SZTMC v Minister for Immigration
[2014] FCCA 2354
•26 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTMC v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2354 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth) |
| NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 SZSQG v Minister for Immigration & Anor [2013] FCCA 612 |
| Applicant: | SZTMC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2700 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 26 September 2014 |
| Delivered at: | Sydney |
| Delivered on: | 26 September 2014 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 2700 of 2013
| SZTMC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a Tribunal decision dated 18 October 2013. The Tribunal affirmed a decision of delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant, a national of Sri Lanka, arrived in Australia in May 2012 as an irregular maritime arrival. In his entry interview he gave reasons for why he had left Sri Lanka. In connection with the protection visa application which he made in September 2012 he provided a further statement setting out why he left Sri Lanka and did not wish to return.
In essence, he claimed that he left because he was scared and had been harassed by the Sinhalese because he was a Tamil. He claimed that his father, a fisherman who fished in Trincomalee had regularly been beaten by the Sinhalese and abused for being a Tamil. The Applicant claimed his father had been attacked by Sinhalese men in March 2012 in Trincomalee and that after his father returned to their home in Udappu he was attacked by three Sinhalese men. The Applicant claimed that the next day some Sinhalese men had approached and attacked him and that they had been asking about him at his workplace, a prawn farm. He claimed he had gone into hiding before he left Sri Lanka, that the Sinhalese had visited his family home in April three times asking where he and his father were and that his father remained in hiding. He claimed he would be harmed by the Sinhalese and by the authorities who targeted Tamils.
The Applicant claimed generally that the situation for Tamils had barely improved and that they were treated as second-class citizens and were not safe anywhere in Sri Lanka. He expressed his claim as a claim by reason of his race. He also claimed to fear persecution as a member of the particular social group of failed Tamil asylum seekers.
In support of his application, the Applicant provided a copy of a letter dated 5 August 2012 said to be from a particular prawn project in Sri Lanka headed “Work Experiance and Recomnadation Letter (sic)”. The letter stated that the Applicant had joined the organisation as a volunteer trainee in December 2009, that he was appointed as an operations manager of particular projects in May 2011 and that he worked there until April 2012 and was responsible for “develop[ing] …project results”. The writer recommended the Applicant in the farm management field as intelligent and hardworking. The Applicant also provided other documentation. He attended an interview. However the delegate refused the application and the Applicant sought review by the Tribunal.
The Applicant attended two Tribunal hearings. The only evidence before the Court of what occurred in those hearings is the Tribunal’s account in its reasons for decision. In addition, the Applicant’s advisor provided written submissions to the Tribunal elaborating on the Applicant’s claims about his father’s work as a fisherman, mistreatment of his father, the Applicant’s claimed work as a prawn farmer and claimed attacks on and searches for the Applicant by Sinhalese men. The advisor also claimed that after the time of the delegate’s decision the Applicant’s mother had advised the Applicant that a group of Sinhalese men had come to their home asking for money on the basis that they knew the Applicant had travelled to Australia and the family must have excess money. It was claimed that the incident had been reported to the police who did not assist.
The advisor characterised the Applicant’s claims as based on his Tamil ethnicity and an imputed pro-LTTE political opinion because he was an ethnic Tamil. It was also claimed that the Applicant was a member of the particular social group of failed asylum seekers. The advisor referred to numerous items of independent country information. Claims were also made under the complementary protection criterion in the Migration Act 1958 (Cth). The advisor referred to the risk to deported failed Sri Lankan asylum seekers of being subjected to harm on return to Sri Lanka, in particular detention or imprisonment.
After the Tribunal hearings the advisor made further written submissions and provided further independent country information about treatment of detainees on return to Sri Lanka.
In its reasons for decision the Tribunal referred to the fact that the Applicant had attended an initial hearing in May 2013 and a further hearing in September 2013 and to his advisor’s oral and written submissions.
The Tribunal summarised the Applicant’s claims. Relevant to the grounds that the Applicant relies on in these proceedings, the Tribunal identified the Applicant’s claims that he was born in a particular area in Sri Lanka (Udappu), that his father was a fisherman who would often fish for a season in Trincomalee, that his father had been mistreated as a Tamil and in relation to the events involving the Applicant said to have occurred thereafter. The Tribunal recorded that the Applicant claimed that the harassment to which Tamils were subject was not localised in the Udappu area, but happened all over Sri Lanka. It recorded the Applicant’s confirmation in oral evidence that he had not had any problems with the Sri Lankan authorities in the past and that his claim was that he had been assaulted by Sinhalese (not the authorities) who were looking for his father. The Tribunal recorded that, among other things, it discussed with the Applicant whether there would be any problems for him if he were to return to his home area in circumstances where his claim was that there were only three people who had been after his family who had made three attempts over one year to harass his family or to look for him or his father. The Applicant claimed his area was surrounded by Sinhalese and if he went fishing the Sinhalese may decide to attack him.
