SZTIS v Minister for Immigration

[2016] FCCA 508

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTIS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 508

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.46A, 91R, 424A, 424AA, 425

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4
BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543
BZAFM v Minister for Immigration and Border Protection (2015) 321 ALR 117; [2015] FCAFC 41
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2000] FCA 1801
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 820
Minister for Immigration and Border Protection v WZAPN & Anor (2015) 320 ALR 467; [2015] HCA 22
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14
MZXDQ vMinister for Immigration and Multicultural Affairs [2006] FCA 1632
MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; [2010] FCA 559
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263
SZJRU v Minister for Immigration and Citizenship (2009) 108 ALD 515; [2009] FCA 315
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46
SZNOE v Minister for Immigration and Citizenship [2012] FCA 96
SZNVE v Minister for Immigration and Citizenship (2010) 114 ALD 247; [2010] FCA 251
SZQPA v Minister for Immigration and Citizenship& Anor [2012] FMCA 123
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125
SZTEQ v Minister for Immigration and Border Protection (2015) 321 ALR 44; [2015] FCAFC 39
SZTFL v Minister for Immigration [2014] FCCA 1620
SZTIB v Minister for Immigration and Border Protection (2015) 321 ALR 81; [2015] FCAFC 40
VWBU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 39
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZTIS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2409 of 2013

Judgment of: Judge Barnes

Hearing date: 9 October 2014

Date of Last Submission: 7 July 2015

Delivered at: Sydney

Delivered on: 17 March 2016

REPRESENTATION

Counsel for the Applicant: Mr A Kumar

Solicitors for the Applicant: Success Lawyers

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2409 of 2013

SZTIS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Administrative Appeals Tribunal (formerly the Refugee Review Tribunal) dated 9 September 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Sri Lanka, arrived in Australia in June 2012 as an irregular maritime arrival. On 23 July 2012 the Minister exercised his discretion under s.46A(2) of the Migration Act 1958 (Cth) (the Act) permitting the Applicant to make an application for a protection visa. The Applicant lodged an application for a protection visa on 2 November 2012.

3. In a statutory declaration accompanying his protection visa application he claimed to fear being arrested, tortured and killed by the Sri Lankan authorities because the authorities believed he was involved with the LTTE and he was therefore considered to be a political opponent of the government and also on the basis of his Tamil ethnicity.  He made detailed claims in relation to events he said had occurred in Sri Lanka, including claims that his father was an LTTE member who was killed by the authorities in 2000, that a couple of months later men dressed in plain clothes took his brother away and that two months later his brother’s body was found.  He claimed his brother had been shot and killed by people he believed were from the Sri Lankan authorities who thought his brother was also a supporter of the LTTE.

4. He claimed that subsequently police questioned the family, that another brother was detained for two days and that between 2000 and 2006 the police would call about once a month and ask them to report to answer questions.  He claimed that whenever there were LTTE attacks the police would call anyone they suspected of LTTE involvement, including the Applicant, his brother and his mother.

5. The Applicant claimed that his mother arranged for him to go to Malaysia for two years from 2006 because it was dangerous in Sri Lanka and that one week after his return the authorities came to his home and asked where he had been and wanted to know the whereabouts of his brother.  The Applicant claimed he was required to report to the police station, that he was questioned and beaten and spent three days in hospital after he was released.

6. The Applicant claimed that between 2010 and 2011 he was continually interrogated by the authorities regarding his father’s involvement with the LTTE and whether he and his surviving brother were involved. 

7. He claimed that in 2012 a group of men came to his home and took him to the CID office seeking information about where LTTE weapons and money were hidden.  The Applicant claimed that he was tortured and beaten and because he could not endure the pain he said he was an LTTE member and was then detained for two days before being released.  He claimed that two days later he fled to Colombo and, with the assistance of a friend, left Sri Lanka.

8. The Applicant also claimed that while he was in Australia men from the CID had gone to his home and forced his mother to give them his photograph to pass on to the authorities so he would be identified at the airport on return to Sri Lanka. 

9. The delegate refused the application on the basis that the Applicant’s testimony and claims were inconsistent and unconvincing.  The Applicant sought review by the Tribunal.  He attended a Tribunal hearing. 

10. The Applicant’s adviser provided the Tribunal with a written submission outlining his claims to fear persecution on the basis of his race, religion (Hindu), imputed political opinion of support for the LTTE and opposition to the Sri Lankan government, and membership of the particular social groups of failed asylum seekers returning to Sri Lanka and young Tamil men from the north of Sri Lanka.  It was submitted that the Applicant would be perceived to be opposed to the government and to support the LTTE having regard to his Tamil ethnicity, his late father’s membership of the LTTE and his status as a failed asylum seeker.

11. The adviser also provided the Tribunal with copies of death certificates for the Applicant’s brother and father, a copy of a letter of 25 February 2013 from a registered psychologist at Kidpsych and a reference for the Applicant from the Tamil Refugee Assistance Network.

12. After the Tribunal hearing the Tribunal wrote to the Applicant inviting him to comment on or respond to information pursuant to s.424A of the Act. It also provided him with a schedule containing country information on which the Tribunal intended to rely when determining the application for review. It invited his comments on that information.

13. The Applicant’s adviser responded, addressing Tribunal concerns about inconsistencies, the credibility of the Applicant and the country information provided.

14. On 23 August 2013 the Tribunal again wrote to the Applicant. It stated that it was close to finalising its decision, but that it wanted to give him the opportunity to comment on recent country information in relation to prosecution under the Sri Lankan Immigration and Emigration Act for illegal departure from Sri Lanka on which it intended to rely in determining the case. The Applicant’s adviser responded to this information by letter of 2 September 2013.

The Tribunal decision

1. In its reasons for decision the Tribunal set out the Applicant’s claims and submissions made on his behalf in some detail, and referred to documents submitted and items of independent country information. 

2. In its findings and reasons the Tribunal found that the Applicant was not a witness of truth and that the account of events on which his protection claims were based was false.  It gave a number of reasons for this conclusion. 

3. The Tribunal had regard to what it saw as significant inconsistencies between the Applicant’s evidence to the Tribunal and in his statutory declaration about the alleged deaths of his father and brother (including when and how they died).  It detailed these discrepancies, the Applicant’s response when these issues were raised with him at the hearing.  It was of the view that there was a wide divergence in the Applicant’s accounts in relation to these deaths.  In particular, the Tribunal had regard to the fact that in his statutory declaration the Applicant had said that his father was killed in approximately 2000 when his car was bombed by the Sri Lankan air force and that one or two months later his oldest brother was taken away by the authorities, shot and killed, whereas he told the Tribunal that his brother was killed by the authorities in 1991 while in custody because of his father’s involvement with the LTTE and that his father was killed in 1994 when his vehicle was hit by a bomb dropped by the Sri Lankan air force which caused a mine on the road to explode.

4. The Tribunal considered the Applicant’s explanation that prior to completing his statutory declaration he had not asked his mother for details of these incidents, that he was very young when they occurred, that he did not know precisely when his father and brother were killed and that he had only given approximate dates to those who prepared his declaration.  He claimed that at that time his mother, who was not educated, had told him his father died in 2000, but that she was confused or mistaken about the details and also that when he received the death certificates he had been very tense and had not clarified the dates in them. 

