SZTBD v Minister for Immigration

[2013] FCCA 2182

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBD v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2182

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – alleged failure to take into account relevant consideration – whether the Tribunal assessed the applicant’s claims in relation to complementary protection – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 36(2A), 46A, 91R, 476

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZSFK v Minister for Immigration and Anor [2013] FCCA 733
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263
QAAR v Refugee Review Tribunal [2005] FCA 1818
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 1088

Applicant: SZTBD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1591 of 2013

Judgment of: Judge Nicholls

Hearing date: 6 November 2013

Date of Last Submission: 6 November 2013

Delivered at: Sydney

Delivered on: 17 December 2013

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Success Lawyers and Barristers

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

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

2. The application made on 12 July 2013 and amended on 17 September 2013 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $5,400.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1591 of 2013

SZTBD

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 12 July 2013 and amended on 17 September 2013, seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made 7 June 2013, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.

Background

1. The applicant is a national of Sri Lanka (Court Book – “CB” – CB 3). He arrived in Australia on 28 June 2012 and was classified as an “irregular maritime arrival” (CB 38). The Minister acted pursuant to s.46A(2) of the Act, and the applicant was able to make a valid application for a protection visa (CB 17). He did so on 15 November 2012 (CB 20 to CB 105) with the assistance of a firm of lawyers and migration agents (CB 20).

2. The applicant’s claims to protection were initially set out in his “Statutory Declaration” attached to his application (CB 86 to CB 88). Essentially, the applicant claimed to fear harm from the Sri Lankan authorities because of his Tamil ethnicity, and because he would be suspected of being a former member or supporter of the LTTE. The applicant referred to two incidents in 2005 and 2006 when his “uncles” were killed (CB 86). The applicant claimed that the first “uncle” was shot by the Sri Lankan army who suspected him of involvement in a bomb blast, and that the second uncle was killed by a paramilitary group (CB 86.7). Further, the applicant referred to an incident in 2008 when another uncle was killed and that the applicant was detained by “white van people” and was “heavily interrogated” about a “cousin” (CB 87.2). Even further, the applicant claimed that it was his fear of the “white van people” that was the “driving force” behind his leaving Sri Lanka (CB 87.3).

3. The applicant was interviewed by the Minister’s delegate (CB 121). While the delegate appeared ambivalent as to some factual findings (“[t]he applicant may have been questioned in 2005 or 2006… (CB 123.4)), she found that he did not have a “particular profile which would make him of interest to the Sri Lankan authorities…” (CB 123.7).

4. Ultimately, the delegate found that the claimed fear was not well-founded (CB 125 to CB 136). Further, that there were not substantial grounds for believing that there was a real risk of significant harm (CB 137 to CB 139).

5. The applicant applied for review of the delegate’s decision on 26 February 2013 (CB 141). He continued to be represented (CB 140 and CB 159). Written submissions were made by the applicant’s representative on the applicant’s behalf, and a number of documents were provided (CB 162 to CB 242 and CB 242 to CB 266). On 30 May 2013, the applicant attended a hearing before the Tribunal, and his representative participated by telephone (CB 267).

6. The Tribunal affirmed the delegate’s decision on 7 June 2013. The Tribunal noted that a “preliminary issue” in the applicant’s case was the matter of his ethnicity given his father was Sinhalese. The Tribunal found that the Sri Lankan authorities regarded him to be of “mixed ethnicity” ([9] at CB 278).

7. The Tribunal considered the applicant’s fears of past harm as arising out of the claims concerning his relatives who had been killed in 2005 and 2006, and the incident in 2008 (at CB 279). The Tribunal found that the applicant’s evidence “varied” in relation to the death of the relatives, and that the applicant’s claim as to who was responsible was highly speculative ([11] at CB 279). The Tribunal also found other aspects of the applicant’s evidence to have “differed significantly” between what he told the delegate and what he told the Tribunal, and that he gave a “range of responses” as to whether he had been physically harmed. The Tribunal formed the view that the applicant was “attempting to exaggerate his evidence to enhance his claims” ([12] at CB 279).

8. The Tribunal accepted that the two relatives had died in 2005 and 2006, but found that the applicant was not “specifically adversely targeted or harmed”, “by the authorities or others” in connection with either of the deaths ([14] at CB 280). The Tribunal found the questioning to which the applicant had been subjected after the relative’s death in 2006 did not reach the level of serious or significant harm ([14] at CB 280).

