SZTLV v Minister for Immigration
[2015] FCCA 773
•2 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTLV v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 773 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal failed to consider an integer of the Applicant’s claims. |
| Legislation: Migration Act 1958 (Cth), ss.46A, 91R |
| Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 185 CLR 259 at 271 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14 Minister for Immigration and Border Protectionv SZSWB [2015] FCAFC 106 NADHv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 830 Nagaratnam v The Minister for Immigration & Multicultural Affairs [1999] FCA 176 Paramananthan v The Minister for Immigration & Multicultural Affairs [1998] 160 ALR 24 SZNOE v Minister for Immigration & Citizenship [2012] FCA 96 SZSWB v Minister for Immigration & Anor [2014] FCCA 765 |
| Applicant: | SZTLV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2679 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing dates: | 9 & 17 September 2014 |
| Date of Last Submission: | 21 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2015 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
A writ in the nature of certiorari issue directed to the second respondent, quashing the decision of the second respondent made on 9 October 2013 in Tribunal case number 1219191
A writ in the nature of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent made on 30 October 2012.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2679 of 2013
| SZTLV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
| REFUGEE REVIEW TRIBUNAL |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 9 October 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka, arrived in Australia on 11 May 2012 as an irregular maritime arrival. On 10 August 2012 he was informed that the Minister for Immigration had exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the Act) to allow him to apply for a protection visa. He lodged such an application on 10 August 2012. He attended an interview with the delegate on 16 August 2012.
In support of his protection visa application the Applicant provided a statutory declaration dated 10 August 2012.
The Applicant claimed that in late 2007 he was arrested by the CID and detained for 14 days on suspicion of being a Liberation Tigers of Tamil Eelam (LTTE) member because of his brother. He claimed that his brother had been involved with the LTTE from 1996 to 2002, that he was captured by the SLA and detained for around 18 months, subsequently interrogated by the CID and left the family home for good in 2006. The Applicant claimed that he was interrogated and beaten by the CID and that although a court ordered that he could only be held for 14 days, the CID kept him in detention for another 16 days until they realised that he was not aware of his brother’s whereabouts and had never been an LTTE supporter. He claimed the CID then released him but told him not to leave the area and to “report to them whenever they would call”.
The Applicant also claimed that towards the end of 2008 he was stopped at an Eelam People’s Democratic Party (EPDP) checkpoint by people who knew his brother had been an LTTE member, detained for a week and questioned as to the whereabouts of his brother but released when they realised he did not know.
He claimed the CID continued coming to his home harassing and interrogating him and that when a helicopter bombed a building near his workplace in mid-2009 he was “rounded up” by the CID because he was the only Tamil from Kilinochi in that area. He was questioned, but released after his employer intervened.
The Applicant claimed that thereafter the harassment intensified and that he was called to the CID more often and was frequently stopped by the EPDP. He claimed he resigned from his employment and lived in hiding from late 2009 until 2010 when he decided to travel to India. He went to India in December 2010.
He returned to Sri Lanka in March 2011, hoping things had calmed down, but claimed that he was continually harassed and could no longer work, so he decided to leave Sri Lanka permanently. The Applicant claimed he gave his passport to a smuggler who was arrested by the CID and that the CID rang his home and told him to come and collect the passport. He claimed that instead he left home and obtained another passport through a different smuggler. He left Sri Lanka on 2 February 2012.
The Applicant claimed to fear he would be harmed by the authorities if he returned to Sri Lanka as a Tamil from the north suspected of having been a member of the LTTE because of his brother’s involvement with the LTTE.
The delegate refused the application.
The Applicant sought review. On 2 May 2013 his advisor provided the Tribunal with a record of what was described as a “telephone statement” from the Applicant providing additional information. In that statement the Applicant claimed that in September 2012, while in Australia, he had received a telephone call from his sister in Sri Lanka who told him that an unknown person had informed her that a close friend of his (with whom he had travelled to India in 2010) had been killed and that he was “next to be killed”. The Applicant claimed to believe he would be killed by the people who had killed his friend. He also claimed that his sister had told him that unknown persons who spoke Tamil and Sinhalese continued to come in search of him and had made threats over the telephone. He also claimed that after the departmental interview in 2012 he had learnt that his family business (a restaurant) had been attacked by Sinhalese people in the area because the family was Tamil.
The Applicant attended a Tribunal hearing. As discussed further below, an incomplete “transcript” of the Tribunal hearing is in evidence before the Court.
The Applicant provided the Tribunal with a copy of his Sri Lankan national identity card, birth certificate, and a letter issued by IMADR (an NGO) repeating aspects of his claims and supporting his application.
In a post-hearing written submission to the Tribunal the Applicant’s advisor stated that he wished to raise an additional claim for consideration on the basis that the Applicant had repeatedly indicated during the interview that his family were wealthy Tamils. It was submitted that the Applicant was a member of a particular social group of “wealthy Tamils” at risk of being targeted for various reasons by Tamil paramilitary groups active in the north of Sri Lanka. It was submitted that the Karuna group/TMVP continued to perpetrate serious human rights violations and engage in criminal activities such as extortion, attacks, kidnapping and ransom collection with impunity. It was submitted that extortion could exhibit both elements of personal interest and Convention-related persecutory conduct and that the fact that the State would not protect the individual from non-Convention motivated extortion would bring the claims within the scope of the Refugees Convention. The Applicant was said to be a member of a particular social group of Tamils who were wealthy or perceived to be wealthy and at risk of being persecuted by government and non-state agents, particularly the EPDP.
The advisor referred to various items of independent country information in support of the proposition that the Applicant feared harm as a returned failed asylum seeker, including harm during interrogation or while being held on remand as well as the prospect of a lengthy period of imprisonment and harm during such a period of incarceration as well as after release into the community. The advisor provided the Tribunal with country information in relation to conditions in Sri Lankan prisons. It was submitted that the available country information supported a conclusion that the Applicant was likely to be imprisoned for at least a year for a breach of the Sri Lankan Immigration and Emigration Act.
The advisor submitted that the Tribunal could not rule out as remote or insubstantial the likelihood that the Applicant might be singled out because he was a Tamil and then tortured or otherwise significantly harmed if detained by Sri Lankan authorities and that even if the Tribunal did not accept he would be singled out as a Tamil, the available information supported a conclusion that the Applicant would be subjected to cruel, inhuman and degrading treatment while in detention.
The advisor provided a copy of a psychologist’s report from a psychologist with “KidPsych” dated 14 May 2013 which recorded that the Applicant had reported symptoms consistent with a diagnosis of post-traumatic stress disorder and that his presentation and reported psychological symptoms were consistent with the account he had provided of suffering trauma relating to a violation of human rights, including persecution, arrest, imprisonment and torture.
The Tribunal Decision
In its reasons for decision the Tribunal summarised the Applicant’s claims as follows:
The applicant says that he is at risk of harm by the Sri Lankan government or its agents because he is Tamil from the north of Sri Lanka and he is suspected of being a member of the Liberation Tigers of Eelam (LTTE) because of his brother’s involvement with the LTTE.
The applicant also claims to fear harm by Sinhalese people in his area because of his race (Tamil) and because of his membership of a particular social group (wealthy Tamils, or Tamils who are perceived to be wealthy). He claims to fear harm from the Sri Lankan government and by non-State agents and paramilitaries for these reasons.
The applicant also claims to fear harm by the Sri Lankan authorities or its agents on his return to Sri Lanka because he is a member of a particular social group of failed asylum seeker returnees.
The Tribunal recorded that the Applicant had presented his protection claims on a number of occasions: in his entry interview; in his protection visa application and accompanying statutory declaration; in his interview with the delegate; in his telephone statement; and at the Tribunal hearing. It summarised the claims up to and including at the Tribunal hearing. It did not refer to any claim presented in the post-hearing submission.
The Tribunal then referred to the receipt of “comprehensive and helpful” post-hearing submissions from the Applicant’s advisor which were said to include extensive reference to independent information relevant to the Applicant’s circumstances and claim. The Tribunal indicated that it would not repeat the submission which was held on the Tribunal file. However it observed that the advisor had submitted that the Applicant was likely to be imprisoned for at least a year on return to Sri Lanka and had made submissions based on independent information about prison conditions in Sri Lanka in this context. The Tribunal also referred to the other documents provided after the hearing.
