SZTEI v Minister for Immigration
[2015] FCCA 2020
•29 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTEI v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2020 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – Whether the Tribunal failed to consider an integer of the applicant’s claims – Whether decision was unreasonable. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 46A(2) |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; [1996] HCA 6 Minister for Immigration and Border Protection v MZYTS & Anor (2013) 136 ALD 547; [2013] FCAFC 114 SZOVB & Ors v Minister for Immigration and Citizenship & Anor (2011) 125 ALD 38; [2011] FCA 1462 |
| Applicant: | SZTEI |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1845 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 11 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 29 July 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Karp |
| Solicitors for the Applicant: | Rasan T Selliah & Associates |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application be dismissed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1845 of 2013
| SZTEI |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 9 July 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant sought review by application filed in this Court on 7 August 2013.
The Applicant, a Sri Lankan citizen of Tamil ethnicity from the Batticaloa area, arrived in Australia as an irregular maritime arrival in February 2012. In his entry interview he claimed that his father and one of his brothers has been taken away by the STF (part of the Sri Lankan army) in 1987 and killed and that another brother had been killed in 2009 during shelling. Between 1997 and 2010 he was self-employed as a road construction supervisor in the Batticaloa district of Sri Lanka and from 2010 until January 2012 he was self-employed selling ice cream from a shop in front of his house.
The Applicant claimed that at the time he was doing road construction contracting work there were opposing paramilitary “groups” operating in his area, including the Karuna group and the Pillayan group. He claimed these groups tried to limit construction work to members. He claimed that after he successfully obtained a particular contract in 2008 he was threatened, although he was not sure which group was responsible for these threats. The groups had asked him to come to their meetings. He claimed that if “you don’t go to their meetings they will continually harass you”. He claimed that after he finished the 2008 job he could not get any other construction supervision work because of harassment from these groups and that he was then only able to do maintenance work.
The Applicant also claimed that he witnessed an incident in his village in August 2011 in which a “Grease Man” who had attacked a Tamil woman was chased into the police station by local people who set fire to the police station. He claimed that while the army and the police chased the people away, the next day the CID came to his house asking him to identify the people who had created the problems. He claimed he was later taken to the police station by the CID (who were Sinhalese) and beaten up while detained overnight and that he left Sri Lanka because of this incident.
The Applicant claimed that on another occasion a roof tile dropped from the roof of his house and he noticed someone running on the roof. He claimed there was continuous harassment and he could not live in the area. He claimed that the Karuna group and the Pillayan group were also involved with the Grease Man.
On 15 June 2012 the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (the Act) to permit the Applicant to make an application for a protection visa. In his application for a protection visa lodged on 15 June 2012 the Applicant disclosed that he had travelled to Singapore in about 2009 for a couple of days, to Malaysia in 2009 for about four days, and to India in late 2010 for about one month and in late 2011 for less than a month due to problems in Sri Lanka. He returned to Sri Lanka on each occasion. He came to Australia in February 2012 from Sri Lanka.
In a statement accompanying his protection visa application the Applicant claimed to fear harm because of his religion and race, imputed political opinion, his membership of a particular social group and his perceived opposition activities against the authorities.
The Applicant elaborated on his claims. He claimed that as Tamils his family had been targeted by the Sri Lankan government and army. He claimed that in 1987 his father and brother were shot by the Sri Lankan authorities and that in 2009 another brother was killed by Sri Lankan army shelling during the civil war.
The Applicant claimed that “after about 2005” he had experienced threats and harassment from two paramilitary groups – Pillayan and Karuna. He claimed he was a well-known “contractor worker” in his area with numerous contracts, but that the paramilitary groups wanted him to stop the construction contracts he was working on so that their people could do the work.
In addition, he claimed that in about 2008 one of the members of the Karuna group demanded that he go to their camp, that they detained him for a day, beat him, and threatened that he “must stop”. He claimed he continued to work on a couple of contracts after this, but reduced his work due to the level of the threats and that in about 2010 he was forced to stop his contracting work and then began working in a small stall at his home, mainly selling ice creams.
The Applicant claimed that “even after I stopped my contracting work the paramilitary would continue to harass me because I had refused to comply with their demands in the past”.
The Applicant also reiterated and elaborated on his claims about the alleged attack in 2011 on a young Tamil woman by a “Grease Man” and the incident involving someone on his roof.
The Applicant claimed to fear he would be detained, harmed or even killed if he returned to Sri Lanka, that he was well recognised in his home area and that he was still of adverse interest to the authorities and the paramilitary. He claimed to fear the situation would be aggravated by the fact he had left Sri Lanka, particularly if “they” realised or assumed he had left to seek protection. He claimed that as he feared the authorities and groups connected to the authorities there was no-one to protect him.
The Applicant provided documentary evidence in support of his application, including a June 2000 letter from the Batticaloa Road Development Department certifying that he had been registered as a road contractor since 1997 and was doing road contract works and a subsequent letter of March 2012 certifying that he was still on the departmental list of road maintenance contractors.
The Applicant attended an interview with the delegate. His then adviser provided a detailed written submission to the Department dated 22 August 2012 which described the Applicant’s claims and addressed issues the delegate had raised in relation to the reasonableness of relocation.
