SZUEO v Minister for Immigration
[2015] FCCA 3414
•21 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUEO v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3414 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal failed to deal with a claim – whether Tribunal failed to apply applicable law – whether Tribunal failed to ask itself the correct question – whether Tribunal failed to take into account relevant considerations – whether Tribunal was manifestly illogical or unreasonable – whether Tribunal failed to consider applicant’s claims “cumulatively” – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 476, 477 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | SZUEO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 978 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 7 July 2015 |
| Date of Last Submission: | 7 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitors |
ORDERS
The second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 9 April 2014 and amended on 23 July 2014 and further amended on 24 June 2015 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6646.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 978 of 2014
| SZUEO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 April 2014, amended on 23 July 2014 and further amended on 24 June 2015 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”) made on 4 March 2014 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
The application was filed one day outside the time set out is s.477(1) of the Act for making such applications. By orders made pursuant to s.477(2) of the Act the time for making the application was extended. The matter proceeded to a final hearing before the Court.
Before the Court
The Minister has filed a bundle of relevant documents that is in evidence before the Court (“the Court Book” – “CB”).
Background
The applicant is a citizen of Sri Lanka (CB 3). He arrived in Australia as an irregular maritime arrival in June 2012 (CB 1 to CB 17 and CB 33). The Minister exercised his discretion to lift the “bar” pursuant to s.46A of the Act on 15 September 2012 (CB 18). The applicant lodged an application for a protection visa on 15 September 2012 (CB 20 to CB 104). Included in his application was a statement outlining his claims to protection (CB 46 to CB 49). He was assisted by a registered migration agent in the making of this application (CB 76).
The delegate refused the applicant’s application on 15 January 2013 (CB 106 to CB 122). The applicant applied for review to the Tribunal on 18 February 2013, and he was again assisted by a registered migration agent in making this application (CB 123 to CB 129).
The applicant’s claims to fear harm on return to Sri Lanka can be summarised as follows, with reference to the Statement attached to his application, and written submissions from his representatives provided to the Tribunal:
1)His father left his family in “about 1998” ([3] at CB 46). The Liberation Tigers of Tamil Eelam (“the LTTE”) were known to be a “strong presence” in his home area, and he claimed “the government” harassed him, and his family, about his father’s whereabouts. He claimed that they assumed that his father had joined the LTTE. In later submissions provided to the Tribunal this was described as occurring “in or around 2000” (“the 2000 incident”) ([12] at CB 138).
2)The applicant claimed that between 2003 and 2005, Sri Lankan security officers (“the CID”) came to his house and questioned his family about his father. He claimed that they “threatened to kill” them, used “aggressive behaviour”, slapped him, “lashed out” at his mother and damaged their home ([4] at CB 46).
3)The applicant claimed that the CID returned in 2007, while he was away studying. He claimed that they threatened to hurt him and his sister if his mother did not give them information about the applicant’s father. Further, he claimed that they suspected that he had also joined the LTTE ([5] at CB 46).
4)The applicant claimed that in 2006 and 2007, while he was studying in Negombo, he was harassed by the Sri Lankan authorities because of his Tamil ethnicity ([6] at CB 47). In particular, he claimed that in 2006 he was “detained for approximately 30 minutes” and “beaten” ([22] at CB 140).
5)He claimed that the last time the CID harassed his family was in May 2012, despite the war ending in 2009. He claimed that on this occasion they beat his mother and told her that they would kill him ([7] at CB 47).
6)He claimed that as a failed asylum seeker he would be targeted by government authorities if he returned to Sri Lanka.
The applicant’s representatives provided submissions to the Tribunal on 3 May 2013 (CB 136 to CB 173), and further documents on 21 May 2013 (CB 179 to CB 181) and 21 August 2013 (CB 182 to CB 184), referring to the applicant’s uncle who had been granted “indefinite leave to remain” in the United Kingdom. The representative’s written submissions included further references to factual circumstances that were said to reinforce the applicant’s claims to fear harm due to his ethnicity and imputed political opinion, including that a friend of his father’s had been killed by the CID and a family member, who was part of the LTTE, had been taken away in 2002. Further, that another incident had occurred in “mid-2009”, when his mother was visited again by the CID and asked about the applicant’s family, and their income, but on this occasion the CID “were not verbally or physically aggressive” ([32] at CB 141 to [35] at CB 142).