The Tribunal then summarised “the issues for resolution” and stated that while it was satisfied that the Applicant’s claims about “events” during the civil conflict in Sri Lanka were true, they did “not now result in a well-founded fear of persecution or in a real risk of harm”. On the other hand, it was satisfied that his claims “concerning events after the end of the civil conflict are not true, that he has fabricated those claims in order to obtain a protection visa”.
Before explaining its reasons for such findings the Tribunal referred to the applicable law and to independent information said to be relevant to the decision in respect of the Applicant’s claims to be at risk of harm “as a Tamil, or imputed, as a Tamil, to be an LTTE member or supporter, and as failed asylum seeker/involuntary returnee”.
The Tribunal divided its findings into three categories: “Findings on claims post-civil conflict; “Protection claims pre-civil conflict- findings”; and “Protection claims post-arrival in Australia- findings.”
First, the Tribunal gave reasons for its earlier finding that the Applicant’s “claims post-civil conflict” were fabricated. In this context, it had regard to the fact that the Applicant had travelled from Sri Lanka to India in December 2010 and had voluntarily returned to Sri Lanka on the passport he had obtained in his own name in 2008. It found that not only did this suggest that the Applicant was not of adverse interest to the Sri Lankan authorities because of his claimed imputed pro-LTTE political opinion “whether because of his Tamil ethnicity or his brother’s previous association with the LTTE”, but that it also suggested strongly that he did not have any fear of returning to Sri Lanka at that time, notwithstanding his claim to have been of interest to the authorities before his first departure in December 2010. Given this and the Applicant’s voluntary return to Sri Lanka, the Tribunal found that he did not have any fear of harm in 2010.
The Tribunal also considered the Applicant’s claim that he had been hiding from the CID from late 2009 until he went to India in December 2010, and again after his return to India in March 2011 until his second departure in February 2012. It had regard to the fact that despite this claim, the Applicant had left Sri Lanka in December 2010 on what he said was his genuine passport and that while he claimed that for part of the period he was “in hiding” at the homes of his uncle or friends, these seemed logical or obvious places for the CID to check. It also had regard to the fact that the Applicant claimed to have remained at large from late 2009, during two passages through airport security, until February 2012 when he again passed through airport security on a passport which he said contained his genuine details. The Tribunal also took into account the fact that the Applicant claimed he had been able to evade the CID despite the fact that his home (that of his parents) was next door to the leader of the EDPD and he had his ID checked by the heavy security there and despite the fact that he had the same mobile phone number throughout this time.
The Tribunal addressed the Applicant’s claim that the CID had telephoned him at the end of 2011 to tell him to come and collect his passport which they had found when they arrested the people smuggler to whom he had given his genuine passport when he returned to Sri Lanka in March 2011. However it observed that the Applicant had been unable to offer any logical reason why the CID would not have acted immediately or why the CID had not simply arrested or at least interviewed him on suspicion of complicity when his passport was found in the possession of a people smuggler arrested for that reason in March 2011, or why he claimed the CID was “illegally” looking for him.
The Tribunal found that the Applicant’s evidence at the hearing on the timing of the events, the variations to account for the delay in the CID telephoning him and the lack of any official investigation into him was vague, lacking in specificity, inconsistent and was not accompanied by the detail and precision that might have been expected in relation to such important events which had occurred relatively recently. In addition, the Tribunal found that the Applicant had not been forthcoming with details. It recorded that it had had to ask several times to obtain what detail the Applicant had ultimately provided and that the Applicant’s responses to the Tribunal questions were frequently evasive.
The Tribunal found that the fact that the Applicant was able to depart Sri Lanka for India (and thereafter Australia) in February 2012 on a passport in his name was a strong indication that he was not of any adverse interest to the Sri Lankan authorities. It recorded that while the Applicant claimed he did so on a passport he bought from a different people smuggler, it was not possible to know whether he travelled on a different passport to the original passport issued to him in 2008 because he did not bring any passport with him to Australia. Hence the Tribunal made findings on the basis of the Applicant’s otherwise uncorroborated claims in light of the surrounding circumstances, the internal consistency of his entire set of claims, and the demands of logic.
In this respect, the Tribunal referred to the fact that the Applicant had claimed that the CID had discovered his real passport when they arrested the people smuggler and yet he had also claimed that the CID had telephoned him to come and collect the passport and also that the CID was illegally searching for him because they had no grounds or lawful suspicion in order to search for him legally. The Tribunal did not accept this explanation. It found that the mere possession of the Applicant’s passport by a people smuggler would be sufficient lawful justification for locating the Applicant and interviewing him and that there did not appear to be any reason why the CID would have had to conceal its interest in the Applicant.
The Tribunal also saw no logical reason why the Applicant would go to the effort, expense, subterfuge, and illegality of obtaining a false or fraudulently obtained passport which contained his photograph, correct name, correct date of birth and other details, given that the claimed purpose of obtaining such a passport was to evade the CID and successfully leave Sri Lanka. The Tribunal was of the view that although the Applicant claimed that the CID had his genuine passport and had been actively searching for him for a long period of time (having seized that passport when they arrested a people smuggler), he was unable to offer any logical or coherent reason for obtaining another passport containing the same details and using that passport to pass through immigration and security at the airport when departing Sri Lanka in 2012.
The Tribunal was of the view that if (as the Applicant claimed) the CID was actively pursuing him, it was unlikely he would have been able to depart Sri Lanka on a passport which contained accurate identifying details about him. It saw no reason why the CID could not have put the Applicant’s name on a “stop list” at the airport on the basis of his presumed association with the people smuggler who had been arrested. In the circumstances, the Tribunal found that the Applicant left Sri Lanka legally on a passport in his own name because he was “not of any interest to Sri Lanka’s police or security forces for any reason”.
For all these reasons the Tribunal did not find the Applicant to be a truthful witness. It was satisfied that he had fabricated his claims that he was being pursued by the CID since 2009 or that he was of adverse interest to the Sri Lankan authorities for any reason from 2009. It was also satisfied that he had fabricated his claim to have obtained a fraudulent passport to leave Sri Lanka on the second occasion or that he had to go through a particular counter at the airport to leave safely. It was satisfied that the Applicant had fabricated these claims to “construct a scenario of adverse interest in him by the Sri Lankan authorities”. The Tribunal was satisfied that the Applicant did not come to the adverse interest of the Sri Lankan authorities for any reason after the end of the civil conflict in Sri Lanka in May 2009.
The Tribunal then stated that for these reasons it did not accept that the Applicant had been honest in claiming to have had a genuine fear of harm in Sri Lanka at the time he left or if he were to return. It found that the Applicant’s claim to fear persecution or harm in Sri Lanka was “not genuine”.
The Tribunal went on to consider what it described as “Protection claims pre‑civil conflict”. The Tribunal explained that its findings in this part of its reasons related to whether there was any basis on which there was a real chance of persecution for a Convention reason or substantial grounds for believing there was a real risk of significant harm if the Applicant returned to Sri Lanka, taking into account those aspects of his circumstances which the Tribunal was prepared to accept were true.
The Tribunal accepted, based on country information, the Applicant’s claims that his brother was forced to join the LTTE, detained by the Sri Lankan army in 2002 (until his father secured release by paying a large sum of money) and that the brother had since left the family home. The Tribunal accepted that being forced to provide a son to the LTTE during the height of the civil conflict was a common experience for many Tamils and accepted that this was likely to have occurred.
The Tribunal also accepted that it was common for Tamils in the north and east of Sri Lanka to have been the subject of investigation or harassment during the civil conflict by Sri Lankan forces on the presumption that as Tamils in those areas they were supporters of the LTTE and also that it was common for Tamils in Colombo to be questioned by security forces after particular terrorist incidents.
