SZTHT v Minister for Immigration

[2014] FCCA 2396

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTHT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2396

Catchwords:

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

Legislation: 
Migration Act 1958 (Cth), ss.5, 36

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125

Applicant: SZTHT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2256 of 2013

Judgment of: Judge Barnes

Hearing date: 30 September 2014

Delivered at: Sydney

Delivered on: 30 September 2014

REPRESENTATION

Solicitors for the Applicant: Manning Lawyers

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. (1)    The application is dismissed.

2. (2)    The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

(1)  FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2256 of 2013

SZTHT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. 1.  This is an application for review of a decision of the Refugee Review Tribunal dated 28 August 2013.  The Tribunal affirmed a decision of delegate of the First Respondent not to grant the Applicant a protection visa.

2. 2.  The Applicant, a national of Sri Lanka, arrived in Australia in October 2011 as the holder of a tourist visa.  He lodged an application for protection in January 2012.  He claimed, in essence, to fear harm in Sri Lanka as a Tamil who would be perceived to be involved in the Liberation Tigers of Tamil Eelam (the LTTE).  He provided a detailed statement in support of his claims.  The Applicant made various claims about having come to the attention of the Sri Lankan authorities over a long period of time, some of which are relevant to the grounds relied on by the Applicant.  In particular, he claimed that he and his parents had been detained by paramilitaries in 2009 after returning from overseas travel, released on payment of a bribe and that subsequently his parents came to Australia.  The Applicant also claimed that in August 2011, he travelled to India on business and was deported back to Sri Lanka.  He claimed that he and two other people had been handed over to the police upon return to Sri Lanka and he had been mistreated and beaten because the authorities accused him of smuggling garments and collecting money for the LTTE.  He claimed that he was also accused of working for people associated with the LTTE and was then detained for a month in a camp with other LTTE suspects until he was released after payment of a bribe.

3. 3.  The application was refused by a delegate of the First Respondent.  The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.

4. 4.  In its reasons for decision the Tribunal set out the claims made by the Applicant in connection with his protection visa application.  It summarised the factual background claims in some detail, including describing a schedule of overseas travel provided by the Applicant.  At paragraph 31 of its decision (a paragraph that continues for some 18 dot points) the Tribunal explained that the Applicant had set out his claims for protection in a 14 page statement which included summaries of articles about Sri Lanka and that his claims extended over about three and a half pages.  It set out a summary of those claims in the subsequent dot points.

5. 5.  Some of these dot points (to which I will return when considering the first ground relied on) set out the Applicant’s background and education in Sri Lanka.  Others described his claims about specific events that the Tribunal described. 

6. 6.  In its findings and reasons the Tribunal concluded that it was not satisfied that the Applicant was a person in respect of whom Australia had protection obligations under the Refugees Convention or the complementary protection criterion in the Migration Act 1958 (Cth) (the Act) because he was not a credible witness and country information did not support his claims. The Tribunal found that the Applicant had fabricated his claims for protection.

7. 7.  The Tribunal accepted the factual background it had set out earlier in its reasons for decision (in paragraphs 22 - 29) and that the documents the Applicant had provided (in particular work references, educational certificates and pages from a previous passport) were genuine. 

8. 8.  Based on the Applicant’s evidence and his supporting documents the Tribunal accepted that the Applicant was a Tamil from Jaffna in Sri Lanka who had moved from the Jaffna area to Colombo in 1991.  It accepted his claims about completing his A level exams in 1994 and that he had a continuous employment history in Sri Lanka from 1996 until he left in October 2011 (apart from a period from April 2008 when he was in Oman).  It also accepted, based on these documents, that on his return to Sri Lanka the Applicant began working in a particular engineering company as an accountant.  It noted that in his application he claimed to have worked there from 2008 to 2011.  The Tribunal also accepted the Applicant’s evidence at the hearing about the circumstances of his family, their whereabouts and his mother’s health problems before he came to Australia in 2011.

9. 9.  The Tribunal found that the Applicant’s answers to questions during the interview about his application for a tourist visa in Sri Lanka in October 2011 (in which he denied that he had any problems in Sri Lanka) were consistent with his claims for protection.  The Tribunal recorded that he claimed to it that he had been desperate to get the tourist visa because if he did not leave within a few days the authorities would kill him, but that he had not told the Australian officials about being detained in a Boosa Camp or fearing arrest because if they knew they would not give him the visa.  In other words, as the Tribunal summarised, his evidence was that in 2011 he did not disclose the difficulties he had because he would not have been granted the visa he sought.  The Tribunal recorded that the 2011 interview was not information that was the reason or part of the reason for affirming the delegate’s decision.