5. The Tribunal accepted that the Applicant’s father and brother died when the Applicant was young, but did not believe that throughout his life in Sri Lanka he would have been unaware of when they died and would need his mother to tell him about that or that when he did speak to her after he came to Australia, she would also be confused and would give him incorrect information about events as significant and fundamental as when his father and brother died.

6. In addition, the Tribunal had regard to inconsistent accounts in the Applicant’s written and oral evidence about the circumstances in which he claimed he was detained after returning to Sri Lanka from Malaysia in 2008 and what occurred thereafter.  It did not accept his explanations for these inconsistencies.  The Tribunal also found that the Applicant had given inconsistent evidence about the last occasion on which he was arrested and detained before leaving Sri Lanka to come to Australia (which it detailed). 

7. The Tribunal found that the Applicant’s explanations (that the account he gave was correct, that everything was approximate and that he could not recall things precisely) did not explain these irreconcilable accounts (including about an event which, on his evidence, was only a year before the Tribunal hearing).  The Tribunal was of the view that an incident in which the Applicant’s fingernails were pierced to force him to make a false confession of supporting the LTTE (described in the written statement) was a very serious event and that the Applicant could reasonably be expected to recall consistently when it actually occurred.  However, according to the Applicant’s statement this happened in 2012 but on his evidence to the Tribunal it happened at some point in 2008, not long after he had returned to Sri Lanka from Malaysia.  The Tribunal did not believe the Applicant would be so confused as to when this event occurred.

8. The Tribunal considered the Applicant’s evidence to the delegate that his declaration had not been read back to him and contained mistakes, but did not believe that this explained such divergent accounts. 

9. The Tribunal also had regard to inconsistencies in the Applicant’s oral evidence in the departmental interview and at the Tribunal hearing, including in relation to the time and circumstances of his father’s death and the circumstances in which he claimed he was questioned after he returned to Sri Lanka from Malaysia. It recorded that these discrepancies had been put to the Applicant for comment pursuant to s.424A of the Act. It considered his response, but found that these inconsistencies remained of concern. In particular, the Tribunal did not accept that the Applicant would have remained ignorant about the correct year his father died and how that occurred until some weeks before the Tribunal hearing. It was also of the view that he could reasonably be expected to describe his dealings with the police after he first returned to Sri Lanka from Malaysia in a consistent manner.

10. The Tribunal referred to the adviser’s submissions about the Applicant’s mental state which it addressed in the context of reaching conclusions on the Applicant’s credibility.  It considered the explanation that the Applicant was nervous, anxious and worried, including at the departmental interview and Tribunal hearing, concerned for his mother in Sri Lanka and that his journey to Australia had been stressful and that this had affected the way he gave evidence.  It also had regard to the claims that he had been traumatised by his experiences in Sri Lanka and that his work in Australia had prevented him from receiving counselling so that his mental condition had deteriorated. 

11. The Tribunal acknowledged that the Applicant would be nervous and anxious throughout the process of the determination of his application, including when being interviewed and giving oral evidence.  It accepted that asylum seekers could feel obliged to answer questions in a particular way, that the Applicant would be concerned for his family at home and that he had undergone a difficult journey to come to Australia.  The Tribunal also stated that it had allowed for the assessment of the Applicant’s mental state by a psychologist and the evidence of a witness at the Tribunal hearing about how the Applicant appeared to him. 

12. However, having made allowances for such factors and how these matters could impact on the Applicant’s evidence at various stages and taking into account the guidelines and commentary about assessing credibility put forward in the representative’s written submissions and the possibility that trauma from past experiences had affected the Applicant’s ability to recall events and give evidence, the Tribunal nonetheless did not believe that these factors excused the “significant and fundamental inconsistencies” in the Applicant’s evidence about what the Tribunal saw as “really straightforward matters”. 

13. The Tribunal found that, considered cumulatively, the concerns it had about the Applicant’s credibility led it to find that he was not a witness of truth and that the account of events on which his protection claims were based was false.

14. Accordingly, the Tribunal disbelieved the Applicant’s claims about the involvement of his father or any other family member with the LTTE; that his father and brother were killed by the Sri Lankan authorities (and that the authorities were present at the brother’s funeral); that the authorities ever questioned or detained and harmed any member of the Applicant’s family in Sri Lanka; and that one of his brothers, in fear of the authorities, went to India, lived in hiding and was paying bribes to the authorities, or was abducted or disappeared.  In addition, the Tribunal did not believe that the Applicant was ever questioned by the Sri Lankan authorities, apprehended, detained or maltreated (for which he received medical treatment); that he left Sri Lanka to go to Malaysia and Australia in fear of the authorities; or that after the Applicant came to Australia the authorities had gone to his home looking for him and had asked for his photograph.  The Tribunal did not accept that the authorities at the airport at Colombo had a photograph of the Applicant; that to go out of his village he had to have authorisation and a police report; or that his mother had to stay with others in fear of the authorities as the Applicant had claimed to the Department. 

15. In addition, because the Tribunal found the Applicant’s claims about his experiences in Sri Lanka were not credible, it did not believe that he was in any way traumatised by such experiences.  It accepted the assessment of a psychologist about the Applicant’s mental state, but found that the Applicant’s claims to the psychologist about suffering trauma in Sri Lanka were self-reported and that the psychologist was not in a position to assess the credibility of those claims.  Hence, while the Tribunal accepted that the Applicant may have the mental state assessed (generalised anxiety disorder), it did not believe that this had been caused by his claimed experiences in Sri Lanka.

16. Further, while the Tribunal accepted that the Applicant may have anxiety disorder as diagnosed by the psychologist, it was satisfied that he had a meaningful opportunity to give evidence at the hearing and that he was “well able” to respond to the Tribunal’s questions and understand matters put to him. 

17. Insofar as the Applicant told the Tribunal that he had back pain because of beatings he had received and told the delegate he had scars from torture, the Tribunal referred to the absence of any medical evidence in that respect and found that any such back pain or scars had not been caused by the experiences claimed because the Applicant’s evidence about those matters was false.

18. The Tribunal considered documents provided by the Applicant which purported to corroborate his claims about his family being harmed by the Sri Lankan authorities.  These consisted of a “message form” issued by the Sri Lankan police in May 2000 which the Applicant told the delegate was a report his mother made to police when he was taken away by them, death certificates for his father and brother and a newspaper article he told the Tribunal was a report about the death of his older brother.  The Tribunal considered the content of these documents, but found that they did not outweigh the concerns it held about the Applicant’s credibility.  It did not give weight to them.

19. In addition, the Tribunal gave no weight to a tax registration certificate apparently issued to his mother in 2005 insofar as it was intended to corroborate the Applicant’s claims.  It found that a reference letter from a Tamil support group (indicating that the Applicant attended classes and meetings) did not demonstrate that the account of events on which his protection claims were based was true. 

20. Because the Tribunal found that the Applicant was not a witness of truth, it also disbelieved his claim at the hearing in relation to the rape of two Tamil females by Sri Lankan forces in his area in February 2013 and the claim made in written submissions of 5 March 2013 that he was prevented from attending his Hindu temple by the army.  The Tribunal found that it had no credible evidence that the Applicant was harmed by the Sri Lankan authorities, including in this manner. 

1. The Tribunal did accept as credible that the Applicant was a Hindu Tamil male from an area of Vavuniya in Sri Lanka and that the family had to move to the area in which they currently lived when the conflict took place.  It also accepted his claims about his education and employment as a farmer and that he spent a period of time in Malaysia before leaving Sri Lanka to travel to Australia.