On this basis the Tribunal accepted that it was likely that the Applicant had been arrested in October or November 2007 after a bomb blast and detained and questioned on suspicion of being a supporter of the LTTE. It accepted that this suspicion would have arisen because the Applicant was a Tamil from Jaffna whose brother had been detained as an LTTE member. However the Tribunal had regard to the fact that the Applicant had been taken before a court and his release ordered and that he was released. The Tribunal was satisfied that the Applicant would not have been released had any suspicion remained, whether by reason of his Tamil origin or his brother’s membership of the LTTE. The Tribunal was satisfied that at the time of his release in 2007 the Applicant was “not of any further interest to the Sri Lankan authorities”.
For the same reasons the Tribunal accepted that it was likely that the Applicant was detained once at a checkpoint in 2008 but that when he was released it was because no further suspicion attached to him. The Tribunal found that the fact that this was the second time the Applicant had been questioned and released reinforced its conclusion that he was not suspected of any “actual or imputed support for the LTTE”.
Similarly, the Tribunal accepted that the Applicant was questioned in 2009 after an incident when a helicopter was flown into the Internal Revenue building near his workplace. The Tribunal noted that everyone who worked there was questioned, which was consistent with a broad-ranging investigation. It found that the fact that the Applicant was not detained (but merely questioned, with apparent follow‑up questioning because he was a Tamil from a former LTTE-controlled area with a brother who had been an LTTE member) was strongly indicative that he was “not suspected of or imputed with support for the LTTE”.
Insofar as the Applicant had claimed that he could not work in that position any longer because the police would call him to take his documents to them for inspection, the Tribunal had regard to the fact that the Applicant did not lose his employment for that reason but resigned. The Tribunal did not accept that the Applicant left home at that time because of police attention. It referred to its conclusions in relation to his claim to have gone into hiding from late 2009.
The Tribunal went on to find that the situation in Sri Lanka had altered considerably since the defeat of the LTTE in May 2009. It found that independent information made it clear that the situation for Tamils in the north and east had settled considerably, that suspicion of LTTE involvement was no longer widespread and that there was a recognition that Tamils had been forced to provide assistance in various ways to the LTTE that did not indicate any continued support for the LTTE (which in any event was a defeated force within Sri Lanka). The Tribunal found that people were not at risk of harm simply because they were “Tamils who had been resident in the north or east and who had been forced to provide assistance to the LTTE during the civil conflict”.
On this basis the Tribunal accepted that the Applicant (like many other Tamils) may have been interrogated and briefly detained by the Sri Lankan security forces after terrorist incidents on suspicion of supporting the LTTE and because his brother was a member of the LTTE during the civil conflict. However on the basis of independent information and the fact that both the brother and the Applicant had been investigated or questioned and ultimately released, the Tribunal did not accept that the Applicant was at any risk of “adverse interest” because of what had happened during the civil conflict. It was satisfied that the Applicant was “not suspected of being an LTTE supporter or sympathiser since the civil conflict ended and the LTTE were defeated”.
The Tribunal was satisfied the Applicant was able to leave Sri Lanka on a passport in his own name in February 2012 because he was of no interest to the Sri Lankan authorities. It was satisfied that because he departed on a passport in his own name there was no reason why he would be at any risk of harm on his return because of the manner of his departure. In other words, it was satisfied that the Applicant had departed Sri Lanka legally and that therefore there was no risk of any harm as an illegal departee.
The Tribunal acknowledged that the Applicant would be without a passport on return to Sri Lanka, but had regard to the fact there would be a record of his lawful departure from Sri Lanka on an Indian visa and the fact that he had identification documents to establish his identity and citizenship. It was satisfied that having not been of any adverse interest “to the Sri Lankan authorities” since the end of the civil conflict, he was not now of any interest to the Sri Lankan authorities “as a Tamil, originally from Sri Lanka, or for any actual or imputed pro-LTTE political opinion”.
The Tribunal was also satisfied, on the basis of independent information cited, that the Applicant was not at risk of any harm “by reason of having applied for asylum unsuccessfully”. It was of the view that the information did not support the conclusion that a person in the Applicant’s circumstances (who was not at the time of departure of any adverse interest) would become of interest solely by applying unsuccessfully for asylum overseas. The independent information was said to suggest that the Sri Lankan government was aware that its citizens applied for asylum for migration purposes and that it was only interested in returnees who may have been involved in anti-government or pro-separatist activities overseas.
In this part of its reasons the Tribunal concluded on the basis of independent information that it was satisfied that the chance of the Applicant being harmed in Sri Lanka “because of his Tamil race, or any imputed political opinion based on his previous residence in LTTE‑controlled areas during the civil conflict, or his brother’s history of being coerced to join the LTTE during the civil conflict, or the applicant himself having been questioned and briefly detained after terrorist incidents during the civil conflict, is so remote as to be insubstantial and farfetched”.
The Tribunal stated in this part of its findings that it was also satisfied that the Applicant:
…did not, when he left Sri Lanka, and does not now, genuinely fear harm of any kind if he were to return to Sri Lanka. I am satisfied that the applicant has fabricated his claims of being of interest to the Sri Lankan authorities after the end of the civil conflict.
The Tribunal then addressed the claims described as “Protection claims post-arrival in Australia”. It referred to the Applicant’s claims that his sister had telephoned him to tell him that threats had been made against him, that a friend of his had been shot and killed, and that the family’s restaurant had been attacked by Sinhalese residents.
The Tribunal had regard to the adverse credibility finding it had made in relation to the Applicant’s claims about events after the end of the civil conflict and its conclusion that those claims were fabricated by the Applicant in order to obtain a protection visa. It found that his claim that threats had been made against his life was based on the same alleged interest in him “by the Sri Lankan authorities” for his brother’s history and an imputed political opinion on his part. For the same reasons it had rejected the post civil-conflict claims as fabricated, the Tribunal rejected as a fabrication the Applicant’s claim that threats had been made against his life since his departure from Sri Lanka. It was satisfied that the Applicant was “not of adverse interest for any reason in Sri Lanka”.
The Tribunal did not accept that the incident involving the Applicant’s family restaurant (which he initially claimed was because his brother-in-law had refused to sell cigarettes to people who demanded them and subsequently claimed it was because of the ethnicity of his sister and brother-in-law as Tamils, who were attacked by Sinhalese) was indicative of any well‑founded fear of persecution on the Applicant’s part or that it indicated substantial grounds for believing there was a real risk he would suffer significant harm if he returned to Sri Lanka. There was said to be no reason on the Applicant’s evidence why he would be at risk of any disturbances which occurred at the restaurant, whatever the reason for such disturbance. It found that there was no risk (whether a real chance or a real risk) of any harm to the Applicant on the basis of problems of whatever kind occurring at the restaurant in the future.
Under the heading “Conclusions” the Tribunal found that the Applicant did not meet the Refugees Convention criterion or the complementary protection criterion. It affirmed the decision not to grant him a protection visa.
These Proceedings
The Applicant sought review by application filed in this Court on 30 October 2013. He filed an amended application on 17 April 2014. He did not file any affidavit evidence or written submissions prior to the hearing.
At the hearing (on 9 September 2014) the Applicant sought an adjournment of two to three months to obtain legal representation. An adjournment on this basis was refused. However, after I raised with Counsel for the First Respondent whether the grounds relied on by the Applicant gave rise to an issue as to whether the Tribunal had addressed an integer of the Applicant’s claims, being a claim by his advisor that he feared harm from the government and non-state agents and paramilitaries as a member of the particular social group of wealthy Tamils, the hearing was adjourned for a week so that this issue could be considered.
At the resumed hearing the Applicant sought to tender a bundle of documents and made oral submissions on a range of issues as considered below. In addition, the Applicant stated that a claim he made at the Tribunal hearing in relation to possible persecution by the EPDP had not been addressed by the Tribunal. He told the Court that he was “in the process of doing a transcript”.
Counsel for the First Respondent opposed leave being given to the Applicant to file a transcript. However, having regard to the potential relevance of any such claim to the issue of whether the Tribunal failed to consider a claim raised in the advisor’s post hearing submissions, I gave the Applicant leave to file and serve a transcript together with written submissions explaining why he sought to rely on the transcript. The First Respondent was given the opportunity to the file written submissions addressing any such material.
