SZTWX v Minister for Immigration - [2015] FCCA 1618

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWX v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1618

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicant a Protection (Class XA) visa – whether the Tribunal failed to take into account the full integers of the Applicant’s claim – whether the Tribunal failed to make a relevant inquiry – consideration of WZAPN issue – no reviewable error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2), 91R, 422B, 424A, 425

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Applicant S v Minister for Immigration and Multicultural Affairs (2003)217 CLR 387
BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Htun v Minster for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22
Minister for Immigration and Multicultural and Indigenous Affairs v SCAR(2003) 128 FCR 553
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189
SZIWY v Minster for Immigration & Anor [2007] FMCA 1641
SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14
SZTDY v Minister for Immigration and Border Protection [2015] FCA 303
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82

Applicant:

SZTWX

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 374 of 2014

Judgment of:

Judge Lloyd-Jones

Hearing date:

2 September 2014

Delivered at:

Sydney

Delivered on:

19 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr P Bodisco

Solicitors for the Applicant:

M Byers

Counsel for the First Respondent:

Mr J Kay Hoyle

Solicitors for the First Respondent:

Clayton Utz

The Second Respondent:

The Second Respondent filed a submitting notice.

ORDERS

The Application filed on 19 February 2014 and amended 21 August 2014 be dismissed.
The Applicant pay the First Respondent’s costs of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 374 of 2014

SZTWX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application filed in this Court on 19 February 2014 under the Migration Act 1958 (Cth) (the “Migration Act”) seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1219383, a decision of Tribunal Member J. Silva dated 16 January 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) to refuse to grant the applicant a Protection (Class XA) visa.
The solicitors for the Minister filed on 15 April 2014, pursuant to orders of the Court made on 26 March 2014, a folder which was indexed, labelled and paginated, containing all documents which may be relevant to the hearing. The volume of material provided has been identified as the Court Book (“CB”) and marked as Exhibit “A”.
The applicant was granted leave on 15 April 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which he sought to rely. The applicant filed:
a)The Affidavit of Jacqueline Zinck affirmed on 11 June 2014 and filed on the same day (the “Zinck Affidavit”); and
b)Written submissions on 21 August 2014.

Background

In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the parties. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.
The applicant is a citizen of Sri Lanka, of Tamil ethnicity. He arrived at Christmas Island as an Irregular Maritime Arrival (“IMA”) on 17 February 2012. On 22 June 2012, the applicant applied for the Protection visa (CB 15-105). It was accompanied by a statutory declaration setting out what the applicant claimed had happened to him in Sri Lanka (CB 100-105). The Delegate refused the application on 19 November 2012. She did so on the basis that Australia did not owe protection obligations to the applicant pursuant s.36(2) of the Migration Act.
On 7 December 2012, the applicant applied to the Tribunal for review of the Delegate's decision (CB 135-154). The applicant’s representative (a registered migration agent) provided written submissions dated 14 February 2013 to the Tribunal (CB 182-190). Subsequently, the applicant appeared before the Tribunal with his representative (CB 189-190). On 16 January 2014, the Tribunal handed down the Decision.

Current Proceedings

The two grounds of the amended application (filed at the hearing) plead (verbatim):
1. The RRT has failed to take into account the full integers of the Applicant’s claim
Particulars
a. By focussing on the issue of whether the Applicant would face harm at the hands of the Sri Lankan Government, the Tribunal has failed to deal with the full integers of the Applicant’s claim to face harm from non-Government paramilitary forces aligned to the Sri Lankan Government and as squarely raised by the applicant at various iterations of his claim (see for example (CB 10; 14; Transcript page 9);
b. By focussing on the issue of whether the Applicant was in the category of “former LTTE supporters who may never have undergone military training but were involved in sheltering or transporting LTTE personnel”, the Tribunal failed to deal with the claim that the Applicant had been subject to involuntary training by the LTTE.
2. The RRT has failed to make a relevant inquiry.
Particulars
a. Whilst acknowledging that it had received “no material to suggest that the Applicant has mental health issues”, the Tribunal referred the Applicant to the Minister on the basis that the Applicant “has been suffering from considerable mental strain including conditions that were exacerbated in detention”. [CB 216 at 77]
b. The letters requesting updated information from the Applicant’s advisors did not contain a request for any information regarding his mental status;
c. The failure to request any mental assessment of the Applicant subverted the obligation on the part of the Tribunal to observe procedural fairness.

Applicant’s Submissions

The applicant submits the first ground of the application turns on two propositions:
a)The first turns on the failure to assess the claim that the applicant would face harm from those paramilitary organisations aligned to the Government – as opposed to the Sri Lankan Government per se. In this light, the determinative significance placed by the Tribunal on the applicant’s ability to obtain a Passport is not relevant as to whether the applicant would face harm from those groups who are not actually a part of the Government – and yet it forms the necessary makeweight for the proposition that the Sri Lankan authorities were not targeting the applicant; and
b)The second turns on the failure by the Tribunal to make findings on the claim advanced by the applicant that he would face harm as a result of his involuntary training at the hands of the Liberation Tigers of Tamil Eelam (“LTTE”) during the war.
On page 9 of the Transcript, the applicant gave evidence that he feared harm from “paramilitary troops” and that he “does not know the group’s name” [Transcript, page 9]. He again confined his evidence that these groups were the “only reason” he feared harm [Transcript, page 9].
On page 11 of the Transcript, the applicant further gave evidence that he was recruited not because he was targeted by the LTTE, but rather they were recruiting from “each house” [page 11]. He later gave evidence of the training he received in 2006. [see Transcript, page 14]
At the outset, it is noted that the Tribunal accepted key integers of the applicant’s claim:
a)It was accepted that the applicant was born near Batticaloa, that he studies and practices jewellery in Colombo for a number of years, that he later worked as a jeweller in Jaffna before going to Qatar in May 2009 (CB 202 at [10]);
b)It was accepted that the applicant’s family lived in a camp in Munaittivu from 2006, and that the Applicant visited them there from time to time (CB 202 at [11]);
c)It accepted that his father was a jeweller, that the family owned two homes in Munaittivu (CB 203 at [21]);
d)It accepted that there had been a strong LTTE presence in the applicant’s home area of Kaluwanchikudy, and that the Sri Lankan government offensive against the LTTE in July 2006 affected their safety, causing the family to leave their homes and spend several years in refugee camps (CB 204 at [23]);
e)It accepted that the applicant grew up in a region that was under LTTE control, that both the Sri Lankan government and the LTTE contested, and that was sometimes subject to actual fighting (CB 205 at [24]);
f)It accepted that the applicant, as a young Tamil male growing up in this area, will have been the subject of some harassment (CB 205 at [24]); and
g)It accepted that he left Sri Lanka in November 2009 and that Sri Lanka’s political and security problems may have influenced this (CB 208 at [36]).
Notwithstanding memory issues faced by the applicant, the Tribunal accepted these facts on the basis of their consistency with third party reports and the findings that “his account of ongoing fighting and a fluid security situation is credible” (CB 205). It is also noted that the material findings above are consistent with the claim advanced by him that he had been the subject of involuntary training by the LTTE over the period of the war.
However, the Tribunal did not accept “that the Sri Lankan authorities (his claimed persecutors now) genuinely believed him to be a LTTE supporter at that time, or that there had been any other dealings that now cause them to suspect the applicant of being pro-LTTE (CB 206 at [28]). The Tribunal later returned to this proposition by affirming that it “places very little weight” on his decision to leave Sri Lanka in 2009 “as evidence that the Sri Lankan authorities or the LTTE had previously targeted him personally” (CB 208 at [36]).
The applicant submits that the propositions are co-extensive.
a)The applicant’s claim was that he was never a supporter of the LTTE;
b)The applicant’s claim was that he was forced, involuntarily, to engage in training with the LTTE; and
c)The Tribunal accepted that his area was under LTTE control, that he would have been the subject of harassment and that his account of a fluid security situation was consistent with this.
In giving determinative weight to the proposition that the applicant had not made out the claim that he had previously been targeted personally by the Sri Lankan authorities or the LTTE (see CB 208 at [36]), the Tribunal entered into a province of jurisdictional error:
a)The applicant’s claim was to the effect that he had been forced involuntarily to participate in training by the LTTE – not as a supporter but because he was “in the wrong place at the wrong time”;
b)The applicant was not in a position to give anything more than speculative evidence as to the state of minds of others or other organisations – namely the motivations of those who would persecute him in Sri Lanka; and
c)Under the complementary protection provisions, the applicant need not make out his claim that the anticipated harm would be “for reasons of” his membership of his race, religion or social group.
On the latter point, it is clear from the three paragraphs that deal with the complementary protection claim advanced by the applicant, the Tribunal effectively transposes the findings from the Refugee Convention assessment (s.36(2)(a)) to the analysis under the complementary protection provision (s.36(2)(aa)). It is also clear that it was accepted that the same factual foundation was relied upon for both provisions (CB 215 at [74]).
The applicant submits:
a)There is no requirement for the applicant to make out the proposition that he would be targeted by the Government or the LTTE – this would enter the area of motivations of the persecutors; and
b)In dealing with the applicant’s claims, the focus has entirely been on whether the applicant would face harm as a result of being targeted as opposed to whether he would be at risk of harm because he was “trained” by the LTTE.