9. In relation to the incidents in 2008 involving the claim that the applicant had another “uncle” who had been killed on suspicion of LTTE links, the Tribunal found that he had not mentioned this to the delegate at the interview ([15] at CB 280).

10. The applicant gave the Tribunal documentary and oral evidence as to the claimed “closeness” of the relationship with the person who had been killed. This was in support of his claim that he had suffered harm as a result of this relationship. However, the Tribunal was not “convinced” by this evidence ([17] at CB 280).

11. As to the claim that he “directly suffered harm in connection with that relation’s death”, the Tribunal found that the applicant had not been “questioned, abducted, detained, beaten or adversely approached by anyone on Sri Lanka in connection” with that death, or that he had “any adverse profile in Sri Lanka” as a result of that death ([22] at CB 281 to CB 282). Further, the applicant’s “distant” connection to that person did not give rise to serious harm in the future ([18] at CB 281 to [22] at CB 282).

12. The Tribunal noted that the applicant had lived in Sri Lanka at the same address from 2006 until his departure for Australia in 2012 ([23] at CB 282). Further, considering the applicant’s evidence, the Tribunal found that approaches made to his family about his “whereabouts” since his departure did not amount to serious or significant harm

    
    

    ([23] – [24] at CB 282).

13. The Tribunal found the applicant had no adverse profile when he left Sri Lanka ([24] at CB 282). It also considered the matter of “profile in the reasonably foreseeable future” ([25] at CB 282 to CB 283). In this regard, the Tribunal considered the applicant’s circumstances as being a young Tamil male from the north of Sri Lanka. The Tribunal found his family circumstances, when considered in this context and having regard to country information concerning Tamils, or Tamils from the north, would not give rise to a real risk of fear of serious or significant harm ([26] at CB 283 to [30] at CB 287).

14. The Tribunal also considered claims of imputed political opinion

    
    

    ([31] – [34] at CB 284), membership of a particular social group ([35] at CB 284 to [37] at CB 285), and failed asylum seekers who had departed Sri Lanka illegally ([38] at CB 285 to [48] at CB 288). The Tribunal found that none of these gave rise to a fear of serious harm in the Refugees Convention context ([50] at CB 289).

15. The Tribunal separately considered the complementary protection criterion (s.36(2)(aa) of the Act) and found that the applicant’s claimed circumstances did not give rise to a real risk of significant harm ([51] at CB 289 to [54] at CB 290).

Before the Court

1. The application to the Court, as amended on 17 September 2013, is in the following terms:

   “Ground One

   The Tribunal fell into jurisdictional error in assessing the complementary protection under s 36 of the Migration Act and the issue of complementary protection was not assessed as required by the Migration Act. The Tribunal committed jurisdictional error when it failed to apply the correct test in respect of the level of harm to constitute harm for the purposes of s 36(2A) of the act; conflating the determination of the significant harm with the issue of serious harm as per s 36(2) of the Act.

   Particulars

   The Tribunal failed to separately and properly assess the issue of complementary protection to satisfy itself under s 36(2)(aa) of the Act. Whilst claims such as deaths in 2005, 2006 and 2008 was assessed as not having a Convention nexus (CB284 at [33]) the Tribunal did not separately consider the section to satisfy itself as to complementary protection even if the claim did not fall under the Convention nexus and / or erred in applying the correct test for degrading punishment in relation to me breaching the Sri Lankan Immigration and Emigration Act questioning and arrest at the airport on arrival, detention in possibly cramped and insanitary conditions whilst on remand and awaiting bail hearing and subsequently fines.

   Ground 2

   The Tribunal fell into jurisdiction error in assessing the risk of harm / abductions ‘in his area’ by ‘white vans’ (CB 164) from his area and / or denied the Applicant procedural fairness in failing to allow the applicant to address this claim.

   Particulars

   The Tribunal proceeded to make assessment based on country information [the] Applicant was not given opportunity to address the determinative findings of the Tribunal with respect to this claim.

   Ground 3

   The Tribunal committed jurisdictional error in assessing (CB 384 at [31] – [34]) the harm that may flow for the imputed political opinion.

   Particulars

   The Tribunal misdirected its enquiry when perception that an Applicant may have LTTE links when it was looking at actual LTTE link. The Tribunal thus applied wrong test and / or asked incorrect question (thus failed to address whether there would be perception of imputed political opinion).