2. The Tribunal found that there was no other credible evidence before it about the Applicant’s life in Sri Lanka or his family and no credible evidence that the authorities or anyone else in Sri Lanka had an adverse interest in him or wanted to apprehend or harm him.  It concluded that there was no credible evidence as to why the Applicant left Sri Lanka and why he did not wish to return there.

3. The Tribunal nonetheless assessed the risk to the Applicant on the bases he and his adviser had put forward.  In relation to his claims based on being a Tamil, the Tribunal inferred from cited country information that Tamils, including those who came from areas previously controlled by the LTTE, did not suffer harm for those reasons alone and considered that the risk of a Tamil, including a Tamil from such an area, suffering harm for those reasons alone was remote. 

4. While the Tribunal stated that it was aware that it was the practice of the Sri Lankan government to use informants, it considered that this would only apply to those who came within risk profiles described by the UNHCR, in particular those with some connection to the LTTE and that the risk of this occurring to a Tamil without such connections was remote.

5. In addition, the Tribunal found that there was “no substantiated reliable information” that Tamil returnees who had sought asylum abroad, including those who had left Sri Lanka illegally, suffered harm solely on that basis. 

6. The Tribunal accepted that country information indicated that on arrival in Sri Lanka returnees would be interviewed at the airport to establish their identity and that as soon as possible thereafter they would be brought before a magistrate in relation to illegal departure from Sri Lanka.  It acknowledged that, depending on the day a returnee arrived at the airport, he or she may be detained briefly in remand before being brought before the court.  The Tribunal was of the view that country information indicated that a returnee who departed the country illegally would be granted bail and would eventually receive a fine.  It noted that the information before it was that Tamils were treated in the same way as anybody else in this process.  It found no reliable substantiated evidence that Tamils suffered harm or maltreatment in this process.

7. The Tribunal acknowledged that, according to the Department of Foreign Affairs and Trade, the penalties for illegal departure from Sri Lanka could be a fine and a prison sentence but considered, on the basis of cited country information, that prison sentences were more likely to be imposed on those involved in people smuggling.  It had regard to more recent country information indicating that no one had been given a custodial sentence for departing Sri Lanka illegally and that fines in the range of 5,000 to 50,000 rupees had been imposed. 

8. On the information before it the Tribunal was satisfied that while the Sri Lankan government had, from November 2012, begun charging people for offences relating to illegal departure, the risk of any Tamil returnee who had unsuccessfully sought asylum abroad being given a jail sentence for his or her illegal departure was remote.  The Tribunal was satisfied that a fine was the most likely outcome and found that the imposition of a fine within the range set out in country information did not amount to serious harm.  It concluded that the risk of a Tamil suffering harm in Sri Lanka as a returnee after seeking asylum abroad and leaving the country illegally (and suffering harm solely due to these factors) was remote.

9. The Tribunal addressed submissions from the Applicant’s adviser and his witness.  In particular it described and acknowledged the adviser’s submissions in relation to the country information discussed at the hearing and provided to the Applicant after the hearing for comment and the information the adviser had provided about human right violations. However it found that while Tamils had been the victims of such violations, country information indicated that these were most likely Tamils who came within the UNHCR risk profiles.  It did not accept that there was a real chance the Applicant would suffer serious harm solely on the grounds that he was a Tamil man from Vavuniya who left the country illegally and would return as a failed asylum seeker.

10. The Tribunal acknowledged that Tamils suspected of involvement with the LTTE came within the risk profiles, but reiterated that it did not believe the Applicant’s evidence about his family members being involved with or suspected of involvement with the LTTE.  It did not accept that he would be suspected of involvement with the LTTE just for being a Tamil man from Vavuniya who left the country illegally and would return as a failed asylum seeker.

11. Insofar as claims were made about arbitrary harm by the authorities, abductions by criminal gangs and attacks by grease men, the Tribunal acknowledged the existence of such activities, but found that the risk of the Applicant suffering such harm was remote, given that he did not come within the UNHCR risk profiles of people for whom there was a real chance of suffering serious harm.

12. The Tribunal also considered the claims that the Applicant would be discriminated against as a Tamil, denied access to food, shelter, employment and medical treatment, that he would not be able to subsist because of his race and that the military presence in Tamil areas created difficulties for Tamils and addressed country information in this respect.  It acknowledged there was discrimination against Tamils and that Sinhalese were receiving favourable treatment from the authorities in Tamil areas.  It also acknowledged claims about the effects of military presence in Tamil areas.  However the Tribunal found that none of these matters had affected the Applicant when he lived in Sri Lanka and that there was not a real chance that they would lead to him suffering serious harm on return to Sri Lanka.  It had regard to the fact that the Applicant had been able to attend school, had employment in farming and had lived with his family in their home in Vavuniya and found that he could resume doing so on return.  The Tribunal found that there was no credible evidence that the presence of the military and the various actions they were accused of (including the Applicant’s complaint about having to pass through checkpoints) had led to the Applicant suffering harm.  Insofar as it had been asserted that army intelligence and police units conducted regular questioning and visits and placed pressure on people to become informants, the Tribunal considered that this happened to people who came within the UNHCR risk profiles, in particular people suspected of involvement with the LTTE.  It reiterated that the Applicant did not come within such risk profiles.

13. The Tribunal also considered the assertion that the Applicant’s religion was a basis on which he would suffer serious harm and the claim that the army restricted access to places of worship.  However it found that, according to cited country information, while there had been attacks on Christians, there was no mention of attacks made on Hindus.  It found that the risk of the Applicant suffering serious harm because he was a Tamil Hindu or not being able to practise his religion in Sri Lanka was remote.

14. The Tribunal did not accept that there was substantiated reliable country information that Tamils returning to Sri Lanka suffered harm on the ground that they were Tamils who left the country illegally and had sought asylum abroad (whether on the basis of suspicion of support for the LTTE or otherwise).  It rejected the adviser’s submission that the country information on this issue could not be relied on because it came from DFAT or other governments and was information from the Sri Lankan government.  It was of the view that DFAT reports did not disclose any bias against Tamils and merely reflected the efforts made by that agency to determine whether there were any substantiated instances of mistreatment of returnees on the ground they were failed asylum seekers and that the adviser’s view that the reports were no more than what the Sri Lankan government told DFAT was merely speculation.

15. The Tribunal considered the submission that DFAT and other agencies were not aware of cases of returnees being harmed, albeit that they and UNHCR did not monitor involuntary returnees, but was of the view that the coverage of human rights practices in Sri Lanka was widespread and that if it was the case that Tamils who returned suffered harm because they had left the country illegally and had applied for asylum, there would be reliable substantiated reports about this.

16. The Tribunal also considered, but rejected, the submissions that it could not base predictions about penalties for illegal departure on what Sri Lankan government officials or DFAT reports stated and that Tamils would be treated unfairly under laws of general application.  The Tribunal found that the DFAT reports were based on its understanding of what took place with respect to returnees and that there was no substantiated reliable information that Tamils were harmed on return to Sri Lanka because they left illegally and were failed asylum seekers.  It also found that the available information indicated the risk of such returnees receiving a jail sentence for their illegal departure was remote.  While the Tribunal could accept that the government in Sri Lanka would either deny or play down allegations about its human right practices, it could see no reason for the Attorney-General’s department to make false claims that returnees were not receiving custodial sentences for illegal departure.  It found that the process of re-admitting returnees on arrival was conducted as quickly as possible and that the possibility of returnees being held in remand before being brought before a magistrate did not amount to a real chance of suffering serious harm.  The Tribunal reiterated that available information indicated that this Applicant would be granted bail and eventually receive a fine for his illegal departure and that a fine within the range considered in country information did not amount to serious harm, let alone harm for a Convention reason.  It observed that no claim had been made and no evidence advanced that the Applicant could not pay such fine or that having to do so would lead to him suffering serious harm. 

