SZTDG v Minister for Immigration

[2014] FCCA 2013

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTDG v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2013

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal –no jurisdictional error.

Legislation:  

Migration Act 1958 (Cth)

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Applicant: SZTDG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent REFUGEE REVIEW TRIBUNAL

File Number: SYG 1755 of 2013

Judgment of: Judge Barnes

Hearing date: 4 August 2014

Delivered at: Sydney

Delivered on: 4 August 2014

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1755 of 2013

SZTDG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 4 July 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.  The Applicant, a citizen of Sri Lanka, arrived in Australia in May 2012 and applied for protection in August 2012.

2. The Applicant’s claims were set out in his protection visa application and in an accompanying statutory declaration.  He attended an interview with a delegate of the First Respondent.  He had the assistance of a migration agent who provided supporting documents and a written submission to the Tribunal.  The application was refused and the Applicant sought review by the Tribunal.  He attended a Tribunal hearing on 11 January 2013.

3. The only evidence of what occurred during the Tribunal hearing that is before the Court is the Tribunal's account in its reasons for decision.  In its reasons for decision the Tribunal summarised the claims made by the Applicant in the written statement accompanying his protection visa application.  In particular, a core factual claim that he made that on 20 April 2012 he was robbed by two men at gunpoint of money that he was carrying to buy gold.  He claimed that he did not know what group these men were from although he suspected that they were plain-clothed Sri Lankan Army (SLA) members because of their dialect and appearance.

4. He claimed that a week later, on 28 April 2012, while he was at home with his wife the two thieves came to his home wearing SLA uniform.  He claimed that they asked him whether he supported the LTTE or whether he knew any LTTE members in his village, in particular a Mr Neethi, another jeweller with whom he used to work in Colombo.   The Applicant explained what he knew about Mr Neethi and claimed that he was threatened by these men who insisted he knew more and that they threatened to kill him if he refused to disclose more information.  He claimed that thereafter his brother arranged for him to travel to Australia.

5. The Applicant also made claims through the course of the proceedings before the delegate and the Tribunal that he had a well-founded fear of persecution and also made complementary protection claims.  These claims were based on his ethnicity as a Tamil that he would be a perceived sympathiser or supporter of the LTTE, or of holding views in opposition to the current government or paramilitary groups, or because of his membership of particular social groups, that were variously categorised as failed asylum seekers, and/or wealthy Tamil businessmen from the east, to which I will return when I get to the Tribunal decision. 

6. Having summarised these claims the Tribunal went on to consider the extent to which it accepted the credibility of the Applicant's claims.  It accepted his claims about where he had lived in Sri Lanka, that he was of Tamil background and that had worked as a jeweller.  It also accepted that between 1998 and 2004 he had experienced harassment as a Tamil man living in Colombo, although his evidence did not indicate that at that time the authorities seriously suspected he was involved in the LTTE.  The Tribunal also accepted that in 2004 he returned to his home area in Sri Lanka where he continued to work as a jeweller until he travelled to Australia in May 2012 and that his wife was now living with his mother-in-law in his home town.

7. As to whether his claims about why he left Sri Lanka were credible, the Tribunal had regard to the fact that the Applicant's evidence indicated that he did not have difficulty living in Sri Lanka after he returned to his home area in 2004, until the claimed events in April 2012.  He now claimed that he would be harmed because he would be suspected of being involved with the LTTE because of his association with the man about whom he was asked, Mr Neethi.

8. The Tribunal gave reasons for its conclusion that it did not accept that the Applicant was of adverse interest to the Sri Lankan authorities or to any other persons at the time he left the country.  It did not find his evidence about the reasons he left to be credible.