   Ground 4

   The Tribunal committed jurisdictional error in assessing ‘a particular social group’ in assessing the Applicant’s claims.

   Particulars

   The Tribunal erred in limiting the attributes of Tamil ethnicity and from being north and east without properly looking at the attributes of the Applicant’s social group.”

2. At the hearing, Mr A Kumar of counsel appeared for the applicant. Mr T Reilly of counsel appeared for the Minister. The Court had before it written submissions from both parties and the bundle of relevant documents filed by the Minister (the “Court Book”).

Consideration: Ground One

1. Ground one of the amended application states that the Tribunal failed to apply the correct test in relation to its consideration of the complementary protection criterion in s.36(2)(aa) of the Act. The applicant asserts that the Tribunal “conflated” the relevant test for “significant harm” with that of “serious harm” relevant to s.36(2)(a) of the Act.

2. The particular to the ground explains that the Tribunal failed to separately assess “the issue” of complementary protection in relation to the claimed deaths of the applicant’s relatives in 2005, 2006 and 2008. The particulars state that these matters were assessed only in the context of the Refugees Convention. Further, the particulars make reference to the matter of questioning and arrest at the airport should the applicant return to Sri Lanka.

3. Before the Court, the applicant had some difficulty in explaining how the Tribunal could be said to have failed to apply the “correct test” in relation to the criterion at s.36(2)(aa) of the Act. I note that simply making assertions of error without reference to the relevant parts of the decision record remain baseless assertions. A submission to the effect that the Tribunal looked at “the issue” of the Refugees Convention test, and then “sort of” extrapolated it into a test for the purposes of complementary protection is not, on its own, helpful.

4. At best, for the applicant, however, there were a number of strands to his complaints that allow some consideration. In relation to the deaths of the applicant’s relatives in 2005, 2006 and 2008, the applicant’s submissions directed attention to [51] (at CB 289) to [54] (at CB 290) of the Tribunal’s decision record. These paragraphs appear under the heading of “Complementary Protection”. The claim can be understood as follows. In its decision record the Tribunal considered the death of the relatives in the context of the Refugees Convention. It found that the deaths did not have a Refugees Convention nexus. The argument is that it did not then “separately” consider the matter of the deaths “under” complementary protection, which it should have done if there was no Convention nexus.

5. The applicant’s complaint fails to read the Tribunal’s record in a holistic manner (see for example Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). Further, it depends on a misreading of its relevant constituent parts.

6. The assertion that the Tribunal found that the applicant’s claims to fear harm “failed” because there was no Convention nexus, must be rejected. As set out above, the Tribunal approached the explanation for its decision, and its analysis, by directing its attention to the various bases, or factual matrices, for protection put forward by the applicant.

7. The claimed incidents of 2005, 2006 and 2008 were all dealt with under the heading of “Claims of past harm” (CB 279). In relation, specifically, to the deaths in 2005 and 2006, after considering the evidence and making relevant findings the Tribunal concluded ([14] at CB 279 to CB 280):

   “Based on all the evidence before it, the Tribunal accepts that the applicant had 2 relatives who died in 2005 and 2006. The applicant would have been aged around 15 or 16 around that time. The Tribunal accepts that those incidents would have frightened him significantly and would continue to inform his subjective feelings of vulnerability and fear in respect of life in Sri Lanka. However, on the evidence before it, the Tribunal is not satisfied that the applicant was specifically adversely targeted or harmed in connection with either of those deaths. The Tribunal accepts, based on the documentary evidence provided, including police statements and press clippings, that the death of the relative in 2006 was the subject of a police inquiry and court investigation, and that the applicant would have been asked about his relationship with the deceased. However the Tribunal is not satisfied that the questioning he experienced amounted to persecution involving serious harm within the meaning sections 91R(1)(b) or 91R(2) or significant harm as anticipated by section 36(2A). Nor is the Tribunal satisfied the applicant was or is of ongoing adverse interest to any group or person, including the Sri Lankan authorities, in connection with those relatives or their deaths. The Tribunal is not satisfied that the applicant’s connection to those deceased persons, singularly or cumulatively, has given him, or will give him in the reasonably foreseeable future, any imputed political opinions including liked to the LTTE or opposed to the Sri Lankan authorities.”