Notwithstanding that (when the Applicant appeared to indicate that he was preparing the transcript) I had endeavoured to explain to the Applicant the need for a transcript to be prepared by a professional transcript provider, the Applicant filed an affidavit affirmed by Jeganatchan Sinthathurai, who described himself as having the occupation of “business” and being “the friend of the Applicant” and stated that he filed the transcript of the Tribunal hearing. There was no explanation as to who prepared the Transcript.
Annexed to this affidavit was a document headed “Transcript”. However it is apparent that it is not a complete transcript. There are clearly omissions in the middle and at the end of the “transcript”. For example, this document records that in the middle of the hearing the Applicant provided an answer about the arrangements he made with travel smugglers to come to Australia in 2012 (p. 9). The next part of the “transcript” is what appears to be a completely unrelated answer from the Applicant to a question that is not transcribed (p.10). The “transcript” also ends abruptly after an answer given by the Applicant (p. 18).
The “transcript” also attributes to the Tribunal member a very poor standard of English, in contrast to the standard of English evident in the Tribunal’s written reasons for decision.
The Minister’s solicitors were given the opportunity to file written submissions addressing the material filed by the Applicant. However, by letter of 14 October 2014 they indicated that the First Respondent would not be filing any further written submissions.
This leaves the Court in the less than satisfactory position of having before it unchallenged affidavit evidence that does not identify who prepared the “transcript” and attaches what, on its face, is an incomplete and apparently inaccurate transcription of what was said during the Tribunal hearing. I give little weight to the patently incomplete transcript as an accurate account of all that occurred at the Tribunal hearing.
The Applicant did not file accompanying written submissions explaining his reliance on the “Transcript”. Rather, on the date by which he was to file submissions in reply (had there been further submissions from the First Respondent) he filed written submissions addressing the issue of whether the Tribunal failed to consider his “wealthy Tamil” claim. In support of this proposition he claimed that at the hearing his advisor was “prevented” from completing an oral submission and that “during my interview it was repeatedly indicated by me that my family was wealthy Tamil”. These issues are considered further below.
The Amended Application contains six grounds, but numbered grounds 1 and 2, which were in the original application, were deleted.
Ground 3, which is the first ground relied on, is as follows:
The Tribunal committed jurisdictional error misdirecting its inquiries in relations (sic) to the Applicant’s claim (and/or complementary protection claims).
Particulars
The Tribunal committed jurisdictional error by considering the previous clearance of involvement in particular events (previous arrests [CB184] at [84]; [CB185] at [85]) and subsequent releases in respect of both the Applicant and his brother (relating to the past events). The Tribunal failed to consider whether the Applicant would be suspected of links with the LTTE (whether or not actual links existed) and thus suffer harm.
The Tribunal conflated imputation on the past release without considering whether the Applicant would be imputed to be anti‑government and/or pro‑LTTE whether (instead conflating with the previous releases of the Applicant and his brother). The Tribunal also failed to consider the close relationship with his brother and the risk of harm from it.
While this ground is expressed as a claim that the Tribunal misdirected its inquiries, it appears to involve contentions that the Tribunal failed to consider whether the Applicant would be at risk of future harm on the basis of an imputed anti-government or pro-LTTE political opinion or because of his relationship with his brother.
However the Tribunal understood and considered the Applicant’s claims in relation to his relationship with his brother and also his claims that he would be imputed with a pro-LTTE political opinion. As set out above, after outlining its findings in relation to those claims in some detail, the Tribunal considered whether it was satisfied that there was a real chance (or real risk) of the Applicant being harmed in Sri Lanka because of, among other things:
… any imputed political opinion based on his previous residence in LTTE‑controlled areas during the civil conflict, or his brother’s history of being coerced to join the LTTE during the civil conflict, or the Applicant himself having been questioned and briefly detained after terrorist incidents during the civil conflict [was] so remote as to be insubstantial and farfetched.
The Tribunal found that the chance of the Applicant being harmed in Sri Lanka for any such reason was “so remote as to be insubstantial and farfetched”. The Tribunal accepted that the Applicant’s brother was likely to have been surrendered by his family to become a cadre of the LTTE during the civil conflict and detained in 2002. However it went on to find, for reasons which it gave, that from October/November 2007 on (after the Applicant had been questioned and released) he was not of any further interest to Sri Lankan authorities, whether by reason of his Tamil origin from Jaffna or his brother’s membership of the LTTE. The Tribunal also specifically found that the events in 2008 indicated that the Applicant was not suspected of any actual or imputed support for the LTTE, as did the events of 2009. It was open to the Tribunal to have regard to past events in considering whether there was a risk of future harm to the Applicant.
Moreover, it did not “conflate” consideration of the past release of the Applicant and his brother with the issue of whether the Applicant would be imputed to be anti-government and/or pro-LTTE. It did not simply have regard to such past events (in particular the fact that the Applicant had been released from detention), but also considered changed circumstances in Sri Lanka and independent information before it. The Tribunal found that while the Applicant may have been interrogated and briefly detained after terrorist incidents on suspicion of supporting the LTTE (and because his brother was a member of the LTTE during the civil conflict), it did not accept that by the time of the Tribunal decision he was of adverse interest because of what had happened in the civil conflict. It was satisfied that since the conflict had ended the Applicant was not suspected of being an LTTE supporter or sympathiser. It found (for reasons which it gave) that when the Applicant left Sri Lanka in 2012 he was of no adverse interest to the Sri Lankan authorities (including for any actual or imputed pro-LTTE political opinion). The Tribunal did not fail to consider whether the Applicant would be suspected of links with the LTTE. Nor did it fail to consider his relationship with his brother. This ground is not made out.
The next ground (Ground 4) in the Amended Application is as follows:
The Tribunal committed jurisdictional error by failing to consider all the integers of the complementary protection claims.
Particulars
The Tribunal found the Applicant and his brother has been previously arrested and released. The Tribunal failed to consider whether the Applicant would be at risk of harm owing to perceived and/or actual connection with the LTTE.
The Tribunal failed to address that persons who were previously apprehended and released would be treated differently in the circumstances where there was suspicion of LTTE link.
This ground takes issue with the Tribunal’s consideration of the complementary protection criterion. The Tribunal’s findings were expressed generally enough to encompass both the Refugees Convention and the complementary protection criteria. Contrary to the particulars to this ground, the Tribunal accepted the Applicant’s claim that he (and his brother) had been arrested and released prior to the end of the civil conflict. It considered whether this gave rise to an imputed pro-LTTE political opinion or to a risk of harm that was more than remote, insubstantial or farfetched. As set out above, the Tribunal also considered whether the Applicant would otherwise be imputed with a pro-LTTE political opinion or whether he would be perceived as an LTTE supporter.
The Tribunal considered and made findings in relation to both the Refugees Convention and the complementary protection criteria. It was of the view that the Applicant would not have been released in 2007 if any suspicion remained that he was a supporter of the LTTE. On the same reasoning, it found that when he was released in 2008 this was because no further suspicion (as to actual or imputed support for the LTTE) attached to him. Similarly, it found that the fact he was merely questioned in 2009 was strongly indicative that he was not suspected of or imputed with support for the LTTE. Relevantly, while the Tribunal accepted that the Applicant had been arrested and released prior to 2009, it found that he was not of any interest to Sri Lanka’s police or security forces for any reason when he left Sri Lanka on his own passport in February 2012 and that he was not a truthful witness. The Tribunal did not accept that the Applicant had been honest in claiming to have a genuine fear of harm in Sri Lanka at the time he left or if he were to return. It found that his claim to fear “persecution” or “harm” (the latter clearly involving the concept of “significant harm” in the complementary protection criterion) in Sri Lanka was not genuine in relation to the claims he made based on events during the conflict in Sri Lanka. It was satisfied he had fabricated his claims of being of interest to the authorities after the end of the civil conflict. Such findings clearly encompassed the Applicant’s claims about a fear based on actual or perceived links to the LTTE, both generally and having regard to his claims about past apprehension and arrest.
The Tribunal also addressed both the Refugees Convention criterion and the complementary protection criterion in considering the Applicant’s claims post arrival in Australia (which in part were said to be based on the same alleged interest in him by the authorities).
