SZTFY v Minister for Immigration

[2014] FCCA 2087

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTFY v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2087

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider evidence material to its decision on the review, failed to consider a claim and gave undue importance to certain evidence.

Legislation:

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18
Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389
LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166
SZSJA v Minister for Immigration & Border Protection (2013) 139 ALD 36
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695
SZRPA v Minister for Immigration & Citizenship [2012] FCA 962
SZQFR v Minister for Immigration & Citizenship [2013] FCA 574

Applicant: SZTFY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2074 of 2013

Judgment of: Judge Cameron

Hearing date: 26 August 2014

Date of Last Submission: 26 August 2014

Delivered at: Sydney

Delivered on: 11 September 2014

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Counsel for the First Respondent: Mr M. Smith

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. A writ of certiorari issue bringing the second respondent’s decision of 12 August 2013 into this Court to be quashed.

2. A writ of mandamus issue directing the second respondent to re-determine according to law the applicants’ application made to it on 3 December 2012.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2074 of 2013

SZTFY

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 11 May 2012.  On 10 August 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka primarily because of his Tamil ethnicity.  On 26 October 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.

Background facts

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa.  As summarised by the Tribunal, the applicant relevantly made the following claims.

Protection visa application

1. In his protection visa application and in a statutory declaration attached to that application the applicant claimed that:

   a)he is a Tamil born in Trincomalee, Sri Lanka;

   b)in 1990 his family had lived in a refugee camp in Jaffna for six months before returning to Trincomalee;

   c)in mid-2005, while he was attending his cousin’s party in Trincomalee, a bomb exploded outside a shop across from the party venue, injuring two Sri Lankan soldiers.  He and his cousin were subsequently captured and beaten by the army and then the police detained and imprisoned them for seven days.  They were released after a court hearing;

   d)four months later another of his cousins was killed by the army while working on a construction site with other Tamils;

   e)he left Sri Lanka in mid-2006 and travelled to India by boat.  In India he lived in a refugee camp for nine months and then moved to another one where he lived until he left for Australia.  His family was suspected of helping him to escape from Sri Lanka;

   f)his parents and two of his siblings had joined him in India while two of his sisters remained in Sri Lanka.  His father had returned to Sri Lanka in February 2011 on identity papers provided by the Indian government and on his arrival he was detained for three hours, questioned and then released.  While in Sri Lanka his father obtained a passport and returned to India.  His father again returned to Sri Lanka in June 2011;

   g)he left India for Australia in 2012 because he feared that he would be repatriated to Sri Lanka and was afraid that if that happened he would be harmed because of the bombing incident;

   h)he feared that if he returned to Sri Lanka the police, Criminal Investigations Department (“CID”), Eelam People’s Democratic Party (“EPDP”), army and Karuna and Pillayan groups would arrest and kill him because of his past and to take revenge for their efforts in looking for him; and

   i)he would not be safe in Sri Lanka and the authorities would not protect him because he was a Tamil.  He could not relocate within Sri Lanka because he was being sought by the CID and the Karuna and Pillayan groups and because he had been harmed by the army in the past.

Departmental interview

1. The applicant made the following claims at his interview with the delegate on 16 August 2012:

   a)none of his family members had had any association with the Liberation Tigers of Tamil Eelam (“LTTE”) and they had never been approached by the group;

   b)when his father was detained and questioned in February 2011 he was asked how he had travelled to India without a passport and why he had gone there.  His father told the authorities that he had gone to India because his son was there.  The authorities told his father that there were no problems and he was released unharmed;

   c)when the bomb explosion occurred in 2005 the army searched nearby houses and he and his cousin were arrested because they had been hiding behind a toilet; and

   d)his other cousin who had been killed by the army had worked for an NGO which built houses for poor people.  That cousin had never been questioned in connection with the bomb explosion.

Tribunal proceedings

1. In written submissions to the Tribunal dated 11 February 2013, the applicant’s representatives relevantly submitted that:

   a)in the months leading up to his departure from Sri Lanka the applicant had lived with different relatives in an effort to avoid the authorities; and

   b)the applicant feared harm on the basis of his Tamil ethnicity, his actual or imputed political opinion as a perceived sympathiser or supporter of the LTTE, his imputed views of someone opposed to the Sri Lankan government and his membership of the particular social group of failed asylum seekers.

