SZUAB v Minister for Immigration

[2017] FCCA 1532

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUAB v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1532

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal was biased and its decision was affected by findings which were illogical, unreasonable and arbitrary.

Legislation:

Migration Act 1958, ss.36, 474

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Gill v Minister for Immigration & Border Protection [2017] FCAFC 51

Applicant: SZUAB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 627 of 2014

Judgment of: Judge Cameron

Hearing date: 21 October 2015

Date of Last Submission: 21 October 2015

Delivered at: Sydney

Delivered on: 5 July 2017

REPRESENTATION

Counsel for the Applicant: Mr L. Karp

Solicitors for the Applicant: Rasan T. Selliah & Associates

Counsel for the First Respondent: Mr O. Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 627 of 2014

SZUAB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 16 July 2012.  On 6 November 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection (“Department”), alleging that he feared persecution in Sri Lanka because of his ethnicity, political opinion and membership of a particular social group.  On 27 March 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Claims before the Department

1. The applicant’s protection visa application was accompanied by a statutory declaration in which he made the following claims:

   a)his village was located in an area formerly controlled by the Liberation Tigers of Tamil Eelam (“LTTE”);

   b)he had heard of Tamils being abducted from Mattakalappu after which they were never heard from again;

   c)the Sri Lankan army killed his uncle in 1986, beat his father in 1998 and took his brother-in-law away in 2007.  His brother-in-law has not been heard from since.  The statutory declaration actually said in part that “In 1986 my uncle shot and killed my uncle’.  The parties agreed that, in context, it would be reasonable to read this as a reference to the army shooting the uncle.  That was how the Tribunal understood it, as indicated by para.19 of its reasons;

   d)he was the leader of a sports club and community organisation (“UVK”) in Sri Lanka and, in that capacity, was responsible for organising sporting events and community welfare activities;

   e)he was also a member of the temple committee, which organised community work such as festivals and social welfare activities;

   f)his village gave moral support to the Tamil National Association (“TNA”), a Tamil rights group.  He was not a member of the TNA but agreed with their beliefs;

   g)in late 2011 the Sri Lankan government was criticised by the United States for its human rights abuses.  In response, the Sri Lankan government and the Karuna group – a splinter group of the LTTE who supported the government – organised a protest rally against the United States and the United Nations.  He was asked by the Karuna group to gather supporters from his village to attend the rally but refused to assist them.  Nothing came of this incident;

   h)on 24 April 2012 the Karuna group asked him to support them in the upcoming district elections by gathering the villagers for a meeting on 25 April 2012.  He did not organise the meeting as requested;

   i)on 26 April 2012 he was asked by the Karuna group to report to the Vellavelli army camp.  When he arrived later that day, he was slapped and threatened with a gun.  In order to get away, he promised that he would support the army and the government;

   j)on 6 May 2012 some anti-government posters were put up on the walls around his village.  He did not know who had put them up;

   k)on 8 May 2012 while he was at work, some men came to his family home and threatened his parents.  They told his parents that they would kill him (the applicant) because he had supported the LTTE and confiscated a photograph of him when they left.  His father advised him not to go home and instead told him to stay with a friend in Kaluwanchikudy;

   l)his father reported this incident to the police but no action was taken;

   m)he stayed in Kaluwanchikudy until his departure from Sri Lanka; and

   n)he feared that if he returned to Sri Lanka he would be killed

2. The applicant also provided various supporting documentation, including:

   a)a letter from the village headman dated 5 August 2012 stating that the applicant had been “displaced” to Kaluwanchikudy during the period 8 May to 25 June 2012;

   b)a letter from the local Justice of the Peace dated 25 August 21012 also stating that the applicant had been “displaced” to Kaluwanchikudy because some “weapon groups” had searched his house “last year”, causing him to face many problems;

   c)a letter from the applicant’s local member of parliament dated 23 August 2012 stating, amongst other things, that an “armed group” entered the applicant’s house on 8 May 2012 and accused him of being a supporter of the LTTE.  The letter stated that the group returned to the applicant’s house two days later when he was not at home and advised the occupants that the applicant was wanted for an investigation;

   d)a police report filed by the applicant’s father dated 10 May 2012 describing the incident on 8 May 2012 when their home was raided; and

   e)a letter from the Thamil Makkal Viduthalai Pulikal (“TMVP”) dated 9 May 2012 requesting that the applicant attend their office the following day, failing which “appropriate action” would be taken.