Further, at paragraph [29] of the decision (see CB 207), the Tribunal gave weight to the applicant’s ability “to obtain and use a genuine Sri Lankan Passport in 2008” as “strong evidence that the Sri Lankan authorities do not suspect him of being associated in any way with the LTTE” ([CB 207 at [29]).
This finding conflates the claim to fear harm from the Government with the claim to fear harm from paramilitary groups aligned with them. It is clear that those paramilitary groups would not be able to influence the provision of a Passport to the applicant. The Passport issue is the subject of inquiry during the hearing (see Transcript pp.32-33). It is noted that questioning later regarding the Passport turns on the irrelevancy of where his Passport is, noting that as an asylum seeker, that applicant presumably did not anticipate using his Passport upon fleeing Sri Lanka (Transcript, page 35).
The applicant relies on the following propositions:
a)It is established in administrative law that a decision maker is required to correctly construe and consider claims (and component integers thereof) made by an applicant or apparent on the face of the material before him: Htun v Minster for Immigration and Multicultural Affairs (2001) 194 ALR 244 per Allsop J (with whom Spender and Merkel JJ agreed) at [42]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [22]-[24], [27] per Gummow and Callinan JJ; [88]-[89] per Kirby J; [95] per Hayne J; and
b)Further, the applicant submits that the Tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but extends to reviewing the delegate's decision on the basis of all the materials before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1.
In the instant matter, the Tribunal has failed to complete the exercise of jurisdiction embarked upon. It has dealt with matters not relevant to his claim, and in doing so has failed to deal with important integers of the applicant’s claim to fear harm from paramilitary groups and as a result of having been trained by the LTTE against his will.
The applicant submits the second ground of the application arises from a disconnection between the findings regarding the applicant’s mental status at [77] of the Decision Record (CB 215-216) – namely that the applicant was suffering considerable “mental strain including conditions that were exacerbated in detention” (CB 214) and that it “it observed nothing and received no material to suggest he has any mental health issues”. The applicant submits that this incongruity lies at the heart of the jurisdictional error relevant to this ground.
In Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553. In SCAR (supra) the applicant gave evidence to the Tribunal in a vague and confused manner. Unbeknown to the Tribunal, the applicant had recently received news of his father’s death and in the opinion of a psychologist was "in no condition to handle [the interview by the Tribunal]". This Court said at [33], [37]:
Pursuant to s 425 of the Act the Tribunal is under a statutory obligation to issue an invitation to an applicant to attend a hearing. That indicates a legislative intention that an applicant is to have an opportunity to attend an oral hearing for the purpose of giving evidence and presenting argument. The invitation must not be a hollow shell or an empty gesture: Mazhar v Minister for Immigration and Multicultural Affairs [2000] FCA 1759; (2000) 64 ALD 395 at [31]. ... On the other hand, it is also clear that s 425 of the Act imposes an objective requirement on the Tribunal. The statutory obligation upon the Tribunal to provide a ‘real and meaningful’ invitation exists whether or not the Tribunal is aware of the actual circumstances which would defeat that obligation. Circumstances where it has been held that the obligations imposed by s 425 of the Act have been breached include circumstances where an invitation was given but the applicant was unable to attend because of ill health: NAHF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 140; (2003) 128 FCR 359. They also include circumstances where the statements made by the Tribunal prior to the hearing have misled the applicant as to the issues likely to arise before the Tribunal: VBAB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 804; (2002) 121 FCR 100. They also include circumstances where the fact or event resulting in unfairness was not realised by the Tribunal. For example, circumstances such as where the applicant was invited to attend and did attend before the Tribunal, but was effectively precluded from taking part because he could not speak English and a translator was not provided or was inadequate: Tobasi v Minister for Immigration and Multicultural Affairs [2002] FCA 1050; (2002) 122 FCR 322; W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788.
The applicant submits that the present case falls within the principles and circumstances found in SCAR – noting those findings made at paragraph [77] of the decision. As stated by this Court in SZIWY v Minster for Immigration & Anor [2007] FMCA 1641 at [33], the applicant’s capacities as a witness were materially affected by mental impairments at the hearing, and that these were not taken into account by the Tribunal before concluding that the applicant was not ”a witness of truth”. This resulted in an unfairness, which establishes a breach of the Tribunal’s obligations under s.425(1). Further, the essential unfairness in this case, as in SCAR, arose from the Tribunal’s assessment of the applicant’s evidence given at the hearing as if he were a person without impairment: SZIWY v Minster for Immigration & Citizenship (supra) at [34].
Like in SZIWY, the applicant submits that jurisdictional error was attended upon the decision procedurally, in the sense that the Tribunal failed to consider whether to investigate the issue of the applicant’s mental capacities before reaching conclusions on the applicant’s evidence and completing its review.
As stated in SZIWY (supra) at [40]:
40. In the present case, the Tribunal made no inquiries into the concerns of the applicant’s solicitor, even obviously reasonable and readily available inquiries as to the medical records held by the Department of Immigration. It disregarded the issue of impairment raised before it, and proceeded to assess the applicant’s evidence unaided by any assessment of her possible impairments. In my opinion, this has resulted in jurisdictional error which vitiated its decision to affirm the delegate’s decision.