The Tribunal also recorded that the second hearing had been held to obtain updates in relation to the Applicant’s situation and to discuss recent country information and that the Applicant had advised that no one had been searching for him or his family members since the earlier hearing, although his father remained in hiding.
In its findings and reasons the Tribunal did not accept that the Applicant was a witness of truth concerning his claims of past persecution of himself, his father or any other family member in Sri Lanka. It gave several reasons which led it to this conclusion.
First, the Tribunal stated that it had concern about the Applicant’s claimed history of working for a prawn farm which was said to be relevant to his claims that he had been attacked while travelling to that farm and that colleagues at the farm had assisted him to avoid the Sinhalese men searching for him. The Tribunal acknowledged that the Applicant had produced a letter from a particular prawn project which stated that he had joined as a volunteer trainee, had been operations manager of two prawn farm projects from May 2011 to April 2012 and that he was responsible for developing their project results. The Tribunal recorded that the Applicant’s oral evidence was that he had been promoted after one year of work experience, that he had supervised 15 men and that he had been responsible for three prawn farms.
However the Tribunal found that when he was asked about prawns and how a prawn farm worked, the Applicant’s evidence had been vague. Although the Tribunal acknowledged that the Applicant had provided some specific information, it considered that such information could have come from the fact that the Applicant’s uncle owned prawn farms. It had regard to the fact that the Applicant had been unable to provide more detail or to answer certain questions the Tribunal considered would be reasonable for a supervisor of three prawn farms (who had improved project results and performed very well in prawn farming) to know. The Tribunal gave examples of the Applicant’s lack of knowledge, including the fact that he said he did not know how long prawns lived or what type of prawns were being farmed, and the fact that his evidence as to the culture period for prawns was not consistent with information the Tribunal had before it about practices at the prawns project where he claimed he had worked. The Tribunal accepted that there could be variations between practices and what a particular company put on its website but considered that the Applicant’s lack of knowledge of certain matters and his evidence was inconsistent with that apparently advertised online by his claimed employer. It found that his explanation that he had just followed instructions and did not have to have knowledge was inconsistent with the description of his employment in the letter of support. The Tribunal found that this lack of knowledge undermined the Applicant’s claims that he had worked for the particular prawn project as claimed, that the letter was genuine and that he was attacked on the way to the prawn farm and assisted by colleagues at the prawn farm to avoid the Sinhalese who were after him.
The Tribunal also found, for reasons which it gave, that it was not credible that the Applicant’s mother was willing to approach the police after a demand for money and claimed threats of abduction, but that she had been unwilling to approach the police in relation to very significant and serious events when the Applicant’s father was severely beaten and the Applicant beaten and pursued.
In addition, the Tribunal found that the new claim that the Applicant’s mother was approached for money in early 2013 was not credible. It referred to the discussion of this claim at the Tribunal hearing and to some inconsistency and implausibility in the Applicant’s evidence as to when this event occurred and when the Applicant found out about it. The Tribunal’s concerns about this claim were heightened by the fact that while the Applicant’s evidence was that his mother and sister had moved out of the home because of these events, they were in fact living close by at his uncle’s house, despite claimed threats of abduction if they failed to pay a ransom. It also had regard to the fact that by the time of the second hearing in September 2013, the Applicant told the Tribunal his mother and sister had moved back to their home and that there had been no further approaches or problems since February 2013. The Tribunal was of the view that if anyone wanted to make enquiries about the Applicant or in any way harm his mother or sister, they had had ample opportunity to do so. It found that this evidence indicated that his claims were not true, and that even if the claims had been true, the evidence indicated that there was no remaining interest in the Applicant or in any other members of his family in the last six or seven months.