10. 10.    Having made those findings, the Tribunal gave reasons why it affirmed the delegate’s decision.  It had regard to inconsistencies in the Applicant’s accounts of the circumstances in which he went to Oman in 2008.  It recorded that at the Tribunal hearing the Applicant had said that in 2008 he had worked for a particular hospital in Sri Lanka for four and a half years, thought he had enough experience and left.  He claimed he went to Oman for a job interview and obtained a job as an accountant but returned to Sri Lanka to marry an Indian woman.  However her parents refused to permit the marriage.  He claimed that in case he was unsuccessful in his job application he had not resigned from his previous employment.  He also claimed it was dangerous in Colombo because people from his part of Sri Lanka were “earmarked and harassed” by the armed forces and the police.  He claimed that once, about 10 to 15 years ago, he had been harassed on the way to the temple.

11. 11.    The Tribunal found, however, that this account of the circumstances relating to the Applicant’s travel to Oman was completely different to his account in his protection visa application which it summarised in its reasons.  Issue is taken with aspects of this summary in ground one in the application and those findings are set out below in more detail.  In brief, the Tribunal recorded the Applicant’s claims in connection with his protection visa application that he had been harassed and he and his girlfriend questioned by the paramilitaries and that they had threatened to detain him as an LTTE informant unless he paid them 50,000 Rupees.  He had also claimed that, fearing arrest, he left for Oman to find a job.  The Tribunal had regard to the fact that at the Tribunal hearing the Applicant had made no mention of paramilitaries demanding money and questioning his girlfriend or of his having to leave Sri Lanka in April 2008.

12. 12.    In addition, the Tribunal had regard to the fact that while the Applicant claimed that he could not get a reference from the hospital he had worked at for four and a half years in Sri Lanka, he had in fact supplied a reference dated 25 February 2008 from the General Manager (Finance and Administration) of that hospital which recommended him for any challenging job in his career and wished him success in his future endeavours.  It considered the Applicant’s explanation that the General Manager was leaving at that time and he obtained the reference before he left.  However the Tribunal was not satisfied that this was a truthful explanation.  It found that the date of 25 February 2008 and the content of the reference from the Applicant’s then current employer were consistent with the Applicant applying for a job in Oman at that time but that his action in obtaining a reference in February 2008 for the purpose of applying for a job in Oman was inconsistent with his claim that he left Sri Lanka for Oman in April 2008 because he feared he would be detained in Sri Lanka following the events set out in his visa application.

13. 13.    The Tribunal also found that while the claims in the visa application gave the impression that the Applicant was in India from the time he returned from Oman in 2008 until he went to Singapore in June 2009 because he could not extend his Indian visa, this was not correct.  It referred to the travel details it had accepted based on the information provided by the Applicant (including a schedule of his travel and his passport details) and recorded that he had returned to Sri Lanka from Oman in August 2008, went to India from September to November 2008 and again in March 2008, and then to Singapore from India from 23 June 2009 until 1 July 2009 when he returned to India.  He returned to Sri Lanka from 23 to 28 August 2009 before going back to India and then back to Sri Lanka on 15 September 2009.

14. 14.    In addition the Tribunal had regard to the fact that at the hearing the Applicant had confirmed that he first travelled outside Sri Lanka in 2000 (nine years after he moved to Colombo), whereas in his visa application he had claimed that he was sent to India by his mother sometime in the 1980s.  The Tribunal found that this evidence was inconsistent.

15. 15.    The Tribunal found that the Applicant’s work history in Sri Lanka and his frequent travel in and out of the country from 2000 (including to Oman) was inconsistent with his claims of harassment, interrogation, arrest and detention because he was a Tamil from Valvettithurai whom the Sri Lankan authorities and paramilitaries suspected had links with the LTTE. 

16. 16.    The Tribunal concluded that for these reasons it did not accept that the Applicant was a credible witness. 

17. 17.    It accepted that the Applicant was a Tamil from the Jaffna area in the Northern Province of Sri Lanka given his passport showed he was born there.  Although there was no objective evidence before the Tribunal that the Applicant came from Valvettithurai, for the purpose of the decision the Tribunal accepted that he did.  However because the Tribunal did not accept that the Applicant was a credible witness it did not accept his claims (which it set out in some 17 dot points) about certain past events.

18. 18.    Thus, the Tribunal did not accept that the Applicant was forcibly taken away by the  LTTE and released when his mother gave all her jewels;  that he went to India because he faced intimidation and harassment by the authorities in Colombo;  that his brother was “constantly” taken away, interrogated and imprisoned and then sent overseas by his father who had used his influence;  that the Applicant was taken for interrogation, harassed and detained until his father obtained his release with the help of his employer and by bribing officials;  that the Applicant travelled to India with Indian friends to flee LTTE cadres in Colombo who were recruiting Tamil Youths for training in the Vanni;  that the LTTE ordered him to report to the Vanni head office because he was from Valvettithurai, but his parents paid money and convinced the LTTE they would face problems in Colombo if he was taken away;  that while working at the hospital the Applicant spent his free time in the hospital boarding house with Indian friends to escape interference from LTTE cadres or that LTTE cadres kept away from him when they knew he was planning to marry an Indian woman. 