In the instant matter, the applicant submits that the propositions held by the Tribunal at [77] and [16] of the Decision Record are contradictory. As stated in Applicant S v Minister for Immigration and Multicultural Affairs (2003)217 CLR 387 at 413 [76], his Honour McHugh J said:
If the Tribunal had considered the issue that it was legally required to consider, it was open to the Tribunal to investigate whether such a perception existed, whether within the Afghan society or some section of it, or objectively. Indeed, arguably in the context of its inquisitorial process, the Tribunal had a duty to seek evidence concerning this vital matter.
In the instant matter, the applicant would submit, drawing on the reasoning of SZJBA v Minister for Immigration and Citizenship (2007) 164 FCR 14, that:
a)Here, the question was not whether the Tribunal should have undertaken some evidence gathering task. The failure here was to take a simple administrative step of an office or housekeeping nature, the failure to take which could be seen on its face at the time to subvert the observance of the Tribunal of its obligation to give procedural fairness by the giving of the s.424A letter, or by the operation of s.424, or by the general executive power. Division 4 of Part 7 is the statutory formulation of the giving of natural justice: see s.422B.
b)Given the importance of procedural fairness for the principles of jurisdictional error sourced in s.75(v) of the Constitution: see SZFDE & Ors v Minister for Immigration and Citizenship & Anor (2007) 232 CLR 189 at [32], any subversion of the process of the Tribunal is a matter of importance: SZFDE (supra) at [32].
c)It can be readily accepted that there is no general obligation to inquire found in s.424(7), nor is there a general obligation to initiate inquiries or to make an applicant’s case for him or her. The absence of such a general obligation of inquiry can be accepted, without denying the limited proposition supported by numerous other cases that, in certain exceptional cases, a failure to make some inquiry may ground a finding of jurisdictional error if it was plainly necessary to make some reasonably straightforward inquiry before the making of the relevant decision: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170.
d)The inference that arises from the inconsistency between those findings made by the Tribunal at [16] (CB 202) and [77] (CB 215-216) is that some mental strain was detected, and yet the procedures to explore the mental status of the applicant as deployed elsewhere (see CB 194) were simply not utilised to fashion a conclusion.
Analysis of the transcript reveals further anomalies.
The applicant notes that during the instant hearing, the advisor had not met with the applicant before the hearing (See Transcript, page 3). There was further an inordinate delay between the hearing on 30 January 2013 and the decision being brought down on 16 January 2014. Natural justice letters were sent on peripheral matters (CB 194). There were material findings that the applicant had been exposed to war and that his mother had died. The applicant had led evidence about his health. The applicant was asked repeatedly to relax during the hearing (Transcript, page 3). The applicant repeatedly stated that he had memory losses (Transcript, page 5). It was noted by the Tribunal during the hearing that his answers were “vague” (Transcript, page 15).
A fair reading of the transcript of the hearing leads to the inference that interchanges between the Tribunal and the applicant during the hearing may have been explained by the applicant’s mental status (see Transcript, page 17). On another occasion, the Tribunal noted that the applicant had not answered his question (Transcript, page 18). These exchanges may have been the product of poor expression, poor recollection, an inability to concentrate or nerves – that is, they may have been explained or exacerbated by the applicant’s mental conditions otherwise accepted by the Tribunal at [77] of the Decision Record (CB 215-216).
Ultimately, these exchanges were causally related to the ultimate findings against his credit.
In failing to inquire as to the applicant’s mental state, the Tribunal has failed to complete the exercise of jurisdiction in the circumstances of this matter.

Minister’s Submissions

The applicant filed an application in this Court for review of the Decision on 18 March 2014. The applicant now seeks to rely on an amended application due to be filed on 6 June 2014 but in fact filed on 21 August 2014, some 76 days late. The applicant filed the amended application at the same time as his written submissions, which were themselves two days late.
The applicant’s original application identified two alleged errors (a claim of bias and a claim that the Tribunal failed to provide a fair hearing in accordance with s.425 of the Migration Act) neither of which was particularised. The applicant no longer presses ground one of the original application having replaced it with an entirely different ground in the amended application. In respect of the s.425 claim, this claim is now particularised.
The Minister notes that the applicant was in flagrant breach of the Court’s orders in these proceedings. In light of the principles of case management identified by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, the applicant should provide an explanation for what, on its face, appears to be a wholly unwarranted delay.
The applicant’s case identifies two alleged errors made by the Tribunal. In essence these errors involve:
a)A failure to deal with the claim allegedly made by the Applicant; and
b)A failure by the Tribunal to inquire.
Both of these grounds cannot be made out and should be rejected. Each is dealt with in further detail below. In order to address the matters identified in the applicant’s first ground it is necessary to go into some detail about both the nature of the applicant’s claims and the reasons of the Tribunal in the Decision Record.