2. The applicant made the following additional claims at a Tribunal hearing held on 14 February 2013:

   a)he had been arrested over the bomb explosion in January 2006, not mid-2005.  He knew that that was the correct date because he had received documents from his brother in Germany indicating that his cousin had died on 4 August 2006.  As he had left Sri Lanka within a few days of his cousin’s death that meant that he had left between August and October 2006, with his family.  His family’s registration papers from the refugee camp in India (which he submitted) also supported those dates.  He had previously given the wrong dates because he had been panicked and confused;

   b)he and his cousin had been released without charge because there was no evidence that they had planted the bomb. After that he had had no other encounters with the authorities;

   c)his deceased cousin had been one of seventeen people who had been massacred by the army while working on a construction project for a French NGO.  His cousin had not been involved with the LTTE.  He was never questioned about his cousin’s death;

   d)when his father was detained on his return to Sri Lanka he was asked about his passport, the problems he faced when he went to India and details of his children.  His father told the authorities that he did not know the applicant’s whereabouts;

   e)his father had not thought he would be questioned because of his age and because he had been travelling to Batticaloa, not Trincomalee.  While in Sri Lanka his father obtained a passport and a three month visa to return to India.  After three months he returned to India for a week and obtained a further six month visa to return to India.  On both occasions his father stayed in Batticaloa and had not had any problems;

   f)given his father’s experience, he feared that if he returned to Sri Lanka he would be questioned at the airport and would have to give details of his departure for India twenty-four days after his cousin’s death.  He could be tortured because he had previously been arrested and detained;

   g)his father had not been harmed because he was old and had not previously come to the authorities’ attention, whereas he had previously been arrested, detained and tortured.  He might be suspected of being an LTTE member because he had gone to India at a time when LTTE cadres had been training there.  The authorities would not believe that he had gone there as a refugee;

   h)although none of his family members were involved with politics or the LTTE and had never been directly accused of having connections with the LTTE, they were still suspected of supporting the LTTE because they came from a Tamil area.  Because he had a successful business, his father was also suspected of supporting the LTTE financially;

   i)he left Sri Lanka for India following two incidents: his arrest in relation to the bomb blast and his cousin’s death some weeks later.  He left because he was afraid that if he was arrested and fingerprinted following his cousin’s death he would be in trouble as he had already been suspected of being an LTTE member and of planting a bomb; and

   j)he had never had any problems with the CID, EPDP, army and the Karuna and Pillayan groups but feared that if there was an incident they would suspect or target him.

3. At the Tribunal hearing the applicant’s representative submitted that:

   a)the applicant was not only at risk because he was a Tamil from Trincomalee but also feared that he would be perceived to have LTTE links and would face harm because the circumstances which had led him to be suspected of having LTTE links in the past would still exist on his return to Sri Lanka;

   b)even though the applicant had been released due to insufficient evidence, that did not remove the authorities’ suspicions which might have been reinforced by him fleeing Sri Lanka by boat within a few months of the investigation;

   c)although the applicant’s cousin had died six years before, the incident would still be relevant if he returned to Sri Lanka because the French NGO had announced in October 2012 that it would ask the United Nations to investigate the alleged massacre as a war crime; and

   d)the applicant’s circumstances were different to those of his father and as a young Tamil male who had fled after an investigation, he would be subjected to questioning on return.  It was not relevant that he might be released from detention after a few hours as he would be at risk while trying to convince the authorities that he did not have an adverse profile.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.

2. The Tribunal noted that at its hearing the applicant had changed the dates on which he said key events which prompted him to leave Sri Lanka for India had occurred.  It was not satisfied that the applicant had been truthful in his evidence about his alleged arrest in relation to the bomb explosion and the death of his alleged cousin.  In that regard the Tribunal:

   a)noted that until three days before its hearing the applicant had consistently claimed that he had been arrested in mid-2005 but then said at its hearing, based on documents he obtained from his brother and a 2008 report available on the French NGO’s website indicating that his cousin had been killed in August 2006, that he had been arrested in January 2006.  The Tribunal found it implausible that the applicant would not have remembered the date of something as significant as his alleged capture, arrest and detention over a bomb explosion.  It considered that he had altered his evidence to fit the published dates of the killings of the French NGO workers so as to strengthen his claims about the events which had led him to leave Sri Lanka;