Claims before the Tribunal

1. In pre-hearing submissions dated 23 August 2013 the applicant submitted that he faced a real chance of persecution in Sri Lanka because of his Tamil race, his membership of a particular social group comprised of failed asylum seekers and his imputed political opinion of support for the LTTE and opposition to the government of Sri Lanka.  He also made the following additional claims:

   a)one of his uncles who had fought for the LTTE disappeared in 2009.  It was this uncle’s involvement with the LTTE which had led to the death of a second uncle in 1986;

   b)a third uncle had also fought for the LTTE and was now living in London;

   c)his family was regarded as LTTE supporters because of the first uncle’s involvement with the group.  They had problems as a result: he was beaten by agents of the government many times and in 1990 the authorities burnt down their family home, following which they went to Batticaloa where they stayed at a refuge for two years;

   d)they returned to their village in 1992 and rebuilt their house;

   e)in 2008 he was taken to an army camp where he was beaten and questioned about his uncle;

   f)after 2008, the authorities and members of the Karuna group would come to his house two or three times a month to question his mother about his uncle; and

   g)he had not mentioned these claims previously because he had been scared.

2. The applicant appeared before the Tribunal on 27 August 2013 and 12 September 2013.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 or s.36(2)(aa) of the Act.

2. The Tribunal did not accept that the applicant had an adverse profile arising from any suspected LTTE links, his support for the TNA or his perceived opposition to the government.  It did not accept that the applicant had been targeted or harmed by the Sri Lankan authorities, the Karuna group or others, or that they had an ongoing interest in him, because of his relatives’ past links with the LTTE, his refusal to co-operate with government or pro-government Tamil groups or his low-level support for the TNA.

3. Having regard to the widespread violence which occurred in the Eastern province during the Sri Lankan civil war, the Tribunal accepted that the Sri Lankan Army killed the applicant’s uncle in 1986, assaulted the applicant’s father in 1998 and abducted a relative or family friend in 2007.  However, the Tribunal had significant concerns about whether these events resulted in the authorities perceiving the applicant to be associated with the LTTE:

   a)the applicant obtained a Sri Lankan passport in his own name in 2004 and used this passport to travel to Dubai in January 2005, returning in February 2008.  In the Tribunal’s view, the authorities’ willingness to issue the applicant with a passport during the civil war strongly suggested that they did not suspect him of any association with the LTTE, either directly or through any family ties; and

   b)the circumstances of the applicant and his family strongly suggested that they did not suffer any major disruption to their lives.  The Tribunal noted in this regard that in his protection visa application form the applicant indicated that he had resided at a single residential address in Sri Lanka, had been able to complete ten years of schooling and had been able to study an English language course for six months.  This, as well as his parents’ work circumstances, suggested a degree of stability and constancy over time.

4. The Tribunal noted that the applicant’s claims were expanded upon significantly in his pre-hearing submission of 23 August 2013.  For the following reasons, it found that he had fabricated these claims in order to establish for himself the profile of a person in need of protection:  

   a)the applicant stated at the Tribunal hearing that he did not previously mention these claims because he was scared.  However, no direct explanation was provided for why he would be scared of presenting such information to the Australian authorities.  The Tribunal considered the applicant’s omission to be significant in the circumstances;

   b)the applicant implied that he was scared that the Australian authorities would view his association with the LTTE adversely.  In the Tribunal’s view, this did not sit well with the fact that the applicant had already mentioned, in his original statement, the uncle who was killed in 1986; and 

   c)the applicant’s ability to obtain a Sri Lankan passport and use it for return travel abroad strongly indicated that the Sri Lankan authorities did not regard him as a person associated with the LTTE in 2004 or at any time up to at least 2008. 

5. The applicant raised a further new claim at the hearing, namely, that in 2001 he was abducted by the LTTE and forced to undergo training.  In the Tribunal’s view, the applicant’s past conduct (in particular, his travel and employment history) and his failure to mention this claim until towards the end of the hearing indicated that he had not been subject to any approaches, abduction or training.  The Tribunal found that the applicant had fabricated this claim in order to bolster his protection claims.