It was reiterated that it was claimed that in about 2008 one of the members of the Karuna group had detained the Applicant and beaten him and that “due to the level of the threats [the Applicant] began to reduce his work in about 2010. However, the paramilitary continued to harass [him]”.
The adviser also submitted that having regard to the fact that in 2011 the Applicant was detained, interrogated and beaten by the authorities on suspicion of involvement in anti-government demonstrations and warned that they would continue to detain and interrogate him until he admitted to his involvement, he feared the authorities and members of the paramilitary would continue to subject him to serious harm, including arbitrary detention and torture.
In the course of discussing relocation, the adviser submitted that the Applicant was of adverse interest to the Sri Lankan army and the paramilitary groups (such as the Karuna and the Pillayan groups) which were said to act within the purview of the Sri Lankan security forces. It was submitted that the authorities and the paramilitary would be able to trace the Applicant’s whereabouts no matter where he lived in Sri Lanka. Reference was made to evidence that paramilitary groups acted at the behest of Sri Lankan security forces and to reports about ties between the groups and government security forces, including reports that “security forces preferred to outsource much of the work of controlling major Tamil towns to non/LTTE paramilitary groups”.
The Delegate’s Decision
The application was refused by the delegate. In outlining the Applicant’s claims the delegate observed that the Applicant had claimed that despite stopping his construction contracting work (in 2010) he continued to experience harassment because he had refused to comply with the groups’ demands in the past.
The delegate accepted that the Applicant had received threats and harassment from and had been forced to pay money to paramilitary groups, but found that this was related to his construction work and was not Convention-related and that “Tamil Construction Worker” was not a particular social group.
The delegate also accepted that the Applicant had witnessed the Grease Man incident in 2011 and that he was detained, beaten and questioned by a paramilitary group concerning the incident and subsequent protests. However the delegate did not find it plausible that the authorities or paramilitary groups acting on behalf of security forces were still looking for the Applicant. The delegate rejected the Applicant’s claims that he was at risk of persecution as a Tamil or that he would be imputed with anti-government or pro-LTTE views. It was not satisfied that he had a well-founded fear of persecution as a failed asylum seeker returnee or a Tamil returnee who had departed Sri Lanka illegally.
In relation to complementary protection, the delegate did not accept that the Applicant would be of ongoing interest to the Karuna or Pillayan paramilitary groups or that intermittent demands for money on three or four occasions after 2010 (the form of harassment the Applicant claimed had occurred after he stopped construction work) reached the threshold for significant harm.
Application to the Tribunal
The Applicant sought review by the Tribunal. His new adviser provided the Tribunal with a written submission dated 13 December 2012 which advanced a fresh claim that the governmental authorities, the Sri Lankan Army, the police and the pro-government paramilitary groups, had sufficient grounds to strongly suspect the Applicant of close links to the LTTE. It was claimed that the Applicant had failed to disclose details of this claim to his previous adviser or to the delegate as he feared that he would not be granted a security clearance by the Australian authorities. It was also claimed that the Applicant had to flee Sri Lanka in fear of his life as his link to the LTEE had come to the knowledge of the authorities.
In support of this claim it was said that the Applicant had family links to members of the LTTE. In particular, the brother who was killed in shelling in 2009 was said to have been an LTTE member who had served in a leadership role in the military and political wings of the LTTE prior to 1993 and then in its auxiliary force. The Applicant claimed that between 1990 and 1993 he had visited this brother in the LTTE office and had been asked and coerced to help him by doing errands and paperwork.
The Applicant claimed that another brother also had to flee the country because of suspected links to the LTTE and had been granted asylum in Australia.
It was also claimed that the Applicant had been able to obtain government contracts as a contractor because the LTTE had coerced officials to give him work because of his brother and because he had made significant contributions to LTTE special funds.
The adviser described events from 2004 (when what became the Karuna and Pillayan groups broke away from the LTTE and became aligned with the government and worked alongside the SLA in a military campaign against the Tigers). It was claimed that because the Applicant’s brother had continued his association “with the main LTTE strand” he was regarded as a “marked man” by the Karuna group and the Pillayan group.
It was claimed that in 2005 the Applicant was harassed and threatened with harm by each of the Karuna and Pillayan groups as they wanted him to stop working on government contracts to pave the way for contractors of their choice. He claimed that by that time the Tigers were much weakened, so that the dictates of the Karuna and Pillayan group had more weight with officials. It was claimed that it would have been impractical for the Applicant to pay both these groups (in addition to the Tigers) to avoid hindrance and harassment.
The adviser claimed that the Applicant was forced to reduce and ultimately stop contracting work “but the paramilitaries continued to harass him due to his past disobedience of their diktats. They intimidated him into withdraw (sic) all his attempts of tendering for government contracts.”
The Applicant’s adviser also claimed that, contrary to his earlier evidence, the Applicant had in fact joined in chasing the “grease man” in August 2011, but that he had refrained from disclosing this fact due to a fear of being branded as a Tiger or Tiger supporter (and hence having ASIO clearance refused). It was claimed that some of his interrogators were Karuna group cadres who had earlier harassed him regarding his construction contracts and that they accused him of being an LTTE cadre or strong Tiger supporter and warned him that they were beginning to acquire information about his work in the office of the LTTE with his brother and about his monetary and other contributions to the Tigers. He claimed they told him that once their investigations revealed evidence of his contributions to the LTTE he would be dealt with severely. It was claimed that the captors talked about detention under the Prevention of Terrorism Act of 1978 (Sri Lanka) and about abductions and disappearances.