19. 19.    Nor did the Tribunal accept that after the peace talks collapsed in 2007 the Applicant feared to travel to India because he could be questioned by paramilitaries at the airport.  In making that finding the Tribunal took into account that the Applicant’s travel to India from 4 to 22 July 2007 and from September to November 2007 was inconsistent with this claim.  It did not accept that around April 2008 the Applicant and his girlfriend were questioned by paramilitaries who demanded money and threatened to detain him for working as an LTTE informant between Sri Lanka and India, that this caused him to flee to Oman or that his girlfriend was then questioned and told he should report at the police station.  It did not accept that the Applicant returned to Sri Lanka after his problems were solved as the LTTE had been captured and paramilitaries were serving in LTTE areas in the Vanni.

20. 20.    The Tribunal did not accept that the Applicant and his parents were arrested at the airport and interrogated in 2009; that he was accused of training with LTTE cadres in the Vanni and that he and his brother were LTTE cadres who had escaped; or that they were released when they paid the paramilitaries.  It did not accept that his parents had faced harassment from the paramilitaries or that the paramilitaries demanded money from the Applicant regularly so he was sent to different sites by his employer to avoid them.  It did not accept that the police arrested the Applicant in 2010 on suspicion of LTTE affiliation and detained him for three days or that he was released on the condition he report to the police station.  It did not accept that the Applicant’s employer had asked him to help in his business because he had friends in India which led to the claimed events in August to October 2011.  The Tribunal did not accept that these events had occurred as the Applicant claimed.

21. 21.    Nor did the Tribunal accept that the armed forces, police and traffic police targeted people from Valvettithurai (including the Applicant because of his birthplace and facial features); that he had been arrested six times and interrogated; or that he was arrested and detained for two or three days in 2005 or 2006; or that he had been kept at sentry points for two or three hours.  The Tribunal did not accept that the Applicant was falsely accused of having LTTE involvement because he was a person from Valvettithurai and/or because he was a Tamil and/or because he spoke to two boys suspected of having links with the LTTE.

22. 22.    The Tribunal concluded that it was not satisfied that the Applicant had suffered harm in Sri Lanka from the authorities (including the armed forces, police, traffic police or paramilitaries) because he was a Tamil and/or a person from Valvettithurai and/or a person suspected of links with the LTTE.  It was not satisfied there was a real chance the Applicant would suffer serious harm in the reasonably foreseeable future in Sri Lanka because of his race, membership of a particular social group or imputed or real political opinion, singularly or cumulatively.  It found that he did not have a well-founded fear of persecution for a Convention reason.

23. 23. For the same reasons the Tribunal was not satisfied there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka there was a real risk he would suffer significant harm. It concluded that he did not satisfy the complementary protection criterion in s.36(2)(aa) of the Act.

24. 24.    For these reasons the Tribunal affirmed the decision not to grant the Applicant a protection visa.

This Application

1. 25.    The Applicant sought review by application filed in this Court on 24 September 2013.  There are two grounds in the application.

2. 26. The first ground is that the Tribunal failed to carry out its statutory duty. There is one particular to this ground. It is that the Tribunal failed to give any real consideration to Australia’s protection obligations as set out in s.36(2A) of the Act.

3. 27.    In written submissions for the Applicant it was submitted that while the Tribunal “exhaustively considered” whether the Applicant came within the terms of s.36(2)(a) there was little, or any real, consideration of whether he came within the terms of the s.36(2)(aa) of the Act.

4. 28. Under s.36(2) of the Act an applicant may satisfy the criteria for a protection visa in various ways. Relevantly, under paragraph (a) he or she may be a non-citizen in respect of whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. No issue is taken with the Tribunal’s consideration of that aspect of the Applicant’s claim. In the alternative, an applicant may be a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm (see s.36(1)(aa) of the Act). Subsection 36(2A) provides a definition of significant harm which, by virtue of s.5, means harm of a kind mentioned in s.36(2A) of the Act.

5. 29. No issue is taken with the fact that the Tribunal made a general finding (rather than an assessment of the particular kinds of harm that would constitute significant harm as defined in the Act). Rather, it was contended the Tribunal failed to give real consideration to Australia’s protection obligations to the Applicant under the complementary protection criterion. In oral submissions the solicitor for the Applicant accepted that (as had been submitted by the First Respondent) there was no difficulty in theory with a Tribunal addressing both the Refugees Convention and complementary protection claims by considering the factual claims that provided the basis for each of those claims in conjunction and by then reaching conclusions in relation to the Refugees Convention and finding for the same reasons that it was not satisfied there were substantial grounds for believing that the requirements of s.36(2)(aa) were met. Such a concession is consistent with the general approach taken in SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 which as was pointed out by the Full Court of the Federal Court in that case at [31] that:

   1.        If a claimant claims that he or she has suffered significant harm in the past but his or her account of the constituent events is not believed, then that is relevant to the question for the Minister of substantial grounds for believing there is a real risk of significant harm.