6. The Tribunal did not accept that the applicant’s community profile – which he said had caused him to become a person of interest to the Karuna group – had been as broad as he had claimed, noting that:

   a)it accepted that the applicant had been involved in his local temple committee but only as one of many local men who contributed to religious, social welfare and other activities;

   b)whilst the Tribunal accepted that the applicant had been involved in the UVK, it did not accept that he had been its president or leader because at the hearing the applicant struggled to give meaningful information about the organisation beyond basic allegations; and

   c)the applicant claimed at the hearing that he had also been the secretary for the village committee’s road building program.  The Tribunal was concerned that the applicant was misrepresenting his work (as a construction supervisor for a private company) at the hearing in order to enhance his profile as a community leader and hence a person of potential interest to the Karuna group.

7. The Tribunal found the applicant’s level of knowledge about and interest in the TNA to be commensurate with that of a reasonably well-educated local resident rather than a local community leader or a person who would otherwise be perceived to be an active supporter of the party.  In the circumstances, the Tribunal was not satisfied that the applicant had any genuine political opinion or association with the TNA over and beyond that of a local Tamil resident who favoured the TNA in general terms.

8. The Tribunal’s findings with respect to the applicant’s community profile and association with the TNA cast doubt over his subsequent claims that the Karuna group and others singled him out to help recruit Tamil youth on board for their activities or that he was a person who they would suspect of putting up anti-government posters or of supporting the LTTE.  Regarding the details of these claims, the Tribunal also identified the following further concerns:

   a)with respect to the alleged assault on 26 April 2012:

   i)when questioned by the Tribunal about his physical injuries, their treatment and the impact of these when he returned to work, the applicant gave uncertain responses;

   ii)the applicant claimed that he remained in his village after the alleged assault and returned to work the following day with his mother’s encouragement.   The Tribunal considered it relevant that his mother (or other family members) did not consider him to be in such immediate danger as to warrant him leaving the immediate area or having a break from work; and

   iii)the applicant claimed that he became fearful during this period and, as a result, ceased his work for the temple and the UVK.  He claimed, however, that he had been able to continue to work as a building supervisor by varying his travel routes and staying with friends.  In the Tribunal’s view, it was not credible that the Sri Lankan authorities would fail to locate the applicant at his place of work if he was indeed of interest to them;

   b)with respect to the alleged raid on his family home on 8 May 2012:

   i)the applicant claimed that he and his family left the family home the following morning.  He claimed that his mother returned to the home on 10 May 2012, whereupon she found the letter from the TMVP requiring the applicant’s attendance at their office.  When questioned by the Tribunal about his family’s reasons for returning to the home so soon after the alleged raid, the applicant could not provide further details or insights;

   ii)the applicant’s evidence was changeable and appeared to be subject to embellishments over time; and

   iii)in the Tribunal’s view, it was difficult to grasp why the authorities would not have also pursued the applicant at his workplace or at least avoided the obvious risk of his family tipping him off that it was dangerous to return home.

9. The Tribunal considered the documents which the applicant provided in support of his application and, for the following reasons, placed very little weight on them as independent corroboration of the applicant’s claims:

   a)the letters from the village headman and the local Justice of the Peace lacked relevant detail;

   b)the Tribunal found that the letter from the applicant’s local member of parliament had been written at the request of the applicant’s father (as was indicated in the letter itself) and based on information that the applicant’s father had provided;

   c)the Tribunal had concerns about the provenance of the police report and the genuineness of its contents, noting that it had been handwritten on what appeared to be a pro forma and, curiously, did not mention the applicant’s claims at hearing that his family had had to flee their home on 9 May 2012; and

   d)in relation to the letter from the TMVP, the Tribunal noted that the letterhead, body of the letter and the footer of the stationery were out of alignment, suggesting that it may have been fabricated.

10. Given its various concerns regarding the applicant’s credibility and evidence, the Tribunal rejected the applicant’s claims that the Sri Lankan authorities, the Karuna group, the TMVP or any other group demanded that he organise local youth to participate in pro-government activities; that they threatened, detained, assaulted or otherwise harmed him; that they placed the blame on him for anti-government posters that appeared in the village in early May 2012 or that they searched for him, mistreated his parents and damaged the family home, causing him to go into hiding.