Insofar as the Applicant contended that the Tribunal failed to address a claim that persons who had previously been apprehended and released would be treated differently in circumstances where there was a suspicion of an LTTE link, it has not been established that the Applicant made (or that the material before the Tribunal squarely raised) a claim about the likelihood of future differential treatment of those previously apprehended on suspicion of an LTTE link and released. In any event, while the Tribunal accepted that the Applicant had been apprehended in the past on the basis of a suspected LTTE link, for reasons it set out in detail, it was of the view that he was no longer of interest to Sri Lankan authorities and that he was not suspected of being an LTTE supporter or sympathiser since the civil conflict ended and the LTTE had been defeated. Such a finding was sufficiently general to address the concern raised in this ground (see Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184). The Tribunal did not fail to consider an integer of the Applicant’s complementary protection claims. Ground 4 is not made out.
Ground 5 is that:
The Tribunal committed jurisdictional error by failing to constructively exercise its jurisdiction and failed to consider certain integers of the claim.
Particulars
The Tribunal assessed the claim as a failed asylum seeker. It fell into error when it failed to consider the involvement of the actual or suspected involvement of himself and his brother with LTTE and the previous real or perceived support for the LTTE. The Tribunal limited its consideration to failed asylum seekers and take into account all of the circumstances. The Tribunal did not consider the imputation from his Tamil race and that he was formerly from Jaffna but also from north of the country. The Applicant’s return from Australia (was conflated with travel to India where other considerations may apply to returnees) was not considered.
It appears that the first part of this ground is a contention that the Tribunal failed to consider all the integers of the Applicant’s claims on the basis that its consideration of his claim to fear harm as a failed asylum seeker did not take into account all of his circumstances, in particular the past suspicion of the authorities that he had LTTE links, his Tamil race and the fact he was from the north of Sri Lanka. This claim is not made out.
The Tribunal understood and addressed the fact that the Applicant was Tamil and the possible imputation of support for the LTTE on that basis. It found that persons were no longer at risk of harm simply because they were Tamils or because they had been resident in the north and east and had been forced to provide assistance to the LTTE during the civil conflict.
It is apparent from a fair reading of the Tribunal’s reasons for decision as a whole that the Tribunal had regard to the Applicant’s circumstances (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995) 185 CLR 259 at 271 to 272) in addressing his claim as a failed asylum seeker, as it stated. This is consistent with the context in which the Tribunal addressed the failed asylum seeker claim. However, having addressed the Applicant’s circumstances, including his Tamil race and previous residence in the north, it found that he was not of adverse interest at the time of his departure and would not become of interest solely by applying unsuccessfully for asylum.
This ground suggests that the Applicant’s return from Australia was “conflated” with travel to India and was not considered. Such a claim is not made out. The Tribunal understood that the Applicant claimed to fear harm as a failed asylum seeker who would be returning to Sri Lanka from Australia. However, it found that insofar as the Applicant may have claimed that he would be subjected to Sri Lankan laws applying to those who had departed the country illegally, that was not what had occurred. It had regard to the fact that when the Applicant had last left Sri Lanka in 2012 (to travel to Australia via India) he had done so on a passport in his own name and holding an Indian visa. Relevantly, it was satisfied that he departed Sri Lanka legally. Hence the Sri Lankan laws in issue would not apply to him. The Tribunal did not “conflate” the fact that the Applicant went to India when he left Sri Lanka with the fact that he would be returning to Sri Lanka from Australia. This ground is not made out.
Ground six is as follows:
The Tribunal failed to consider the Applicant’s social group.
Particulars
The Tribunal limited the consideration to failed asylum seeker. It failed to consider the entirety of the attributes such as Tamil from particular area and failed to consider the persons with past suspicion. The Applicant being from the north of the country and as a person of Tamil race was not properly considered as characteristics of a particular social group.
As particularised, ground 6 is not made out. In its terms it does not identify any social group. Rather it lists the Applicant’s characteristics related to his claim as a failed asylum seeker. As indicated in relation to ground 5 it is not a fair reading of the Tribunal’s decision to suggest that such characteristics were overlooked by the Tribunal.
However, in a written submission provided after the Tribunal hearing the Applicant’s advisor raised, for the first time, a clear contention that the Applicant was a member of a particular social group of “wealthy Tamils” or Tamils who were “perceived to be wealthy”.
In his written submissions to the Tribunal the advisor contended that, during the “interview” the Applicant had “repeatedly indicated” that his family were wealthy Tamils. In post-hearing submissions addressing this ground the Applicant reiterated this claim, again referring to his “interview”. Insofar as this was intended to be a reference to the Tribunal hearing (rather than the Departmental interview) the Applicant did not identify the part of the transcript in which such claims were recorded and it is not apparent from the incomplete “transcript” that he did expressly claim that his family was wealthy. Moreover, insofar as it is asserted that the advisor was “prevented” from completing oral submissions at the Tribunal hearing, the incomplete “transcript” does not support such a claim.
Nonetheless, the advisor’s written submission claimed that the Applicant was a member of the posited particular social groups which, it was suggested, had previously been accepted by the courts. The advisor referred to UNHCR Eligibility Guidelines of December 2012 which reported the involvement of pro-government paramilitary groups (in particular the EPDP and the TMVP) in criminal activities such as extortion, attacks, kidnappings and ransom collection, with the EPDP reported as being primarily active in Jaffna in the north. It was suggested that such activities appeared to stem from both political and criminal motives.
The advisor also drew the Tribunal’s attention to another Tribunal decision in which the Tribunal had accepted that independent information consistently indicated that paramilitary groups (including the EPDP) were active in the north of Sri Lanka and that those perceived to have an association with the LTTE continued to be at risk of being targeted by Tamil paramilitary groups. The advisor submitted to the Tribunal that the situation with regard to paramilitary activity in Sri Lanka remained unchanged. Relevantly, it was submitted that extortion could exhibit elements of personal interest and of Convention-related persecutory conduct and that, according to the Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1; [2002] HCA 14, where an individual was at risk of persecution (consisting of extortion) but not for a Convention reason, the fact that the State would not protect such an individual for a Convention reason was sufficient to bring the individual’s claim within the scope of the Convention.
On the basis of this material the advisor submitted that the Karuna group/TMVP continued to perpetrate serious human rights violations and engage in criminal activities such as extortion, attacks, kidnappings and ransom collection with impunity, including in areas of Sri Lanka considered relatively safe. It was therefore submitted that the Applicant was a member of the particular social group of Tamils who were wealthy or perceived to be wealthy and that as such he was at risk of being persecuted by government and non-state agents, including paramilitary groups, particularly the EPDP.
The First Respondent submitted that the advisor’s submission in relation to this issue was fairly brief and that, on the Tribunal’s account of the hearing, the Applicant did not actually allege any factual basis for such a fear, although it was acknowledged that he did mention he was in hiding from the EPDP, as well as from the CID.
It is the case that on the Tribunal’s account of the hearing (and having regard to the incomplete “transcript”) the Applicant did not allege a discrete factual basis for a fear of persecution as a member of the particular social group of wealthy Tamils or Tamils who were perceived to be wealthy. However, as the Tribunal acknowledged, he claimed to be a Tamil and made claims about his family’s circumstances at various times, including about his father’s payment of a large sum of money to obtain the release of his brother and about the family business as well as about his claimed fear of the EPDP (one of the suggested sources of persecution subsequently referred to in the advisor’s submission).
Further, the absence of an allegation of a discrete factual basis for this claim at the hearing is to be seen in light of the fact that the claim was raised for the first time in the advisor’s post-hearing submission. While the incomplete “transcript” does not support the advisor’s claim that he was prevented by the Tribunal from completing oral submissions (or that the Applicant “repeatedly indicated” that his family was wealthy), the post-hearing written submissions clearly raised an additional claim and described the basis for this claim and the entities feared (referring in that context to country information about the involvement of groups such as the EPDP in criminal activities such as extortion).
I am satisfied that in the post-hearing submission the advisor clearly raised a claimed fear of persecution on the part of the Applicant as a member of the particular social group of wealthy Tamils or Tamils perceived to be wealthy and, in that context, identified government and also non-State agents (particularly the EPDP) as the source of such persecution (see NADHv Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 830). Hence it was necessary for the Tribunal to consider this integer of the Applicant’s claims.