   Also see paragraphs 32 and 35.

6. 30.    However it was submitted that it was necessary that the Tribunal had in fact considered the integers of all of claims the Applicant made as a basis for his claimed fear of significant harm in the future.  The Applicant did not address the issue of what constitutes an integer of claims (whether in the sense considered in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 or otherwise).  

1. 31. Rather, while it was conceded that the Tribunal had considered whether the Applicant came within the terms of s.36(2A) of the Act, but submitted that in three respects the Tribunal had failed to give sufficient consideration to whether the Applicant came within the terms of s.36(2)(aa).

2. 32.    The Applicant’s submission was that when a comparison was made between the matters that the Tribunal set out as constituting the Applicant’s claims and the Tribunal’s conclusions about what it did not accept, there were three specific aspects of the Applicant’s claims as summarised by the Tribunal which were not considered by the Tribunal in its findings.  It was submitted that these matters should have been specifically considered in relation to the Applicant’s complementary protection claims.

3. 33.    First, reliance was placed on the fact that in the Applicant’s claims (in dot point 5 of paragraph 31 of the Tribunal’s account of the claims) the Tribunal had stated at the start of that paragraph that:

   1.        During the contact between the Indian Peace Keeping Force and the LTTE in the 1980s, “we were running to save our lives and stayed at refugee camps in fear of death from indiscriminate bombings and shelling” (sic).

4. 34.    The rest of this dot point is as follows:

   1.        During those days the LTTE recruited as many youths as possible and the applicant was taken away forcibly by the LTTE.  His mother gave all her jewels and had him released.  His mother sent him to Colombo via Mannar through an agent when they came to know that the Indian peacekeeping forces would be withdrawing from Jaffna.  In Colombo the applicant stayed with his father and was unable to face intimidation and interrogation by the authorities and left for India.

5. 35.    The Tribunal went on to describe the Applicant’s claims about events after he went to India and his return to Sri Lanka.

6. 36. It was contended that in its findings and reasons the Tribunal had failed to consider the claim made in the part of dot point 5 of paragraph 31 of its reasons set out at [34] above.

7. 37.    However it is necessary to consider this part of the Tribunal’s summary of the Applicant’s claims in context.  The first sentence in dot point 5 followed what on its face was clearly a summary of the background and circumstances of the Applicant in Sri Lanka.  The Tribunal recounted his claims about his ethnicity, where he had lived, his father’s role and his studies.  It recorded his claims that the LTTE had recruited students from the college he attended to be trained as cadres with military capabilities, that the LTTE leader hailed from Valvettithurai and that the Sri Lankan Army (the SLA) and the authorities feared to enter the area while the Applicant was young.  The first part of dot point 5 is a further explanation of his background.

8. 38.    Moreover the reference in dot point 5 of paragraph 31 of the Tribunal decision to fear of death from “indiscriminate bombings and shelling” (sic) in the 1980s combat was not a reference to a part of the basis for the Applicant’s claim to fear harm in the future, but rather to an historical fact.  There was no suggestion in the material before the Tribunal that what occurred in the 1980s was a basis for a complementary protection claim by the Applicant personally, as opposed to a description of the fact that he was a member of the general population who could have been exposed, as he explained, to death from “indiscriminate bombings and shelling” (sic).  Hence it was not necessary for the Tribunal to deal with this aspect of dot point 5 of paragraph 31 in its specific findings. 

9. 39.    I am not satisfied that the Applicant made a claim to fear significant harm in the future (or serious harm) due to the fact that during the 1980s combat “we were running to save our lives and stayed at refugee camps in fear of death from indiscriminate bombings and shelling” (sic).  Rather, he relevantly claimed that during those days he had been forcibly recruited and taken away by the LTTE.  This claimed past event was relevant to his claim to fear future harm due to being suspected of being linked to the LTTE.  However the Tribunal expressly considered and rejected his claims that he had been taken by the LTTE, released after his mother gave them her jewels and then moved to Colombo and went to India because he feared intimidation and interrogation by the authorities in Colombo.

10. 40.    As set out above, while the Tribunal made an adverse credibility finding in its decision, the Tribunal accepted the Applicant’s evidence and claims about his factual background, study and employment and his family and that he was a Tamil from Valvettithurai.  However its finding that it did not accept that he was forcibly taken away by the LTTE and released when his mother gave all her jewels was clearly a reference to the central part of the Applicant’s claims summarised in dot point 5 of paragraph 31.  This was the part of the past events described in that paragraph raised by the Applicant as a basis on which he claimed to fear either persecution or significant harm in the future. 