11. The Tribunal was not satisfied that the applicant would be persecuted in Sri Lanka because of his Tamil ethnicity or because he was a young Tamil male from the Eastern province.  It noted in this regard that the evidence – namely, the applicant’s ability to attend school and pursue further studies, his ability to travel abroad for work, and his virtual uninterrupted work as a supervisor on construction sites for a private company – strongly indicated that he did not experience discrimination amounting to persecution for reasons of his Tamil ethnicity in the past.  Further, having rejected the applicant’s claim that he and his family were perceived as pro-LTTE, the Tribunal found that he did not have an adverse profile in Sri Lanka which would put him at risk upon his return.

12. Nor was the Tribunal satisfied that the applicant would face a real chance of persecution in Sri Lanka as a failed asylum seeker.  Having regard to country information, the Tribunal was not satisfied that Tamils who were failed asylum seekers were at risk of persecution for that reason alone.  It noted that while there were some reports of the Sri Lankan authorities targeting Tamils returning to Sri Lanka, these overwhelmingly involved returnees whom the authorities suspected of having pro-LTTE or anti-government associations.  Given the Tribunal’s findings that the applicant had no such profile, it was not satisfied that the applicant would face a heighted risk of adverse treatment upon his return because he was a failed asylum seeker.

13. The Tribunal accepted that the applicant might be prosecuted for breaching Sri Lanka’s immigration laws, having departed the country illegally.  However, the Tribunal was not satisfied that the possible resultant consequences – including being detained on remand and being ordered to pay a fine – involved serious harm amounting to persecution.

Proceedings in this Court

1. In his amended application the applicant alleged:

   1.The Tribunal's decision was affected by an apprehension of bias.

   Particulars

   (a)The Tribunal made extreme findings on equivocal or non-existent evidence.

   Further Particulars

   (i)     The finding that the applicant was not of interest to the Sri Lankan authorities for assumed LTTE associations because he was given a Sri Lankan passport, in circumstances where he travelled overseas and returned to Sri Lanka before being personally targeted by the Sri Lankan authorities and those associated with them.

   (ii)     The finding that the applicant's explanation for the late making of claims of his family association with the LTTE was inconsistent with his claim in his original statutory declaration of his uncle being shot in 1986, when he did not say in that statutory declaration why his uncle was shot.

   (iii)   The finding that it doubted the provenance of a police report produced by the applicant in circumstances where there was no rational or sensible basis for doing so.

   (iv)    The finding that the applicant's level of knowledge was not that of a community leader because, in part, he did not know the date of formation of a political party of which he was not a member.

   (b)The Tribunal drew an unreasonable or irrational inference that the applicant's demeanour was of limited probative value in circumstances where he became upset during a particular part of the hearing, being that part where he was being questioned about being interrogated, threatened and beaten.

   (c)The Tribunal relied in determining that the applicant was not in any danger related to his uncle's being killed in 1986 in part because;

   (i)     He gave no insight into how he knew why the uncle was killed and;

   (ii)     There was very little contextual information such as whether the authorities pursued other male members of the family

   in circumstances where he was not asked about these matters.

   (d)The Tribunal made a finding that it was far from clear as to why the army or the Karuna group would view the applicant as a person of interest because of the family link to his uncle who was killed in 1986, in circumstances where the Tribunal's own research indicated that such links are relevant.

   2The Tribunal's decision was affected by findings that were unreasonable, illogical or arbitrary.

   Particulars

   (a)The finding that the applicant's explanation for the late making of claims of his family association with the LTTE was inconsistent with his claim in his original statutory declaration of his uncle being shot in 1986, when he did not say in that statutory declaration why his uncle was shot.

   (b)The finding that it doubted the provenance of a police report produced by the applicant in circumstances where there was no rational or sensible basis for doing so.

   (c)The finding that the applicant's level of knowledge was not that of a community leader because, in part, he did not know the date of formation of a political party of which he was not a member.

   (e)The Tribunal drew an unreasonable or irrational inference that the applicant's demeanour was of limited probative value in circumstances where he became upset during a particular part of the hearing, being that part where he was being questioned about being interrogated, threatened and beaten.

   (f)The Tribunal relied in determining that the applicant was not in any danger related to his uncle's being killed in 1986 in part because;

   (iii)   He gave no insight into how he knew why the uncle was killed and;

   (iv)    There was very little contextual information such as whether the authorities pursued other male members of the family

   in circumstances where he was not asked about these matters.