The written claims

In his IMA Entry Interview (CB 10), the applicant indicated that at one point the Sri Lankan Army had tried to kill him because they thought he was involved with the LTTE. He claimed that he was forcibly taken by the LTTE to be conscripted but that during a battle between the LTTE and the Sri Lankan Army the applicant had escaped. The Applicant identified other groups who may have harmed him but he could not identify them; he did, however, note that he thought they were “pro-government”. He stated that one of these groups, again unidentified, had searched for him because “the house next door to mine was previously used to store guns by the LTTE” adding that this occurred when the village “came under the control of the government”.
Later, in his statutory declaration, lodged with the Protection visa application, the applicant provided further details of his forced conscription (CB 100-105). He alleged that in September 2006 he was stopped at a check-point and forcibly conscripted into the LTTE. The applicant claimed to have escaped from the LTTE camp and then been detained again, taken to an LTTE training camp, and beaten and tortured when he refused to join the “struggle to fight against the government” (at [13]).
In the course of fighting between the LTTE and the Sri Lankan Army, the applicant escaped from the LTTE camp but was subsequently stopped by the Army. The applicant claimed to have been detained by the army as a suspected LTTE member and subsequently denounced by two other village people who had been tortured who claimed that there was a weapons storage in the applicant’s house. The applicant claimed that he, in turn, was tortured by the Army. The applicant then escaped again and after the Army captured his village he ended up in a refugee camp.
In late 2007, the applicant was advised by his father to leave Sri Lanka, one of his brothers having already done so. He claimed not to be able to do so for a year because of difficulties in getting his passport. Subsequently, in 2009, the applicant claimed to have left for Qatar having received a passport but then had to return because he became seriously ill (having been arrested and deported from Qatar for working illegally).
In the period after his return from Qatar, the applicant and his family were harassed by the police and the Army (having apparently been identified as someone from outside the district in which he was living as a result of a registration system that had been introduced). The applicant spent some time in hiding in Trincomalee as he claimed that he could not return home to Jaffna. The applicant stated that his family were harassed because “they said we had given the house to the LTTE”. The applicant claimed that the Army continued to harass his parents. However, the “they” in this sentence was not identified. The applicant claimed that he eventually paid, with the help of a surety, a people smuggler to take him on a boat to Australia.
In his statutory declaration, the applicant claimed, relevantly, to fear his “forcible conscription to the LTTE” which he appeared to equate with an imputed political opinion (at [40]). He added that the state could not offer him protection because the “army is the government” and the army would pursue him. The statutory declaration did not address any fear arising from harassment by paramilitaries.
In her written submissions (CB 182-190), the applicant’s representative identified the grounds on which the applicant sought protection as his Tamil ethnicity, his imputed political opinion as a person perceived to be a supporter of the LTTE and his membership of a social group of failed asylum seekers and those imputed with affiliations to the LTTE. The submissions, which were provided after a hearing before the Tribunal, sought to address, in a general manner, the credibility concerns that had been expressed by the Tribunal. In addition, the submissions identified a range of country information on which the applicant relied, in particular with reference to evidence of torture carried out by the military and police following the end of the conflict and the risk to Tamils who have an actual or perceived association with the LTTE. They did not address fear arising from harassment by paramilitaries.

The oral evidence before the Tribunal

The hearing before the Tribunal addressed a range of matters including a number of significant concerns that the Tribunal had over the credibility of the applicant (Zinck Affidavit). The applicant stated that his village was now under Government control and that the group he claimed to fear was what he described as “paramilitary troops” (at Transcript 9). The applicant could not name the paramilitary troops that he feared. The Tribunal then went on to examine the applicant’s claims about his forced recruitment (or attempted forced recruitment, given that the applicant claimed to have escaped on six or seven occasions) and his treatment by the Army. The applicant stated that he was accused by the Army of storing weapons for the LTTE (at Transcript 21).
The Tribunal noted with the applicant the difficulties that it had with the suggestion that someone who was suspected of being an LTTE supported or had problems with the Sri Lankan government could get a passport and travel on a number of occasions outside Sri Lanka (at Transcript 25). The applicant replied that this was in fact what really happened.
The Tribunal returned to the issue of problems that the applicant had with paramilitary groups. In the course of the discussion the Tribunal asked a question linking the activities of the paramilitaries with the Sri Lankan Army (at 34) and the applicant replied “the army and the paramilitary group they work together”. This was in the context of an exchange about the applicant’s claim that he feared he would be shot if he returned to Sri Lanka (although the applicant never made it clear by whom he would be shot). Subsequently, the Tribunal asked the applicant whether his fear included that the “authorities or the paramilitary groups will suspect that you are a supporter of the LTTE and mistreat you” (at Transcript 46). The applicant agreed with that characterisation.
When the applicant later stated that he and his family were suspected of assisting the LTTE because of the weapons allegedly stored at their house, he confirmed that it was the government that suspected them of this (at Transcript 49).

Tribunal’s decision

The Tribunal accepted certain aspects of the of the applicant’s claims but in the context of a number of other significant adverse findings about the applicant’s credibility. In particular, the Tribunal found that the applicant had obfuscated and embellished his evidence.
Based primarily on consistency with country information (to which the Tribunal referred extensively), the Tribunal accepted that:
a)A young Tamil man in the Eastern and Northern provinces of Sri Lanka, during the period in which the Sri Lankan government and LTTE forces were in conflict, would have had contact with both Government forces and the LTTE and would have been subject to harassment or other adverse attention from both groups;
b)The political and security situation in Sri Lanka may have motivated the applicant to move from place to place within Sri Lanka;
c)The political and security situation in Sri Lanka may have influenced the Applicant to travel to Qatar and to try to remain in Qatar;
d)Tamils were at risk of serious harm in the Northern and Eastern provinces of Sri Lanka by reason of their ethnicity during the height of the conflict in Sri Lanka during 2006 and 2007. The applicant may have been subject to brief periods of detention during this period, as well as interrogation and abuse; and
e)Tamils throughout Sri Lanka, particularly in the North and East, continued to face discrimination.
However, the Tribunal did not accept that the applicant had a relevant risk of harm if he returned to Sri Lanka. It did so for a number of reasons, some of which are dealt with in more detail below.
First, although the Tribunal accepted that the applicant and his family had to flee from their home in 2006 and that the family lost one of its two homes in the village it noted that they were able to return to the village and work as jewellers. Furthermore, the applicant was able to work in Jaffna and visit his family during the height of the conflict although the Tribunal accepted that the applicant may have suffered brief periods of detention or interrogation. As a result, the Tribunal did not accept that the Sri Lankan authorities had any past or ongoing suspicion of the applicant as an LTTE supporter or that the authorities believed him to be an LTTE supporter or suspected the applicant of being pro-LTTE (at [26]-[28] CB 205-206)).
Secondly, the Tribunal had significant difficulties with the applicant’s evidence about his passport. The Tribunal noted the inconsistent nature of the applicant’s evidence, in particular the applicant’s reference to having to change the spelling of his name (which the Tribunal inferred was to avoid detection by the authorities) that he later claimed was not necessary. The Tribunal also rejected a claim by the applicant that he had to engage an agent to bribe officials or undertake other measures to secure his passport. The Tribunal was not satisfied that the applicant would have been able to secure a passport if the authorities believed that he had an active association with the LTTE (at [29]-[34] (CB 207-208)).
Thirdly, the Tribunal did not accept the applicant’s claims to have been harassed because of his supposed familial links as it found those claims to be vague and not a complete and reliable account of his experiences in Sri Lanka (at [41] (CB 209)).
Fourthly, the Tribunal addressed what it described as the applicant’s claims, made in his departmental interview and during the Tribunal hearing, that the “army and paramilitaries now have orders to shoot him on sight” apparently because of the storage of weapons for the LTTE at the family’s second home. That claim was rejected because the Tribunal did not accept that his family supported the LTTE or that the Sri Lankan authorities would suspect of him that support (at [44] (CB 210)).
Fifthly, the Tribunal dealt with the claims of imputed political opinion based on perceived affiliation with the LTTE. The Tribunal was not satisfied that “the Sri Lankan authorities or anyone have in the past, or would in the reasonable foreseeable future, impute to the applicant a pro-LTTE political opinion” (at [52] (CB 211)). The Tribunal did consider that certain forms of “elaborate link” as identified by the UNHCR could give rise to protection obligations. That included individuals sheltering personnel or supplying transport or goods for the LTTE. However, the Tribunal rejected a major pillar of the applicant’s claims – namely that he and his family had kept weapons for the LTTE – as not credible. The Tribunal concluded that that there was nothing in the applicant’s “circumstances as a whole” that suggested that the applicant would be imputed with pro-LTTE political opinion (at [55] (CB 212)).
The Tribunal concluded, in broader and more general terms (and clearly by reference to all of the material contained in the Decision Record and the claims considered by the Tribunal) that there was no real chance of the “Sri Lankan authorities, paramilitaries, unlawful elements or the general population inflicting serious harm” (at [72] (CB 215)).