The applicant attended a hearing before the Tribunal on 9 May 2013 (CB 174 to CB 176).
On 1 October 2013, the Tribunal wrote to the applicant in relation to being an individual who had left Sri Lanka illegally and possible consequences, giving the applicant an opportunity to respond to certain information in this regard (CB 185 to CB 188). The applicant’s representative responded on 15 October 2013 (CB 191 to CB 201). In this, there was a submission that the applicant could face “police mistreatment” when detained on return to Sri Lanka as police did not understand that severely beating persons in detention amounted to torture ([19] at CB 195).
The Tribunal affirmed the delegate’s decision on 4 March 2014.
The Tribunal found that the applicant had “provided a consistent and generally credible account of his experiences in Sri Lanka” ([43] at CB 212). However, it found that the incidents that had occurred in 2000 and 2007 were “routine” security checks, and did not disclose a particular interest in his family. Similarly, the claimed incidents in Negombo were in the nature of a general security check ([44] at CB 212 to CB 213).
Further, that the applicant’s relationships with people who had been harmed did not have any direct implication for him or his family. The Tribunal found, on the evidence, that the applicant did not have a “profile of concern”, as shown by the manner of the authorities’ interactions with him and his family ([49] ‑ [50] at CB 213).
The Tribunal considered the applicant’s claim to fear harm on return as a failed asylum seeker. Having regard to country information ([54] at CB 214 to [62] at CB 215), and its findings as to the applicant’s lack of an “adverse” profile ([73] at CB 216), the Tribunal found that he did not face a real chance of serious harm due to his failed attempt at seeking asylum or because he had left Sri Lanka illegally ([79] at CB 217 and [87] at CB 218).
The Tribunal considered whether the applicant would face significant harm on return to Sri Lanka, with reference to s.36(2)(aa) of the Act. The Tribunal found that, while Tamils were a “minority group” that had been “historically…discriminated against”, any discrimination the applicant would face due to his Tamil ethnicity would not amount to significant harm ([94] – [98] at CB 219). Further, that with reference to its earlier reasoning, the Tribunal did not accept that he would face significant harm on return as a failed asylum seeker or due to his illegal departure from Sri Lanka ([103] at CB 219).
Application Before the Court
The grounds of the further amended application are as follows:
“1. The Tribunal engaged in jurisdictional error by failing to deal with a claim, by failing to apply the applicable law, or by failing to ask itself the correct question.
Particulars
a. The Tribunal, when dealing with the applicant’s claims concerning his illegal departure from Sri Lanka only dealt with the question as to what the applicant faced upon his immediate return (which it held would be detention for two or three days followed by bail on personal surety granted immediately by the Magistrate): Tribunal’s Decision at [81]-[82]).
b. It failed to understand or otherwise deal with the claim before it that, once the charge for which the applicant was bailed was ultimately heard and determined by the Magistrate, he would be incarcerated for a mandatory period of 1-5 years and exposed to conditions amounting to persecution or significant harm.
c. Further and in the alternative, by limiting its consideration as to what would happen to the applicant upon his immediate return and by failing to deal with the circumstances following the determination of the charges against the applicant, the Tribunal failed to ask itself what the applicant faced in the reasonably foreseeable future (which it was obligated to do).
2. The Tribunal engaged in jurisdictional error by failing to apply the applicable law or by failing to ask itself the correct question.