The Tribunal also had regard to the fact that the Applicant had provided vague, inconsistent and changing evidence in his written statement and at the hearing about the claimed attacks on his father. It referred to his evidence about whether or not he saw his father after he was attacked. In his written statement the Applicant had claimed that after his father was attacked by the Sinhalese he returned to his home in fear of his life and that he (the Applicant) was called by his mother and went home to see his father. However at the hearing the Applicant had told the Tribunal that he could not describe his father’s wounds because he did not see him personally after he was wounded but was at work 11 km away. The Tribunal recorded that the Applicant had failed to answer its questions about this inconsistency. The Tribunal considered that the Applicant’s evasive manner in answering questions in this respect and his inconsistent and changing evidence undermined his claim that his father was attacked and his mother asked him to come home for that reason.
The Tribunal also had regard to the Applicant’s inconsistent evidence about when his father went into hiding after he was attacked in Udappu and to the Applicant’s failure to explain this inconsistency. This was said to undermine his claims that his father was attacked and went into hiding. The Tribunal found that when the Applicant was asked to be more specific about the dates of attacks on his father, he had given confused and changing evidence. The Tribunal also found that the dates that the Applicant had given could not possible have been correct given his evidence about the time between the two attacks. It was not persuaded by the Applicant’s explanations for these aspects of his evidence. Its concern in this regard was heightened by the Applicant’s conflicting evidence about the dates of claimed visits of Sinhalese to the family home (which the Tribunal detailed). It also recorded that at the hearing the Applicant had been evasive about when the Sinhalese had visited and had eventually given completely different dates to those in his written submissions. The Tribunal considered that the Applicant’s confused and inconsistent evidence about dates relevant to significant events undermined his credibility concerning such events.
On the basis of these matters the Tribunal found that the Applicant was not credible in relation to his claims of past harm. It stated that it had taken into account the advisor’s submissions about the care to be taken in considering inconsistencies, but found that this did not overcome its concerns about the Applicant’s evidence.
The Tribunal took into account that the Applicant did have some knowledge about prawns, but also the fact that at the second hearing he had told the Tribunal that his uncle owned a prawn farm. The Tribunal considered it likely that the knowledge the Applicant did have about prawns came from his connection with his uncle. It did not accept that the letter from the prawn project was genuine.
The Tribunal also addressed the fact that one of the Applicant’s educational documents referred to his honesty. It found that this did not mean he had been honest in relation to the claims he made in order to stay in Australia. It had regard to his personal circumstances, including his relative youth, difficult experience in travelling to and settling in Australia and giving evidence, but also to the fact that he was educated, intelligent, and had been working in Australia. It considered that he had been able to present his case to the Tribunal adequately. It did not accept that there were factors before it that could explain the Applicant’s vague, inconsistent and changing evidence in relation to matters concerning his claims, other than because those claims were not true.
The Tribunal concluded that it did not accept that the Applicant was a reliable or credible witness in relation to his claims of past persecution of himself, his father or any other member of his family. It then made findings on the Applicant’s specific claims.
The Tribunal accepted that the Applicant was a Tamil male from Udappu and an intelligent and hardworking student who had completed his studies and also that he left Sri Lanka without the knowledge of the authorities. It was prepared to accept that the Applicant’s father was a fisherman and that as a Tamil fisherman he may have experienced some discrimination from Sinhalese in Sri Lanka. Based on country information about harassment of Tamils during the conflict in Sri Lanka, it was also prepared to accept that previously the Applicant had been harassed by Sinhalese because he was a Tamil.
However on the basis of the adverse credibility findings, the Tribunal did not accept that the Applicant’s father was regularly beaten and abused as a Tamil, whether as a fisherman or otherwise; that the father’s catch was stolen so that he was unable to provide for his family; that the father was badly attacked in March 2012 or at any other time in Trincomalee and/or in Udappu such that the father decided to run away and had gone into hiding where he remained. Nor did the Tribunal accept that, as the Applicant had initially claimed, the CID had ever come and asked about the Applicant’s father; that the Applicant worked at the prawn farm as claimed; that he was badly beaten or sought after or questioned by Sinhalese men on the way to or at the prawn farms; that his mother and sister had been threatened or questioned about the Applicant or his father; or that they had been asked for money or threatened with abduction.
The Tribunal did not accept that the Applicant or his family had been threatened or subjected to serious harm in Sri Lanka in the past as claimed. It found that it followed that none of his claims gave rise to a chance or risk of harm upon his return to Sri Lanka.