11. 41.    More generally, insofar as it could be said that the Applicant made any wider claim about events in the 1980s being a basis for a fear of future harm, the Tribunal rejected his claim that he had suffered any past harm from the Sri Lankan authorities due to being a Tamil and/or a person from Valvettithurai and/or a person suspected of links with the LTTE.  It was on this basis that it was satisfied there was no real chance of future persecution or significant harm within the complementary protection criterion.  As the First Respondent submitted, in order to reject particular claims it was not necessary for the Tribunal to set out verbatim the claims as made.  Reading the Tribunal decision fairly and as a whole, the Tribunal summarised (with additional factual detail and explanatory background) the claims for protection made by the Applicant in what was described as a 14 page statement of claims over about three and a half pages.  It set out this aspect of his statement in full.  It dealt with the aspects of the claims that could be seen to be a basis or part of a basis for the Applicant having a fear of either serious harm within the Refugees Convention or significant harm within the complementary protection criterion.

12. 42. I am not satisfied that the Tribunal failed to carry out its statutory duty to consider whether the Applicant came within s.36(2)(aa) by failing to address specifically his claim about general events during the 1980s when they were running to save their lives and stayed in refugee camps in fear of death from “indiscriminate bombings and shelling” (sic). It did not err in the manner contended for by the Applicant.

13. 43.    The second “matter” said to be an unconsidered part of the basis for the Applicant’s claims to fear significant harm appears in dot point 12 of paragraph 31 of the Tribunal decision.  In oral submissions there was an elaboration (and perhaps a little extension) of the aspect of the claims described in this dot point said not to have been addressed by the Tribunal in its findings in relation to complementary protection. 

14. 44.    Dot point 12 of paragraph 31 follows on from a summary of the background to the Applicant’s claims (summarised in dot point 11) that he:

    …had an affair with an Indian girl which made it easier for him to get a visa.  They stopped questioning him when he entered and left Sri Lanka because she was always with him and they knew she was his girlfriend and he was working at the famous Apollo hospital.  The LTTE cadres came to know he was planning to marry an Indian and kept their distance from him.  Around March 2008 his girlfriend insisted they marry but her parents were against the marriage…

15. 45.    In dot point 12 The Tribunal described the Applicant’s claims as follows:

    When the peace talks collapsed in 2007 the applicant couldn’t even walk in public with his girlfriend and feared to travel to India as he could be questioned by the paramilitaries at the airport.  The paramilitaries were involved in abduction, torture and murder of Tamils having any connection with the LTTE.  Around April 2008 when he was returning from India with his girlfriend, paramilitaries questioned them about being a married couple.  His girlfriend said that they planned to marry soon.  The paramilitary took details of their addresses and let them go.  That night the paramilitaries came to the Applicant’s residence and demanded 50,000 rupees or they would detain him for working as an LTTE informant between Sri Lanka and India.  Fearing arrest, the applicant left for Oman to find a job.  He tried to get to other countries but failed.  He had to return to Sri Lanka in four months.  His girlfriend told him that the paramilitaries had questioned her about his whereabouts and that he should report to the police station.  The applicant immediately went with his girlfriend to India to finalise their marriage.  Unfortunately, her parents arranged her wedding against her wishes, and the applicant was ordered to stay away from her.

16. 46.    No issue was taken with the accuracy of the Tribunal’s summary of this aspect of the Applicant’s claims.  It was also acknowledged that some aspects of the claims summarised in this dot point were taken into account by the Tribunal.  However the Applicant contended that some of the claims in this summary were not considered by the Tribunal in the context of complementary protection.  The part in question was described in written submissions as the following claim:

    When the peace talks collapsed in 2007 the Applicant couldn’t even walk in public with his girlfriend.  The paramilitaries were involved in abduction, torture and murder of Tamils having any connection with the LTTE…  when he was returning from India with his girlfriend paramilitaries questioned them about being a married couple. 

17. 47.    In oral submissions the solicitor for the Applicant also contended that the claim that “The paramilitary took details of their addresses and let them go” was not considered by the Tribunal. 

18. 48.    However the Tribunal considered these aspects of the Applicant’s claims in paragraph 56 of the Tribunal reasons for decision in dot points 9 and 10 (which follow on from its rejection of the Applicant’s claim that LTTE cadres kept away from him when they knew he was planning to marry an Indian woman).  The Tribunal rejected the claim that:

    1.        After the peace talks collapsed in 2007 he [the Applicant] feared to travel to India because he could be questioned by the paramilitaries at the airport”. 

19. 49.    It had regard to the fact that the Applicant’s travel to India in 2007 on two occasions was inconsistent with this claim.  The Tribunal went on the reject the claim that the Applicant and his girlfriend:

    1.        …were questioned by paramilitaries around April 2008 and who demanded money and threatened to detain him for working as an LTTE informant between Sri Lanka and India that caused him to flee to Oman and that his girlfriend was then questioned and told that he should report at the police station.