Particulars
a. To the extent to which the Tribunal dealt with the outcome of charges that it accepted would be laid against the applicant at [84] of the Tribunal’s Decision, it failed to apply the applicable law or failed to ask itself the correct question by merely asking itself whether the consequences to be faced by the applicant for departing illegally would involve the application of penalties for breaching laws (and if so, assuming that no persecution could be involved);
b. It assumed that the application of a penalty proscribed by law was incapable of being discriminatory for a Convention reason;
c. Further and in the alternative, it assumed that the application of a non-discriminatory law was incapable of amounting to persecution for a Convention reason;
d. Further and in the alternative, it failed to ask itself whether the law was appropriate and adapted to achieving some legitimate object, which it was obliged to do.
3. The Tribunal engaged in jurisdictional error by misconstruing and accordingly failing to deal with a claim before it (or component integer thereof), by failing to take into account relevant considerations, by making a finding in the absence of evidence, or by making a finding that was manifestly illogical or unreasonable.
Particulars
a. The applicant claimed that, in mid-2009, the Criminal Investigation Department (CID) attended his family residence while he was at school and asked family members questions about the whereabouts of the applicant’s family and income, which they recorded (CB142[35]) (2009 Incident).
b. The applicant further claimed that, in May 2012, the CID had attended his family home and questioned his mother about the whereabouts of his father and the applicant. They ‘beat her around the face’, told her that they believed that the applicant had joined his father (with the LTTE), and told her that they would kill him (CB47[7]). They ‘brutally assaulted her’ on this occasion (CB146[63]) (2012 Incident).
c. The Tribunal found that the applicant had provided a consistent and generally credible account of his experiences in Sri Lanka and it accepted the Applicant’s account of the incidents recounted by him (including the 2009 Incident and the 2012 Incident) (CB212[43]). It did not express any doubt or reservations as to any part of the applicant’s account of these incidents.
d. However, the Tribunal characterised the 2012 Incident as of the same nature as the 2009 Incident comprising serious questioning of his mother by verbally abusive authorities (CB213[45]). In so doing:
i. The Tribunal mischaracterised the applicant’s claim or component integer thereof and accordingly failed to address the claim in fact made because: (A) the applicant’s account of the 2012 Incident was plainly of a different nature to the 2009 Incident, (B) involved physical violence as well as verbal abuse, and (C) the verbal abuse involved a threat of physical harm;
ii. The Tribunal failed to take into account a relevant consideration, namely: (A) the verbal abuse in the applicant’s account of the 2012 Incident involved threats of physical harm, and (B) the applicant’s account of the 2012 Incident included an account of actual physical violence;
iii. The Tribunal made a finding in the absence of evidence because, having accepted the applicant’s account of the 2009 Incident and 2012 Incident without reservation: (A) there was no evidence before it upon which it could have found that the 2012 Incident was of a similar nature to the 2009 Incident, and (B) there was no evidence before it upon which it could have found that the 2012 Incident involved no more than serious questioning involving verbal abuse; and
iv. The Tribunal made findings that were manifestly illogical or unreasonable.
4. The Tribunal engaged in jurisdictional error by misconstruing and accordingly failing to deal with a claim before it (or component integer thereof), by making a finding in the absence of evidence, or by making a finding that was manifestly illogical or unreasonable.
Particulars
a. The applicant claimed that, in 2006 or 2007, a group of 4-5 police and army members went to his boarding house in Negombo and interrogated him. He was dragged, pushed and told to kneel and place his hands behind his head. He was petrified and thought that he was going to be killed (CB47[6]). They verbally abused him, accused him of being in the LTTE, and beat him on the back of the head with their guns (CB139-140[22]) (2006 Incident);
b. The Tribunal found that the applicant had provided a consistent and generally credible account of his experiences in Sri Lanka (CB212[43]) and it did not express any doubt as to any part of the applicant’s account of the 2006 Incident;
c. The Tribunal characterised the 2006 Incident as a general security check and to clarify identity, ‘albeit excessive’ (CB216[73]);
d. In so doing, the Tribunal:
i. the Tribunal mischaracterised the applicant’s claim or component integer thereof and accordingly failed to address the claim in fact made because the applicant’s account of what had occurred (which was not rejected by the Tribunal) involved more than a general security check, viz: (A) physical assault, (B) threatening conduct, and (C) allegations of LTTE involvement;
ii. the Tribunal made a finding in the absence of evidence because, having not rejected the applicant’s claim that the 2006 Incident involved: (A) physical assault, (B) threatening conduct, and (C) allegations of LTTE involvement, it was not open to the Tribunal to find that the incident was a general security check to clarify identity;
iii. the Tribunal made findings that were manifestly illogical or unreasonable.