Ground 1: failure to deal with a claim

The applicant’s case seemingly rests on two propositions identified in his written submissions as apparently constituting claims made by the applicant that:
a)The applicant faced harm from “non-governmental paramilitary forces aligned to the Sri Lankan government”; and
b)The applicant had been subject to “involuntary training by the LTTE”.
In general terms, it should be noted that the applicant must, amongst other things, be able to show that the nature of the claims have been properly characterised as one actually made in the form contended for and also must be able to show that the Tribunal failed to deal with those claims. To that extent, no issue of legal principle arises in the present case: the authorities relied upon by the applicant provide that, in appropriate circumstances, it may be possible to support a claim for jurisdictional error based on a failure by a tribunal to deal with a clearly articulated claim or one that is properly available on the material before the tribunal. The critical question is whether any such issue arises in the present case. It is submitted that it does not.
The propositions on which the applicant relies are dealt with in the reverse order in which they appear in the applicant’s amended application and written submissions.

Involuntary training

It is not always clear from the applicant’s written submissions what point is being made about the claim of “involuntary training”. The applicant’s written submissions tend to run together the first and second particulars when they appear, on the applicant’s scheme, to be conceptually distinct.
The applicant’s actual claim, as clearly identified by his representative in her written submissions and in the applicant’s own statutory declaration, was that he would be imputed with an opinion that he was affiliated with, sympathetic to, or supported the LTTE (and, it might added, such an imputed opinion may have extended to an inference that such an individual would actively assist or help the LTTE).
It may be accepted that the applicant provided evidence that purported to show that he was forced to spend time at LTTE camps and was tortured and abused in an attempt to intimidate him into joining the LTTE. It may further be accepted that the applicant’s evidence referred to him being forced to stay for a short period in an LTTE camp where he was required to undertake certain exercises (although it is a matter of debate whether this could properly constitute “training”). However, this was not the applicant’s claim. Rather, it was evidence that, assuming it were to be believed, potentially supported the claim that the applicant would be imputed with the requisite political opinion that he was affiliated with or sympathetic to the LTTE. The applicant’s argument is a category mistake, not a basis for jurisdictional error.

The nature of that error becomes apparent when the use of the word “supporter” is considered. The applicant states that he was forced “involuntarily” into training with the LTTE and “not as a supporter but because he was ‘in the wrong place at the wrong time’”. The difficulty with this formulation is that it is question-begging: it presupposes that there was a meaningful distinction between different types of claim based on whether you were actually a supporter or merely someone perceived to be a supporter. In fact, there was no such distinction, nor could there be. For the purposes of the applicant’s claim it mattered not whether you were actually a supporter or not so long as what had occurred to the applicant showed that the applicant would be imputed with the connection with the LTTE.
The critical link in the applicant’s claim was between what happened to him and the imputing to him of particular political opinions. That link was fatally undermined by the Tribunal’s credibility findings; the Tribunal did not believe that the matters on which the applicant relied in order to form the foundation for the imputation had actually occurred in the way asserted by the applicant. The critical elements of the applicant’s story were disbelieved.

Non-governmental paramilitary forces aligned to the Sri Lankan government

The essence of the applicant’s argument in relation to the first particular of Ground 1 appears to be that the Tribunal did not adequately consider or engage with the claim made by the applicant that he feared harm from paramilitary forces aligned to the government
Such a characterisation portrays both the applicant’s claim and the Tribunal’s assessment of that claim in a manner that is overly simplistic. The matters referred to by the applicant in relation to the paramilitary risks are not readily divorced from the totality of the applicant’s claim. By doing so, the applicant confuses an aspect of the applicant’s claim with the claim itself. This is so for a number of reasons.
First, it cannot be doubted that one significant, indeed predominating, element of the applicant’s claim was that he feared harm at the hands of the Sri Lankan Army and, by extension, the Sri Lankan Government. His entire statutory declaration was directed to that topic (the issue of paramilitaries was never mentioned in that context) and he returned to it on numerous occasions during the hearing before the Tribunal. One critical aspect of the applicant’s claims was the issue of weapons storage for the LTTE at his family’s home; the applicant clearly indicated that it was the Government and the Army that he feared in that regard.
This explains a number of aspects of the Decision Record of which the applicant complains – notably the findings in relation to the issue of the passport, which were directed not to any issue to do with paramilitaries (as it necessarily could not) but rather the more significant issue of harm from government. It is an entirely unsurprising conclusion that the Tribunal might not have been persuaded that the applicant was perceived to be (i.e. imputed to be) an LTTE sympathiser if the applicant could freely travel in and out of Sri Lanka on multiple occasions.
Secondly, the applicant at no stage clearly delineated the nature of the paramilitary groups that he feared or their separation from the government and the Army as a source of harm. Despite a number of invitations to do so, the applicant could not name any of the groups that he claimed to fear and during the hearing he indicated that the paramilitary groups – described by the applicant at other times as “troops” – worked together with the government. In this respect, it is clear that the events on which the applicant primarily relied in order to support his claims were his treatment at the hands of the Army and the government, not the paramilitaries. Indeed, the applicant at no stage identified any conduct by paramilitaries except for the general evidence that pro-government groups once came to his village looking for people.
Thirdly, it is in that context that the applicant’s fears in respect of the paramilitary groups is best explained. The applicant did identify his fear that if he returned to Sri Lanka he would be at risk of being shot on sight by the Army or the paramilitaries. The Tribunal dealt with that aspect of the applicant’s claim and rejected it, principally on credibility grounds (the Tribunal having not accepted that his family was required to, or did, store weapons for the LTTE).
Fourthly, the applicant’s claimed fears arose from his being perceived to be affiliated with, sympathetic to, or supporting the LTTE. The applicant drew no meaningful distinction between the sources of the harm arising from that perceived link with the LTTE qua his claim; the government, the Army and the paramilitaries all, in some way or other (often not clearly identified by the applicant), were, on the applicant’s evidence, likely to be harmful to him based on his perceived links with the LTTE. The Tribunal dealt with the particular aspects of the applicant’s case as they arose on the evidence in relation to each of the government, Army or paramilitaries but all to the same end: consideration of the applicant’s case that he would come to harm as a result of the events that led to him being imputed with the opinion that he was an LTTE supporter. It was in this context, that the Tribunal, in its conclusion set out at [72] of the Decision Record (CB 215), stated that there “was no real chance of the Sri Lankan authorities, paramilitaries, unlawful elements or the general population inflicting serious harm…”.
It should be noted that the applicant complains about the use of the term “targeted” in respect of the applicant because it involves speculation about the minds of others and the motivation of those seeking to persecute the applicant. That submission should be rejected. The use of the term “targeted” in this context does not indicate a mental state but rather it describes the consequence for the applicant of being imputed as someone who was a supporter of, or affiliated with, the LTTE. The whole point of the applicant’s case is that because of the association with the LTTE – albeit one that was not voluntary on the part of the applicant – the groups who were against the LTTE would identify the applicant as someone who would be the subject of attention – in other words, “targeted” in the way that the applicant’s own evidence suggested. The applicant’s risk of being targeted was a consequence of, and reflective of, the risk of harm arising from his forced “training” with the LTTE. To suggest otherwise, as the applicant does in [22] of his submissions, is to identify a false contrast.
For all of the reasons identified above, Ground 1 fails.