The Tribunal then gave detailed consideration (which for present purposes it is not necessary to recount in full) to the consequences for the Applicant returning to Sri Lanka as a person of Tamil ethnicity who left the country unlawfully at a time when he was not of adverse interest to the authorities or to anyone else. While acknowledging the Applicant’s Tamil ethnicity and evidence about a risk of harm to Tamils up to the end of the civil war in 2009, the Tribunal concluded that it was unable to be satisfied on the basis of available country information, that the Applicant would be at risk of persecution or significant harm on return to Sri Lanka “as a failed asylum seeker, or as a Tamil, or as a young male, from Udappu, or as the son of a fisherman, or considering those factors cumulatively”.
The Tribunal considered in detail country information about what was likely to occur to the Applicant on arrival at the airport in Sri Lanka as a failed asylum seeker who had left Sri Lanka unlawfully. It gave reasons for not accepting his claims about the treatment of Tamils, that Tamil fishermen were automatically treated as supporters of the LTTE or that his father had been suspected or harmed because of any perceived or actual connection to the LTTE. It considered the Applicant’s situation as a Tamil and the claims that he made in that respect. However it had regard to the fact that he was not within the profiles of those at risk of mistreatment on return as claimed. The Tribunal considered the conditions in detention in Sri Lanka and whether the Applicant would be more vulnerable, on remand or otherwise, because he was a Tamil or a Tamil failed asylum seeker from Udappu. It had regard to what it considered to be the length of likely remand if the Applicant was detained on return for having breached Sri Lankan law. The Tribunal considered that the Applicant, “a person of no profile (and no reason to impute him with a pro-LTTE or anti-government profile), no previous encounters with the authorities”, would be released within a few days. It pointed out that it was not considering the situation of all detainees, but rather of persons in the situation of the Applicant with his characteristics. It considered the evidence in light of the situation of this particular Applicant, including his age and his slight stature.
Having found that it did not accept that the Applicant had any profile or past history with the authorities, the Tribunal did not accept that he would be investigated or interrogated in detail on return to Sri Lanka. It found that he was likely to be questioned and would be held on remand for the minimum period of time, at most for a few days (like numerous other failed asylum seekers and returnees), but not for any significant period of time. It was not satisfied that there was a real chance that this Applicant would be subjected to significant harm while in such detention during the remand process or to serious harm because he was a young male, a failed Tamil asylum seeker from Udappu, the son of a Tamil fisherman, or because he left Sri Lanka in breach of the law, or as a person imputed with a pro-LTTE or anti-government opinion. The Tribunal acknowledged that if the Applicant were to be detained for any significant period of time, the situation might be different for him. However for reasons which it gave, it was not satisfied that there was a real chance or risk that this was so.
The Tribunal also considered the likely impact for the Applicant after release on bail (which it considered likely). It found that the evidence indicated that he and his family would be able to pay the fine likely to be imposed. It was not satisfied that he was likely to face persecution or significant harm on return to his village. It gave detailed reasons for that finding.
The Tribunal concluded that on the basis of the country information and its findings about the Applicant’s personal circumstances, it was not satisfied that he would suffer serious harm on return to Sri Lanka at the airport, on remand, when dealt with by the courts or on return to his village because he was a young Tamil male from Udappu, the son of a Tamil fisherman, or as a person of slight stature who had unsuccessfully sought protection in Australia, or because of his membership of the particular social group of failed Tamil asylum seekers returning from a Western country. It was not satisfied that the Applicant would be imputed with a pro-LTTE or anti-government political opinion. It found that it did not need to consider relocation because the Applicant could return to his village and carry on with his life in the same way that he had previously.
The Tribunal concluded that, considered individually and cumulatively all the information before it did not satisfy it that there was a real chance the Applicant would suffer serious harm amounting to persecution for any Convention reason.
The Tribunal also considered whether the Applicant would satisfy the complementary protection criterion as a young male failed Tamil asylum seeker of slight stature and whether he would be subjected to significant harm on return at the airport or thereafter or while in detention. It referred to its findings that it was not satisfied that the Applicant had been subjected to past harm in Sri Lanka (other than some harassment from Sinhalese during the war). It accepted that he would likely face arrest on charges of leaving the country illegally and that he could well be placed in remand for a relatively brief period while awaiting a bail hearing and also that he might later be fined. However the Tribunal was not satisfied that this would involve treatment that could be reasonably be said to amount to significant harm within the complementary protection criterion.