9. First the Tribunal set out its conclusion that it did not accept that he was robbed by two men in April 2012 or that those men later visited him at his home dressed in a SLA uniform and asked him and his wife about a man called Mr Neethi.  In reaching this conclusion the Tribunal had regard to what it considered was a lack of plausibility in the Applicant's account of the behaviour of the two men on the two dates he claimed they visited him, or had contact with him.  The Tribunal found that although the Applicant could not himself know what was in the mind of the two perpetrators, it strained credulity to accept that they would rob him at gunpoint but ask no questions about Mr Neethi or identify themselves as SLA officers on the first occasion.  Whereas on the second occasion they would subject him and his wife to intense and violent questioning about their knowledge of Mr Neethi but then leave without securing the information they required.  Given that the Applicant had said the officers threatened to put him in prison if he concealed information, the Tribunal found that it was unclear why that did not occur on 28 April 2012 or in the time thereafter before he left Sri Lanka.

10. The Tribunal concluded that if Mr Neethi was an LTTE member and the SLA had reason to think the Applicant had some knowledge of him and were prepared to assault him and his wife to obtain such information, it was reasonable to assume they would not simply have left his house without securing the information or taken further steps to acquire that information.  The Tribunal also found the Applicant's claims that the officers had visited his wife twice after he left Sri Lanka to be vague and unsatisfactory particularly given that the officers had also expressed an intention to put the wife in gaol as well as the Applicant.  The Tribunal had regard to the fact that the wife continued to live in the same village and that on the Applicant's evidence his brother, who was also acquainted with Mr Neethi, had not experienced any problems because of this or his work as a jeweller.

11. The Tribunal did not accept the Applicant's explanations for the fact that the wife had not moved beyond the village if she was in fact in fear of the SLA locating her.  It was of the view that it was reasonable to assume that if the authorities had any interest in pursuing the wife or asking her further questions about the Applicant's whereabouts they would have been able to locate her without difficulty.

12. The Tribunal also found the Applicant's evidence about why the authorities would be interested in his association with Mr Neethi to be vague and unconvincing.  It had difficulty accepting that their interest in his knowledge of Mr Neethi and links to the LTTE arose some four months after Mr Neethi had disappeared in 2011.  It did not accept his suggestion at the hearing that professional jealousy may have motivated people to “dob him in” given his failure to previously claim any difficulties in his profession because of “professional jealousy” and his alternative explanation that the authorities may be interested in him because of information Mr Neethi gave to the authorities.

13. The Tribunal also was of the view that it was reasonable to assume that if the two men had visited the Applicant's home on 28 April 2013 with the objective of extortion or demanding money from him and were only using his association with Mr Neethi to threaten him, such demands would have been made to him and his wife on that day.

14. The Tribunal also expressed concern about the plausibility of the Applicant's claim at the hearing that one of robbers on the first occasion spoke Tamil and that the other spoke Sinhalese, an explanation that had not previously been provided.  The Tribunal had difficulty accepting that one of the robbers acted as a translator for the other robber, particularly as there was no reference to such an arrangement in the Applicant's written claims.  While the Tribunal accepted the Applicant's claim that he may have mentioned this to his representative, this did not resolve the Tribunal's concerns about the plausibility of the Applicant's claims and the credibility of his evidence.

15. The Tribunal concluded that having considered the Applicant's evidence it did not accept he was robbed of money while riding towards his home by two men that he later identified as SLA officers.  Nor did it accept the authorities visited his home and assaulted and threatened him and his wife because he would not disclose information about Mr Neethi.  It accepted the Applicant may have had a former colleague called Mr Neethi who disappeared in 2011 but not that he had been questioned, harassed, threatened, or otherwise harmed by the authorities in relation to the disappearance.

16. The Tribunal did not accept that SLA officers returned to the Applicant's home after he left the country and asked his wife about his whereabouts.  It did not accept that the authorities would impute the applicant with a pro-LTTE opinion because of his previous association with Mr Neethi or for any other reason or that at the time he departed Sri Lanka the Applicant was of any interest to the authorities or any other person.