17. The Tribunal rejected the suggestion that returnees who were not perceived to be of interest to the authorities would be harmed by the Sri Lankan authorities on return to their homes. It did not accept that the Applicant was of interest to the authorities and found that the risk that he would be harmed by the authorities or related groups on return to his native area was remote.  In particular, the Tribunal did not accept that just because the Applicant was a Tamil man from Vavuniya who left Sri Lanka illegally and would return as a failed asylum seeker gave him a profile such that he would be perceived as a threat to Sri Lanka and perceived as having a significant role with regard to Tamil separatism and a renewal of hostilities.  It noted the absence of country information to substantiate such a claim.

18. The Tribunal continued:

    162. It was submitted that there is a real chance the applicant will suffer serious harm because he is Tamil; Hindu; adverse political opinions of support for the LTTE and opposition to the Sri Lankan government will be imputed to him and he is a member of particular social groups (failed asylum seekers returning to Sri Lanka; young Tamil men from the north of Sri Lanka). Because of his race and religion he cannot access protection from state authorities for this harm.  The applicant will be imputed with adverse political opinions because he is Tamil; his father supported the LTTE and he is a failed asylum seeker.

    163. For the reasons given above, the Tribunal does not believe the applicant’s father supported the LTTE.  The Tribunal does not accept the applicant will be imputed with political opinions of support for the LTTE and opposition to the Sri Lankan government and harmed on that basis because he is a Tamil man from Vavuniya who left the country illegally and is a failed asylum seeker.  That is because there is no country information that supports that assertion. 

    164. There is no need for the Tribunal to determine whether the claimed particular social groups exist because (even if they did) for the reasons given above, there is not a real chance the applicant will suffer harm on the basis of the characteristics that define those groups.  The applicant could be described as a Tamil young man and he comes from Vavuniya but, as stated above, it is those Tamils who come within the risk profiles specified by UNHCR for whom there is a real chance of suffering serious harm.

    165. The Tribunal has considered this applicant’s case on its own merits but, in the light of the country information mentioned earlier in this decision, there is not a real chance the applicant will suffer serious harm on the grounds that he is a Tamil Hindu man from Vavuniya who left the country illegally and will return there as a failed asylum seeker from Australia.

    166. The applicant has been assessed as suffering from an anxiety disorder (there being no credible evidence as to the cause of that) but this does not increase or elevate the risk of him suffering serious harm in Sri Lanka.  As stated above, he can return to his home and family in Vavuniya and resume his life there. 

19. The Tribunal concluded that considering the grounds advanced separately or cumulatively the Applicant did not have a well-founded fear of persecution based on any Convention ground.

20. The Tribunal also addressed the complementary protection criterion.  For the same reasons it had given in relation to serious harm, it found there was not a real chance the Applicant would suffer significant harm.  In particular, the Tribunal referred to the fact that it had found that the risk of the Applicant suffering harm as a Tamil man from Vavuniya who left Sri Lanka illegally and would return as a failed asylum seeker from Australia was remote.  It found that the possibility of him being held in remand briefly before being brought before a magistrate did not equate with a real risk of suffering significant harm as defined in the Act.  For the reasons given, the Tribunal also found the risk of the Applicant receiving a jail sentence because of his illegal departure was remote.  It found that he would most likely receive a fine and that the imposition of a fine within the range indicated in country information did not amount to significant harm.  It again observed that no claim had been made and no evidence advanced that the Applicant could not pay a fine or that having to do so would lead to him suffering significant harm.  The Tribunal also found that the diagnosis of anxiety disorder did not elevate the risk of the Applicant suffering significant harm in Sri Lanka.  It concluded that he did not meet the complementary protection criterion.

21. The Tribunal affirmed the decision not to grant the Applicant a protection visa.

These Proceedings

1. The Applicant sought review by application filed in this Court on 8 October 2013.  He now relies on an Amended Application filed on 29 January 2014.  The Amended Application contained 12 grounds.

2. However in written submissions Mr Kumar for the Applicant explained that the Applicant did not press grounds 1, 2, 3, 5, 6, that ground 8 (which appeared in the original application) had been deleted, and that ground 10 was not pressed.  That leaves for consideration grounds 4, 7, 9, 11 and 12.

3. In oral submissions Mr Kumar confirmed that notwithstanding references in his written submissions to possible issues outside the pleaded grounds (such as an assertion that the Tribunal breached s.425 of the Act) he relied only on the grounds as pleaded.

Ground 4

1. Ground 4 in the Amended Application is as follows (errors in original):

   The Tribunal fell into jurisdictional error when it stated in it’s the decision record [CB 274 at [164],at page 27of28] that ‘there is no need for the Tribunal to determine whether the claimed particular social groups exist because (even if they did) for the reasons given above, there is not a real chance the applicant will suffer harm on the basis of the characteristics that define those groups’. It committed jurisdictional error in failing to consider Convention basis of the claim clearly put and / or it denied procedural fairness to the Applicant. 

   Particulars:

   a) The social group claim was clearly articulated;

   b) The Tribunal had made its mind prematurely without considering a claim that clearly arose before the Tribunal that being that the applicant is a young Tamil from Vavuniya who claims that he was a victim of persecution in Sri Lanka.

   c) He clearly falls under the risk profile of the UNHCR.

   d) In adopting this method the Tribunal failed to give proper and realistic consideration to the claims that clearly arose before the Tribunal.

   e) Failure on the part of the Tribunal to deal with the applicant’s claim as being persecuted as a member of a particular social group/or his perceived political opinion.

   f) The Tribunal failed to deal with the manner social group in manner stated in DRANICHNIKOV/SZNVE & OTHERS.

   g) Thus a clear breach of s.422B(3) of the Migration acts 1958.

2. Mr Kumar stated in oral submissions that particular (g) to ground 4 was not pressed.

3. As the Tribunal recognised in its reasons for decision, the Applicant’s adviser had submitted that the Applicant feared persecution as a member of the particular social groups of “failed asylum seekers returning to Sri Lanka” and “young Tamil men from the north of Sri Lanka”.  The Applicant took issue with the fact that the Tribunal concluded at [164] that there was no need for it to determine whether these claimed particular social groups existed, because even if they did, for the reasons already given there was not a real chance the Applicant would suffer harm “on the basis of the characteristics that define those groups”. 

4. The Applicant submitted that the Tribunal had erred in failing to address the Convention nexus of the claimed particular social groups.  It was submitted that the Tribunal had “failed to define and assess this particular group” and that instead it had proceeded to make an assessment of illegally departed Sri Lankans returning to Sri Lanka and/or that the Tribunal had failed to address whether persons with these attributes would be subject to serious or significant harm.  It was contended that the Tribunal had not given proper consideration to the issue of social group with “all its attributes whether expressly claimed or arising from the material before the Tribunal”. 

5. In that respect, Mr Kumar pointed out that the delegate had accepted that the Applicant’s father and brother had been killed, and submitted that the Tribunal had erred in failing to consider this “cumulative fact” when it was considering a particular social group and that such an attribute clearly arose and should have been dealt with by the Tribunal.  On this basis it was contended that the Tribunal fell into jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicant’s particular social group.