Indeed, the Tribunal understood that the Applicant made such a claim. In its initial summary of the Applicant’s claims, after describing the Applicant’s claims to fear the authorities as a Tamil suspected of involvement with the LTTE because of his brother’s involvement with the LTTE, the Tribunal went on to acknowledge that the Applicant claimed to fear harm:
..by Sinhalese people in his area because of his race (Tamil) and because of his membership of a particular social group (wealthy Tamils, or Tamils who are perceived to be wealthy). He claims to fear harm from the Sri Lankan government and by non-state agents and paramilitaries for these reasons. (Emphasis added).
Despite this acknowledgement, the Tribunal thereafter limited its consideration of the Applicant’s claims to those raised up to the time of and at the Tribunal hearing. In describing the material before it, the Tribunal referred, generally, to the “comprehensive and helpful” advisor’s post-hearing written submission, but it did not refer to the particular social group claims made therein.
While these references make it clear that the Tribunal was aware of the advisor’s submissions and of the claims made therein, it did not expressly address this aspect of the Applicant’s claims in its findings.
Counsel for the Minister submitted that the Tribunal’s findings that the Applicant did not have any genuine fear of harm even when he left Sri Lanka and that his claims about post 2009 events were not true did not indicate any basis on which the Applicant had any fear of harm for any reason at all, and that on this basis the issue of whether the Applicant was a member of a particularly social group or not just “fell away”.
It was submitted that the reasons should be construed on the basis that the Tribunal was aware of the claim, but rejected it implicitly because of the factual findings that the Applicant’s post-2009 claims were untrue and fabricated and that the Applicant did not genuinely fear harm of any kind when he left Sri Lanka for Australia or if he were to return. In particular, the First Respondent submitted that the generality of the Tribunal’s finding in relation to the Applicant’s lack of fear of harm was sufficiently wide to include the claim based on being a member of the posited particular social groups, as was its general finding that his claim to fear persecution or harm in Sri Lanka was not genuine.
Counsel for the First Respondent acknowledged that it was not entirely satisfactory that the Tribunal had not dealt expressly with this claim, but submitted, nonetheless, that having referred to the claim and to the written submission containing it, the generality of the language used by the Tribunal, particularly the generally expressed finding about an absence of any genuine fear of harm, meant that an implication could be drawn that the Tribunal had addressed this claim. It was contended that on a fair reading of the reasons for decision the Tribunal had found that the Applicant did not have a well-founded fear of harm or even a genuine fear of harm in Sri Lanka for any reason at all and that this excluded the possibility that he might have a well-founded fear of harm because of being a wealthy Tamil with some fear of extortion on that basis.
Reference was made to the remark in WAEE (at [47]) to the effect that while an inference that a Tribunal had failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons, such an inference was not to be drawn too readily where the reasons were otherwise comprehensive and the issue had, at least, been identified at some point. It was submitted that in this case the reasons were otherwise comprehensive and that the issue had been identified. It was also pointed out that in WAEE the Federal Court made it clear that it may be unnecessary for the decision-maker to make a finding on a particular matter because it was subsumed in findings of greater generality or because there was a factual premise upon which the contention rested which was rejected.
Reliance was also placed on SZNOE v Minister for Immigration & Citizenship [2012] FCA 96 in which Greenwood J stated (at [78]) that the principles of Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 did not require a Tribunal to consider whether the particular social group of which an Applicant claimed to be a member was a social group in circumstances where it had found that the Applicant did not hold a well-founded fear of persecution, as contemplated by the Act, for any Convention reason. His Honour went on to point out that unless the Tribunal made a jurisdictional error on the question of fact of whether the Applicant held a well-founded fear of persecution for any one of the contended reasons, no jurisdictional error would arise by the mere failure to identify and consider the precise social group to which the Applicant claimed to belong.
On this basis the First Respondent submitted that as the Tribunal had found that there was no well-founded fear and no subjective fear on the part of the Applicant, it was not necessary for it to consider whether the particular social group posited existed or not. It was submitted that the Tribunal had made findings of sufficient generality to exclude a possibility that the Applicant had a genuine or well-founded fear of harm based on his alleged membership of a social group of wealthy Tamils. (Also see the analysis of the law in SZSSQv Minister for Immigration & Anor [2013] FCCA 1762 at [31] – [49]).
It is the case that the Tribunal referred expressly to the Applicant’s particular social group claim in setting out a summary of his claims at the start of the reasons for decision and referred, generally, to the advisor’s post-hearing written submissions as comprehensive and helpful and as including extensive reference to independent information relevant to the Applicant’s circumstances and claims. It also made what, taken in isolation, might appear to be expressed as general findings that the Applicant did not have a well-founded or genuine fear of harm of any kind for any reason. However, the Tribunal findings are to be seen in context.
First, when the Tribunal summarised “the issues for resolution” it indicated that, for reasons it set out, it concluded that the decision under review should be affirmed and stated:
I am satisfied that the Applicant’s claims about events during the civil conflict in Sri Lanka are true, but do not, now, result in a well-founded fear of persecution or in a real risk of harm, and I am satisfied that his claims concerning events after the end of the civil conflict are not true, that he has fabricated those claims in order to obtain a protection visa.
However this was a finding about “events”. Whether or not the Applicant’s claims concerning past events were true, such finding did not encompass or suffice to address the claim made by the Applicant’s advisor that the Applicant feared persecution in the future from the Sri Lankan government, non-state agents and paramilitaries for reason of his membership of the claimed particular social group of wealthy Tamils or Tamils perceived to be wealthy. The particular social group claim enunciated by the advisor was not limited to a claim based on past events or put solely on the basis that the Applicant would be targeted (or denied protection) only because of a perceived or actual former association with the LTTE. Rather, it was asserted that paramilitary groups (including the EPDP) remained active and were engaged not only in targeting those perceived to have an association with the LTTE but also that they engaged in criminal activities, such as extortion, with impunity. The advisor also canvassed the possibility non-State agents or the State may act (or fail to act) for a Convention reason.
Secondly, the Tribunal did not discuss independent information relevant to this aspect of the Applicant’s claim. Indeed it stated at paragraph 52 of its reasons:
In addition to the material and sources cited in the written submissions provided by the Applicant’s solicitor, the following material is relevant to my decision in respect of the Applicant’s claim to be at risk of harm as a Tamil, or imputed, as a Tamil, to be an LTTE member or supporter, and as failed asylum seeker/involuntary returnee. (Emphasis added).
While the reference to material cited in the written submissions would include material cited by the advisor relating to the “wealthy Tamils” claim, the aspects of independent information discussed in the Tribunal decision related to the Applicant’s claims to be at risk for the reasons set out in paragraph 52 of the Tribunal reasons and did not include discussion of matters relevant to the Applicant’s claims to fear extortion and harm from a range of sources, including non-State agents, as a member of the asserted particular social groups.
The Tribunal did refer generally to the December 2012 UNHCR Eligibility Guidelines in a footnote, but it did so in relation to the Applicant’s claims to be an LTTE member or supporter. The Applicant’s claim (in the advisor’s submission) to fear persecution as a member of the particular social group of wealthy Tamils was not limited to wealthy Tamils who were also actual or imputed LTTE members or supporters.
Moreover and critically, it is notable that the Tribunal took the approach of dividing its findings into three categories:
a)findings on claims post-civil conflict
b)protection claims pre-civil conflict – findings
c)protection claims post arrival in Australia – findings.
It is the case that the Tribunal’s findings on the “claims post-civil conflict” are expressed in very broad terms. The Tribunal did not accept that the Applicant had been honest in claiming to have had a genuine fear of harm in Sri Lanka at the time he left or if he were to return and found that his claim to fear persecution or harm in Sri Lanka was not genuine. However it is apparent that such findings (in paragraph 79 of the Tribunal reasons) relate only to the claims based on events post-civil conflict. This is consistent with the fact that the Tribunal had earlier stated that such claims about events were not true and had been fabricated to obtain a protection visa.