The adviser referred to information said to indicate that young Tamil men, particularly from the north and east of Sri Lanka, would be suspected of affiliation with the LTTE. It was submitted that in view of the additional claims made by the Applicant it was clear that the authorities had more than sufficient reasons to look for him due his and his family’s perceived close links to the LTTE and that in view of the Applicant’s additional claims he would be strongly suspected of being opposed to the government.
It was acknowledged that initially the harassment and threats received by the Applicant were related to his work, but submitted that later this was connected to the “grease man” incident and protest which led to the inquiry into and discovery of his perceived strong links to the LTTE that were now said to pose the greatest threat to his life and liberty if he returned to Sri Lanka.
The Applicant attended a Tribunal hearing on 14 December 2012. The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.
On 21 December 2012 the Applicant’s adviser provided a further written submission addressing the Applicant’s claim to fear harm based on his profile of being suspected of having links with the LTTE. It was submitted that the Applicant had an imputed political opinion in support of the LTTE.
It was also claimed that the Applicant belonged to a particular social group of “Tamil businessmen or women”, that there were an increasing number of abductions motivated by business disputes with government authorities, that the Applicant had a long-standing history of business disputes with authorities over contracting work and that despite having stopped this occupation he had been “hassled” over his past disobedience. It was submitted that his return would be likely to be interpreted as an intention to restart his business in the area and that this placed him at a real risk of abduction, torture and inhuman harassment if returned to Sri Lanka. It was also submitted that the Applicant faced serious or significant harm as a Tamil failed asylum seeker with past LTTE connections.
The Tribunal Decision
In its reasons for decision the Tribunal summarised the Applicant’s original claims, the later claim of close links with the LTTE and the explanation for the failure to raise this claim earlier. The Tribunal addressed the factors the adviser relied on to submit that the Applicant had an imputed political opinion as a supporter of the LTTE, including the fact he was a young Tamil male from the north east; the claim that his brother had affiliations with the LTTE and that he had assisted this brother with minor paperwork; that through the influence of the LTTE he secured business contracts; and that in 2011 he was suspected of having participated in a riot against the Sri Lankan authorities in which LTTE supporters were involved.
In its findings and reasons the Tribunal summarised the Applicant’s claims to fear harm as claims to fear harm “from Sri Lankan authorities/those associated with Sri Lankan authorities as he was/will be imputed as a member/supporter of the LTTE and engaged in anti-government activities because of his association with his brother who was affiliated with and worked with the LTTE, because he obtained business contracts with the influence of the LTTE, because he is suspected of being involved in a demonstration involving LTTE supporters against Sri Lankan authorities, because he is a young Tamil male from the North East province, because he is a failed Tamil asylum seeker who left his country legally and has been absent from his country for some time.”
The Tribunal recorded the Applicant’s claims that his father and two of his brothers had been killed; that he left Sri Lanka and could not return because he was threatened and harmed and feared harm from the Karuna and the Pillayan paramilitary groups; and that he claimed that these groups knew of his/his brother’s contacts with the LTTE and had threatened, harassed and ill-treated him because he had secured contracts in construction work which those groups wanted to secure for people they knew and he would not give up his construction work/contracts when the paramilitaries demanded he do so.
The Tribunal also recorded the Applicant’s claims that he had been harassed and ill-treated by members of the Karuna group on two occasions (in 2008 and in late 2011) and harassed and threatened at other times by members of the paramilitary group/s, even after he reduced his construction work in 2010. It recorded that he claimed he had lived at different places and kept a low profile to avoid harm, that he feared his family members would suffer harm because of him and that family members living in his house had told him the authorities continued to look for him.
Based on country information, the Tribunal accepted that those having, or suspected of having, LTTE ties or of being opposed to the Sri Lankan Government continued to be at some risk of serious ill-treatment from the authorities, the army and other government-aligned groups in Sri Lanka, although hostilities formally ended in May 2009. Despite some inconsistencies in the information about the situation for returned Tamil asylum seekers, the Tribunal accepted that some Tamil asylum seekers who had left Sri Lanka illegally had suffered serious/significant harm on return. In particular, it accepted that those considered to be supporters of or affiliated with the LTTE were at risk of harm on return to Sri Lanka. The Tribunal also accepted that country information indicated that bribery and corruption of officials was common in Sri Lanka.
However the Tribunal pointed out that while there was country information which “generally” supported the Applicant’s claims, it was necessary for it to determine whether he had a genuine fear founded upon a real chance of persecution or that was such as to bring him within the complementary protection criterion.
The Tribunal accepted that the Applicant was a Sri Lanka national of Tamil ethnicity, born in Batticaloa, who lived in that area. The Tribunal also accepted that the Applicant had worked in his own construction business in his local area around Batticaloa from about 1997 until 2010 and that he was registered to carry out work for government and private agencies. The Tribunal found that from early 2010, when the Applicant stopped his construction work, until he travelled to Australia he ran a business selling ice-cream from a shopfront at his family home.