   b)accepted the applicant’s original evidence that he had been arrested in mid-2005 and had left Sri Lanka a year later in mid-2006.  Having found that, the Tribunal went on to find that as the applicant had not been in Sri Lanka in August 2006 when the French NGO workers were killed, that event had not been a factor in his decision to leave the country.  The Tribunal attached no weight to the incident because it considered that the applicant had only included it to strengthen his claims; and

   c)formed the view that, like many other Tamils, the applicant and his family had fled Sri Lanka by boat in 2006 to escape hostilities in their home area.  It found that as that happened almost a year after the applicant’s arrest and subsequent release with no charges, not a few months as suggested by his representatives, his departure would neither create nor reinforce suspicions about him in the minds of the Sri Lankan authorities.

3. The Tribunal found that the applicant’s evidence regarding his circumstances and those of his family in Sri Lanka did not support his claim that he would face harm because of his Tamil ethnicity or because he was a Tamil from the east of Sri Lanka.  In this connection the Tribunal:

   a)noted that according to guidelines from the United Nations High Commissioner for Refugees (“UNHCR”), being a Tamil from an area which had previously been controlled by the LTTE did not of itself result in a need for protection under the Convention;

   b)had regard to the applicant’s representatives’ submissions which drew on a range of general independent sources highlighting the following risks which were said to be faced by Tamils: arbitrary arrests and detention; continuing tensions between Tamils and the Sri Lankan authorities; systematic discrimination and human rights abuses suffered by Tamils; and the vulnerability of Tamils in the east of the country to targeting by armed groups and their inability to access effective state protection there.  The Tribunal found that such generalised reports and assessments were not determinative of what could happen in the case of an individual applicant; and

   c)noted that despite being from Trincomalee, which was a former LTTE stronghold, the applicant had not indicated that he or any of his family had been harmed because of their Tamil ethnicity.  It noted that while the applicant claimed that he had been arrested in relation to a bomb explosion, he had been released without charge as no evidence was found against him.  It also noted that while the applicant claimed that his father had been questioned at the airport for three hours on his return to Sri Lanka, country information indicated that that questioning was part of a standard vetting procedure for people who had departed Sri Lanka illegally, regardless of their ethnicity, and that his father had later been able to obtain a Sri Lankan passport, exit and return again without difficulty.  The Tribunal also noted that two of the applicant’s sisters continued to live in Sri Lanka, despite the applicant’s claim in his statutory declaration that his family had been suspected of helping him to leave Sri Lanka after his arrest.

4. The Tribunal was not satisfied that the applicant would be imputed with a political opinion linked to the LTTE and opposed to the Sri Lankan authorities which would give rise to a real risk of harm.  It was not satisfied that being a Tamil or a young Tamil male from a former LTTE stronghold, singularly or cumulatively, gave the applicant any actual or imputed political opinion linked to the LTTE, an opinion opposed to the Sri Lankan authorities or an adverse profile which gave rise to a real risk of harm.  In this regard:

   a)the Tribunal noted that although the applicant claimed that he would be suspected of being an LTTE member because of his arrest in relation to a bomb explosion in Trincomalee, his own evidence was that after he had been detained for a week and investigated he was cleared and had not had any other encounters with the authorities in the twelve months before he left for India.  It noted that while the applicant had submitted that he had been moving around to avoid the authorities, he had not given any indication that the authorities had actually been pursuing him;

   b)the Tribunal noted the applicant’s consistent evidence that none of his family had been involved with the LTTE, accused of having such connections or questioned about the applicant in that context.  This included his two sisters who remained in Sri Lanka and his father who, when questioned at the airport, told the authorities that he did not know where the applicant was and was not questioned further about him;

   c)in light of the applicant’s evidence that he had never had problems with the EPDP or the Karuna and Pillayan groups, the Tribunal characterised as speculative his claim that if he returned to Sri Lanka those groups would arrest and kill him;

   d)the Tribunal found that at the time the applicant left Sri Lanka he had not had a profile which was of interest to the authorities or paramilitary groups in relation to the bombing incident or because of possible LTTE connections; and

   e)the Tribunal found that the applicant had not made out his claim that as a young Tamil he would be perceived as an LTTE cadre because of his illegal departure for India.  It found that country information indicated that many thousands of Tamils had fled Sri Lanka around 2006 to seek refuge from intense fighting, as they had at various times since 1983, and that thousands, including young people, had returned to Sri Lanka (including to Trincomalee) with the assistance of the UNHCR and the International Organization for Migration, who deemed it safe for them to return.

