claim relating to scarring, as advanced by the applicant to it.

  21. The Tribunal accepted that the applicant retained scars from shrapnel wounds sustained in 2007 and 2009. In my view, past events relating to subsequent questioning of the applicant by the Sri Lankan authorities in 2009, in circumstances where, the authorities knew of his family’s link to the LTTE, and the scarring was visible, could assist in informing the Tribunal as to what would likely happen on the applicant’s return to Sri Lanka at the airport in relation to the question of serious harm.

  22. The Tribunal’s reasoning was that the applicant was, notwithstanding the characteristics it identified, not harmed by the authorities in 2009. It found these characteristics were known to the authorities when he departed Sri Lanka in November 2011. These findings were reasonably open to the Tribunal on what was before it.

  23. Ultimately, and relevant to the applicant’s complaint now, the Tribunal’s reasoning was, given that the applicant’s explanation as to how he had acquired the scars was accepted by the authorities in the past, and he was not imputed with any political opinion as a result, that this would likely occur again on return at the airport. While a different Tribunal member may have taken a different view, no error is revealed in circumstances where the Tribunal’s finding was reasonably open to it on what was before it. In all, the claim relating to scarring, and the airport, was advanced and considered by the Tribunal. Ground two is not made out.

  24. Ground three asserts that the Tribunal failed to consider the applicant’s claim that he would be the victim of extortion at the airport, on return to Sri Lanka. Again, the applicant relied on his representative’s written submissions to the Tribunal (see [23] above).

  25. The applicant submitted that there is no mention in the Tribunal’s decision record of the matter of “extortion”. Therefore, there is no evidence that the Tribunal dealt with this claim. As a consequence it should be found that it fell into jurisdictional error.

  26. Before the Court, the Minister accepted that this claim arose from the materials before the Tribunal (with reference to CB 165.6 and to NABE (No.2) at [55] to [63]). However the Minister’s position was that the Tribunal dealt with this claim. The Minister referred to [41] (at CB 183 - see [32] above) and to [48] (at CB 186 - see above at [33]) of the Tribunal’s decision record.

  27. The Minister’s submission was that at [41] (at CB 183), the Tribunal made specific reference to the applicant’s representative’s written submissions. This included the part of the written submissions on which the applicant now relies. That is, what is reproduced at CB 165 (see [23] above).

  28. Those written submissions, including the part the applicant now relies on, set out references to various country information reports concerning the treatment of returnees to Sri Lanka, and referring to categories of heightened risk profile.

  29. The Minister’s position was that the Tribunal’s reference to the representative’s written submissions, in relation to the matter of returning asylum seekers, and in particular, the reference to those submissions “...highlighting categories reported to have heightened risk profiles…”, should be read with reference to what was said in the written submissions about those heightened risk profiles.

  30. The Minister accepts that the Tribunal did not make specific mention to the matter of “extortion” in its analysis. However, the references to the written submissions, the country information referred to in them and the link in the written submissions between those characteristics and what would likely happen at the airport, meant that the Tribunal acknowledged the matter of extortion, albeit in a general, but sufficient, way.

  31. The applicant relied on the authorities (referred to above) to argue that the Tribunal, in the circumstances, did not turn its mind specifically to the matter of extortion.

  32. On balance, I agree with the Minister. The Tribunal’s reference to the written submissions, the specific reference to the characteristics of the risk profiles in those submissions, and, importantly, the link in those submissions, to what would likely happen to the applicant, who possessed some of these characteristics, at the airport (“may be asked to pay a bribe” – CB 165.7), is a sufficient basis to say that the Tribunal considered the applicant’s claim as to extortion. Further, that it did so in a manner consistent with the extent of that claim, as it was put in the written submissions.

  33. The Tribunal did give “conscious consideration” to the applicant’s claim as required by the authorities. It is important to note the matter of the possible “bribe/extortion” was raised in the written submissions in the context of what may happen to the applicant at the airport on arrival. That is, in light of certain characteristics that he had, and how this heightened the risk profile.

  34. As stated above, the representative’s written submissions claimed the applicant had certain characteristics, and that these would lead to a heightened risk profile, and, as a result, the applicant would be detained for questioning at the airport, and during the questioning (see “…in order to conclude such investigation at the airport…” and he “may be asked to pay a bribe…” (CB 165)).

  35. When [48] (at CB 186) is fairly read in context, therefore, the findings relating to what would occur at the airport, and the conclusion that this would not give rise to serious harm, includes the claims in the written submissions, and, relevantly,  the possibility of the expectation of the payment of a bribe. The reference to “…a range of independent sources addressing the treatment of returnees to Sri Lanka, including failed asylum seekers” in [41] (at CB 183), and that this range of sources was as presented in the representative’s submissions, therefore, on balance, includes an acknowledgment to the reference in those submissions to the independent country report, concerning the matter of bribery and extortion.

  36. The Tribunal, therefore, considered this submission, even though not expressly particularised. That the Tribunal was subsequently of the view that it would not lead to serious harm, was a finding reasonably open to it on what was before it. Ground three is not made out.

Conclusion

  1. The grounds of the application are not made out. It is appropriate to dismiss the application. I will make an order accordingly.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 26 February 2015

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