17. Having rejected this core claim, the Tribunal then considered the Applicant's remaining claims to fear harm because of his ethnicity, wealth, occupation, or a combination of those reasons, including the claimed membership of particular social groups of Tamil men from the east, wealthy Tamil businessmen or Tamil goldsmiths perceived to be wealthy, political opinion, his Hindu religion, and his status as a failed asylum seeker who had departed illegally.  The Tribunal had regard to independent country information, in particular, information from UNHCR about groups who faced an elevated risk of harm on return to Sri Lanka but was satisfied that he did not have such a profile.

18. The Tribunal observed that the Applicant's evidence did not indicate that he had any actual involvement in political activity and found that he was not otherwise implicated in any political activity against the government which may attract adverse interest.  It accepted that Tamils with an actual or perceived association with the LTTE were at a particular risk of adverse attention by the authorities but found that the evidence did not indicate that the Applicant or any member of his immediate family had ever had any involvement or association with the LTTE.

19. It reiterated that, for the reasons given, it did not accept he was ever questioned about his knowledge of Mr Neethi’s involvement with the LTTE and rejected his claims that the authorities had any interest in him because of his association with Mr Neethi or his claimed involvement with the LTTE. 

20. The Tribunal accepted the Applicant was questioned and searched by the SLA in roundups in Colombo up to 2004, at a time at which all Tamil men of a certain age were susceptible to arbitrary questioning.  However it found the evidence did not demonstrate the Applicant was ever seriously suspected of involvement with the LTTE and that after he returned to his home area in 2004 he was a not harmed or interrogated by the SLA.

21. The Tribunal concluded on the evidence and information before it and having regard to the UNHCR risk profiles and that the particular circumstances and background of the Applicant, it did not accept that there was a real chance that any discrimination he may experience as a Tamil or a Tamil from the east would amount to the requisite level of serious harm.  It acknowledged that ethnicity and other factors may contribute to a risk profile but observed that this must be done in the context of what was accepted about a particular applicant's circumstances.

22. In relation to the Applicant's claims that he ran a goldsmith business and he would be perceived as a wealthy businessman, or a wealthy Tamil businessman or Tamil goldsmith, the Tribunal had regard to the fact the Applicant had not said he had any problems living in Sri Lanka before he was robbed and that his brother did the same work and still lived in the same place and that there was no claim that the brother had ever been robbed or that people had made demands of him.  The Tribunal reiterated it accepted that the Applicant had experienced harassment and discrimination in Colombo because of his Tamil ethnicity before 2004, but not thereafter. 

23. The Tribunal did not accept what it described as “extremely vague” claims that may have been suggesting that he had been targeted by paramilitary groups operating in his area.  It did not accept that he was robbed or ever personally the target of extortion attempts by paramilitary groups or any other person.

24. The Tribunal was not satisfied there was a real chance that the Applicant was at risk of harm for being a Tamil perceived to be wealthy, or a Tamil failed asylum seeker perceived to be wealthy, or a Tamil goldsmith. In reaching this conclusion, it had regard to country information that his advisor had provided about extortion in the east of Sri Lanka, which it accepted.  However based on the Applicant's particular circumstances and the UNHCR risk profiles, it did not accept there was a real chance he would face serious harm for reasons related to his profession or actual or perceived wealth.

25. The Tribunal had regard to the possibility that the Applicant may have intended to claim that he feared harm on the basis of his Hindu religion, although he did not pursue a claim to fear harm on that basis before the Tribunal.  It was not satisfied he had a well-founded fear of persecution for reasons of his religion.

26. The Tribunal then considered in some detail whether the Applicant would face harm as a Tamil failed asylum seeker or as a person who departed Sri Lanka in breach of the Sri Lankan Immigration and Emigration Act. It recorded his claims that the authorities would question him, put him in prison and that he was frightened he would be harmed during questioning about how and why he came to Australia.