5. For the following reasons the Tribunal was not satisfied that there was a real chance that the applicant would face persecution or suffer serious harm because of his unsuccessful application for asylum in Australia:

   a)after referring to country information the Tribunal accepted that as a returnee to Sri Lanka the applicant would go through a process of screening and questioning which would bring him into contact with the Sri Lankan authorities.  However, it was not satisfied that being a returned Tamil failed asylum seeker would lead to him being imputed with a political opinion linked to the LTTE, including as a potential supporter or “foot soldier” for the pro-LTTE diaspora, or as being opposed to the Sri Lankan authorities.  It was also not satisfied that it would give rise to differential treatment amounting to serious or significant harm, either at the airport or on the applicant’s return to his home or at any other point.  This was particularly as it had found that the applicant had no profile of interest to the authorities in relation to the bombing incident in 2005 or any LTTE links prior to his departure from Sri Lanka; and

   b)while accepting that on his arrival in Sri Lanka the applicant would be interviewed at the airport by the CID and the State Intelligence Service (“SIS”) and that a criminal background check involving his local police station would be undertaken, the Tribunal was not satisfied that that process would reveal an adverse profile for the applicant.  The Tribunal noted that the screening and questioning process the applicant would undergo might be stressful and unpleasant but it was not satisfied that it would expose him to serious or significant harm for the reasons he claimed.  The Tribunal referred to a UK Home Office report which dealt with allegations made by two returnees that they had suffered mistreatment.  The UK Home Office noted that the available evidence was unclear about the veracity of those allegations and about the reasons for any mistreatment suffered.  The Tribunal found that such alleged cases were of little assistance in assessing the risk of harm faced by a returned Tamil failed asylum seeker in the applicant’s circumstances;

1. For the following reasons the Tribunal found that the applicant would not suffer serious or significant harm as a returnee who had left Sri Lanka illegally:

   a)the Tribunal again noted that thousands of Tamils who had spent many years in India had returned to Sri Lanka in recent years.  It also noted that the applicant’s father, who had left Sri Lanka illegally by boat in 2006, had travelled back to Sri Lanka twice in 2011 and had only been subjected to standard questioning before being subsequently issued with a Sri Lankan passport on which he subsequently travelled in and out of the country without incident;

   b)the Tribunal referred to independent country information indicating that:

   i)under standardised procedures which applied in all cases, regardless of ethnicity and departure circumstances, returnees were routinely interviewed at the airport on arrival by the Sri Lankan immigration department, the SIS and the CID, processes which included police and security clearances and checks with local police stations which could take some hours;

   ii)further questioning could result if the checks revealed that a person had outstanding arrest warrants for prior criminal offences, that his or her name was on an immigration watch list, that the person was of security interest or that there was evidence of the person’s involvement in people smuggling;

   iii)returnees believed to have left the country illegally were arrested and brought before a court to apply for bail, although if their arrival was on a weekend or public holiday the returnees would be placed in Negombo prison and might remain there for days until a bail hearing was available.  The Tribunal noted that media reports had described the conditions on remand as being overcrowded but that there had been no reports that returnees held awaiting bail hearings were subjected to torture or to other forms of deliberate mistreatment; and

   iv)penalties for illegal departure imposed on returnees involved fines of up to SLR100,000;

   c)having considered the country information before it, the Tribunal was not satisfied that Sri Lanka’s laws regarding unlawful departure were applied or enforced in a discriminatory way for a Convention reason or that the treatment faced by returnees who had departed illegally, either at the airport on arrival, on remand while awaiting a bail hearing or when they were later dealt with by the courts, amounted to persecution involving serious harm.  It accepted that the applicant might be held on remand in conditions which were cramped, uncomfortable and unpleasant but found that he would only be detained for a few days while waiting to be brought before a court to apply for bail, which was routinely given.  It found that country information indicated that the applicant would be subject to a fine and not a custodial sentence for his illegal departure and so found that the prospect of him being detained for a prolonged period of time was remote; and

   d)the Tribunal noted that despite the large number of reported involuntary returnees to Sri Lanka and the high level media interest in them, there had been no reports of them suffering significant harm as contemplated by s.36(2A) of the Act. The Tribunal was not satisfied that the applicant being a failed returned Tamil male asylum seeker who had left Sri Lanka illegally, even when considered cumulatively with his claimed risk profile and circumstances, involved or created a real risk of him suffering significant harm.