The Tribunal continued (at [52]):
The Tribunal accepts that the applicant’s father and one of his brothers was shot by the Sri Lankan Army many years ago in 1987 and that another brother was killed in shelling by the army in 2009. It also accepts that the applicant’s old house was destroyed by shelling when it was bombed during hostilities in his area, as the photographs produced by the applicant show. Not without some doubt about the matter given the applicant’s delay in mentioning this claim, the Tribunal accepts that one of the applicant’s brothers had some involvement with the LTTE before he died in shelling in 2009 and that the applicant gave low level assistance to his brother before he died in 2009; the latest submission from the applicant’s adviser describes his assistance to his brother as assistance with “minor paperwork”. The Tribunal also accepts that the applicant had to pay money to the LTTE from time to time when he was operating his construction work around his local area as he claims; this is consistent with country information relevant to that period in the applicant’s area. Not without some doubt about the matter the Tribunal also accepts that the LTTE was instrumental in securing of certain contracts for work in the applicant’s area before he left his construction business around the beginning of 2010 and that the applicant suffered some discrimination and harassment from paramilitary groups because he obtained the contracts for the work.
The Tribunal found, based on the Applicant’s evidence, that he travelled to Singapore and Malaysia in 2008 or 2009 and returned to Sri Lanka, that in 2010 he travelled to India for about a month and returned to Sri Lanka and that he travelled to India again in November 2011 returning to Sri Lanka in December 2011. The Tribunal accepted the Applicant’s evidence that he used his own Sri Lankan passport to do. It continued (at [53]):
The applicant told the Tribunal that “they were searching for him” from 2010 but in the Tribunal’s view if the Applicant were of the interest that he claims to be to the Sri Lankan authorities/those associated with the Sri Lankan authorities he could not have left Sri Lanka on the occasions that he did so, in 2008/9, 2010 and in 2011, and re entered Sri Lanka using a passport in his own name, without coming to the attention of authorities on exiting and/or re entering Sri Lanka.
The Tribunal reiterated that it accepted that the Applicant was harassed by members of the paramilitary group(s) at times because his construction work/contracts which he ceased to do in early 2010, but continued (at [54]):
The Tribunal does not accept as true however that the applicant suffered serious or significant harm from members of these groups as he claims for the reasons that he claims or that there is a real chance or a real risk that the applicant will suffer serious or significant harm from the members of these groups as he claims for the reasons that he claims if he returns to his country.
The Tribunal had regard to the fact that while the Applicant claimed that he had been having problems from these groups from 2005, his evidence was also that he was able to continue with his contract work from 1997 until early 2010, that he then operated a business from his family home from early 2010 until he left to come to Australia, and that he travelled to and from India in 2010 and in 2011 returning to the family home after each trip.
The Tribunal did not accept as true that the Applicant suffered serious or significant harm from members of paramilitary groups/the army or authorities arising out of a demonstration in late 2011 after an attack on a Tamil woman. It had regard to the fact that the Applicant had given different accounts of this incident and his involvement in it at the Tribunal hearing and in the statement made in support of his application for a protection visa. The Tribunal did not accept that the Applicant’s explanation for the different accounts (that he may not get a security clearance if he told the true details) was a reasonable explanation, especially given that the Applicant had migration assistance in Australia when he made his application for a protection visa.
The Tribunal addressed the Applicant’s claims that he had lived at different place/s and kept a low profile to avoid harm in Sri Lanka. It did not accept that he was moving around and keeping a low profile to avoid harm from the authorities or paramilitary groups as he claimed for the reason that he claimed and/or that he needed assistance from an agent when he was returning to Sri Lanka after his trip to India in 2011 because authorities were searching for him in his country. The Tribunal had regard to the fact that the Applicant had stated that with the help of his wife he was operating a shopfront ice-cream business from the family home (where he and his family had always lived) from early 2010 until he came to Australia in January/February 2012 and to his evidence that when he was not at the family home he was living in or around the same area in Batticaloa where he had always lived and worked. The Tribunal was of the view that these facts were not consistent with someone who was keeping a low profile in his country to avoid harm because the authorities and others were looking for him or consistent with the Applicant’s claims that he was or is afraid of being located and harmed in Sri Lanka.
The Tribunal considered the Applicant’s claim to fear harm as a Sri Lankan who had left the country illegally and was returning from overseas, including as a Tamil failed asylum seeker. It accepted that such persons were questioned and sometimes investigated and that some suffered harm, especially if they were perceived to be connected with or assisting the LTTE. The Tribunal accepted that the Applicant would be dealt with under relevant Sri Lankan laws in relation to illegal departure. However it found that these were laws of general application. The Tribunal accepted that as a Tamil asylum seeker returning from a western country (especially given the area he was from) the Applicant would be questioned and would encounter some harassment on return to Sri Lanka. However the Tribunal did not accept there was a real chance the Applicant would be targeted for harm amounting to serious harm on return or that laws of general application would be applied to him in a discriminatory manner, including because he was a Tamil male returnee from a western country and/or a Tamil male from the Batticaloa area who was a failed asylum seeker who left Sri Lanka illegally.
The Tribunal did not accept as true that the Applicant feared harm in Sri Lanka because he claimed asylum in Australia. It noted that he did not mention this basis for fearing harm until the Tribunal reminded him about it towards the end of the hearing and that he then said he would get into more trouble because he had left the country without papers.