6. It was submitted that, as identified by the Applicant and arising from all the circumstances, on the material before the Tribunal the “proper” social group was a social group with the attributes of Sri Lankans; young males; from east/north; Tamil ethnicity; family members killed during the war years; persons from former LTTE controlled areas; left the country illegally/without documents; possibly holding views opposed to the government of Sri Lanka (imputed political opinions).

1. The Applicant acknowledged that the Tribunal had not accepted that his father was a member of the LTTE, but contended that in considering the protection visa application it had failed “to cumulatively consider” the claims when assessing the particular social group claimed by him.  It was also submitted that the Tribunal “clearly did not articulate particular social group” and that it was obliged to deal with the discrete basis for protection put forward by the Applicant (see Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [24], [95] and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42]).

2. In addition, the Applicant submitted that he claimed to be a member of a distinct social group, that the social group identified satisfied the requirements of being a recognisable social group as considered in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4 and Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14, but that the Tribunal had not considered these cases. It was suggested that the Tribunal had failed to take the necessary steps to identify the social group properly, to assess the application in light of the information relevant to the Applicant and to assess the risk of persecution as against that group (see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 and Huang v Minister for Immigration & Multicultural Affairs [2000] FCA 820).

3. It appeared to be submitted that the Tribunal had to determine whether the claimed particular social groups (or some other particular social group with the attributes identified in the Applicant’s submissions in these proceedings) existed.  It was submitted that the Tribunal ought to have identified and dealt with what were said to be clearly articulated facts in identifying the particular social group to which the Applicant belonged.

4. It was also submitted that the Tribunal “denied the applicant procedural fairness by identifying and addressing the applicant’s social group.  The risk to members of the general population of Tamil from the area has been given consideration” (sic).

5. In oral submissions Mr Kumar suggested that the Tribunal had proceeded on the basis that there was no need to determine whether the claimed social groups existed because it had made a finding about the “real chance” test.  He took issue with the First Respondent’s contention that there was no obligation on the Tribunal to consider whether the particular social group of which an Applicant claimed to be a member was a “social group” for the purposes of the Convention (and the Act) in circumstances where it had found that the Applicant did not hold a well-founded fear of persecution as contemplated by s.91R(1) of the Act for any Convention reason (see SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78]).

6. Mr Kumar submitted that there was a divergence of views in the Federal Court in this respect and a preponderance of authority contrary to the view expressed in SZNOE. 

7. It was submitted first that the High Court in Dranichnikov at [26] had made it clear that the Tribunal had to determine whether the group or class to which an applicant claimed to belong was capable of constituting a social group for the purposes of the Convention as the first step in considering a claim put on that basis and that it was then required to consider if there was a group capable of constituting a social group for the purposes of the Convention, whether the Applicant was a member of that group, whether the Applicant had a fear, whether it was well-founded, and, if it was, whether it was for a Convention reason. It was submitted that in this case the Tribunal had erred in stating that it was not going to consider whether the claimed particular social groups existed.

8. The Applicant acknowledged that in SZNOE Greenwood J had referred (at [78]) to the fact that there was clear authority for the proposition that the principles espoused by Dranichnikov did not require the Tribunal to consider whether the particular social group of which the Applicant claimed to be a member (either expressly or implicitly by reason of the material) was a social group for the purposes of the Convention and Act in circumstances where the Tribunal had found that the applicant did not hold a well-founded fear of persecution as contemplated by s.91R(1) of the Act for any Convention reason and that in such circumstances, unless the Tribunal made a jurisdictional error in relation to the question of fact of whether the Applicant had a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error arose by the mere failure to identify and consider the precise social group to which the Applicant claimed membership.

9. However, the Applicant submitted that a contrary view had been expressed by Merkel J in VWBU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 39 at [8]. In VWBU the appellant had claimed that she feared persecution if she returned to Turkey because she was on a PKK blacklist or was the wife of a person on a PKK blacklist.  Merkel J held that (as in Dranichnikov) the Tribunal had considered a different claim, namely whether a fear of persecution held by a member of the armed forces or as a family member of a member of the armed forces was well-founded.  The Applicant submitted that, similarly, there was a jurisdictional error in this case because the Tribunal did not consider any social group.  Mr Kumar pointed out that in VWBU Merkel J had rejected a contention that the appellant must fail because the Tribunal had made an independent finding of adequate state protection and submitted that it did not suffice for the Tribunal to proceed as it did in the present case because it had failed to address adequately the claim made by the Applicant.  It was submitted that it was necessary to assess the claim before determining the application based on a matter such as adequate state protection. 

10. In addition, the Applicant relied on SZNVE v Minister for Immigration and Citizenship (2010) 114 ALD 247; [2010] FCA 251 in which Logan J had found that the Tribunal had not in terms addressed the particular social group propounded in the appellant’s claims, but rather, as in Dranichnikov, had considered a different claim.  Insofar as the Minister had sought to rely on the existence of an alternative basis for the Tribunal decision in SZNVE, Logan J had pointed to the approach taken in VWBU and had had regard to the fact that the failure to deal with a specific claim was plainly relevant to the issue of adequate state protection for the appellant.  His Honour was of the view in SZNVE that a conclusion as to whether or not a fear was “well-founded” necessarily involved an understanding of the basis upon which that fear was said to be held and concluded that the failure to address the appellant’s claim as made was a failure to exercise the jurisdiction of the Tribunal. 

11. The Applicant submitted that these authorities made it clear that there must be some attempt by the Tribunal to consider the particular social group contended for by an applicant. 

12. It was submitted that the Court should not follow the most recent authority of SZNOE and that it could be “distinguished” because the earlier cases clearly said that a particular social group must be considered and also addressed Dranichnikov directly.  It was contended that this Court should follow what Mr Kumar described as the “majority” bench.

13. The First Respondent submitted that there was no obligation on the Tribunal to consider whether the particular social groups of which the Applicant claimed to be a member were social groups for the purposes of the Refugees Convention and the Act. 

14. As Greenwood J pointed out in SZNOE at [78]:

    …there is clear authority for the proposition that the principles exposed by Dranichnikov … do not require the Tribunal to consider whether the particular social group of which the appellant claims to be a member (either expressly or implicitly by reason of the material) is a ‘social group’ for the purposes of Art 1A(2) of the Refugees Convention (and the Act), in circumstances where the Tribunal has found that the appellant does not hold a well-founded fear of persecution as contemplated by s 91R(1) of the Act for any Convention reason.

15. First, insofar as counsel for the Applicant appeared to contend that the “preponderance” of authority is contrary to the approach taken in SZNOE, it is notable that in SZNVE Greenwood J also referred to MZXDQ vMinister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29]; SZJRU v Minister for Immigration and Citizenship (2009) 108 ALD 515; [2009] FCA 315 at [49] – [50]; and BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21] – [25] in support of the approach taken in that case (and see SZTFL v Minister for Immigration & Another [2014] FCCA 1620 at [33]).