Proceedings in this Court

1. In his amended application the applicant alleged:

   GROUND 1

   The Tribunal committed jurisdictional error by failing to take into account relevant consideration and / or making finding contrary to established evidence and / or without supporting evidence.

   Particulars

   The Tribunal found that the Applicant was not in the country when the bomb explosion occurred “… the applicant was no longer in the country in August 2006 when the ACF workers were killed …” (RRT decision, p13 at [66]) and rejected that the applicant was in Sri Lanka when the bomb blast occurred which is the applicant’s claim.  The Tribunal ignored the Sri Lanka Refugee Identity Card (CB 117) provided to the Tribunal at the hearing which clearly shows arrival in India on 06 October 2006 (and not mid-2006 as found by the Tribunal without any supporting evidence) provided to the delegate and as entry documentation.  The Tribunal erred in failing to take this into account.

   GROUND 2

   The Tribunal failed to identify and deal with the Applicant’s social group instead looked at various attributes in isolation (RRT decision, p13 – p14 at [66] - [71]) and thereby committed jurisdictional error.

   Particulars

   The Tribunal has assessed the attributes in isolation and failed to characterise the group that was put forward by the Applicant.

   GROUND 3

   (not pressed)

   GROUND 4

   The Tribunal committed jurisdictional error when it conflated the issue of father not being persecuted as indicative of the Applicant would not be harmed upon return to Sri Lanka and treating as general illegal departure (CB184 at [82]; CB 186 at [88]).

   Particulars

   The Applicant left for Australia through India and was out of Sri Lanka at the time of departure (and thus was in different class to others departing Sri Lanka illegally).  The Tribunal conflated that issue of father’s return to Sri Lanka when the Applicant was claiming that the authorities have more interest in younger Tamils as opposed to his father’s age and / or in addition owing to fathers opinion / profile imputed to him.

   GROUND 5

   (not pressed)

Ground 1

1. In the first ground of the application the applicant alleged that the Tribunal had failed to consider certain evidence and that this amounted to jurisdictional error.

2. The evidence in question was identified as a “Sri Lanka Refugees Identity Card” which the Tribunal had received as evidence at its hearing on 14 February 2013.  The document was reproduced at p.117 of the Court Book (“CB”) which was Exhibit 1 in this proceeding.  Another identity card was reproduced at CB 120 but the applicant did not rely on that document.

3. Although the printed form of the identity card was in English, it had been completed by hand in Tamil and the applicant conceded that no translation had been supplied to the Tribunal.  The identity card bears a photograph which, according to the applicant’s evidence to the Tribunal, showed his parents and his younger brother and sister.  It also bears the lower part of another photograph which the applicant told the Tribunal depicted him.  Although the Tribunal acknowledged in para.31 of its decision record that it had been given that document, its reasoning did not refer to it.

4. The identity card identifies “Date and place of arrival:” with a date “6.10.06” and a word in Tamil.  The applicant submitted that the date information was important evidence corroborative of his claim at the Tribunal hearing that he had fled Sri Lanka for India at some point between August and October 2006.  He submitted that the Tribunal had not referred to this evidence in its consideration of his claims, which suggested that the information had not been considered.  The applicant submitted that failure to consider information of that significance amounted to jurisdictional error.

5. The Minister argued that the identity card had not been mentioned in the Tribunal’s reasoning because the Tribunal had not been persuaded that one of the applicant’s cousins had been killed as alleged, which had the consequence that the applicant’s claim that part of his motivation to flee Sri Lanka had been his cousin’s murder fell away and so the identity card had no relevance.  As it had no relevance, it was submitted, the fact that the Tribunal did not mention it in its reasoning provided no basis to conclude that it had not been considered.