The Tribunal continued (at [58]):
The Tribunal finds that this applicant is not of interest to the Sri Lankan authorities in Sri Lanka for the reasons that he claims, including because of his association with his brother who was affiliated with the LTTE, because he obtained business contracts through the influence of the LTTE, because he is suspected of anti government activity, because he is a Tamil business man who had disputes/s with the authorities over contracting work, because he is suspected of being involved in a demonstration involving LTTE supporters against Sri Lankan authorities, because he is a young Tamil male from the North/East province or because he is a failed asylum seeker who left his country illegally and has been absent from his country for some time. The applicant was living around the same area in Sri Lanka and working in his own construction company mainly doing road construction for a government agency for many years and has travelled in and out of his country without difficulty on a number of occasions using a passport in his own name; he last travelled into his country from India in December 2011 according to his evidence to the Tribunal. In the Tribunal’s view these facts are not consistent with the Applicant’s claims that he fears he will be persecuted in his country if he returns there.
On the evidence before it, the Tribunal did not accept that the Applicant had been or would be identified or perceived to be an LTTE member or supporter either in Sri Lanka or Australia, for the reasons he claimed or that he would be identified as otherwise of interest to Sri Lankan authorities because he left his country illegally and/or had claimed asylum in Australia. It did not accept that his family members had suffered or would suffer harm in Sri Lanka because of him or that the authorities continued to look for him at the family home. It had regard to the Applicant’s evidence that family members remained living in the area and that his children and dependent nephew were going to school there.
The Tribunal stated that it had considered the Applicant’s claim separately and cumulatively. It concluded there was not a real chance that this Applicant would be targeted for and suffer harm amounting to serious harm from the Sri Lankan authorities/CID/police/military/security either now or in the reasonably foreseeable future for a Convention reason or that he would be unable to get protection from harm in his country for a Convention reason. The Tribunal was not satisfied on the evidence before it that the Applicant had a well-founded fear of persecution in Sri Lanka within the meaning of the Refugees Convention or that he met the complementary protection criterion. It affirmed the decision not to grant the Applicant a protection visa.
Current Proceedings
The Applicant sought review by application filed in this Court on 7 August 2013. There are two grounds in the application.
Whether the Tribunal failed to consider a claim or an integer of a claim
The first ground in the application is as follows:
(1) The second respondent (the Tribunal) failed to exercise its jurisdiction according to law in that it failed to consider and address an integer of the Applicant’s claims for protection.
Particulars:
(a) The claim that the Applicant was harassed by the Karuna Group even after he stopped his construction business and started a food stall in front of his house.
The Applicant submitted that an important part of his claim was that the fact that he stopped his construction work in 2010 did not stop the harassment he had experienced from the Karuna and Pillayan paramilitary groups. It was contended that this claim was first made in the statement accompanying his protection visa application. He had claimed that even after he stopped contracting the paramilitary groups would continue to harass him because he had refused to comply with their demands in the past. This claim was said to have been referred to in the adviser’s submission to the delegate of 22 August 2012 in which it was said that due to the level of threats, the Applicant began to reduce his work in about 2010, but that the paramilitary continued to harass him. It was pointed out that this claim was referred to in the delegate’s decision (in the delegate’s summary of the Applicant’s claims.
This claim was reiterated in the adviser’s submission to the Tribunal of 13 December 2012 as follows:
10. In about 2008 the applicant was taken by a member of the [Karuna Group] to their camp and detained there for a day and beaten asking him to stop doing and undertaking the government contracts. But he did continue with his contracts in spite of the threats but was forced to reduce his work and ultimately stop in about 2010. He then began a small stall in his house, mainly selling ice creams. But the paramilitaries continued to harass him due to his past disobedience of their diktats. They intimated him into withdraw all his attempts of tendering for government contracts.
Counsel for the Applicant acknowledged that the Tribunal had noted the Applicant’s original claim in this respect, albeit that the Tribunal’s summary of the Applicant’s claims (at [27] of its decision) combined elements of the claims made in the statement accompanying the protection visa application and in the original written submission from the Applicant’s adviser. In particular, the Tribunal had noted the Applicant’s claim in connection with his protection visa application that he had to reduce his [contracting] work in about 2010 due to the level of harassment he was receiving and “that he began working at a stall mainly selling ice creams but that he was still harassed by the paramilitary group[s] even after he stopped working on his construction work because he had refused to comply with their demands in the past”. It was also acknowledged that the Tribunal had referred to the relevant part of the adviser’s submission of 22 August 2012 in describing the Applicant’s claims.
The Applicant also acknowledged that the Tribunal (at [52]) accepted that the Applicant had worked in his own construction business from about 1997 until 2010, that he stopped that business in early 2010 and that he thereafter ran a shopfront business selling ice cream. It also accepted that a late claim was made by the Applicant that he had to pay money to the LTTE from time to time when carrying out his construction work and that the LTTE was instrumental in his securing certain contracts for work in his area before he left his construction business around the beginning of 2010 and also “that the applicant suffered some discrimination and harassment from paramilitary groups because he obtained the contracts for the work.”
The Applicant conceded that on the face of the decision the Tribunal was aware of this claim and that under the heading “Findings and Reasons” in summarising the Applicant’s claims the Tribunal had referred to his claims of harassment and ill treatment by members of paramilitary groups “even after he reduced his construction work in 2010”. However it was submitted that noting the claim did not mean that the Tribunal had considered it.