16. In any event, it has not been established that the decisions in VWBU and SZNVE were inconsistent with the approach taken in SZNOE.  Rather, in each of VWBU and SZNVE the Tribunal was found to have erred because it considered a social group other than the social group propounded by and relied on by the appellant.  In these circumstances, in SZVNE Logan J found that, given the Tribunal’s failure to deal with the specific claim made by the appellant, its conclusion as to whether or not his fear was “well-founded” necessarily involved a misunderstanding of the basis upon which that fear was said to be held.  Similarly in VWBU the finding of adequate state protection was found not to be an independent basis for the Tribunal’s decision unaffected by error because it related to a claim which was not in fact the appellant’s claim. 

17. However this is not a case in which the Tribunal considered a social group other than the social group relied on by the Applicant.  On the contrary, in written submissions of 5 March 2013 the Applicant’s adviser expressly claimed that the Applicant was a member of the particular social groups of “failed asylum seekers returning to Sri Lanka” and “young Tamil men from the north of Sri Lanka”.  The Tribunal referred to these claimed particular social groups (including in paragraph [162] of its Reasons for Decision) immediately before it went on to make the finding complained of at paragraph [164] to the effect that there was no need for it to determine whether the claimed particular social groups existed because “even if they did” for reasons already given, there was not a real chance that the Applicant would suffer harm “on the basis of the characteristics that define those groups”.  It was open to the Tribunal to proceed in this manner consistent with the principles in Dranichnikov.  The Tribunal made its findings on the basis that even if the Applicant was a member of the claimed particular social groups it had considered his claim to fear harm on the basis of the characteristics that defined those groups, but had found that there was not a real chance he would suffer harm on that basis.  In these circumstances it did not err by failing to consider and determine whether the claimed social groups were particular social groups for the purposes of the Refugees Convention of which the Applicant was a member. 

18. The Applicant also appeared to assert that he was a member of a social group that should be defined more widely than that expressly claimed by his adviser.  However, such a claim was not put to the Tribunal and I am not satisfied that a claim that the Applicant was a member of some other more broadly defined social group arose clearly or squarely on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27; [2004] FCAFC 263 such that the Tribunal was obliged to address such claim.

19. Ground 4 is not made out. 

Ground 7

1. The next ground relied on by the Applicant is ground 7 in the Amended Application which is as follows:

   The Tribunal fell into jurisdictional error when it failed to give the particulars of the Sri Lankan’s AG’s statement to the applicant to respond. The Tribunal thus breached s424AA (sic) of the Migration Act 1958.

   Particulars:

   a) The applicant was not given the opportunity to comment on or respond to the statement made by the AGs office.

   b) The applicant was not explained (sic) why this statement was relevant to the review and the consequences of being relied on in affirming the decision that is under review.

   c) The Tribunal failed to act in a way that is fair and just.

2. Sections 424A and 424AA of the Act are relevantly as follows:

   424A

   (1) Subject to subsections (2A) and (3), the Tribunal must:

   (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;  and

   (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review;  and

   (c) invite the applicant to comment on or respond to it.

   (2) The information and invitation must be given to the applicant:

   (a) except where paragraph (b) applies--by one of the methods specified in section 441A;  or

   (b) if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

   (2A)  The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

   (3) This section does not apply to information:

   (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member;  or

   (b) that the applicant gave for the purpose of the application for review;  or

   (ba)   that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department;  or

   (c) that is non-disclosable information.

   …

   424AA

   (1) If an applicant is appearing before the Tribunal because of an invitation under section 425:

   (a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review;  and

   (b) if the Tribunal does so—the Tribunal must:

   (i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review;  and

   (ii) orally invite the applicant to comment on or respond to the information;  and

   (iii) advise the applicant that he or she may seek additional time to comment on or respond to the information;  and

   (iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

   …

3. The Amended Application asserted a breach of s.424AA of the Act, as did the Applicant’s counsel in submissions. It was submitted that the Tribunal “breached” s.424AA(1)(b) by failing to disclose information that was part of the reason for affirming the decision under review in the manner required by that section. It was submitted that the Tribunal had relied on a statement made by the office of the Sri Lankan Attorney-General, but that the Applicant was not given the opportunity to comment on or respond to such statement and nor was it explained why it was relevant to the review.

4. The First Respondent submitted that the Tribunal was not obliged to put independent country information to an applicant for comment under s.424A of the Act (see s.424A(3)(a)) but that in any event it gave particulars of the information in question to the Applicant in its letter of 23 August 2013.

5. It is apparent that this ground is intended to refer to an aspect of a DFAT report of 31 July 2013 (headed “Country Information Report – Sri Lanka”) cited by the Tribunal. DFAT advised in relation to the issue of penalties for offences committed under the Sri Lankan Immigration and Emigration Act for illegal departure from Sri Lanka that:

   The Attorney-General’s Department advises that no one to date has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future.  The Department further advises that the Magistrates Court in Colombo has been handing out fines of around 5,000 Sri Lankan Rupees for persons attempting to depart Sri Lanka irregularly on boats.  However, in Negombo, the magistrate, who handles a large number of these cases, has been handing out fines up to 50,000 Sri Lankan Rupees to act as a deterrent.

6. First, insofar as the Applicant asserted that there was a breach of s.424AA of the Act this misconceives the interaction between ss.424AA and 424A of the Act. As Bromberg J pointed out in MZYFH v Minister for Immigration and Citizenship (2010) 188 FCR 151; [2010] FCA 559 at [31] a failure to comply with the requirements of s.424AA does not constitute jurisdictional error (see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [74] to [75] and [93] to [101]). However non-compliance by the Tribunal with the requirements of s.424AA will cast the Tribunal back to s.424A with which it must then comply. A failure to comply with the requirements of s.424A(1) would constitute jurisdictional error.

7. However, as the First Respondent submitted, for the purposes of s.424A(1) of the Act (and hence s.424AA) “information” does not include information that is not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or another person is a member (s.424A(3)(a)). The DFAT report and the reference therein to advice from the Sri Lankan Attorney-General fell squarely within this exception. Hence it was not necessary for the Tribunal to put it to the Applicant under s.424A (or s.424AA) of the Act.

8. Insofar as counsel for the Applicant appeared to contend that even if an exception to the obligation in s.424A(1) applied, nonetheless an obligation would arise under s.424AA of the Act, that is not the case. The provisions are complementary. Compliance with s.424A is obligatory and non-compliance with its provisions will amount to jurisdictional error, whereas s.424AA is discretionary and non-compliance with its provisions will result only in the Tribunal not having the benefit of s.424A(2)(a) so that it must then strictly comply with s.424A unless an exception is applicable (see SZMCD at [73] per Moore J).

9. In submissions Mr Kumar disavowed reliance on any contention that s.425 of the Act was breached on the basis of any failure by the Tribunal to raise such information with the Applicant at the hearing.

10. Insofar as an issue of procedural fairness was raised, by letter of 23 August 2013 the Tribunal put the relevant extract from the DFAT report of 31 July 2013 to the Applicant for comment.  That letter gave the Applicant clear particulars of the information.  It explained that the Tribunal wished to give him the opportunity to comment on recent country information on which it intended to rely in determining the case.  The Applicant’s adviser responded and commented on the information in question by letter of 2 September 2013.  The Tribunal addressed this response and other submissions from the adviser in its reasons for decision. 

1. Ground 7 is not made out.

Ground 9

1. The next ground relied on by the Applicant is ground 9 in the Amended Application which is as follows (errors in original):

   The Tribunal fell into jurisdictional error when its approach was to focus on the likely outcome of the possible interrogation and detention of the applicant as a failed asylum seeker on his return to Sri Lanka rather than to consider the process of the interrogation to which the applicant would be subjected and the risk that the applicant might suffer serious harm amounting to persecution before being able to convince the authorities that he or his family was not an LTTE member, sympathiser or a supporter.