6. The Tribunal must consider an applicant’s claims in light of the facts as disclosed by the evidence in its possession. If the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not “so insignificant that the failure to take it into account could not have materially affected the decision”, and where such failure could possibly have deprived the applicant of a successful outcome to his or her application for review because the evidence might have persuaded the Tribunal that it was satisfied that the applicant met the criteria for the grant of the visa sought, then that amounts to a failure to conduct the review in the manner required by the Act and is properly characterised as a jurisdictional error: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Gibbs CJ at 30-31, Mason J at 40, 44-45 and Dawson J at 71; Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ; Singh v Minister for Immigration & Multicultural Affairs (2001) 109 FCR 18 at 30-31 [49]; Lu v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 141 FCR 346 at 360-361 [64]-[69] per Sackville J, Black CJ and Sundberg J agreeing; VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [73]-[83]; SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 at [72]; LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166 at 198-199 [145]. See also in the context of fraud on an applicant and on the Tribunal, SZSJA v Minister for Immigration & Border Protection (2013) 139 ALD 36 at 46-47 [53]-[59]. If jurisdictional error is found, whether a court should refuse relief in the exercise its discretion is a separate consideration.

7. Even though the Tribunal must consider evidence relevant to its decision, it need not refer in its reasons to information on which it has not relied when making a material finding of fact.  In such circumstances, the simple fact that a piece of evidence has not been referred to in the Tribunal’s reasoning is an insufficient basis to conclude that it has not been considered.

8. In his first version of events, the applicant said that he had been arrested in mid-2005, that his cousin had been killed about four months later and that he departed Sri Lanka in mid-2006.  In his second version of events the applicant said that he had been arrested in January 2006, that his cousin had been killed in August 2006 and that he departed Sri Lanka between August and October 2006.  Between giving those two versions, the applicant had received the documents which pinpointed when his cousin had been killed.

9. The documents about the murder of the applicant’s cousin put that event later than the applicant’s originally-advised departure date.  The Tribunal concluded that the applicant had invented the second version of events and had done so in order to maintain the sequence of those events, in particular so that the sequence still put him in Sri Lanka at the time his cousin died.  The Tribunal observed that this sequence of events strengthened the applicant’s claims about the events that drove him to leave Sri Lanka.

10. The evidence in the identity card, which suggested that the applicant arrived in India in October 2006, was relevant to whether his second version of events was to be believed.  The conclusion on that question in turn affected the Tribunal’s view of whether the applicant had anything to fear from repatriation to Sri Lanka.  The significance of that sequence of events was discussed by the Tribunal at paras.65, 66 and 67 of its decision:

    … I consider that he altered his evidence to fit in with the published dates of the killings of the ACF [the French NGO] workers in order to fit in with his story and to strengthen his claims about the events that drove him to leave Sri Lanka.

    … As the applicant was no longer in the country in August 2006 when the ACF workers were killed, I am not satisfied that this was a factor driving the applicant to leave Sri Lanka, if, in fact, the deceased [cousin] was the applicant’s cousin, as claimed but not substantiated. I attach no weight to this incident in my considerations as I consider that the applicant included reference to it to strengthen his claims.

    It is my view that, like many other Tamils, the applicant and his family fled Sri Lanka for Tamil Nadu by boat in 2006 to escape the hostilities in their home area.  As this was almost a year after the applicant’s arrest and subsequent release without charges, not ‘within a few months’, as suggested by the applicant’s adviser, I am satisfied that it will neither create nor reinforce suspicions about the applicant in the eyes of the authorities on his return to Sri Lanka.

11. The latter passage suggests that if the Tribunal had accepted that the applicant had departed Sri Lanka only a few months after he was arrested following the bomb blast, and shortly after his cousin had been murdered, it might have concluded that the Sri Lankan authorities would have suspected that he had LTTE connections, thereby giving his claims to fear persecution a stronger footing. 

12. The significance of the identity card, if accepted as genuine, was sufficiently great in the circumstances that the Tribunal’s failure to refer to it when finding that the applicant had left Sri Lanka for India in mid-2006, and not between August and October 2006, indicates that the Tribunal did not take account of it when reaching the conclusions quoted above at [26]. If it had been taken into account, it is possible that the Tribunal’s opinion of whether the applicant’s second version of events was truthful and whether the Sri Lankan authorities would suspect him of LTTE links would have been different and that this might have led to the review having a different outcome. The Tribunal therefore erred.