It is clear from the first paragraph in this part of the Tribunal reasons (paragraph 69) that the claims that the Tribunal was addressing in this section of its decision were the Applicant’s claims that events after the civil conflict ended revealed that he was of interest to the Sri Lankan “authorities” because of an imputed pro-LTTE political opinion (whether because of his Tamil ethnicity or his brother’s previous association with the LTTE). It was in that context that the Tribunal found, based on its views about matters such as the Applicant’s prior travel, that he did not have any fear of returning to Sri Lanka in December 2010, and that as his claims to have been of interest to the Sri Lankan authorities predated his first departure and return to Sri Lanka, his voluntary return in 2010 indicated to it that he did not have “any fear of harm in 2010”. However, read in context, this finding is clearly a reference to the Applicant’s claimed fear of the authorities because of an imputed pro-LTTE political opinion. I am not satisfied that the Tribunal’s finding about whether the Applicant had “any fear” of returning to Sri Lanka or of harm in 2010 also addressed or encompassed his claim to fear harm as a wealthy Tamil in the future.
In this section of its reasons the Tribunal also found that the fact that the Applicant was able to depart Sri Lanka for India and then Australia in February 2012 on a passport in his own name was a strong indication that he was not of any adverse interest “to the Sri Lankan authorities”. In that context the Tribunal considered the Applicant’s claims that he was trying to “evade the CID” from late 2009 to December 2010 and after his return from March 2011 to February 2012. The Tribunal found that the Applicant left Sri Lanka in 2012, legally and on a passport in his own name because he was not of any interest to Sri Lanka’s “police or security forces” for any reason. Again, seen in context, such findings do not encompass the Applicant’s claims to fear future persecution, in particular extortion, as a wealthy Tamil. The Applicant’s post-hearing claim in this respect was that the authorities would not provide protection for a Convention reason in the future. However the essence of this claim was claim to a fear of extortion by non-State agents and paramilitaries (whether for criminal and/or political reasons). The Tribunal’s conclusion that the Applicant had not been and was not of adverse interest to the Sri Lankan authorities for any reason since 2009 does not suffice to address the Applicant’s particular social group claim.
It was in this context that the Tribunal found that the Applicant had fabricated his claims about events since 2009 and about having been of interest to the Sri Lankan authorities. The Tribunal was satisfied that the Applicant had not come to the adverse attention of the authorities for any reason after the end, in May 2009, of the civil conflict in Sri Lanka. However the Applicant’s claim to fear persecution as a member of the particular social group of wealthy Tamils was not based only on past claimed interaction with or attention from the Sri Lankan authorities (or indeed, on past interaction with the CID or the EPDP). Moreover, it was said to be a fear in relation to circumstances on return to Sri Lanka.
Given the limited nature of the issues being addressed by the Tribunal in this part of its findings, its conclusions (in relation to this part of the claims) that it did not accept that the Applicant had been honest in claiming to have had a genuine fear of harm in Sri Lanka at the time he left or if he were to return, and that his claim to fear persecution or harm in Sri Lanka was not genuine, clearly related only to those claims that were based on events that the Applicant said had occurred after the civil conflict and addressed his claim to fear the authorities because of an imputed pro-LTTE political opinion.
The Tribunal went on to address, separately, other bases for the Applicant’s claims and to make other (also generally expressed) findings about two other “categories” of claims. The second aspect of the Tribunal’s findings related to the Applicant’s “pre-civil conflict” claims. In this part of its reasons the Tribunal addressed the claims that the Applicant made about the impact of events before and during the civil conflict (that his brother was forced to join the LTTE, detained in 2002 and later left the family home and that the Applicant had been arrested in October or November 2007 and detained in 2008). All of these claimed events related to the Applicant’s claim to be an actual or imputed supporter of the LTTE based on such events. These were the claims about past “events” the Tribunal accepted were true. Seen in context, the Tribunal’s generally expressed finding in this part of its decision that the Applicant was not of interest to the Sri Lankan authorities was clearly a finding that addressed only the issue of whether he was of interest to the authorities for the reason of being suspected of, or imputed with support for the LTTE because of events before the end of the civil conflict.
In this part of its reasons the Tribunal did refer to the fact that the Applicant was a Tamil. However it did so only in the context of considering whether his race was such as to lead or contribute to an imputation of support for the LTTE. This is apparent from the Tribunal’s finding that it was satisfied that the Applicant was not suspected of being an LTTE supporter or sympathiser since the civil conflict ended and the LTTE were defeated. It did not address the issue of whether he was a wealthy Tamil or so perceived or whether he had a well-founded fear of persecution on this basis.
The findings that the Applicant was able to leave Sri Lanka on a passport in his own name because he was of no interest to the “authorities” and that when the Applicant left Sri Lanka he was of no adverse interest to the Sri Lankan authorities are clearly findings that relate to the Applicant’s claims of imputed or actual support for the LTTE based on civil conflict events. The finding that he was not of any interest to the Sri Lankan authorities since the end of the civil conflict was, as the Tribunal explained, a finding that related to the fact that the Applicant and his brother had been investigated and had been released. It addressed his claims that he was of interest to the Sri Lankan authorities as a Tamil originally from Sri Lanka, or for any actual or imputed pro-LTTE political opinion based on events during the civil conflict. Such findings did not address the posited particular social group claim. Moreover, they did not address the Applicant’s claim to fear harm from non-State agents or paramilitaries.
In this part of its reasons the Tribunal also addressed the Applicant’s claim to be at risk of harm for reason of being an unsuccessful asylum seeker (albeit that such claim was not based on pre-civil conflict events). However, this claim, like the other claims considered in this part of the reasons, was a claim to fear the Sri Lankan authorities. The Tribunal dealt with that claim on its merits.
The last two paragraphs of this part of the Tribunal’s findings in this section of its reasons are to be seen in light of the organisation of the Tribunal findings and the issues that were canvassed in each section. The Tribunal found first that the chance of the Applicant being harmed in Sri Lanka because of his Tamil race, or any imputed political opinion based on his previous residence in LTTE controlled areas during the civil conflict, his brother’s history of being coerced to join the LTTE during the civil conflict, or the Applicant, himself having been questioned and briefly detained after terrorist incidents during the civil conflict was so remote as to be insubstantial and far-fetched. There is no indication in this finding of any consideration of the “wealthy Tamils” claim and no consideration of the Applicant’s claim to fear non-State agents. However such finding is relevant to what, in isolation, would appear to be a very generally expressed finding in the next paragraph of the Tribunal decision to the effect that the Tribunal was “also” satisfied that the Applicant did not, when he left Sri Lanka, and did not now, genuinely fear harm of any kind if he were to return to Sri Lanka, and that he had fabricated his claims of being of interest “to the Sri Lankan authorities” after the end of the civil conflict.
The finding that the Tribunal was not satisfied that the Applicant genuinely feared harm of any kind if he were to return to Sri Lanka must be seen in light of the issues addressed by the Tribunal. Where, as here, the Tribunal has overlooked a discrete basis for the Applicant’s claim to fear harm in its findings and reasons, a generally expressed conclusion will not encompass such aspect of the claims.
I am not satisfied that, reading the Tribunal reasons for decision fairly and as a whole, the apparently generally expressed finding that the Applicant did not now genuinely fear harm of any kind if he were to return to Sri Lanka, is a finding which has taken into account or encompasses all of the asserted bases for the Applicant’s claimed fear, including his claim to fear harm as a member of the particular social group of wealthy Tamils or Tamils perceived to be wealthy. Moreover, seen in light of the reference to the fabrication of the claims “of being of interest to the Sri Lankan authorities after the end of the civil conflict” and the issues canvassed in this part of the findings, the Tribunal did not address the Applicant’s claim to fear non-State agents in this part of its findings.
Finally, the Tribunal considered the Applicant’s “protection claims post-arrival in Australia”. The Tribunal noted additional claims made by the Applicant that his sister had telephoned him and told him threats had been made against him, that a friend of his had been shot and killed and that the family’s restaurant had been attacked by Sinhalese residents. The Tribunal did not include in this notation of additional claims, the claims raised by the Applicant’s advisor based on membership of a particular social group. The Tribunal addressed the claim about threats being made against the Applicant. However those threats were said to be based on the same alleged interest in him by the “Sri Lankan authorities” for his brother’s history and an imputed political opinion on his part which the Tribunal had rejected as fabricated. Such findings do not address the particular social group claim, notwithstanding that the paragraph in which these issues were addressed concludes with the sentence “I am satisfied that the Applicant is not of adverse interest for any reason in Sri Lanka.” Again, such an apparently general finding is to be seen in context.