The Tribunal addressed the claim that the Applicant may face discrimination or harassment as a Tamil. It accepted that the Applicant may face discrimination or low-level harassment in his village, but was not satisfied that he would be exposed to harm amounting to significant harm for any reason when he returned to his village. The Tribunal found that the Applicant did not meet the complementary protection criterion. The Tribunal affirmed the decision of the delegate.
This Application
The Applicant sought review by application filed in this Court on 31 October 2013. He filed an amended application on 14 April 2014. He confirmed today that he sought to rely on the grounds in his amended application. He did not file written submissions. In oral submissions he briefly addressed the grounds in his amended application and other matters.
It is convenient to deal with the oral submissions first. The Applicant contended that the Tribunal found that Tamils in Sri Lanka did not have any problems. He appeared to take issue with such a view. However that is not quite what the Tribunal said. It acknowledged the concerns that were raised by the Applicant and the evidence before it in relation to what had occurred to Tamils during the war. It also acknowledged (in the context of addressing the risk to the Applicant on return as a failed asylum seeker) that being a Tamil could add an additional factor for those who had a risk profile. However it found that the Applicant did not have such a risk profile. The Tribunal was not satisfied that merely being a Tamil was such as to give rise to a risk of persecution or significant harm on return to Sri Lanka. Having regard to country information, the absence of any previous serious harm to the Applicant, the absence of any contact with the authorities and the fact he did not have an imputed anti-government or pro-LTTE opinion the Tribunal was not satisfied that being a Tamil in conjunction with the other personal characteristics of the Applicant was such that the Applicant faced a well-founded fear of persecution or significant harm within the complementary protection criterion. Such findings were open to the Tribunal on the material before it.
Moreover, contrary to the Applicant’s submission, the Tribunal did consider the specific issues he raised. It considered his claims about past events. As indicated, for detailed reasons which were open to it on the material before it, the Tribunal rejected the credibility of the Applicant’s claims about past harm to himself and/or his family. It also considered the Applicant’s specific personal circumstances in the context of considering his return to Sri Lanka as a failed asylum seeker.
In submissions in reply the Applicant raised an issue about the Tribunal’s consideration of the community of fishermen in Sri Lanka. It was contended that the Tribunal acknowledged that they had experienced problems, but that it had not specifically looked into his situation. Insofar as the Applicant took issue with the Tribunal’s rejection of his claims about his father’s past experiences, the Tribunal accepted that his father was a fisherman and that he may have experienced discrimination from the Sinhalese. However it rejected the detailed claims that the Applicant made about regular mistreatment and abuse of his father and the particular claimed attacks on his father in March 2012 and what was said to have occurred thereafter. In particular, the Tribunal considered the Applicant’s claims about what he said had occurred to him which (as indicated) it rejected on the basis of adverse credibility findings.
The oral submissions made by the Applicant do not establish jurisdictional error, either when considered in conjunction with the grounds in the amended application, or on their own.
As to the grounds in the amended application, the first and second grounds overlap. The first ground is that the Tribunal “did not look properly at all the attributes of social group”. The particulars are that the Tribunal “did not consider the characteristics of social group being young Tamil male from the particular area of part of Sri Lanka (Udappu/Trincomalee) instead the Tribunal looked at the young male from particular region”.
Ground two is that the Tribunal “did not properly look at the Applicant’s complementary protection”. The particulars are that it did not consider the Applicant’s circumstances, his “father’s sufferings being a Tamil and the risk the Applicant would face as young Tamil male from Udappu/Trincomalee area of Sri Lanka”. It is also claimed the Tribunal “failed to consider the Applicant’s ability to subsist and have a livelihood upon being returned to Sri Lanka”.
Neither of these grounds is made out. The Applicant did not make an express claim that he was a member of a social group of young Tamil males from Udappu/Trincomalee. Nonetheless, the Tribunal understood and considered the Applicant’s claim that he was a young Tamil male from Udappu. Indeed it accepted that aspect of the Applicant’s claim. It also considered, in the context of the Applicant’s claims about events on return to Sri Lanka, his claims based on his ethnicity as a Tamil, both alone and in conjunction with the fact that he was from Udappu. It accepted that the Applicant’s father was a fisherman. The claim in that respect was that the Applicant’s father fished in the Trincomalee area where he was regularly beaten and abused. That aspect of the Applicant’s claim – the beating and abuse (whether in Trincomalee or Udappu) – was not accepted by the Tribunal for credibility reasons.