27. The Tribunal had regard to country information, both submitted by the Applicant's representative and referred to by the Tribunal, in relation to what was likely to occur to failed asylum seekers and Tamils on return.  It accepted that returnees were routinely interviewed at the airport, that some persons may be subject to further questioning and that returnees believed to have left the country in breach of the Sri Lankan laws were arrested at the airport and briefly detained before being brought before a court to apply for bail. 

28. The Tribunal acknowledged that conditions in detention were described as overcrowded but found an absence of reports that returnees held awaiting bail hearings had been subjected to torture or deliberate mistreatment. It had regard to evidence suggesting it was most likely that returnees would be fined for breaching the law. On the basis of this information, the Tribunal accepted that if the Applicant returned to Sri Lanka having left Sri Lanka by boat and without a passport in breach of the Immigration and Emigration Act, he would be charged under that Act for offences relating to his illegal departure. However it found this was a law that, on its face, applied equally to all persons, that it was not expressed in discriminatory terms or terms disclosing a discriminatory intent and that there was no information suggesting discriminatory enforcement or a particularly harsh punishment of a particular cohort of returnees.

29. The Tribunal was satisfied that any penalty or a fine that the Applicant may be given for illegal departure would be for breach of a law of general application and would not operate in a discriminatory way or be enforced selectively for a Convention reason. On balance, it was satisfied that the weight of country information indicated that the ultimate punishment for a person such as the Applicant was likely to be a fine and not a custodial sentence.

30. The Tribunal concluded that if the Applicant experienced short term imprisonment on remand prior to applying for bail or a fine this would not amount to persecution for a Convention reason.  On the evidence before it, the Tribunal was not satisfied that the treatment faced by returning illegal departees, either at the airport, while detained on remand or when ultimately fined, amounted to persecution involving serious harm.

31. Based on country information, the Tribunal did not accept there was a real chance that the Applicant would be subjected to harsher punishment for a Convention reason or otherwise seriously harmed as a consequence of having breached the Sri Lankan law.  It accepted that the Applicant would be questioned and may be charged, but found that country information indicated that Tamil failed asylum seekers were not commonly mistreated during the processing measures on their return.

32. Having regard to the country information, the Applicant’s personal circumstances, history and the fact that he did not have an adverse profile, the Tribunal did not consider there was a real chance he would suffer serious harm through the questioning or interview process he would face on return.  It acknowledged that some Tamils had faced arrest, interrogation and torture but found that the information tended to indicate this was because of their past activities or past history and risk profile.  It did not consider that reports about arbitrary mistreatment provided sufficient detail to enable it to conclude that simply seeking asylum on return from Australia, even as a Tamil who had departed Sri Lanka via irregular means, gave rise to a real chance that such harm would occur.

33. The Tribunal also considered the possibility of harm to the Applicant on his return to his home area in Sri Lanka.  It accepted that he may be identified as a Tamil who left illegally and sought asylum.  However having regard to the absence of past activity, either in Sri Lanka or abroad or otherwise falling within one of the risk profiles in the UNHCR guidelines, the Tribunal did not accept that the Applicant faced a real risk of serious harm in circumstances where he was not of any interest to the Sri Lankan authorities at the time he left Sri Lanka.  The Tribunal did not accept the Applicant faced a real chance of serious harm for the individual reasons raised by him or for a combination of those reasons. 

34. The Tribunal also considered the Applicant's claims in terms of the complementary protection criterion in the Migration Act 1958 (Cth) (the Act), observing that at the hearing when this criterion was discussed with the Applicant, he had reiterated his claims to fear harm for reasons relating to his association with Mr Neethi. Given its findings that it did not accept that the Applicant had been the target of a robbery or that the robbers were SLA officers who visited his home and assaulted the Applicant and his wife or that he was of any interest to the authorities because of an association with Mr Neethi, the Tribunal did not accept there were substantial grounds for believing there was a real risk he would face significant harm because of this claimed association.