8. What is immediately clear is that the Tribunal was plainly aware of the distinction between the two tests in s.36(2)(a) and s.36(2)(aa) of the Act (“serious” and “significant” harm). It made specific references to these. It also correctly identified sections of the Act relevant, separately to each (s.91R(1)(b), s.91R(2) and s.36(2A) of the Act).

9. There is nothing here to suggest that the Tribunal found adversely to the applicant on these matters because his fears were not Refugee Convention based. The Tribunal was focused, here, on the question of the exact nature and degree of his relationship with the relatives who had died and whether the deaths, which it accepted had occurred, had any consequence for the applicant or his family.

10. The Tribunal’s finding that it was not satisfied that “the applicant was specifically adversely targeted or harmed in connection with either of those deaths” ([14] at CB 280), was not based on any lack of Refugee Convention nexus, but arose from its assessment of the evidence provided by the applicant himself.

11. The Tribunal reasoned that in such circumstances (where there were no adverse consequences for the applicant), it could not be satisfied that the harm feared amounted to “serious” or “significant” harm. These were findings open to the Tribunal on what was before it. Having expressed the conclusion that the incidents did not give rise to a real risk of “significant harm” at that part of its decision record, the Tribunal was not required to repeat it later in its decision record.

12. In relation to the 2008 claimed incidents, the Tribunal’s analysis (at [15] at CB 280 to [24] at CB 282) was plainly focused on dealing with the core part of the applicant’s claim in relation to the events of 2008. Namely, that he had “another” “uncle” who was killed because of suspected LTTE links. The questions for the Tribunal were the exact nature of the relationship, whether this relationship existed, and the claimed consequential events of direct harm to the applicant, in fact occurred.

13. The Tribunal’s analysis here was comprehensive of the relevant factual assertions in the applicant’s evidence. It found, ultimately, that it accepted that the applicant had a “distant relative by marriage who disappeared and was killed in 2008” ([22] at CB 281 to CB 282).

14. The Tribunal then proceeded to look at the different consequences of that finding. First, it found on the evidence that the applicant’s “distant connection” with the person would not lead to him being imputed with any links to support the LTTE such as to give rise to a real chance of “serious” harm ([22] at CB 282). Plainly, the matter of an imputed political opinion is relevant to the Refugees Convention and it was, therefore, appropriate for the Tribunal to consider that factual claim in that context.

15. After considering other factual aspects of the applicant’s claim to have experienced direct harm ([23] at CB 282), both in the context of “serious” and “significant” harm, the Tribunal concluded its analysis at [24] (at CB 282) in relation to the applicant’s claim that based on past events and incidents (including the 2008 incident) he was not the target ([24] at CB 282):

    “… for any type of harm in Sri Lanka the time he departed for Australia, from any agent of the Sri Lankan authorities or any paramilitary entity or anyone else. The Tribunal is not satisfied that the applicant had or believed himself to have had any adverse profile in Sri Lanka at the time he left for Australia in June 2012, or that he faced a real chance of serious or significant harm in Sri Lanka at that time…”

    [Emphasis added.]

1. The Tribunal did not, as the applicant asserts now, reject the factual basis of his claims because of any lack of Convention nexus. The applicant’s reliance here, on what the Tribunal said at [33] (at CB 284), is selective and misleading in this regard.

2. It is the case that at that paragraph, the Tribunal found that the incidents in 2005, 2006 and 2008 had not, and did not, give the applicant a political profile that would give rise to a real chance of “serious” harm. Plainly, the Tribunal was focused here on whether the Refugees Convention related concepts of “political” or “imputed political” opinion could be said to arise in the factual circumstances presented by the applicant and having regard to the Tribunal’s relevant factual findings.

3. Two things are of import here. First is to note the nature and character of the Tribunal’s conclusion derived from its assessment of the evidence, its analysis and its factual findings. Those factual findings were not dependent on, or in character involve, any findings of an absence of a Refugees Convention nexus.

4. Second, as set out above, the Tribunal dealt at [33] (at CB 284) with “serious harm” because of the connection of “imputed political opinion” with the Refugees Convention. It had previously, and separately, addressed the complementary protection criterion as against relevant claims said to arise from the 2005, 2006 and 2008 incidents and rejected them (see [10] at CB 279 to [24] at CB 282).