   (g)The Tribunal made a finding that it was far from clear as to why the army or the Karuna group would view the applicant as a person of interest because of the family link to his uncle who was killed in 1986, in circumstances where the Tribunal's own research indicated that such links are relevant.

2. It should be noted that in addresses it was expressly stated that the applicant did not allege actual bias against the Tribunal.

Evidence

1. The applicant read the affidavits of George Fren and Shamili Kugathas to which, respectively, were annexed transcripts of the first and second sessions of the Tribunal’s hearing.  He also tendered into evidence the Court Book which contained documentary evidence concerning the visa application, refusal and Tribunal review.

Submissions

1. The applicant submitted that were several aspects of the Tribunal's treatment of the applicant's case and its assessment of the evidence that would raise in in the mind of a reasonable person an apprehension that the Tribunal member had not brought an impartial mind to the evidence.  His counsel contended:

   a)the Tribunal had fixed on an extreme view of the evidence, adverse to the applicant's case, by finding that the Sri Lankan’s government’s willingness to issue him a passport in 2004 "strongly suggest[ed]" that they did not suspect him of any association with the LTTE in circumstances where the applicant had not been suspected of LTTE connection until his return from Dubai in 2008 and his uncle did not disappear until 2009;

   when he made his visa application the applicant had said that an uncle had had been shot, implicitly by the army, in 1986, his father beaten in 1985 and a brother or brother-in-law abducted in 2007.  He told the Tribunal that he had not mentioned his family’s links with the LTTE, or that he had been interrogated and beaten in 2008, until shortly before the Tribunal’s hearing because he had been afraid that departmental officers might view that association adversely.  The Tribunal rejected that explanation on the basis that it was inconsistent with him having alleged at the outset that his uncle had been shot, implicitly by the army, in 1986.  The applicant submitted that his initial claims simply referred to the uncle being shot, without identifying why, and that Tribunal's inference of inconsistency lacked a logical or rational basis;

   b)in support of its finding that the applicant had not been detained, interrogated or beaten in 2008, the Tribunal fastened on its impression that the applicant had given no insight into how he knew why the Sri Lankan army had killed his uncle in 1986 when, in fact, he had said that the Sri Lankan army killed that uncle in 1986 because of his link with the other uncle who did have LTTE links and disappeared in 2009.  The applicant argued that in making this finding the Tribunal ignored the results of its own research - that the UNHCR considered that having family links with LTTE operatives could give rise to a need for protection

   c)the Tribunal required the applicant to have an unreasonable degree of knowledge of the TNA, and used its finding to dismiss a claim he did not make.  In this regard, the Tribunal fastened onto the fact that the applicant did not know when the TNA, of which he was not a member, was formed and then found that his level of knowledge of it was not commensurate with that of a local community leader or a person who would otherwise be perceived as an active TNA supporter;

   d)the Tribunal did not recognise that the applicant’s appearance of being upset when discussing his claims to have been detained and beaten on 26 April 2012 was related to that recollection, but instead suggested that it was not clear whether he was recalling actual experiences or was stressed over the immigration process;

   e)the Tribunal’s observation that the police report, from a country police station, was handwritten on a pro forma document was curious for its lack of relevance to the matters in issue.  Its further observation that the report did not mention the applicant’s family having fled their home was also curious given that the purpose of the form was to report criminal complaints.  It was submitted that the Tribunal’s use of these considerations to raise concerns about the provenance of the document would be a matter of grave concern to the hypothetical bystander.

2. The applicant submitted that the Tribunal made extreme findings on the basis of questionable reasoning, which were invariably adverse to him, such that the hypothetical impartial observer might consider that there was a real possibility that the Tribunal had not approached the application impartially.

Consideration

Ground 1

1. At the hearing of this application, the applicant’s case was limited to the first allegation, the allegation of apprehended bias.  In my view that allegation cannot be proved by reliance only on the Tribunal’s reasons for decision.  As was said in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427:

   … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided.  An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue.  To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension).  Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made.  And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side’s arguments or otherwise, demonstrates prejudgment. (emphasis included) (reference omitted) (at 446-447 [67] per Gummow ACJ, Hayne, Crennan and Bell JJ)

2. I consequently find that the first ground of the application is not made out.

Ground 2

1. During addresses, the problem which the Michael Wilson case presented for the applicant became apparent to him and he sought, and was granted, leave to amend his application further.  The second ground of the further amended application reflects that post-hearing amendment.   It might be noted that one particular of the first allegation was not repeated in the context of the second allegation, namely the particular addressed in the applicant’s submissions summarised above at [24(a)].