1. The Tribunal referred to its other findings in relation to the Refugee Convention claims about the Applicant’s political opinion, ethnicity, and particular social groups and its finding that he did not have a profile as an LTTE supporter and was not of interest to the authorities or others for any reason.  On the evidence before it, the Tribunal did not accept there was a real risk that the Applicant would experience discrimination for reasons of his Tamil ethnicity and/or his status as a failed asylum seeker that would amount to significant harm.

2. The Tribunal considered specific submissions by the Applicant's representative that it was speculative to know what penalties would be imposed on the Applicant and that deplorable prison conditions amounted to “degrading treatment”.  The Tribunal accepted the Applicant would be charged and that he may be detained for a number of days before being fined but was not satisfied on the information before it that these and other processing measures the government may take against a person with the Applicant's profile created a real risk he would be subject to significant harm.  It found Tamil returnees who were at risk of significant harm were those who fell within the UNHCR risk profiles and that the applicant was not such a person, nor was he a person who had otherwise come to the adverse attention of the Sri Lankan authorities.

3. The Tribunal found that the information before it did not suggest all Tamil returnees were at risk of torture.  It was not satisfied that there were substantial grounds for believing that there was a real risk the Applicant would suffer torture or be otherwise subject to mistreatment amounting to significant harm if remanded in custody for a short period on return.  The Tribunal accepted that prison conditions in Sri Lanka did not meet basic international standards and that conditions on remand would be crowded, cramped and unpleasant.  However having regard to the characteristics of the Applicant and its findings about the circumstances and duration of likely detention, the Tribunal did not accept there was a real risk that the Applicant would suffer harm amounting to significant harm within the definition in the Act.

4. On the basis of its assessment of the Applicant's evidence, profile and the available information the Tribunal was not satisfied that there were substantial grounds for believing there was a real risk the Applicant would face significant harm, either during processing at the airport, while detained or on remand or after he returned to his home area for reasons relating to his status as a failed asylum seeker and/or his illegal departure.  It reiterated that this was its conclusion even when the Applicant's circumstances were considered cumulatively.  

5. For these reasons the Tribunal affirmed the delegate's decision. 

This Application

1. The Applicant sought review by Application filed in this Court on 29 July 2013.  He now relies on an Amended Application filed on 24 October 2013.  There are four grounds in the Amended Application.  It is convenient to consider first the grounds in the Amended Application and then the issues raised by the Applicant today at the hearing.

Ground One

1. The first ground is that the Tribunal had not considered an integer or aspect of the Applicant's Convention claims for protection or complementary protection.  I asked the Applicant today what aspect of his claims was not considered.  He stated that the Tribunal did not believe he was robbed but did not give reasons for this conclusion. 

2. Insofar as this is a contention that the Tribunal failed to consider the Applicant's claim that he was robbed in April 2012, that is clearly not the case.  Nor is there anything in the material before the Court to support any contention that the Tribunal failed to consider any other claim made expressly by the Applicant or that arose clearly on the material before the Tribunal.

3. The Tribunal summarised the claims made by the Applicant including his claim about being robbed.  As set out above, it gave a number of reasons for rejecting the credibility of the Applicant's claim about having been robbed by two persons that he later discovered were SLA officers and the claim about their subsequent threats to him and his wife.  The Tribunal's credibility findings in this respect were open to the Tribunal on the material before it for the reasons which it gave.

4. The Tribunal also went on to consider the Applicant's other claims including the various formulations of particular social group claims and any combination of such claims.  On the basis of the country information before it and the claims made by the Applicant which it accepted, it was open to the Tribunal to reach the conclusions that it did on the material before it.  In reaching those conclusions, it considered the integers and aspects of the Applicant’s claims, both to protection under the Refugees Convention and for complementary protection.  Ground one is not made out.

Ground Two

1. Ground two is that:

   The RRT has not considered and has not apply a correct test with my claim in regard to my detention and harassments on my arrival in degrading conditions in prison, as required by law.