The Tribunal addressed the claimed incident in which the family’s restaurant was attacked. The Tribunal apparently proceeded on the basis that this incident had occurred, but did not see it as indicative of any well-founded fear of persecution on the part of the Applicant or as indicating there were substantial grounds for believing there was a real risk he would suffer significant harm if he returned to Sri Lanka. The Tribunal made these findings based only on the Applicant’s claim that he would be at risk on the basis of any disturbances or problems which occurred at the restaurant, not on the wider basis of the Applicant’s claim to fear harm as a member of the particular social group of wealthy Tamils or Tamils perceived to be wealthy. Further, the claims that the Applicant made about the restaurant were not claims of extortion as such, but rather that local villagers had attacked the shop when the family had not sold them cigarettes and that when the family did not make a complaint, the village people thought that his brother-in-law was afraid of them, and the family had lost business. The Applicant later claimed that this incident was because of the ethnicity of his sister and brother-in-law as Tamils, but the Tribunal’s acceptance that there was inter-ethnic tension is not such as to encompass the “wealthy Tamils” claim in the Tribunal’s conclusion that there was no reason on the Applicant’s evidence that he would be at risk of any disturbances which occurred at the restaurant, whatever the reason for such a disturbance. Moreover this aspect of the reasons does not address the Applicant’s claim to fear paramilitaries as a member of the posited particular social group.
I have borne in mind that, as stated in WAEE at [47], an inference that the Tribunal has failed to consider an issue should not be drawn too readily where the reasons are otherwise comprehensive and the issue has been identified at some point. While the Tribunal did initially identify the integer of the Applicant’s claims in issue and its reasons were comprehensive in relation to other aspects of the Applicant’s claims, I am nonetheless satisfied in the particular circumstances of this case, that the Tribunal fell into error in failing to deal with the integer of the Applicant’s claims that was raised in the advisor’s post-heading submissions to the effect that the Applicant feared harm as a member of the particular social group of wealthy Tamils or Tamils who were perceived to be wealthy. This conclusion is reinforced by the fact that the Applicant’s claims in this respect were claims that he feared persecution or harm as a member of the posited social groups not only from the Sri Lankan government but also from non-State agents and paramilitaries.
I am not persuaded that this is a case in which it was unnecessary for the Tribunal to make a finding on the Applicant fear of harm as a member of the claimed particular social groups because the issue was subsumed in findings of greater generality (cf. WAEE). The Tribunal’s findings in relation to a genuine fear were, as indicated, made in a particular context and related to particular aspects of the Applicant’s claims. They addressed his fear of the authorities based on past events. They were not of such width as to cover a well-founded fear of persecution for any Convention reason (cf. SZNOE). This is not a case in which the Tribunal’s reasons were sufficiently general to render it unnecessary for the Tribunal to make an express finding on the particular integer of the claims in question.
Insofar as the Applicant raised, in submissions, a contention that the Tribunal failed to address his claim to fear the EPDP, this was an aspect of the particular social group. The advisor’s submission referred to independent country information and to an earlier Tribunal decision in which the EPDP was said to have engaged in criminal activities such as extortion, abduction and ransom collection for both political and criminal motives. The Tribunal did not consider this aspect of the Applicant’s claim. The Tribunal’s failure to consider the particular social group claim is such that the matter should be remitted to the Tribunal for reconsideration according to law.
For the sake of completeness I note that insofar as the Applicant also intended to contend that there were other claims made by him in relation to the EPDP that were not considered, that has not been established. In considering the Applicant’s claims to fear the Sri Lankan government or its agents for reason of an actual or imputed pro-LTTE political opinion, the Tribunal addressed his claims about past events involving the EPDP and the claim that he had been in hiding from the EPDP as a group associated with the CID.
In addition, the Applicant tendered a number of documents said to support his claims. First, he claimed there was a case similar to his in which writs had issued where a businessman was involved whose income and subsistence had been affected. The case handed up was a copy of the decision of this Court in SZSWB v Minister for Immigration & Anor [2014] FCCA 765. However, as counsel for the First Respondent pointed out, the appeal in that case was successful (Minister for Immigration and Border Protection vSZSWB [2014] FCAFC 106at [68]). In any event, the fact that another applicant claimed to fear persecution because of incidents arising in the course of his business is not such as to indicate jurisdictional error on the part of this Tribunal.
The Applicant also handed up the first page of Paramananthan v The Minister for Immigration & Multicultural Affairs [1998] 160 ALR 24. In a broad sense this case may be seen as supportive of the Applicant’s case, insofar as Wilcox J found that the Tribunal had failed to make factual findings in respect of all the issues on which its decision turned. However the Applicant’s assertion that this case was helpful because the applicant in that case was a supporter of the LTTE who unsuccessfully sought asylum in Australia is not indicative of jurisdictional error on the part of the Tribunal in the present case.
Another case involving a Sri Lankan asylum seeker handed up by the Applicant was Nagaratnam v The Minister for Immigration & Multicultural Affairs [1999] FCA 176. It involved a claimed fear of persecution for reason of race and political opinion and considered the treatment of persons in detention. However it is not of direct relevance to the Applicant’s circumstances. The Tribunal in this case considered, but did not accept, the Applicant’s advisor’s claim that the Applicant faced the prospect of detention and then imprisonment for up to a year on the basis of his illegal departure from Sri Lanka, as it did not accept that he had departed illegally from Sri Lanka. No jurisdictional error is apparent in that respect. Insofar as the Applicant claimed that Nagaratnam was helpful because of some similarity in claims in relation to suspected support for the LTTE, any such factual similarity is not indicative of jurisdictional error.
The Applicant also sought to rely on a Sydney Morning Herald article of 6 July 2014 relating to the return of Tamils “after Australia accuses Sri Lanka of torture”. The Applicant acknowledged that this material was not before the Tribunal. His suggestion that this subsequent report contradicted the Tribunal’s conclusion is not indicative of jurisdictional error.
The Applicant handed up a copy of the report from an NGO, IMADR, which summarised the Applicant’s claims. This report was before the Tribunal. The Tribunal was aware of this document, the effect of which it summarised. Moreover it went on to consider the claims that were summarised in this document.
The Applicant also sought to rely on a report from the Colombo Telegraph. He acknowledged that this report post-dated the Tribunal decision. It was not before the Tribunal. It is, in any event, difficult to see how a report on threats posed to a trade unionist political activist and human rights defender by the commercial channel of the Sri Lankan broadcasting corporation is of any relevance to the Applicant’s claims. The Applicant also handed up a copy of an ABC online report of 5 July 2014 in relation to a warning by the Refugee Council that Tamil asylum seeker’s lives were in danger. Again this report post-dated the Tribunal’s decision and is not of assistance in establishing jurisdictional error.
The Applicant tendered a copy of an RRT research response dated 3 April 2009 in relation to whether people, especially elderly Tamil women who had been living overseas for an extended period, were assumed to be wealthy when they returned to Sri Lanka and were targeted for extortion for this reason, or targeted for having family abroad who were assumed to be wealthy. It was submitted that this document supported the Applicant’s contention that he had been directly adversely affected by the EPDP and that such groups were still mistreating and harming people in Sri Lanka. While this report predated the Tribunal reasons for decision, the mere fact that the Tribunal failed to refer to a particular item of country information is not, of itself, such as to demonstrate jurisdictional error. There is no suggestion that this material was put before the Tribunal. It was not referred to by the Applicant’s advisor, whether in support of the particular social group claim or otherwise.
Finally, in written submissions the Applicant submitted that the Tribunal fell into jurisdictional error by applying the incorrect test for serious harm under s.91R of the Migration Act and took issue with the Tribunal’s rejection of his claims post-civil conflict. There is nothing to indicate that the Tribunal applied the incorrect test. Insofar as the Applicant sought impermissible merits review, such claims do not establish jurisdictional error.
However as jurisdictional error has been established on the basis that the Tribunal failed to consider an integer of the Applicant’s claims, the matter should be remitted to the Tribunal for reconsideration according to law.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 2 April 2015
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