Ground 2: failure to inquire

This ground is based on a simple, and fatal, misconception.
The gravamen of this ground is an alleged “disconnection” between the alleged findings at paragraph [77] of the Decision Record (CB 215-216) – that the applicant was suffering considerable mental strain including conditions exacerbated in detention – and the Tribunal’s observation at [16] (CB 202) that it had no evidence to indicate any mental health issues. According to the applicant, this “incongruity” lies at the heart of the jurisdictional error that is alleged.
There is no disconnection and no incongruity: the Tribunal did not make any finding in [77] of the Decision Record (CB 215-216) about the applicant’s mental state. Rather, the contents of that paragraph are a summary of the applicant’s own submission about his mental state as a careful reading of the second sentence of that paragraph clearly shows. The Tribunal wrote that “It does so on the basis that ‘the applicant has been suffering from considerable mental strain…’”. The “it” in this sentence refers back to the applicant’s written submissions not the Tribunal’s decision to do something (as the quotation from the applicant’s submissions makes clearer still).
It follows that [16] (CB 202) was a finding open to the Tribunal. As [32] and [36] of the applicant’s written submissions indicate, the alleged contradiction was the critical foundation of the applicant’s argument. The applicant cannot succeed on this ground.
It should be noted that the applicant also refers to some other alleged “anomalies” based on the transcript. Most of these matters are not germane to the point raised by the applicant. For example, the delay in rendering the Decision Record could have no significance unless one assumed that the applicant had mental health problems; again, the approach is question-begging. The evidence that the applicant led about his health related to his physical health, not his mental health. Vague answers from an individual who cannot remember critical matters about his story are just as easily explained on credibility grounds as mental health grounds, particularly in the absence of any other evidence suggesting such mental health issues.
One further matter should be noted. The applicant relies on a wide range of authorities. Those authorities are essentially directed to the issue of whether the Tribunal was required to take further steps to inquire as to the applicant’s mental status. Whilst some of these authorities may, in appropriate circumstances, provide insight into a potential jurisdictional error by a tribunal they do not do so in this case. That is because, for the purposes of the current proceedings, these authorities should be read in light of a decision that the applicant does not mention: that of the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429. The approach of the Court in that case indicates that it will only be in a very narrow set of circumstances, if ever, that a tribunal will be required to inquire or investigate a matter (in the usual case, where the Tribunal failed to make an obvious inquiry about a critical fact that was easily ascertained).
For the reasons note above, that could not possibly be this case and Ground 2 must fail.

Conclusion

For the reasons outlined above, the Decision Record discloses no jurisdictional error. The Minister submits that the application for judicial review should be dismissed with costs