5. The applicant also claims, in the particulars to ground one, that the Tribunal applied the wrong test in relation to complementary protection. It would appear that the complaint here is that the Tribunal had regard to factual findings made in the Refugees Convention nexus, applied those to its findings on complementary protection, and did so in a way that either “conflated” the two tests (real risk of serious harm or real risk of significant harm) or failed to consider the real risk “under complementary [provisions] of the Act” (see [20] of the applicant’s written submissions). This appears to echo what was found in SZSFK v Minister for Immigration and Anor [2013] FCCA 733, where the Tribunal’s relevant analysis was said to be “problematic”. In that case, certain claims were considered not within their own factual matrix, but in the context of the Refugees Convention and then applied to complementary protection criteria without noting the different tests for each.

6. The premise underlying the applicant’s complaints (the allegation that the relevant findings were derived from a lack of a Refugees Convention nexus basis) and the like, has already been dealt with above.

7. Nor is there any error in the Tribunal referring in its consideration of complementary protection at [53] (at CB 289) to factual findings set out earlier in the decision record in circumstances where those factual findings, in their making, were not “bound up” with Refugees Convention related thinking (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [55] per Robertson J and see [56] at CB 290).

8. For the sake of completeness, I note that the Tribunal applied a “real risk” and not a “balance of probabilities test” (with reference to Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33) when considering the complementary protection criterion. Ground one is not made out.

Consideration: Ground Two

1. Ground two, as stated and particularised, appears to assert two errors. While it was not clear, I understood the complaints to be as follows. First, that, in some unparticularised way, the Tribunal fell into jurisdictional error in its assessment of the applicant’s claim regarding “abductions”, “in his area” by “[people in] white vans”. Second, there was a denial of procedural fairness because the Tribunal failed to allow the applicant to “address this claim”.

2. In oral submissions, the argument appeared to unfold as follows. In the (82 page) submissions made by the applicant’s representative on his behalf to the Tribunal, the following appears at page 3 (under the heading “Persecution arising from ethnicity” at CB 164.3):

   “The Applicant instructs that [he] is also afraid of the white van abductions. He instructs that these white van abductions target young Tamil men in particular and take place in Tamil populated areas. Many of those who have been abducted have not been seen again. Others have been returned after enduring severe beatings and torture. The Applicant instructs that the increasing number of white van abductions in his area raised alarms as to the imminent risk of harm to him and accordingly, he made the decision to flee the country.”

3. The applicant referred to [23] (at CB 282) of the Tribunal’s decision record. In short, the applicant’s complaint was that, whatever else the Tribunal addressed in relation to the matter of “abductions” and “white vans”, it did not address them with relevance to “in his area”. In oral submissions, the applicant asserted that the Tribunal looked at abductions in the “general area”. That is, not “in his area”.

4. The applicant relies on NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 (“NABE (No 2)”) particularly at [55], for the proposition that the Tribunal fell into legal error because it did not address this aspect of the applicant’s claim. (The applicant also refers to QAAR v Refugee Review Tribunal [2005] FCA 1818 on this point).

5. It is important to note exactly what the applicant’s representative submitted on his behalf. At CB 164, the reference to “in his area” appears to be a reference to “Tamil populated areas” (CB 164.2, see [43] above). Therefore, the fear of harm, relevantly, can be said to be that in Tamil populated areas “white van abductions” take place targeting Tamil men. As a Tamil male, the applicant feared such abductions in his home area.

6. The Tribunal, relevantly, reasoned as follows. At [23] (at CB 282), it noted that the applicant claimed that he was aware of “ongoing abductions in his area in Sri Lanka”. The Tribunal reasoned that the applicant lived and worked for six years prior to his departure “in Trincomalee” and, importantly, it proceeded on the basis that it was a “Tamil populated area” ([23] at CB 282). In context, this was the applicant’s home area where he feared harm (see also CB 163.2).

7. The Tribunal found, on the applicant’s evidence, that the applicant “identified no adverse approaches to himself or that home” ([23] at CB 282). Rather, he travelled to Jaffna (another Tamil area) to visit relatives in 2012 “without any mention of any adverse approaches or experiences” ([23] at CB 282). Further, his father, aunt and siblings continue to live in Trincomalee and, on the applicant’s evidence, have had no direct approaches by the authorities except to inquire as to his whereabouts ([23] at CB 282).