The Applicant took issue with the Tribunal’s finding (at [54] of its reasons for decision) that:
Not without some doubt about the matter the Tribunal accepts that the applicant was harassed by members of the paramilitary group/s at times because of his construction work/contracts which he ceased to do in early 2010. The Tribunal does not accept as true, however, that the applicant suffered serious or significant harm from members of these groups as he claims for the reasons that he claims or that there is a real chance or a real risk that the Applicant will suffer serious or significant harm from the members of these groups as he claims for the reasons that he claims if he returns to his country. He told the Tribunal that he was having problems from these groups from 2005 but his evidence was that he was able to continue with his contract work from 1997 until early 2010; he then operated a business from his family home early 2010 until he left to come to Australia travelling to and from India in 2010 and in 2011 returning to the family home area after each trip.
It was submitted that these findings were arrived at without consideration of the Applicant’s claim of continued harassment. This was said to be important in the context of the Applicant’s case because the cumulative effect of events causing harm had to be considered of determining whether a person had a well-founded fear of persecution (see, for example, Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at 272; [2001] FCA 865 at [48]). It was submitted that the issue of whether the Applicant had experienced harassment after 2010 was relevant in relation to whether he had suffered serious or significant harm or persecution in the past and to a determination of whether he was likely to suffer such harm or persecution in the future.
The Applicant submitted that the fact that the Tribunal had, earlier in its reasons for decision, noted this aspect of the Applicant’s claims did not mean that it had considered this aspect of the claim having regard to the statement by the Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS & Anor (2013) 136 ALD 547; [2013] FCAFC 114 at [38] that the Tribunal was obliged to assess and determine what might happen to an applicant if he were compelled to return to his home country and that “that task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the tribunal an accurate picture of the ongoing circumstances on the ground in [his home country] for him if he were to be returned there.”
It was submitted that while the Tribunal had identified this aspect of the Applicant’s claims, there was no indication that the claim of continued harassment had entered the Tribunal’s “consciousness” or that it was considered at all. On this basis it was submitted that the Tribunal had failed to give this integer of the Applicant’s claims the necessary consideration in its findings.
The Applicant also contended that even if the Tribunal found that what had occurred in the past did not amount to serious or significant harm, it was necessary for it to consider whether the cumulative effect of events causing harm was likely to cause a well-founded fear of persecution or a real risk of significant harm in the future and that there was no indication that this aspect of the Applicant’s claims was considered in that respect in the relevant part of the Tribunal’s findings. Hence it was submitted that, consistent with the approach taken in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [7] and [42], it could be said that the Tribunal had not addressed cumulatively all of the essential elements of the claims raised by the material or evidence before it (at [7] per Merkel J) and that given such failure to consider all the claims the Tribunal had failed to complete the exercise of its jurisdiction in the sense considered by Allsop J (as he then was) at [42].
In oral submissions it was also submitted that the Tribunal had erred in the performance of its statutory function in the manner considered by Kirby J in Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 595; [1997] HCA 22 insofar as there had not been a “real, as distinct from a purported exercise of power” (also see SZOVB & Ors v Minister for Immigration and Citizenship & Anor (2011) 125 ALD 38; [2011] FCA 1462 at [43]).
However, as the First Respondent contended, when regard is had to the claims made by the Applicant and the Tribunal decision, it is clear that the Tribunal considered the Applicant’s claim to have experienced harassment by the Karuna Group even after he stopped his construction business.
The Tribunal set out the claim that the Applicant continued to be harassed by paramilitaries when he reduced and then stopped his contract work, including in the findings and reasons part of its decision. It accepted his claim to have had trouble with paramilitary groups since 2005. In particular, it accepted that he suffered some discrimination and harassment from paramilitary groups because he obtained the contracts for the work. It found he was able to continue the work until 2010 and then operated a business from his family home. However the Tribunal did not accept that the Applicant had suffered “serious or significant harm” at the hands of the paramilitary groups “as he claims for the reasons he claims”. Reading the Tribunal decision fairly and as a whole this reveals that the Tribunal expressly acknowledged, considered and made findings about the Applicant’s claim to have experienced harassment, including continued harassment after 2010.
Notwithstanding that the Tribunal did not explicitly set out the wording of this aspect of the Applicant’s claims in the context of making its findings at [54], it is apparent that the Tribunal’s findings dealt with the substance of the aspect of the Applicant’s claim in issue under Ground 1 of the application.
In that respect it is notable that the Tribunal accepted (in the first sentence of [54] of the Decision Record) that the Applicant was harassed by members of paramilitary groups “at times” because of his construction work/contracts. Seen in light of its earlier description of the Applicant’s claims, such finding involved an acceptance by the Tribunal of the Applicant’s claims about occasional harassment after 2010. The Tribunal also accepted that the Applicant ceased to do the contracting work in early 2010, as he had claimed. While the following finding is expressed generally, it clearly related to the earlier description of this claim. The Tribunal did not accept the Applicant had suffered serious or significant harm from members of these groups “as he claims for the reasons that he claims”. Again, read fairly, this encompassed the Applicant’s claims to the effect that he was harassed by the Karuna Group even after he stopped his construction business and started a food stall in front of his house. Such as inference is supported by the earlier description of his claims and the fact that the Tribunal’s finding was expressed to relate to the Applicant’s claims about past harm from members of these groups “as he claims for the reasons that he claims”. Similarly, the Tribunal went on to consider the claims about future serious or significant harm from members of these groups “as [the Applicant] claims for the reasons he claims.”