Ground 2

1. The second ground of the application was explained in the applicant’s written submissions as being an allegation that the Tribunal had failed to consider his claims by reference to the following particular social groups of which he claimed at the hearing of this application to be a member:

   (i)Sri Lankans;

   (ii)young males;

   (iii)residing in or considered to be from North/Easten part of Sri Lanka);

   (iv)born in particular area or from particular area;

   (v)Tamil ethnicity;

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

   (vii)possibly holding views opposed to their treatment of by the government of Sri Lanka (views that could be imputed).

2. However, in written submissions to the Tribunal dated 11 February 2013, the applicant’s then-solicitors relevantly alleged on his behalf that he feared persecution because he was a member of the particular social group of “failed asylum seekers”.  That claim was specifically considered by the Tribunal at paras.80-91 of its reasons. 

3. The applicant also submitted that the particular social group claims he now identified had been made in the final paragraph of the following passage from his then-solicitors’ submissions to the Tribunal of 11 February 2013:

   [The applicant] is outside his country of nationality and is claiming a well founded fear of persecution for reasons of:

   1.His ethnicity as a Tamil;

   2.his actual/imputed political opinion including of being a ‘perceived sympathizer/supporter of the LTTE’, or as someone perceived as holding views in opposition to the current Sri Lankan government;

   3.his membership of the following particular social groups:

   i.   failed asylum seekers

   The above grounds need to be considered both separately and cumulatively when assessing whether the totality of [the applicant’s] circumstances support a real risk of persecution.

   As noted above, the particular circumstances of [the applicant’s] case must not be considered in isolation from one another.  Rather, we believe there exists a number of factors in this matter that need to be considered both individually or cumulatively when undertaking an assessment of the risks [the applicant] faces on return to Sri Lanka.  These factors include:

   1.His Tamil ethnicity

   2.His origins as being from the Eastern province of Sri Lanka.  [The applicant’s] origins would be able to be confirmed in any part of the country through his ID documents;

   3.His previous history of being subject to criminal investigation or interrogation in Sri Lanka owing to a terrorist [sic] activity in Trincomalee;

   4.He has spent the last 6 years outside … Sri Lanka and more particularly living in India as a refugee;

   5.He had last departed Sri Lanka illegally, in that he did not travel to India on a passport and had not left through a official port;

   6.He has applied in Australia for asylum;

4. The manner in which the submission to the Tribunal was expressed does not bear out the applicant’s submission in this proceeding.  The points numbered 1 to 6 in the above quotation were not separate claims but evidence said to support the claims made in paras.1 to 3.  If the applicant’s then-solicitors had wanted to advance any of the matters in points 1 to 6 as separate claims, they could easily have done so by adding further claims to claims 1, 2 and 3.

5. In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at 20 [62], the Full Court of the Federal Court referred to what Gleeson CJ had said in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at 479 [1] in the context of the Refugee Review Tribunal:

   Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.

6. Further, in NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 Allsop J said at [15]:

   From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances.

7. In the absence of compelling reasons to conclude otherwise, where an applicant is professionally represented, was as the case here, it must be assumed that the claims which the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed.  If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].

8. The particular social groups on which the applicant now relies were not propounded to the Tribunal.  Hence, it did not have to consider them and did not err by not doing so.

Ground 4

1. In relation to the fourth ground of the application the applicant submitted that the Tribunal had considered the fact that his father had not been persecuted on his trips back to Sri Lanka indicated that he, the applicant, would not be harmed either were he also to return.  He said:

   The Tribunal committed jurisdictional error when it conflated the issue of father not being persecuted as indicative of the Applicant would not be harmed upon return to Sri Lanka …(errors in original)

2. This allegation was really a challenge to the significance accorded by the Tribunal to the fact that the applicant’s father had not been harassed by the Sri Lankan authorities when he visited Sri Lanka.  The weight given to particular aspects of the evidence before the Tribunal is a matter for it and not reviewable in these proceedings.

1. Consequently, this allegation does not disclose a basis upon which the Tribunal’s decision should be set aside.

Conclusion

1. The Tribunal’s decision to affirm the delegate’s decision was affected by jurisdictional error. 

2. As a result, the Tribunal’s decision will be set aside and the matter returned to it to be determined according to law.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 11 September 2014