Consideration

Ground 1

In respect of Ground 1 of the application, a convenient summary of the authorities is contained within the judgment of Perry J in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303, where her Honour stated at [38]:
38. A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a “substantial, clearly articulated argument“ that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Citizenship [2003] HCA 26 ; (2003) 197 ALR 389 (Dranichnikov) at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010 v Commonwealth [2010] HCA 41 ; (2010) 243 CLR 319 (Plaintiff M61/2010E) at [90] (the court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection [2014] FCA 863 ; (2014) 142 ALD 150 at [81]–[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which “squarely“ arises on the material before the Tribunal in the sense that “it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal“: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 (NABE) at [58] (the court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 ; (2001) 194 ALR 244 (Htun) at [42] (Allsop J with whom Spender J agreed at [1]).
This ground is pleaded on two bases, namely:
a)The Tribunal failed to assess the claim the applicant would face harm from paramilitary organisations in Sri Lanka aligned to the Government, as distinct from a claim relating to the Government itself (and the Sri Lankan Army); and
b)The Tribunal failed to make findings on the claim the applicant would face harm as a result of his “involuntary training” at the hands of the LTTE during the war.
At the hearing, the applicant’s oral submissions were solely directed to the claim noted at [84(a)] above. However, the second aspect of the ground was not formally abandoned. Accordingly, I will address both aspects of the ground.
I first turn to the claim the Tribunal failed to address the issue of the applicant’s claim in respect of feared harm from non-governmental paramilitary organisations.
In the applicant’s Protection visa application, he stated the following (CB 10) in response to the question as to why he had left Sri Lanka:
…
There were other groups I don’t know who, but I think they are pro government that have come searching for me and come into my village looking for people. There was a tree behind our house and they put a time bomb in the tree. The house next door to mine was previously used to store guns by the LTTE. When it came under the control of the government they were looking for us to get information about it.
In the applicant’s stated at CB 100-105 the applicant dealt with a number of issues he claimed occurred to him while in Sri Lanka, including forced conscription by the LTTE and fears in respect of the Sri Lankan Army. Therein there is no reference to paramilitary organisations.
In the applicant’s adviser’s submissions to the Tribunal at CB 182-190. At CB 182 the adviser submitted the applicant would suffer persecution for one or more of the following four reasons:
a)His membership of the particular social group being constituted by being imputed with affiliations with the LTTE;
b)His Tamil ethnicity;
c)His imputed political opinion being pro-LTTE; and
d)His political opinion and membership of the particular social group constituted by being a failed asylum seeker.
In the Transcript of the Tribunal hearing (p.12), the following exchange occurred:
Member:   So who do you think might harm you if you go back?
Applicant: Paramilitary troops.
Member:   And which paramilitary troops worry you?
Applicant: I don’t know the group’s name.
Member:   Your father or no one else has mentioned to you the name of the groups that are hanging around your village?
Applicant: No he didn’t say anything like that.
Member:   So what do you think the paramilitary groups will do to you?
Applicant: If I go back now we do have problems.
Member:   What problems:
Applicant: They will shoot us.
Member:   And why will they shoot you?
Applicant: LTTE people were using our house before to operate and so they have a suspicion that we work along with LTTE people, involved in dealing with weapons.
…
Member:   So you’ve said that you fear the paramilitaries in your area. Are there any other reasons why you feel you cannot return to Sri Lanka?
Applicant: The paramilitary group is the only reasons. I don’t have any other reason.
Member:   Ok. In your protection visa application you’ve mentioned you fear persecution because of your Tamil ethnicity and your imputed political opinion. So does that reference relate to the paramilitaries does it?
Applicant: Yes.
I agree with the Minister’s submission that the applicant was claiming he feared harm because he would be seen as a LTTE sympathiser, in other words, an imputed, perceived or actual connection with the LTTE.
What fell from the applicant’s oral evidence to the Tribunal is that his claimed fear of harm from paramilitary groups was based on the applicant’s claim he would be shot because the LTTE (or people associated with the LTTE) had used his family’s house to store weapons.
At [48] of the Decision Record the Tribunal stated:
48. Applying this to the applicant’s particular circumstances, the Tribunal is not satisfied that the Sri Lankan authorities or anyone (such as paramilitaries or neighbours) have in the past, or will in the future, suspected (sic) the applicant or any family members of having ‘certain links’ with the LTTE. The Tribunal is mindful that Munaittivu was under LTTE control for a long period, and that this must therefore have necessitated at least some contacts between LTTE cadres and the local populace. It takes into account that the applicant’s family may have lost one of their two properties, although for the reasons given above, it does not accept that the house in question was used to store LTTE weapons, or even suspected of such. The Tribunal also takes into account that the applicant is a young Tamil male, and therefore perhaps of greater interest to the Sri Lankan authorities or others than his father, who is now over sixty years old.
The Tribunal then stated at [72]:
72. … [T]he Tribunal finds that there is no real chance of the Sri Lankan authorities, paramilitaries, unlawful elements or the general population inflicting serious harm amounting to persecution on him for any Convention reason (or reasons).
At [74] the Tribunal stated in relation to its findings under the complementary protection provisions:
74. … [The Tribunal] is also not satisfied that there are any other groups or individuals who will target the applicant.
I accept that this statement also included a reference to paramilitary groups.
Consequently, having regard to the evidence before the Court, there is nothing to indicate there was, as submitted by the Minister, a free-standing, articulated claim of the sort contended by the applicant. The manner in which the applicant’s claims in relation to paramilitary groups was considered and addressed by the Tribunal. Consequently, this aspect of the ground cannot be sustained.
The second aspect of the ground relates to the applicant’s claim the Tribunal failed to consider the applicant’s claim in respect of “involuntary training”.
I have had regard to the written submissions advanced by both parties in respect of this issue. I accept, as contended by the Minister, the applicant’s actual claim, as identified by his adviser in her submissions and by him in his statutory declaration, was that he would be imputed with an opinion that he was affiliated with, sympathetic to, or was a supporter of the LTTE, that may have extended to an inference he was an individual who would actively assist the LTTE.
The applicant provided evidence (see Decision Record at [22]) stating he had been forced to spend time at LTTE camps, and had been tortured and abused in an attempt to intimidate him into joining the LTTE. This evidence also, as accepted by the Minister, referred to the applicant being forced to spend short periods of time in these camps where he was forced to undertake certain exercises. It is not germane whether or not these exercises can properly be constituted as being “training”.
What falls from this is that, this “involuntary training” was not the applicant’s claim. Rather, as submitted by the Minister, it was evidence given by the applicant in support of his claim that he would be imputed with the political opinion of being affiliated with, or sympathetic to, the LTTE.
This nature of this misconception by the applicant becomes apparent when considering the use of the word “supporter”. The applicant claimed he was forced “involuntarily” into training with the LTTE by being “in the wrong place at the wrong time”, not as a supporter. I accept the Minister’s submission that this presupposes there was a meaningful distinction between different types of claims based on whether a person was an actual supporter or merely a person perceived as a supporter. There was no such distinction. For the purposes of the applicant’s claims, it was not material whether he was an actual supported or not, so long as what had occurred to him showed he would be imputed with having a connection with the LTTE.

The link in the applicant’s claim was between what he claimed had happened to him and the imputing to him of certain political opinions. The Tribunals’ credibility findings at [26] of the Decision Record undermined this claim. The Tribunal did not accept the matters noted in that paragraph that the applicant was relying on, to form the basis of his claimed imputation, had actually taken place in the manner alleged. Critical elements of the applicant’s claim were disbelieved, including in respect of any “involuntary training” claim.
Accordingly, for the reasons stated above, this aspect of the ground cannot be sustained. The entirety of the ground should be dismissed.

Ground 2

Ground 2 of the amended application was not addressed in oral submissions at the final hearing, however, it was not formally abandoned.
The ground pleads a failure on the part of the Tribunal to make inquiries in respect of the applicant’s mental health. Relevantly, the applicant referred the Court to [77] of the Decision Record where the Tribunal stated:
77. The applicant’s submission of 14 February 2013 requested the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. It does so on the basis that ‘the applicant has been suffering from considerable mental strain including conditions that were exacerbated in detention’. There are no further details or supporting evidence.
(CB 215-216)
The Court was also referred to [16] of the Decision Record where the Tribunal stated:
16. At the Tribunal hearing, it was particularly difficult to obtain from the applicant a clear picture of his movements in Sri Lanka, and even broad timelines. At least on some occasions, the applicant appeared to have difficulty grasping dates and timelines, although the Tribunal has some concerns that he was also deliberately vague on some occasions. The Tribunal has taken into account that the applicant’s confusion may have been in part due to nerves, and it has taken this onto account in its overall assessment. However, it observed nothing and has received no material to suggest that he has any mental health issues. Overall, the Tribunal is nonetheless satisfied that it has been able to assemble a good overview of his whereabouts and circumstances, and that he was able to present his case.
(CB 202)
I have had regard to the written submissions of both parties in respect of this ground. As contended by the Minister, the applicant’s submissions that there was an alleged “disconnection” and/or “incongruity” between the Tribunal’s statements at [16] and [77] of the Decision Record is misconceived. The contents of [77] of the Decision Record, rather, are the Tribunal’s summary of the submissions made by the applicant in relation to his s.417 request to the Minister. The statement in respect of the applicant’s mental health is in fact a reference back to the applicant’s written submissions, not an express or implied finding on the part of the Tribunal.
Consequently, the finding at [16] of the Decision Record, noting the authorities referred to in the applicant’s submissions, was open to it on the material (or lack thereof) before it and for the reasons it gave.
The applicant has also referred to parts of the transcript of the Tribunal hearing to support this ground. Having regard to the contents of the transcript, the majority of the matters raised in the submissions are not material to the claim in respect of the applicant’s mental health. I accept the Minister’s submissions (see above at [76]-[80]) correctly address this issue. Further, in my view, it was open to the Tribunal to make its findings in respect of the vagueness of the applicant’s answers to questions asked by the Tribunal on credibility grounds.
I note the references to a number of authorities in the applicant’s submissions. It is settled law that, as a general proposition, there is no obligation on the Tribunal to act in an inquisitorial capacity and investigate the claims of an applicant before it through independent sources (Gummow and Hayne JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21-22). However, it may be that a failure to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, could supply a sufficient link to the outcome to constitute a failure to review. In such a case the failure to make such an enquiry can result in a decision being affected by jurisdictional error: SZIAI (supra) at 436 [25]. I am not satisfied the applicant has demonstrated, however, that this was the case in respect of the current claim.
For the above reasons, this ground should be dismissed.