8. The Tribunal concluded that ([23] at CB 282):

   “…The Tribunal does not, however consider being asked about a family member’s whereabouts, or what the applicant described of those claimed incidents to indicate or amount to serious harm as contemplated by section 91R(1)(b) of the Act or 91R(2) of the Act, or to significant harm as contemplated by section 36(2A) of the Act. His evidence in its totality conveyed to the Tribunal that he lived, worked and travelled without harm in Sri Lanka, at least since after the war, and did not suggest that he was an adverse target for abduction or harm at the time he left Sri Lanka for Australia in 2012, or support his claim that he would so targeted on his return to Sri Lanka or in the reasonably foreseeable future.”

9. Specifically, in relation to the matter of “abduction” and in the context of the Refugees Convention, the Tribunal stated ([49] at CB 288):

   “Regarding the applicant’s claimed fears of abduction, while the Tribunal accepts that abductions continue to be reported in Sri Lanka, on the basis of the applicant’s evidence regarding his own and his family’s ongoing circumstances in Sri Lanka, as considered largely within paragraph 23 above, the Tribunal is not satisfied on the evidence before it that the applicant has or will have in the reasonably foreseeable future, any convention based profile which gives rise to a real chance of serious harm, including harm connected with abductions, in the reasonably foreseeable future.”

10. The Tribunal dealt with the “white van” abductions specifically in the context of the Refugees Convention because this was how the applicant (and his representative) presented this claim. If nothing else, the word “Persecution” as it appears at the heading of the extract from the representative’s submissions and as set out at [43] above makes that clear (see CB 163.4).

11. It is important to note that, in the detailed written submissions to the Tribunal the applicant, through his representative, raised a number of specific matters relating to “significant” harm (see CB 239.5 to CB 242). The Tribunal dealt with these (see [51] at CB 289 to [54] at CB 290, [14] at CB 279 to CB 280 and, with other matters, at [38] at CB 285 to [48] at CB 288).

12. What the Tribunal concluded at [49] (at CB 288) about “abductions” was sufficient to deal with the explicit claims relevantly made by the applicant. Including those clearly arising from the circumstances presented.

13. Although the applicant makes no specific complaint in this regard, I note that the Tribunal made no specific reference to “white vans” in this analysis. However, it is clear, when read fairly, that the analysis, at least at [49] (at CB 288) includes the “white van” abductions matter.

14. At the interview with the delegate, the applicant is reported as having claimed that after the death of his relative in 2008 “… he was taken by the ‘white van’ and detained… interrogated and beaten…” (CB 121.8). The applicant’s representative’s submissions at CB 164 (see [43] above and see also CB 163.9 and “taken by people in authority”) also make reference to “white van abductions”.

15. However, on at least a fair reading of its decision record, while the Tribunal did not use the phrase “white van abduction”, in context, when it referred to “abductions” it is clear that that term included “white van abductions”.

16. If in addition, the applicant’s assertion of legal error here is a failure to deal with an integer of a claim, and I note that this complaint is supported by his reference in submissions to NABE (No 2) (see

    
    

    [25] – [27] of the applicant’s written submissions), then the answer is as follows.

17. In relation to the more “general” fear said to arise because of his ethnicity, as set out in the representative’s submissions (that is, amongst other things he would be subject to abduction as a Tamil), the Tribunal explicitly dealt with this at the beginning of [23] (at CB 282) of its decision record. That the Tribunal did not mention “white vans” here does not reveal error in circumstances where the Tribunal’s consideration was directed to the applicant’s awareness “of ongoing abductions in his area at the time he left Sri Lanka” which mirrors what the applicant’s representative submitted at CB 164 (see [43] above).

18. In relation to the claimed abduction in 2008, the Tribunal also directly, and it must be said comprehensively, addressed this at [18] (at CB 281) to [24] (at CB 282). As is made clear, the Tribunal understood that the claim of abduction in 2008 was in part “linked” to, or arose from, the death of the relative in that year.

19. The Tribunal’s “conclusion” at [49] (at CB 288) under the heading of “Future fears of abduction” and the reference there to “…the Tribunal is not satisfied on evidence before it that the applicant has or will have in the reasonably foreseeable future…” (emphasis added), when read in context plainly encompasses both the “general” and “2008 specific” abduction matters claimed by the applicant. The applicant’s claim in submissions (see [25] of the applicant’s written submissions) that the Tribunal only considered this claim from the perspective of “mixed ethnicity” cannot be substantiated.