I am satisfied that the Tribunal engaged in “real or active” consideration of all of the integers of the Applicant’s claims in the sense considered in MZYTS at [38] and Guo at 595. It completed its review function with a “consciousness and consideration of the submissions, evidence and material advanced by the … Applicant” (see MZYTS at [38]). I note, in any event, that this ground was not expressed as a failure to consider evidence, but rather as a failure to consider an integer of the Applicant’s claims.
When the decision is read fairly and as a whole, it is apparent that in its findings in [54] the Tribunal addressed the Applicant’s claims, not only as to harassment by paramilitary groups before 2010, but also about such harassment thereafter, as well as whether there was a real chance or real risk he would suffer serious or significant harm from such groups on return to Sri Lanka having regard to all his claims of past harm.
It is well‑established that the Tribunal’s reasons must not be read “with an eye keenly attuned to the perception of error” discussed in Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; [1996] HCA 6. This is not a case in which there is any ambiguity in the Tribunal’s finding that the claimed harassment at the hands of paramilitaries did not establish a well‑founded fear of persecution (see SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]).
It is the case that as Stone J pointed out in SZCBT at [26]), Wu Shan Liang does not require the 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.
However in this case there is evidence that the issue in question was considered and the “general thrust” of the Tribunal decision does not suggest that the issue was overlooked. I am satisfied that it can be inferred that in rejecting the Applicant’s claims about a real chance or real risk of future serious or significant harm from members of these paramilitary groups, the Tribunal took into account the Applicant’s evidence and claims about what had occurred to him in Sri Lanka (as well as the absence of past serious or significant harm from the paramilitaries) including in the period after he stopped the contract work. This Ground is not made out.
Whether the decision was arbitrary and unreasonable
Ground 2 in the application is as follows:
The decision was arbitrary and unreasonable in the legal sense.
Particulars
(a) It was arbitrary and unreasonable for the Tribunal to assume that the applicant would be prevented from leaving Sri Lanka and returning using a valid passport in his own name, if he was being victimised by a paramilitary group allied to the government because of his carrying out government contracts in opposition to their wishes to have their own appointees have those contracts.
The Applicant took issue with the Tribunal’s finding (in [53] of its reasons) that:
… in the Tribunal’s view, if the applicant were of the interest that he claims to be to the Sri Lankan authorities/those associated with the Sri Lankan authorities he could not have left Sri Lanka on the occasions that he did so, in 2008/9, 2010 and in 2011, and re entered Sri Lanka using a passport in his own name, without coming to the attention of authorities and exiting and/or re entering Sri Lanka.
Counsel for the Applicant submitted that the starting point for this ground was the fact that the Tribunal (at [58]) had found that the Applicant would not be of interest to the Sri Lankan authorities for reason of his association with the brother who was affiliated with the LTTE; or because he obtained business contracts through the influence of the LTTE; or because he was suspected of anti-government activity; or because he was a Tamil businessman who had disputes with the authorities over contracting work; or for the generic reasons put forward by him and on his behalf. In addition, the Tribunal found (at [59]), that the Applicant would not be perceived to be an LTTE supporter or be identified or otherwise of interest to the Sri Lankan authorities.
The Applicant submitted that such findings “left” the claim that the Applicant was being harassed and would continue to be harassed by the paramilitaries for his past disobedience in working on government contracts after he was warned not to do so. It was submitted that while one may accept that if the Applicant was of interest to the authorities he may have come to the attention of the authorities on his exiting and entering the country on the various occasions referred to by the Tribunal in its findings at [53] such findings also encompassed circumstances in which the Applicant claimed to be of interest to “those associated with the Sri Lankan authorities”. It was also suggested that this approach had been taken by the Tribunal in circumstances where the only claims made by the Applicant which related to a source of harm other than the authorities were his claims to fear the Karuna and Pillayan paramilitary groups.
It was submitted that the Tribunal’s findings at [53] implied that those associated with the authorities would have the influence or power to have the authorities stop the Applicant on exiting or entering the country. The Applicant submitted that for the Tribunal to make such a finding it was necessary that there be some evidence that those associated with the authorities (in this context, paramilitary groups) would have had sufficient influence to get the authorities to stop or investigate a person such as the Applicant at the airport. There was said to be no such evidence in the material before the Tribunal.
The Applicant acknowledged that there was country information before the Tribunal indicating that the Tamil paramilitary groups operated in the north and east of the country and carried out abductions, torture, killing and extortion and that security forces outsourced much of the work of controlling major Tamil population centres to them, but there was said to be no evidence to suggest that the paramilitaries had the power or influence to have travellers arrested at the airport on the basis of their private vendettas. It was submitted that the Tribunal’s reasoning at [53], read in the context of its other findings, amounted to an assertion, totally unsupported by evidence, that the Sri Lankan authorities would be interested in the Applicant for carrying out government contracts because he had acted against the interests of pro-government paramilitaries.
It was submitted that this was an arbitrary and unreasonable finding. It was said to be arbitrary because it assumed a fact which was entirely unsupported by evidence or was based on an opinion unsupported by evidence. It was said to be unreasonable because of that process of reasoning.