The “WZAPN” Issue

This matter came before the Court for hearing on 2 September 2014. Judgment was reserved.
On 3 September 2014, the Federal Court of Australia delivered judgment in the matter WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 per North J.
On 1 October 2014, the Minister filed in the High Court of Australia an Application for Special Leave to Appeal from the judgment of North J in WZAPN (supra). The Court was contacted by Mr Wiese, representing the Minister, via email on 18 February 2015 and with consent of the applicant’s representatives, requesting that the Court adjourn this matter until after the High Court had made its decision.
Failed Protection visa applicants of Tamil ethnicity returning to Sri Lanka voluntarily or by escort on temporary travel documents from a Western country will be questioned by the authorities and may be arrested and held on remand for a few days whilst waiting for a court appearance facing charges including possible breaches of the Immigration and Emigration Act 1949. Various country reports together with a Sydney Morning Herald article of 8-9 December 2012 indicate that people are detained possibly for 3 days after which they are bailed for a future court appearance. The hearing may levy a fine based on a law of general application relating to illegal departure from Sri Lanka. Country information indicates that there is some evidence demonstrating that the law is discriminatorily applied to people of Tamil ethnicity. As the entry point is usually Colombo, remand would be served in Negombo Prison which is cramped and unsanitary. The question arises as to whether being questioned, detained for up to 3 days and significant fines are of the type and seriousness of harm amounting to persecution as meant by s.91R of the Migration Act.
In WZAPN (supra), North J held that the application of s.91R did not permit a quantitative assessment of the nature of the harm required to be considered by that section. His Honour described the approach taken by the Reviewer at [18], where he states:
18. The reviewer accepted that there was a real chance that the applicant would be questioned periodically and probably detained for short periods when he failed to provide identification, but held that the frequency and length of the detention, and the nature of the treatment he would receive in detention, did not amount to serious harm within s 91R(2)(a), (b) or (c). The reviewer concluded that on this analysis, the nature of the detention was not sufficiently significant and thus did not constitute serious harm … In approaching the matter in this way, the reviewer made a qualitative assessment of the nature of the harm caused by the detention.
The argument was recorded by his Honour as:
20. The applicant contended in his original written submissions, and in oral submissions, that the reviewer wrongly applied a qualitative assessment to the nature of the harm. The applicant argued that s 91R(2)(a) is concerned with the threat, in the sense of a risk, of harm to life and liberty, whatever the nature of the harm. Whether there is a threat depends on an assessment of the likelihood of harm happening. But once that threat is established, s 91R(2)(a) operates so that the threat to life or liberty amounts to serious harm irrespective of the nature or extent of the potential harm to life or liberty. Thus, there is no place for an assessment of the frequency or degree of the harm, or the circumstances which attend such harm, save only for a de minimus exclusion. Consequently, once the reviewer found that the applicant was at risk of detention, serious harm was established within the meaning of s 91R(2)(a) irrespective of the significance of the circumstances attending the detention.
That argument was accepted by his Honour at [30], [44] and [45] where his Honour stated:
30. The conclusion from the language and structure of s 91R(2) is that serious harm in s 91R(1)(b) is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty.
…
44. In taking the human rights approach, there is no place for a qualitative assessment of detention affecting the right to liberty for it to constitute an infringement of that right.
45. By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
North J’s decision in WZAPN v Minister for Immigration and Border Protection (supra) has been considered in the following Full Federal Court decisions;
a)SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 per Robertson, Griffiths and Mortimer JJ;
b)BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 per Robertson, Griffith and Mortimer JJ; and
c)SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 per Robertson, Griffith and Mortimer JJ.
After a detailed consideration of the approach of the construction of s.91R and to the test in s.91R(1) and (2) their Honours found in SZTEQ at [58]-[60]:
58. Another aspect of the structure of s 91R(1), which we have touched on above, concerns the fact that it contains three separate and cumulative conditions for persecution to be established for the purposes of the Migration Act and the regulations, of which the requirement of serious harm is only one. We acknowledge that matters such as the length of detention, its frequency, purpose and character may also arise in determining whether the reason for the detention, which must be a Convention reason, is the essential and significant reason for the persecution (as required by s 91R(1)(a)) or involves systematic and discriminatory conduct (as required by s 91R(1)(c)). However, this does not mean that such matters may not also arise for consideration and evaluation in relation to the requirement of serious harm within s 91R(1)(b).
59. Unlike North J in WZAPN, we do not consider the absence of adjectival qualification in s 91R(2)(a) to be of significance, given the context of the provision as a whole. Rather, the absence of an adjective indicates that a threat to “liberty“ is not synonymous with the possibility of a person being held briefly on remand or detained for a short time for questioning. In this context, “liberty“ is a nuanced concept which takes its meaning from the context in which it appears, namely the requirement that the persecution involve serious harm, as is made clear in s 91R(1).
60. With great respect to the different view expressed in WZAPN at [30], we do not consider that the structure of s 91R(2) supports a construction of that provision to the effect that any threat to liberty constitutes serious harm without reference to the severity of the threat to liberty. As Dixon CJ observed in a frequently cited passage in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397:
… the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.
In the conclusion of SZTEQ at [154]-[155], their Honours state:
154. For the above reasons, and with great respect to North J, we do not consider that WZAPN correctly decided the construction of s 91R(2)(a). In our opinion, s 91R(2)(a) should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s 91R(1)(b) and Art 1A(2).
155. As the above analysis has sought to show, even if there was no error in his Honour’s examination of ss 91R(1) and (2) and the Convention concept of persecution by reference to “international human rights standards“ (see his Honour’s reasons at [43]), an issue which need not be determined in this appeal, contrary to his Honour’s reasoning, neither those standards, nor the jurisprudence and commentary about those standards in refugee decision-making supports the proposition that any deprivation of liberty must constitute serious harm for the purpose of the Convention.
A special leave application was granted on 13 February 2015 and was heard by French CJ, Kiefel, Bell Gageler and Keane JJ on 15 April 2015 with the decision being reserved. Until that decision is delivered, this Court is bound to follow the decisions delivered by Robertson, Griffiths and Mortimer JJ, as set out above.

Conclusion

I have read the contents of the Court Book and, particularly, the Decision Record and the affidavit material filed by the applicant. On a fair reading thereof, no jurisdictional error on the part of the Tribunal is apparent. Accordingly, as none of the pleaded grounds in the application or submissions made by the applicant can be sustained, the application should be dismissed with costs awarded to the Minister.

I certify that the preceding one hundred and twenty-three (123) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate:

Date: 19 June 2015