2. First, there is nothing in the Tribunal decision to support a contention that the Tribunal failed to consider the correct law or that it erred in a manner amounting to jurisdictional error in relation to the application of that law.  The Tribunal understood and considered the aspect of the Applicant's claims relating to his treatment during processing likely to occur on his return to Sri Lanka, the possibility of harassment or discrimination on his arrival, detention and mistreatment and conditions in prison.

3. As set out above, the Tribunal accepted that it was likely that punishment for the Applicant breach of the Sri Lankan law would be questioning, detention for a short period on remand awaiting a bail hearing and ultimately the imposition of a fine. It considered whether these claims gave rise to a real chance that the Applicant would face serious harm constituting persecution for a Convention reason in the reasonably foreseeable future, but it was not satisfied that the treatment faced by returnees in the position of the Applicant amounted to persecution involving serious harm or gave rise to a real chance of such harm in the reasonably foreseeable future. It specifically considered whether there was a real chance the Applicant would be subjected to harsher punishment for a Convention reason or otherwise seriously harmed as a consequence of having breached the Sri Lankan Immigration and Emigration Act.

4. Moreover, in the context of considering the complementary protection criterion, the Tribunal considered whether the harm the Applicant claimed to fear experiencing amounted to significant harm.  In this context the Tribunal considered that conditions of Sri Lankan prisons and whether those conditions were such that there were substantial grounds for believing that there was a real risk that the Applicant would face significant harm. 

5. The Tribunal gave reasons, having regard to the characteristics of the Applicant and the circumstances and duration of likely detention, for its failure to accept that there was a real risk that the Applicant would suffer harm (whether physical or mental) which could amount to significant harm. 

6. It has not been established that the Tribunal either failed to consider the Applicant's claims about detention, harassment and degrading conditions in prison or that it failed to apply the correct test in relation to such claims. 

Ground Three

1. Ground three is associated with ground two.  It is a claim that the Tribunal failed to deal fairly and apply a correct test as required by law, in relation to the Applicant’s claims that he could be held in prison, harassed upon his arrival and that he would face discrimination as a Tamil failed asylum seeker and/or as a Tamil from the East.

2. In relation to the second aspect of these claims, the Tribunal understood that a claim was made or arose that the Applicant would face discrimination.  It addressed this claim but was not satisfied that such discrimination as the Applicant would face amounted to serious harm constituting persecution or significant harm within the complementary protection criterion.

3. The Tribunal also considered the Applicant's claims in relation to being held in prison.  In particular, insofar as this ground takes issue with the Tribunal's conclusion that it was likely that the Applicant would be fined and not subject to a term of imprisonment for having breached the Sri Lankan law, the Tribunal considered the Applicant's and his advisor's submissions in that respect, but gave reasons based on independent country information for its rejection of those submissions.  I note that it is for the Tribunal to determine the weight to be given to independent country information.  It has not been established that the Tribunal failed to apply the correct test or otherwise erred in a manner amounting to jurisdictional error in its consideration of these issues.

Ground Four

1. The final ground appears to be a contention that the Tribunal's reasons for not accepting that the Applicant had been robbed or harmed in 2012 were unreasonable and illogical such as to amount to jurisdictional error.  However, as indicated, the Tribunal's reasons in this respect were based on its adverse credibility findings.  It gave reasons for those adverse credibility findings.  It has not been established that the Tribunal's reasoning in this respect was such as to amount to illogicality or a decision that no reasonable decision maker could have made (see Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [30]).

2. Insofar as the Applicant's characterisation of the Tribunal's reasoning as unreasonable or illogical takes issue with the Tribunal's factual findings, it seeks impermissible merits review.  Having regard to the high standard necessary to establish illogicality such as to demonstrate jurisdictional error, the Applicant has not met that standard.  No jurisdictional error is established on the basis contended for in ground four.