In its reasons the Tribunal outlined the Applicant’s claims. It considered those claims in some detail, including those based on the Applicant’s race and ethnicity, both alone and in conjunction with other characteristics. The Minister’s submissions refer to numerous paragraphs in the Tribunal decision where such issues were considered. Not only did the Tribunal state that it had considered the Applicant’s ethnicity, it is clear from what appears in the decision that it did in fact do so. Thus, it considered the Applicant’s claims about the situation for Tamils generally in Sri Lanka, but rejected the contention that the Applicant had a well-founded fear of persecution for reason of his Tamil ethnicity, considered alone or in conjunction with all the other factors (which, it is clear from its earlier discussion, included the fact that the Tribunal recognised that the Applicant was a Tamil from Udappu). Indeed the Tribunal was of the view that the Applicant could return to his home area. The Tribunal made such findings both in relation to the Applicant’s claims about past events (which it found had not occurred) and also in relation to the situation for the Applicant as a (Tamil) returned failed asylum seeker. There is no substance in the Applicant’s claim that the Tribunal failed to consider his characteristics.
Given the nature of its findings it was not necessary for the Tribunal to analyse whether there was in fact a particular social group of young Tamil males from a particular area in Sri Lanka (as may be intended to be contended by the Applicant).
Insofar as the Applicant’s claim in relation to complementary protection takes issue with the brevity of the Tribunal’s discussion of complementary protection, that is to be seen in light of the fact that the Applicant claimed complementary protection on the same basis as his claim to meet the Refugees Convention criterion. The Tribunal had given reasons for its rejection of the claim that the Applicant had been subjected to past harm. It set out what it accepted were the likely consequences on return for the Applicant to Sri Lanka, having regard to the fact that he was a young male failed asylum seeker of slight stature. However it was not satisfied that this would involve significant harm. In these circumstances, the brevity of the Tribunal’s discussion of complementary protection is not indicative of jurisdictional error. The Tribunal did consider the Applicant’s circumstances. It also considered his father’s situation, but rejected most of the claims the Applicant made about relevant past events he claimed had occurred to his father. It set out the law in relation to complementary protection and considered the Applicant’s claims against this criterion. While the Tribunal did not repeat in detail its findings that the Applicant’s claims about past events were not credible, as it had already rejected the factual premise behind his claims, it was unnecessary for it to repeat such findings under the heading complementary protection (see SZSQG v Minister for Immigration & Anor [2013] FCCA 612).
In ground two there is also a specific claim that the Tribunal failed to consider the Applicant’s ability to subsist and have a livelihood upon being returned to Sri Lanka. I am not satisfied that such a claim was raised squarely on the material before the Tribunal as a separate integer of the Applicant’s claims in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263. In any event, even if it was, the Tribunal considered this issue in considering the situation for the Applicant on return to Sri Lanka. It noted that the Applicant had been able to succeed in his studies and in work. In considering whether he or his family would be able to pay any fine imposed for unlawful departure from Sri Lanka the Tribunal addressed the Applicant’s claims about his past earnings. It took into account the fact he could afford to buy passage on a boat to Australia. It found that this would indicate that he would be able to afford to pay the fine. The Tribunal also noted that the Applicant had not previously been subjected to harm by the authorities in his village and found that he could return to live with his parents in the village, could be supported by the parents and/or could obtain work himself. In these circumstances, there is nothing to support the contention that insofar as it was necessary to consider the Applicant’s ability to subsist and have a livelihood upon return to Sri Lanka the Tribunal failed to consider such matters. This ground is not made out.
Ground three is that the Tribunal “failed to consider the well-founded fear in [the Applicant’s] circumstances”. It is contended that the Tribunal “did not look at the threat and treatment from the authorities as I belong to a fisherman community who are considered as having imputed political opinion”.
As indicated above and contrary to this contention, the Tribunal did consider the Applicant’s specific situation. It acknowledged that the Applicant’s agent had suggested to the delegate that Tamil fishermen were automatically treated as supporters of the LTTE. However on the evidence before it the Tribunal did not accept either this claim or that the Applicant’s father had been suspected or harmed because of any perceived or actual connection to the LTTE. In other words, the Tribunal considered but rejected this aspect of the claims made for or on behalf of the Applicant. It went on to find, for detailed reasons, that the Applicant was not at risk of being imputed with an adverse political opinion against the government or of an affiliation with the LTTE in circumstances where he had no profile, there was no reason to impute him with such an opinion and he had no previous encounters with the authorities. In addition, the Tribunal found that the Applicant was not at risk due to being the son of a Tamil fisherman from Udappu.