   Particulars:

   a) Failure to consider a claim that clearly arose on the materials before the Tribunal, that being that the applicant might be persecuted by the Sri Lankan authorities, in the course of determining whether the applicant or his family might have a LTTE connection?

   b) The applicant gave evidence that his family was linked to the LTTE in the past and as a result he is not the ordinary asylum seeker or a person departed illegal from Sri Lanka.

   c) It is unreasonable for the Tribunal to rely on a selective country information to support its decision without given consideration to the applicant and his family’s overall profile.

   d) Failure on the part of the Tribunal to predict what might happen to the applicant in future based on DFAT country information.  The Tribunal excluded several relevant information on this area about Sri Lanka, which indicates human rights violation including abduction, torture in detention and detention without charges.

2. As explained in oral submissions, the Applicant’s contention was that the Tribunal erred in having regard to general country information and concluding on that basis that (as for many returned failed asylum seekers or illegal departees) certain procedures would be followed by the authorities on the Applicant’s return to Sri Lanka and that such procedures did not amount to serious harm for the purposes of s.91R of the Act. It was submitted that in proceeding in this manner the Tribunal had failed to take into account the family situation of the Applicant, in particular the deaths of his father and brother (notwithstanding that the Tribunal had not accepted that the Applicant’s father or any family member was involved with the LTTE or that the father and brother were killed by the Sri Lankan authorities).

3. It was submitted that the Tribunal should have considered that the Applicant might suffer serious harm amounting to persecution before being able to convince the authorities that he was not a sympathiser of the LTTE in circumstances where the fact of the deaths of his father and brother might be such as to lead to an imputation that the father and/or the brother were LTTE supporters or such that the Sri Lankan authorities may take such a view when considering the Applicant on his return to Sri Lanka.  It was acknowledged that the Applicant may be able to persuade the authorities that he did not represent a risk, but submitted that the Tribunal had to consider what might happen prior to that point being reached and consider the risk that the Applicant would be mistreated in the “process” of being questioned on return to Sri Lanka.  It was submitted that the Tribunal had focused on the likely outcome of possible detention and interrogation of the Applicant on return to Sri Lanka, but that it had failed to consider the “process” of interrogation to which the Applicant would be subjected in the sense considered in SZQPA v Minister for Immigration and Citizenship & Anor [2012] FMCA 123 at [29] per Driver FM and that it had failed to consider the risk that he might suffer serious harm amounting to persecution before being able to convince the authorities that he was not an active LTTE member or supporter.

4. However, as the First Respondent submitted, this matter is distinguishable from the circumstances considered in SZQPA.  In this case the Tribunal specifically considered the risk of the Applicant (as a Tamil returning to Sri Lanka after leaving illegally and seeking asylum abroad) being questioned and suffering harm in the “process”.  The claim that the Applicant’s counsel now makes (that the authorities might consider that the Applicant’s father or brother were LTTE supporters because they had died and hence that the Applicant might be mistreated before he persuaded the authorities that he was not a risk) is not a claim that the Applicant made to the Tribunal or that arose squarely on the material before the Tribunal.  The Tribunal did not fail to understand the family circumstances of the Applicant.  It made express findings in relation to his claims about the cause of the deaths of his father and brother and as to whether his father or any family member was involved with the LTTE.  It addressed his claims about being harmed during the process of interrogation, but was of the view that the risk of him suffering harm as a Tamil returnee who had sought asylum abroad and left the country illegally was “remote”.  Moreover, in the context of considering the complementary protection criterion the Tribunal rejected the Applicant’s claims for the same reasons and went on to make specific findings in relation to the consequences of his illegal departure.

5. It has not been established that it was unreasonable for the Tribunal to base its findings on country information without giving consideration to the now asserted “overall profile” of the Applicant and his family.  It addressed the Applicant’s claims about his family. 

6. Insofar as particular (d) to this ground suggests that the Tribunal “excluded” relevant information indicating that there were human rights violations in Sri Lanka including abduction, torture in detention and detention without charges, such claim is not made out.  The Tribunal considered the adviser’s submissions and information in this respect.  In its findings the Tribunal accepted that Tamils had been the victims of human rights violations but also found that country information indicated that these were most likely Tamils who came within the UNHCR risk profiles (see [43]-[44] above).  It was for the Tribunal to determine the country information to which it would have regard and to attribute weight to the country information before it.

7. This ground as pleaded is not made out.

8. In oral submissions the solicitor for the First Respondent referred to the decision of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 in which his Honour had found that serious harm in s.91R(1)(b) of the Act was constituted by a threat to life or liberty without reference to the severity of the consequences, so that any threat that an applicant would be deprived of his or her liberty on return to Sri Lanka would amount to “serious harm” regardless of the period of anticipated detention on remand or the likely treatment the returnee might suffer while in detention. 

9. However, as contended for by the First Respondent, there was an alternative basis for the Tribunal’s decision regarding the risk to the Applicant, in that the Tribunal found that the relevant law under which the Applicant may be detained was a law of general application.  In particular, it found that according to country information Tamils were treated the same way as anybody else in the process and that there was no substantiated evidence that Tamils suffered harm or maltreatment in this process or suffered harm on the grounds that they were Tamils who had left the country illegally and sought asylum abroad. 

10. In any event, since that time there have been two significant and dispositive developments which the parties had the opportunity to address in post-hearing submissions.  The Full Federal Court (in SZTEQ v Minister for Immigration and Border Protection (2015) 321 ALR 44; [2015] FCAFC 39; SZTIB v Minister for Immigration and Border Protection (2015) 321 ALR 81; [2015] FCAFC 40 and BZAFM v Minister for Immigration and Border Protection (2015) 321 ALR 117; [2015] FCAFC 41) and the High Court on appeal from North J in Minister for Immigration and Border Protection v WZAPN & Anor (2015) 320 ALR 467; [2015] HCA 22 have each taken the view that WZAPN was wrongly decided.  In particular, the High Court found in MIBP v WZAPN at [45] that:

    …the question of whether a risk of the loss of liberty constitutes ‘serious harm’ for the purposes of s 91R(1)(b) requires a qualitative judgment.  This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty.  Whether the likelihood of detention in any case rises to the level of serious harm instanced by s 91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention.

11. Hence, to the extent that the Tribunal engaged in a qualitative assessment of the kind found to be in error by North J in WZAPN, such an approach was open to it. 

12. Ground 9 is not made out either on the basis contended for in the Amended Application or having regard to the decision in WZAPN.

Ground 11

1. The next ground relied on by the Applicant is ground 11 in the Amended Application which is as follows:

   The Tribunal fell into jurisdictional error when it wrongly decided that the applicant will not suffer discrimination in the hands of authorities if he returns to Sri Lanka based on previous experiences.  Despite the Tribunal acknowledges that there is discrimination against Tamils by the authorities in Tamil areas and continuous presents (sic) of army.

   Particulars:

   a) Failure on the part of the Tribunal to understand the meaning of complementary protection under s.36(2)(a) of the Act.

   b) The applicant gave evidence that he will be denied access to food, shelter, employment and medical treatment and will not subsist because of his race.

   c) It is wrong for the Tribunal to conclude that none of the above matters affected the applicant when he lived in Sri Lanka and there is not real chance they would lead to him suffering serious harm on return to Sri Lanka.

   d) The Tribunal should have asked whether the applicant will be subjected to discrimination in future given the current circumstances.