Additional Grounds Raised

1. As indicated in oral submissions, the Applicant contended that the Tribunal did not give any reasons for not believing his claim about having been robbed.  Insofar as that claim relates to the Tribunal decision that is clearly contrary to the Tribunal's detailed credibility concerns and reasons it gave for not accepting that aspect of his claims. 

2. The solicitor for the First Respondent considered the possibility that the Applicant may have been intending to contend that the Tribunal did not raise such an issue as a dispositive issue with the Applicant or that the Applicant was not on notice of the significance of this issue in the context of the Tribunal's hearing obligations.  However in that respect, as the First Respondent submitted, the delegate did not accept that the Applicant was robbed of money while travelling to his home or that the authorities assaulted and threatened him and his wife.  The Applicant was put on notice by the delegate’s decision of the significance of those aspects of his claims to the Tribunal review. 

3. It is apparent from the Applicant's advisor's submissions to the Refugee Review Tribunal that this was understood.  These issues were addressed to some extent in those submissions.  Moreover, in the Tribunal's reasons for decision ( the only evidence of what occurred in the Tribunal hearing) the Tribunal recorded that at the hearing the Applicant gave oral evidence about his claims about being robbed and the same men then coming to his house a week later demanding information.  The Tribunal considered these claims in detail but did not find them to be consistent or credible.  In the course of making adverse credibility findings, the Tribunal referred to explanations provided by the Applicant.  It would appear that issues about the credibility of such claims were raised at the Tribunal hearing.  There is no evidence to the contrary.   It appears from the Tribunal reasons that the Applicant was on notice of its concerns and given the opportunity to address them in the course of the hearing.

4. The Applicant also took issue with the Tribunal's reasoning that he would not be harmed as a returnee. As set out above, the Tribunal considered at some length whether the Applicant would face harm as a result of his illegal departure and return to Sri Lanka as a failed asylum seeker. It did so in relation to both the Refugee Convention criterion and the complementary protection criterion. No error has been identified amounting to jurisdictional error in its consideration of those issues.

5. Finally, the Applicant acknowledged that the Tribunal accepted that he would be subject to some harm as a Tamil, but claimed that the Tribunal did not make a decision on that issue.  However the Tribunal considered the Applicant's particular circumstances, in particular his lack of a risk profile and its finding that he had not been of any past interest to the Sri Lankan authorities.  It was not satisfied that what he would experience on return to Sri Lanka would constitute persecution or such as to bring him within the complementary protection criterion.  

6. In relation to the particular issue of Tamil ethnicity, the Tribunal considered but did not accept that there was a real chance any discrimination the Applicant may experience as a Tamil or a Tamil from the East, would rise to the level of serious harm.  It considered the Applicant's specific circumstances in that context as well as country information.  The Tribunal also considered whether the Applicant would face harm as a Tamil failed asylum seeker, but found that country information did not support his claims that he would be subjected to harsher punishment or discriminatory treatment under the Sri Lankan law.  It accepted that he would be questioned and may be charged, but did not accept that he had such an adverse profile that there was a real chance he would suffer serious harm through the questioning or interview process or thereafter.

7. In other words, contrary to the Applicant's contentions, the Tribunal understood that an aspect of his claims was based on his Tamil ethnicity.  It considered that aspect of his claims, both on its own and also in combination with the various other claims that he made, including his core claim and to his claims about his wealth, occupation, and his return to Sri Lanka as an illegal departee and failed asylum seeker.  No jurisdictional error is established on this basis. 

8. As no jurisdictional error has been established, the application must be dismissed.

9. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $5,000.  The Applicant says that he cannot pay that amount in full.  The Applicant's lack of funds, which I take to be implicit in that submission, is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of a respondent.  Nor is it a basis on which I am satisfied that the amount of costs should be reduced.  The amount sought is reasonable and appropriate having regard to the nature of this and other similar matters.  It may be an issue to be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  3 September 2014