20. 50.    In other words the Tribunal expressly rejected those aspects of what was recounted in dot point 12 of paragraph 31 that provided the basis or part of the basis for the Applicant’s claimed fear of serious or significant harm.  It was not necessary for the Tribunal to reproduce verbatim all of what was said in dot point 12 of paragraph 31 in making those findings.  Reading the Tribunal decision fairly and as a whole it clearly addressed the claims as made.  I note in that respect that the Applicant did not claim that the fact that in 2007 he could not walk in public with his former girlfriend was a basis for a fear of significant harm in the future.  Indeed, he explained that his relationship had broken down and that the girl had married someone else.

21. 51.    Insofar as issue was taken with the fact that in its findings the Tribunal did not expressly refer to the Applicant’s claim that the paramilitaries took details of their addresses and let them go, that claim was part of his claim that he and his girlfriend had been questioned by the paramilitaries around April 2008.  The Tribunal rejected the claim that the Applicant and his girlfriend had been questioned by paramilitaries around 2008.  Necessarily implicit in the rejection of that claim was a rejection of any claim that the addresses of the Applicant and his girlfriend were taken by the paramilitaries during questioning that the Tribunal found did not occur.  There is no basis for the contention that the Tribunal failed to consider this claim (or any part thereof) in a manner constituting jurisdictional error.

22. 52.    The third claim said not to have been considered by the Tribunal in the context of the complementary protection criterion appears in the part of the Tribunal’s summary of the Applicant’s claims in dot point 16 of paragraph 31.

23. 53.    Again it is necessary to set out a little of the background to this aspect of the Applicant’s claims as summarised by the Tribunal.  Relevantly, as set out in dot point 15 of paragraph 31, the Tribunal summarised claimed events in December 2010, including that the Applicant had been working for a particular company as an accountant when he was arrested on suspicion of LTTE involvement.  It recorded that the Applicant claimed that the company owner obtained his release, took him to India and advised him that if he married he would not be arrested.  The Tribunal also recorded the Applicant’s claim that when his employer “found out that the applicant had many friends in India he asked whether he could help him in his business”.  It recorded that the Applicant agreed because he had been promised more money.  He also explained that at this time his mother wanted him to travel to Jaffna and marry a girl known to their family and that after his marriage he could not stay at work sites (to avoid the paramilitaries).

24. 54.    Dot point 16 of paragraph 31 is a summary of subsequent claimed events.  It is as follows:

    In August 2011 the applicant claimed he travelled to Tamil Nadu [in India] for business and when he arrived at the airport in India he was stopped by the immigration authorities who found silk saris worth 1 Indian Lakh.  They questioned him about taking those expensive items home the applicant told them it was for the company owner.  The Applicant spoke to his employers who told him they would speak to business partners who would release him.  Two boys were detained with the applicant.  They told him they were about to be deported back to Sri Lanka.  He was ordered not to speak to them.  When he was called into a room they told him they had information from the Sri Lankan authorities that he was from Valvettithurai, Jaffna and his family members were found to have connections with LTTE leader.  He vehemently objected to the accusations.  Within an hour he and the two boys were deported to Sri Lankan.  On arrival, they were arrested by the Sri Lankan immigration authorities, handed over to police, taken to CID headquarters and interrogated separately.  The officers beat him severely for smuggling expensive silk garments and collecting money for the LTTE.  They accused him of working for Selvarasa Pathmanathan and Visvanathan Rudrakumar who they said was widely known among Tamils as the new LTTE leader, and beat him more when he denied doing so.  They transferred him to the Boosa camp where he was detained with other LTTE suspects and told that he would spend the rest of his life there.  (Emphasis added).

25. 55.    Relevantly, in dot point 17 of paragraph 31 the Tribunal recorded the Applicant’s claims about how his wife, the company owner and his parents were informed of his arrest and his claim that arrangements were made by the company owner to bribe officers to release him and to help him obtain a visa to see his sick mother in Australia.

26. 56.    The Applicant contended that the emphasised part of dot point 16 beginning “On arrival” and ending “he denied doing so” was not considered by the Tribunal in the context of considering his claims for complementary protection. 

27. 57.    In written submissions the First Respondent had suggested that this issue was dealt with in dot point 4 of paragraph 56.  As the Applicant contended, the rejection in dot point 4 of paragraph 56 (of his claim that he was taken for interrogation, harassed and detained and then released by his father with this help of his employers and by bribing officials), related to events in 1995 not the events described in dot point 16 of paragraph 31 which were events from August 2011 on.  Given the context and the chronological order in which the Tribunal addressed the Applicant’s claims, the findings in dot point 4 of paragraph 56 do not address the events of 2011 recounted under dot point 16 of paragraph 31. 