Reliance was placed on the remarks of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16 at [129] – [131] in which their Honours had stated the test for legal unreasonableness at [131] as follows:
What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
It was acknowledged that SZOOR v Minister for Immigration and Citizenship & Anor (2012) 202 FCR 1; [2012] FCAFC 58, McKerracher J (with whom Reeves J agreed) referred to the remarks of Crennan and Bell JJ in SZMDS in concluding at [85] that:
Illogicality such as to amount to jurisdictional error will not be shown where the point is merely one upon which reasonable minds may differ or where it cannot be said that there is no evidence before the Tribunal upon which the decision could be based. Illogicality will not amount to jurisdictional error in every case. It must be such as to affect the decision.
However it was submitted that in this case it could be said that the illogicality complained of affected the Tribunal decision, because it went directly to the Tribunal’s findings in relation to the Applicant’s credit. It was also submitted that given the Tribunal’s finding and the absence of evidence upon which it was based, reasonable minds could not adopt the Tribunal’s reasoning and that such reasoning met the test of being legally unreasonable as stated in SZMDS.
This ground is not made out. The part of the Tribunal’s reasons with which the Applicant takes issues should not be read in isolation. The Applicant’s claims, as ultimately presented, included a claim that he was of interest to the authorities, the Army, the police and pro-government paramilitaries.
The Tribunal accepted that the LTTE was instrumental in securing certain contracts for work for the Applicant prior to early 2010 and also that the Applicant had suffered some discrimination and harassment from paramilitary groups because he obtained the contracts for construction work. However it had regard to the Applicant’s evidence about his travel out of and back into Sri Lanka on his own passport in the context of his claim at the hearing that “they were searching for him” from 2010.
He had given oral evidence that he had travelled to and from Singapore, Malaysia and India between 2008 and December 2011 before he came to Australia. The Tribunal’s account of the Applicant’s claims and his fears that he was being “searched” for, has to be seen in light of its earlier account of all of what he said had occurred, including not only harassment and threats by the paramilitary groups in relation to his construction contracting, but also his claims about the events of 2011 and that he had become of adverse interest to the army and paramilitary groups and the Sri Lankan authorities because of a perceived link to the LTTE.
The Applicant’s claims did not distinguish between a fear of the authorities and those associated with the authorities in the manner contended for by the Applicant. Moreover, his claim as ultimately presented focused on the claim that he would suffer harm from the authorities and those associated with the authorities as he was or would be imputed as a member/supporter of the LTTE. When regard is had to the manner in which the Applicant ultimately presented his claims, in particular his claim that the authorities generally and the paramilitary groups had become aware of his links with the LTTE and his oral evidence that he feared harm from the Sri Lankan authorities/government, security and the paramilitary groups, it is apparent that the Tribunal’s finding was, in essence, a finding that if the Applicant was of the interest he claimed by reason of his claimed profile he would not have been able to leave and return to Sri Lanka on the occasions that he did without coming to the attention of the authorities.
As the First Respondent submitted, this aspect of the Tribunal’s findings should not be read as a finding that the paramilitaries would have the power to stop or have the Applicant intercepted by the authorities at the airport because of his carrying out of government contracts in opposition to the wishes of the paramilitary groups. Rather this finding reflected the fact that the Applicant had made a general claim to fear the authorities, the army, the security groups and paramilitary groups and had claimed that this fear of harm caused him to leave the country particularly after the incidents in 2011. Indeed as ultimately presented, the Applicant’s claims in relation to a perceived profile based on his past involvement with his brother and with the LTTE was such that the authorities were inextricably linked to the harm that he feared. It was open to the Tribunal to be of the view that if the Applicant had been of the level of interest claimed for the reasons he claimed, he would have come to the attention of the authorities as he left the country using a passport in his own name.
In any event, even if this part of the Tribunal’s findings ought to be read as the Applicant submitted, it is not demonstrative of jurisdictional error. In particular it has not been established that it was legally unreasonable or illogical. The Tribunal’s finding that the Applicant would not have been able to leave and return to the country in the way that he did without coming to the attention of the authorities in Sri Lanka was not inconsistent with the Tribunal’s earlier findings (on the basis of country information) that Tamil returnees and those who had left illegally were often questioned and screened on their return to Sri Lanka and that those considered to be supporters of or affiliated with the LTTE were at risk of harm. There was also country information before the Tribunal (provided by the Applicant’s adviser) indicating persistent reports of close, ground level ties between paramilitary groups and government security forces.
Such a finding was open to the Tribunal on the evidence before it in the sense considered in SZMDS at [131]. As Crennan and Bell J pointed out:
… If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
The Tribunal’s conclusion that the Applicant would have come to the attention of the authorities if he had been of the interest claimed and if he had travelled in the way that he did was a finding of fact that cannot be said to be so unreasonable that no person could have come to it (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). Nor did it lack “an evident and intelligible justification” in the sense considered in Minister for Immigration and Citizenship v Li & Anor (2013) 249 CLR 332; [2013] HCA 18 at [76]. It cannot be said that this decision was arbitrary or capricious. Rather, the Tribunal’s findings in this respect were within the area of “decisional freedom” as explained by French CJ in Li at [28].
As neither of the grounds relied on by the Applicant is made out the application must be dismissed.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 29 July 2015
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