20. The second complaint in the ground, as stated above, asserts a denial of procedural fairness. The applicant claimed that the Tribunal denied the applicant the opportunity to address this claim.

21. If such a failure was said to have occurred at the hearing then the applicant (who was legally represented before the Court) has not provided any evidence to the Court, for example by way of a transcript of the hearing, to support this assertion.

22. What is before the Court, is the Tribunal’s report of what occurred at the hearing as variously referred to in its decision record. In relation to the “incidents of 2008” and the claimed abduction, the Tribunal’s report reveals that the applicant was given the opportunity to comment (for example at [20] at CB 281, “… [f]urther, when asked to elaborate on the questions he was asked when he was taken away by these claimed people…”).

23. The Tribunal, relevantly, had regard to the applicant’s personal circumstances as put by the applicant himself (see at [9] at CB 278) and directly addressed the applicant’s claim ([26] at CB 283):

    “…that the applicant’s Tamil race creates and/or compounds his risk profile and gives him an imputed political opinion in support of or linked to the LTTE and opposed to the Sri Lankan authorities, which gives rise to a real chance of serious harm in the reasonably foreseeable future…”

24. The reference also in that paragraph to the applicant’s representative’s “submission made in support” ([26] at CB 283) make it clear this included the references in those submissions to, amongst other fears, the claim of a fear of harm in the future of abduction because he is a Tamil male.

25. The applicant was given the opportunity to present his claims in this regard. The matters of his ethnicity, and consequent fears because of this, were, as the Tribunal makes plain, “…necessarily… informed also by what is accepted of the applicant’s own circumstances ([27] at CB 283). These “personal” circumstances were discussed at the hearing ([9] at CB 278) and ultimately were not in dispute.

26. In any event, when the wording of the ground is understood in light of the applicant’s written submissions (see [28] of the applicant’s written submissions), the complaint of a denial of procedural fairness appears to be based, and predicated, on the proposition that the applicant was denied an opportunity to address this matter because the Tribunal failed to identify and deal with the abduction claim. For the reasons set out above, it did not fail to do so. The premise underlying the procedural fairness complaint is therefore not made out.

27. In all, ground two is not made out.

Consideration: Ground Three

1. It must be said that it was difficult prior to, and at, the hearing to discern what jurisdictional error the applicant asserts in ground three. The ground makes general reference to jurisdictional error in the Tribunal’s assessment at [31] – [34] (at CB 284) and with reference to “imputed political opinion”.

2. The particulars do not explain the assertion of jurisdictional error. They make further general assertions that the Tribunal “misdirected its enquiry” and applied the “wrong test and / or asked the incorrect questions”. The complaint appears to be with the Tribunal’s consideration of “imputed political opinion”.

3. Given the above, and the nature of the written submissions in relation to ground three, I made it clear to the applicant’s counsel that I could proceed to consider ground three in light of how and what was explained at the hearing before the Court.

4. In this regard, it appeared that the applicant’s complaint at ground three was that the Tribunal did not consider the applicant’s claim to fear harm as a young male from Trincomalee.  Whether it was said to focus on “young” was not clear.

5. Before the Court, the applicant referred to the biographic data concerning the applicant provided to the Minister’s department on his arrival in his entry interview (CB 4 to CB 5).

6. He also referred to the applicant’s representative’s submissions to the Tribunal (at CB 165). In particular (CB 165.4):

   “A UNHCR report dated April 2009 indicates that those most likely to come to the adverse attention of the Sri Lankan forces and authorities are Tamil males originating from the north and east of the country. However, it also acknowledges that Tamils in general are at risk,

   ‘Tamils who were born in the North or the East and are outside of the region, in particular those who reside in or seek to enter Colombo, are also among those most likely to be suspected of LTTE affiliations, and are, therefore at significant risk of suffering serious human rights violations (p. 22)’

   ‘Given the wide range of profile of the victims of reported incidents, it is not possible to identify particular categories of Tamils from the North who would not have a reasonable possibility of experiencing serious harm’ (p. 29).”

7. In all, and at best, I understand the applicant’s complaint now to be that, ultimately before the Tribunal, he claimed that he feared harm because he was a Tamil who was born in the north/ east of Sri Lanka. Further, because he was outside his “home region” he was amongst those most likely to be suspected of having, or being imputed with, LTTE connections or affiliations. At best, I understood the assertion of jurisdictional error to be that the Tribunal did not address the applicant’s claim in this regard.