   The Tribunal made an error by failure to take into account the deprivation of certain socio-economic rights that the applicant gave evidence which will tantamount to deprivation of life or cruel, inhuman or degrading treatment, and will be unquestionably constitute persecution.

2. In submissions the Applicant contended that the Tribunal erred in its consideration of the complementary protection criterion in failing to assess an integer of his claim, being the claim that his father and brother had disappeared (notwithstanding that this was not the basis on which ground 11 was pleaded).  It was submitted that the Tribunal had not considered the application of the complementary protection criterion in relation to the claim that the Applicant may suffer harm at the hands of authorities if links were imputed to what were said to be the “suspicious circumstances” of the deaths of his family members.  The Applicant submitted that the Tribunal had conflated its determination in relation to the complementary protection criterion with its findings in respect of the Refugees Convention criterion in circumstances where the Applicant had clearly articulated his fear of returning to Sri Lanka, including a fear owing to the death of family members, allegedly at the hands of the authorities.  It was submitted that even if the Tribunal rejected the Refugees Convention claim on this basis, it was required to consider whether there was a real risk of harm under the complementary protection criterion.

3. I raised with Mr Kumar the extent to which his oral and written submissions addressed ground 11 and the particulars to ground 11 as pleaded.  He indicated that he would confine himself to what was in the Amended Application.  He submitted that the Tribunal had simply relied on its findings in relation to the Refugees Convention criterion in the context of considering complementary protection and that it had erred in failing to address specifically issues raised in the Applicant’s adviser’s written submissions, in particular in relation to the Applicant’s ability to survive in the environment in Sri Lanka.  It was acknowledged that the Applicant had not himself raised issues of denial of access to food, shelter, employment and medical treatment, but submitted that the Tribunal should have addressed the adviser’s submissions in relation to significant harm, including degrading treatment, through denial of social and economic rights and discrimination against Tamils.

4. As the First Respondent submitted, this ground is not made out.

5. First, in describing the Applicant’s claims the Tribunal expressly referred to the adviser’s submissions that he would be denied access to food, shelter, employment and medical treatment and that he would not be able to subsist because of his race and that the basis for such claims was discrimination against Tamils.  It also referred to the submissions about military presence in Tamil areas.  Importantly, it addressed such submissions in the context of considering the Refugees Convention criteria.  The Tribunal acknowledged that there was discrimination against Tamils and that Sinhalese were receiving favourable treatment from the authorities in Tamil areas.  It also acknowledged the claims about the effects of military presence in those areas.  However it found that none of these matters had affected the Applicant when he lived in Sri Lanka and that there was not a real chance they would lead to his suffering serious harm on return to Sri Lanka.

6. Relevantly, in support of its findings, the Tribunal referred to the fact that the Applicant had been able to attend school, had employment in farming and had lived with his family in their home in Vavuniya.  It found that he could resume doing so when he returned to Sri Lanka.  The Tribunal also found no credible evidence that the presence of the military and the various actions they were accused of (as mentioned in country information put forward by the Applicant’s adviser, including the Applicant’s complaint that he had had to pass through checkpoints) had led to the Applicant suffering harm.  Insofar as it had been asserted that army intelligence and police units conducted regular questioning and visits and placed pressure on people to become informants, the Tribunal considered that in line with the risk profiles put forward by UNHCR this happened to people who came within such profiles, but that this was not the case for the Applicant.  The Tribunal also considered, but rejected, the assertions that the Applicant would not be able to practise his religion.

7. As the First Respondent submitted, having made such findings in the context of addressing the Refugees Convention criterion, it was open to the Tribunal to state that it had considered the adviser’s submissions and to find that, for the same reasons already given in relation to serious harm, there was not a real risk that the Applicant would suffer significant harm.  The Tribunal set out the correct test for the complementary protection criterion.  It then made findings in a way that was open to it (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56] and SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26; [2013] FCAFC 125 at [32]). In the circumstances of this case, having regard to the nature of the claims and the findings the Tribunal had made in relation to these matters, it was open to the Tribunal to dismiss the Applicant’s claims under the complementary protection criterion using the language of the Act on the basis that it reached its findings for the same reasons as already set out in relation to the Refugees Convention criterion.

Ground 12

1. The last ground relied on by the Applicant is ground 12 in the Amended Application which is as follows:

   The Tribunal fell into jurisdictional error and breached s425 of the Act by failing to afford the applicant opportunity to provide explanation and/or present arguments by (sic) his mental state caused by events in Sri Lanka.

   Particulars:

   a) The Tribunal failed to allow the applicant to present arguments whether his mental state was related to events in Sri Lanka when it rejected the mental state was caused by events in Sri Lanka (CB 267 at [110]).

2. The Applicant submitted that the Tribunal had not addressed or made findings in any detail regarding his mental state and that it did not deal with “the claim at the hearing”. He submitted that the Tribunal had breached s.425 of the Act by not providing him with an opportunity at the hearing to explain his medical condition. In oral submissions it was contended that the Applicant’s medical condition or mental state would be an issue that would impact on his ability to return to Sri Lanka and that the Tribunal had erred in failing to provide him with an opportunity to explain the impact that such claim may have on his ability to return to Sri Lanka relevant to either the complementary protection criterion or the Refugees Convention criterion.

3. The Applicant was invited to a Tribunal hearing, which he attended with his representative.  As the First Respondent submitted, it is apparent that he was on notice that his credibility was in issue given that this was the basis for the delegate’s decision.  It is apparent that the adviser addressed this issue having regard to the delegate’s adverse credibility findings. 

4. Insofar as this ground was intended to raise the Applicant’s fitness to participate in the hearing, the Tribunal expressly considered the Applicant’s evidence and claims in this respect.  It accepted the assessment made by a psychologist about the Applicant’s mental state.  It accepted that he may have an anxiety disorder as diagnosed, but was satisfied that he had a meaningful opportunity to give evidence at the hearing and that he was able to respond to the Tribunal’s questions and understand matters that were put to him.  There is no evidence before the court to support any contention that the Applicant was not in fact fit to participate in the hearing. 

5. If the Applicant’s claim is that he was in some way denied an opportunity to make claims at the Tribunal hearing about the impact of his medical condition on his capacity to return to life in Sri Lanka, in the absence of a transcript of the Tribunal hearing there is no evidentiary support for such a contention.  The Tribunal did not accept that the Applicant was traumatised by past experiences in Sri Lanka because it found his claims about such past events were not credible.  It did not believe that his mental state was caused by his claimed experiences in Sri Lanka.  In the absence of any medical evidence to support the Applicant’s claims about his back pain and scars, the Tribunal found that whatever back pain or scars the Applicant had these were not caused by the experiences he claimed had occurred in Sri Lanka because his evidence about such claimed events was false.

6. On the material before the Court it has not been established that the Tribunal failed to consider the claims and evidence advanced by the Applicant about his claimed psychological condition. Nor has it been established that the Applicant was denied a real and meaningful hearing, that the process contemplated by s.425 of the Act was subverted or that the Tribunal failed to raise dispositive or determinative issues with the Applicant. This ground is not made out.

7. As none of the grounds relied on by the Applicant has been established the application must be dismissed.

I certify that the preceding one hundred and twenty (120) are a true copy of the reasons for judgment of Judge Barnes

Date: 17 March 2016