To the extent that this ground seeks to raise a fresh claim based on the Applicant being a member of the community of fishermen, there is no evidence in the material before the Court that such a claim was raised expressly or arose squarely or clearly on the material before the Tribunal in the sense considered in NABE (No 2) (at [55] – [63]). In any event, as indicated, the Tribunal dealt with this aspect of the evidence, rejecting the suggestion that Tamil fishermen were automatically treated as supporters of the LTTE. This ground is not made out.
The last ground is numbered ground five in the amended application. It is a contention that the Tribunal denied the Applicant procedural fairness “by failing to squarely put to [him] the employment letter provided by the Applicant was not genuine and was a forgery”. Reference is made to paragraph 24 of the Tribunal decision in which the Tribunal referred to its discussion with the Applicant at the hearing.
The initial difficulty the Applicant faces with this ground is an evidentiary one. The Tribunal does not purport to give a complete account of what occurred at the Tribunal hearing in its reasons for decision. There is no transcript in evidence before the Court to evidence what occurred at the Tribunal hearing.
It appears that the Applicant is asking the Court to infer from the Tribunal’s summary of aspects of what occurred in the two hearings that the Tribunal failed to put a particular issue to him. However, particularly given the Tribunal’s account of its discussion with the Applicant about his work at the prawn farm, I am not satisfied that such an inference should be drawn. On the contrary, paragraph 24 of the Tribunal’s decision records what was apparently a rather detailed interrogation of the Applicant in respect of his claimed employment at the prawn farm from which he had produced the employment letter. The Tribunal noted that it raised its concerns with the Applicant about his claimed history of working for the prawn farm relevant to his claims about past events. Having regard to the issues that the Tribunal recounts that it asked the Applicant about and the concerns it said it put to the Applicant, it would have been readily apparent to the Applicant that the genuineness of his claims concerning his work and, hence, concerning the supporting letter, was in question. The Tribunal was not obliged to give the Applicant a running commentary about what it thought about all the evidence that it was given. Nor was it obliged to accept all the evidence proffered by the Applicant.
It is the case that in a Tribunal hearing the Tribunal is under an obligation to raise clearly with an Applicant critical issues on which a review may depend that constitute dispositive issues in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. It has not been established that it did not do so.
Moreover, there is no general rule that the Tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that a Tribunal has sufficiently alerted an Applicant to its doubts about the genuineness of documents submitted. In any event, in this case there is no transcript in evidence and on the Tribunal’s account of what occurred at the hearing, it clearly raised its doubts about the Applicant’s claimed history of working for the prawn farm as was said to be evidenced by the letter of support.
Moreover, the Tribunal considered the potentially corroborative evidence provided by the Applicant. It reached a conclusion that the letter was not genuine for reasons which it gave that were open to it on the material before it, in particular given its finding that it did not accept that the Applicant had worked for the particular prawn farm as claimed (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30 per McHugh and Gummow JJ at [49]).
In these circumstances, on the evidence before the Court it has not been established that the Tribunal fell into error, let alone jurisdictional error, in the manner contended for in ground 5 of the amended application.
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed. Before I make the order I will hear submissions in relation to costs.
The Applicant has been unsuccessful. There is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent. The First Respondent seeks fixed “scale” costs (in the sense referred to in Part 3 of Schedule 1 to the Federal Circuit Court Rules) in circumstances where the Applicant at the time of the directions hearing had the assistance of a direct brief barrister who, it would appear, may have assisted with the preparation of the amended application in which five grounds were reduced to four with a slight reformulation and an additional issue (or perhaps issue and a half) raised. The Applicant did not file written submissions. The Minister did (quite properly) provide helpful and appropriately detailed written submissions. That ought to be the case in every matter before the Court. However the issues raised in this case were not of significant complexity. The Applicant was not legally represented at the time of the hearing. The Minister was not called upon to respond to detailed written or oral submissions from the Applicant or from anyone acting for the Applicant. While I accept that this matter is not one of the most straightforward cases before the Court, I am not persuaded that compared to other matters it is such as to warrant an award of costs in the amount of the “scale”.
On balance, having regard to all the circumstances as best I can on the limited material before me and the nature of this and other similar matters, I consider that an appropriate and reasonable amount of costs in the present case would be the sum of $5,500.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 15 October 2014
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