28. 58.    However, as the First Respondent contended in oral submissions, it is clear that in dot point 15 of paragraph 56 the Tribunal did deal specifically and in full with the claimed events recorded in dot point 16 of paragraph 31 relevant to the Applicant’s complementary protection claims.  After addressing (and rejecting) the Applicant’s claim that he was arrested in December 2010, the Tribunal went on to reject the claims in dot point 16 as follows:

    1.        His employer asked him to help in his business because he had friends in India which led to the events in August to October 2011 which the Tribunal does not accept occurred as he claimed.

29. 59.    Reading the Tribunal decision fairly and as a whole, having regard to the Tribunal’s summary of the claims and also to its subsequent general conclusion, it is clear that this finding involved a rejection of the entirety of the Applicant’s claims as set out in dot point 16 of paragraph 31 as a basis to fear either persecution or significant harm.  The events described in dot point 16 of paragraph 31 were the only relevant events that were said to have occurred in the period of August to October 2011.  The Tribunal rejected the Applicant’s claims that such events had occurred.

30. 60.    In addition, insofar as there was a claim related to two boys who were also deported from India to Sri Lanka and suspected of LTTE links, in dot point 17 of paragraph 56 the Tribunal rejected the Applicant’s claims that he was falsely accused of LTTE involvement because he spoke to two boys suspected of having links with the LTTE.

31. 61.    It has not been established that the Tribunal fell into jurisdictional error in any of the ways contended for in relation to ground one by failing to carry out its statutory duty or by failing to give any real consideration to Australia’s protection obligations under the complementary protection criterion.  Ground one is not made out.

32. 62.    Ground two is a contention that the Tribunal’s decision was affected by apprehended bias.  The particulars are that the Tribunal had an “insufficient basis to reject all of the Applicant’s evidence and find that he was not a witness of credit” and that the Tribunal’s reasoning “does not disclose that it brought an open mind to its task”.

33. 63.    The Applicant contended that the Tribunal rejected the totality of his evidence because of inconsistencies in evidence relating to his visit to Oman, his visits outside Sri Lanka, his work history and his frequent visits out of Sri Lanka from 2000.  It was submitted that two inconsistent accounts did not lead to the conclusion that both sets of events were untrue and that this was an insufficient basis on which to reject all the evidence given and claims made by the Applicant.  It was contended that each claim should have been considered both singularly and cumulatively and that the total claims should not be rejected because one, two or three of many claims were rejected.  On this basis it was submitted that such reasoning indicated that the Tribunal did not bring an open mind to the task of considering whether Australia had protection obligations to the Applicant.

1. 64.    It was submitted that, given the breadth of the claims put by the Applicant, to dismiss his claims and his credibility on the basis of his work history and frequent travel was to do so without a proper basis.  It was contended that this led to the strong inference that there would be an apprehension that the Tribunal had failed to bring an open mind to the visa application.

2. 65.    While this ground was expressed as a claim of apprehended bias, the submissions in relation to this ground raised the possibility that it may also have been intended to raise a contention of actual bias.  In any event, whether seen in terms of actual or apprehended bias I am not satisfied that this ground, as pleaded or as elaborated on in submissions, is made out.

3. 66.    It is well-established that an administrative decision-maker, such as the Tribunal, will be found to have given rise to an apprehension of bias if a fair minded lay person might think that the decision-maker might not bring a fair and impartial mind to the making of the decision.  In considering this issue the hypothetical lay person is an objective observer of the proceedings who will be assumed to be properly informed as to the nature of the proceedings, the matters in issue and the conduct complained of (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28).

4. 67.    Moreover in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] Gleeson CJ and Gummow J stated that:

   1.        The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed so as to be incapable of alteration, whatever evidence or arguments may be presented.

   However as their Honours pointed out:

   1.        Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

5. 68.    In this case the allegation of apprehended bias is based entirely on the Tribunal reasons for decision.  The Applicant accepted that it is a rare and exceptional case in which apprehended bias can be demonstrated solely from the published reasons for decision.  In SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [38] von Doussa J pointed out in relation to a claim of actual bias:

   1.        In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision.  Reasons for decision reflect conclusions reached at the end of the decision-making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons.  The mere fact of adverse findings at the end of the matter gives rise to no inference as to the state of mind of the decision-maker before and whilst the matter was under consideration, nor of prejudgment of the issues that fell for decision.  Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision-maker had embarked on the case with a closed mind not open to persuasion.

   While his Honour acknowledged that in some circumstances what occurred at the hearing or a failure to inquire or obtain important information relating to central matters may be such that an inference of actual bias by prejudgment might more readily be drawn, von Doussa J also pointed out that:

   1.        …even then the circumstances are likely to be rare and exceptional that the combination of factors and circumstances will clearly prove actual bias.

6. 69.    The parties accepted that the same principle would apply to apprehended bias.   Remarks to that effect were made by the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51 at [18] as follows:

   1.        It is a rare case in which a court will find that apprehended based simply upon by the decision maker’s reasons.