8. Any plain reading of what the Tribunal set out at [26] (at CB 283) to [30] (at CB 284) under the heading of “Tamil race and being a young Tamil male from Trincomalee”, reveals that the Tribunal addressed and considered the applicant’s claim to fear harm as a young Tamil male from Trincomalee who would be imputed with a political opinion in favour of the LTTE and against the government. Ground three, therefore, is not made out when regard is had to how it was explained in oral submissions before the Court. At best, it appeared to seek impermissible merits review.

Consideration: Ground Four

1. Ground four asserts jurisdictional error on the part of the Tribunal in assessing a “particular social group” in relation to the applicant’s claims. The error was said, in particulars, to be that in its consideration the Tribunal “limited” “the attributes of Tamil ethnicity”.

2. I understood from written, and oral, submissions that the complaint was that the Tribunal did not properly assess the applicant’s claims in relation to a particular social group because it did not consider all of the “elements” or attributes advanced to be relevant to that social group.

3. The applicant said that when regard is had to the material before the Tribunal the following attributes (as listed at [39] of the applicant’s written submissions) were raised and that the “proper social group” on the material before the Tribunal contained the following:

   “The social particular group/s that related to the applicant was identified by the applicant in written claims as discussed. The applicant submits that the proper social group on the material before the Tribunal was social group with the following attributes:

   (i) Sri Lankans;

   (ii) Applicant for asylum in the Western Country;

   (iii) young males;

   (iv) residing in or considered to be from Eastern part of Sri Lanka;

   (v) born in Trincomalee;

   (vi) Tamil ethnicity;

   (vii) Hindu (as opposed to Sinhalese Buddhist majority);

   (viii) persons likely to be perceived or are suspected of having some allegiance to LTTE or Karuna Group or other group;

   (ix) possibly holding views opposed to their treatment of by the government of Sri Lanka.”

4. The applicant’s complaint, as explained before the Court, is that the Tribunal should have “cumulatively” dealt with each of these attributes. The claim is that it did not.

5. The Minister’s submissions referred the Court to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 1088 (“Dranichnikov”) and NABE (No 2) for the proposition that the Tribunal is required to deal with a “substantial, clearly articulated argument relying on established facts” (Dranichnikov at [24] and see NABE (No 2) at [55] – [63] and [68]). The Minister submitted that the only “arguments” or “elements” advanced by the applicant before the Tribunal that he faced a well-founded fear of harm for reasons of membership of a particular social group, were that he was as a member of groups of “failed asylum seeker from a western country” and “young Tamil men”.

1. The Minister points to the applicant’s representative’s written submissions to the Tribunal to explain this (CB 173.3):

   “3. Persecution arising from membership of a particular social group

   The Applicant fears persecution arising from membership of a particular social group, namely as a “Failed asylum seeker from a western country” and “young Tamil men”.

2. I agree with the Minister that the Tribunal, plainly dealt with, and considered, these claims in relation to particular social groups (see [35] at CB 284 to [37] at CB 285 and further in relation to [37] at CB 285, see [38] at CB 285 to [44] at CB 287).

3. Before the Court, the applicant did not point to any specific part of the material before the Tribunal where it could be said that any other particular social group, or the ones he described in his written submissions to the Court (see [79] above), was put to the delegate or the Tribunal.

4. Rather, the applicant’s approach was to take individual elements of the applicant’s claims (for example, “he was born in Trincomalee” or “he is a Hindu”) and sought to now “construct” a particular social group that he says should have been considered.

5. Such a group was never expressly stated by the applicant or his representative before the Tribunal or the delegate. Nor, can it be said that a substantial, or clearly articulated, argument based on established facts, in the Dranichnikov sense, was ever put to the Tribunal in relation to an accumulation of all of these “attributes”.

6. I agree with the Minister that the applicant’s attempt to “construct” such a claim now does not reveal jurisdictional error on the part of the Tribunal. As the Minister submits, the Tribunal’s relevant obligation here does not extend to its having to engage in “creative activity” or “constructions” (NABE (No 2) at [58]). What is required to engage the Tribunal’s relevant obligation, is that the claim (as asserted now) needed to have clearly arisen on the material presented. It did not. Ground four is not made out.

Conclusion

1. In all, the applicant’s grounds are not made out. It is appropriate that the application to the Court be dismissed. I will make an order accordingly.

I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 17 December 2013