2. Turning to the matters which were particularised in the context of the second allegation, and addressing the applicant’s submissions using the same sub-paragraph lettering used above in [24];

   b)the point to kept in mind in relation to this particular is that the applicant ultimately contended that his uncle had been killed because of the family’s links to the LTTE.  The Tribunal’s reasoning was, assuming that the uncle was indeed killed for that reason, why did the applicant mention the killing when he did, at the outset, if at the same time he was afraid to disclose the family’s LTTE links to the Department?  It was neither illogical nor unreasonable of the Tribunal to conclude that concealing information at an early time because of an alleged fear of the consequences of relying on it was inconsistent with relying at that same early time on other information which was unavoidably linked with the very information he wished to conceal;

   c)the Tribunal’s concern was that the applicant did not explain why he could say in the submissions he made to it that the 1986 murder of one uncle was related to the LTTE activities of a second uncle who disappeared in 2009 but had failed at any earlier time to identify that link, in circumstances where the applicant provided no explanation for being able to make this claim when he could have had no personal knowledge of the event in question because of his youth.  It was reasonable of the Tribunal to be concerned that the late making of this allegation without substantiating or background facts, in circumstances where the applicant was also providing other details which could have been provided earlier, indicated that it was a recent invention.  In those circumstances, the reference to the Tribunal’s country information research takes the matter no further;

   d)the applicant submitted that the Tribunal had considered a claim he had not made and had required him to have an unreasonable degree of knowledge of the TNA.  In part, what the Tribunal said on that point was this:

   The applicant claims that he supports the TNA, although he has never become a member. He suggests that this – together with his (claimed) role as a youth community leader – influenced the Karuna Group’s and the authorities’ suspicion of him, when he refused to arrange youth for pro-government activities and, later, when anti-government posters appeared in the village.

   The reference to the TNA came from the applicant’s statutory declaration lodged with his visa application.  In paras.4-21 of that declaration the applicant set out the reasons for his departure from Sri Lanka, none of which included the imputation to him of a political opinion by reason of the activities of relatives.  Rather, they relevantly referred to the applicant’s village’s support of the TNA and the applicant’s failure to assist the Karuna Group.  The Tribunal found in that connection, as was open to it, that the applicant lacked substantive engagement with or knowledge of the TNA such that he would not be perceived to be an active supporter of the party.  It then went on to find that he had no obvious political opinion and would not have joined the TNA (unless one were to accept that he had been beaten in 2008, which the Tribunal did not).  Perceptions of the applicant’s engagement with the TNA were relevant to whether he had a well-founded fear of persecution for the reasons he claimed and so the Tribunal’s comments on the subject were not illogical or unreasonable;

   e)the Tribunal noted that the applicant had supplied no expert evidence supportive of a conclusion that the distress which he displayed related to psychological harm arising out of the events he had recounted.  In the circumstances, the Tribunal was in no particular position to assess the significance of the applicant’s affect at its hearing and it was hardly unreasonable of it to have implicitly acknowledged its limitations in this field and to have hesitated, as it did, to draw a conclusion on what the applicant’s presentation signified in relation to his mental state; and

   f)the applicant’s submissions overstated the significance of the Tribunal’s observation that the police report had been handwritten on a pro forma document, something which apparently caused it some concern.  The Tribunal placed greater emphasis on events and circumstances which it was surprised were not mentioned in the report and which might, reasonably, have been expected to be included as matters relevant the central complaint.  Ultimately the Tribunal did not make findings on those matters, merely expressing its concern about them and relying on that concern as the basis for giving the document limited weight in its considerations.  That was neither illogical nor unreasonable.

3. Consequently, the Tribunal’s decision on the review was not “irrational, illogical and not based on findings or inferences of fact supported by logical grounds”:  Gill v Minister for Immigration & Border Protection [2017] FCAFC 51 at [59]ff. For the same reasons the Tribunal’s decision was not arbitrary, as the applicant alleged.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 5 July 2017