   It was also pointed out that ordinarily there would need to be some conduct on the part of the decision-maker, apart from the expression of reasons, which would indicated prejudgment or bias.

7. 70.    In this case there is no issue taken in relation to what occurred or did not occur at the Tribunal hearing.  Reliance is placed solely on the Tribunal’s reasons.  Considered from the perspective of the hypothetical lay person assumed to be properly informed as to the nature of the proceedings, the matters in issue and the conduct complained of, it is necessary to have regard to the Tribunal reasons for decision as a whole, the claims made by the Applicant and the manner in which the Tribunal has dealt with those claims.

8. 71.    As explained above, the Tribunal found that the Applicant was not a credible witness due to inconsistencies in his evidence in relation to a number of issues that were a part of or relevant to his protection claims.  There were a number of matters taken into account that related to the Applicant’s work history in Sri Lanka, (in circumstances where he claimed to have experienced certain past harm and mistreatment) his frequent travel in and out of the country from 2000 including Oman (notwithstanding his claims of suspected LTTE links, harassment, interrogation, arrest and detention) as well as specific inconsistencies in his claims and evidence.  Having set out details of several inconsistencies and different accounts given by the Applicant relating to these issues, as well as the fact that the impression given by the Applicant as to the time and amount of his travel to India was not correct, the Tribunal concluded that the Applicant’s work history and frequent travel was inconsistent with his claims of harassment, interrogation, arrest and detention because he was a Tamil from Valvettithurai whom the authorities and paramilitary suspected had LTTE links.  This was the substance of the basis for the Applicant’s claim to fear both persecution and significant harm.

9. 72.    The issue the Applicant raises about the sufficiency of the basis for the Tribunal’s credibility findings is not such as to establish either apprehended or actual bias.  The matters that the Tribunal had regard to, including the circumstances in which the Applicant left Sri Lanka for Oman in 2008 (when he had initially claimed that he did so due to a fear of arrest by paramilitaries, but the Tribunal was not so persuaded in circumstances where he had later given a different account of his reasons and of the circumstances of his departure) were not minor matters in context having regard to the basis on which the Applicant claimed to fear harm.  The Tribunal’s credibility findings were open to it on the material before it for the reasons which it gave.  The fact of such findings does not support the allegation of apprehended bias. 

10. 73.    When one considers the Tribunal reasons for the decision as a whole, it is apparent that the Tribunal did not reject every aspect of the Applicant’s evidence.  It accepted, as it set out in some detail, certain aspects of the Applicant’s claims about his background and education.  Indeed it gave him the benefit of doubt and accepted that he came from Valvettithurai notwithstanding the absence of objective evidence in that respect.  It also accepted claims about his family, what had happened to them and their whereabouts.

11. 74.    Moreover, as was acknowledged by the solicitor for the First Respondent, contrary to the approach that one often sees in Tribunal decisions the Tribunal in this case made nothing of the fact that in connection with the Applicant’s application for a tourist visa in Sri Lanka in October 2011 he denied that he had any problems in Sri Lanka.  The Tribunal did not take issue with the Applicant’s explanation that he did not disclose the difficulties he had because he would not have been granted the visa he desperately sought.  It did not rely on the absence of any claim of difficulties in Sri Lanka at that time as the reason or part of the reason for affirming the delegate’s decision.  The fact that the Tribunal took this approach is not supportive of the contention that (reading the Tribunal decision fairly and as a whole from the perspective of the appropriately informed lay observer) there would be an apprehension of bias on the part of the Tribunal.

12. 75.    The Tribunal considered the substance of the Applicant’s claims.  It found significant inconsistencies of relevance to the circumstances that the Applicant claimed had occurred in the past in Sri Lanka.  Such matters seriously undermined the credibility of the Applicant according to the Tribunal.  Hence, it found that the credibility of the Applicant’s claims was also undermined.  These findings led to the Tribunal’s ultimate findings.

13. 76.    It was not necessary for the Tribunal to have evidence before it which contradicted particular claims before rejecting those claims.  The Tribunal made a comprehensive adverse credibility finding.  On that basis it was open to it to reject all of the aspects of the Applicant’s claims that were put forward as a basis on which the Applicant claimed to fear persecution or significant harm.

14. 77.    I am not satisfied that either actual or apprehended bias is established in the manner contended for in ground two of the application.

15. 78.    As neither of the grounds relied upon has been established the application must be dismissed.  I will hear submissions in relation to costs.

16. 79.    The Applicant has been unsuccessful.  It is appropriate that he meet the costs of the First Respondent.  The First Respondent, very appropriately and fairly to my mind seeks costs of $5,500 which is less than the scale amount.  It is not always the case that the scale amount is appropriate simply because an Applicant is legally represented or there are a number of contested issues to be addressed.  The amount is reasonable in light of the nature of this and other similar matters.  It should be so ordered.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  21 October 2014