5. The Tribunal engaged in jurisdictional error by misconstruing and accordingly failed to deal with a claim before it (or component integer thereof), failed to consider whether the applicant’s claims cumulatively gave rise to a well-founded fear of persecution in the reasonably foreseeable future, or misconstrued the applicable law.
Particulars
a. The Tribunal accepted that the applicant had been the subject of what it characterised as routine security checking to clarify identity, being the 2006 Incident, which involved ‘excessive’ conduct (CB216[73]);
b. The Tribunal also accepted that the applicant’s family home had been subject to a number of visits for the purpose of general monitoring and security, including:
i. an incident in 2000 where the CID questioned members of his family (the applicant, his sister and mother) about his father. They were armed with guns and threatened to kill them if they did not tell them where his father was. They also used aggressive behaviour and slapped the applicant, pushed and lashed out at his mother, and damaged and threw their furniture around (CB46[4]; CB138[12]-[15]) (2000 Incident);
ii. an incident in July 2007, where the CID went to his home while he was away studying. They threatened his mother and asked questions about his father’s whereabouts. They threatened to harm the applicant and his sister or make them disappear so that she would never see them again. They were suspicious that the applicant may have joined his father in the LTTE (CB46[5]; CB140[25]-[26]). The Tribunal accepted the applicant’s account without reservation (CB212[43]) (2007 Incident);
iii. the 2012 Incident.
c. In all of the incidents referred to in above, the applicant claimed (and the Tribunal appeared to accept) that the CID employed threats of physical violence and actual physical violence in addition to verbal abuse as part of its routine process.
d. The applicant further claimed that any interaction with the police or CID in Sri Lanka gave rise to a risk of relevant harm because of the routine usage of torture and other forms of harm as an interrogation technique, and the applicant provided country information in this regard (CB161[107]-CB167[123]; CB195[19][21]).
e. Having regard to the matters set out in (a) to (c) above, the Tribunal was obliged, but failed, to consider whether the applicant had a well-founded fear of persecution or significant harm by virtue of being subject to routine security checks or CID visits for the purpose of general monitoring and security, or by reason of general interaction with the authorities in Sri Lanka, in the reasonably foreseeable future.
f. Further and in the alternative, the Tribunal failed to consider whether the 2000, 2006, 2007, 2009 and 2012 Incidents cumulatively gave rise to a well-founded fear of harm in the reasonably foreseeable future (even if the individual incidents did not).
g. Further and in the alternative, by discounting the 2006, 2007 and 2012 Incidents as verbal abuse or excessive conduct only, and by not recognising that the conduct complained of was capable of amounting to persecution or significant harm, the Tribunal misconstrued the applicable law.
6. The Tribunal engaged in jurisdictional error by failing to consider a claim or component integer thereof.
Particulars
The Tribunal failed to consider a claim before it that the Applicant had a well-founded fear of persecution for a Convention reason by virtue of being verbally abused, intimidated and extorted by the Sinhalese (CB142[42]-[43]).”
Consideration
Two preliminary points need to be made as background to the consideration below. First, the applicant’s claims to fear harm developed, and were explained, over the course of the conduct of the review by the Tribunal. The applicant’s representative made lengthy and detailed written submissions (CB 136 to CB 173 and CB 191 to CB 201), and the applicant gave evidence at the hearing. The submissions before the Court sought to variously draw on different parts of these submissions at some length.
Second, the Tribunal found that the applicant had “…provided a consistent and generally credible account of his experience in Sri Lanka…”. The Tribunal accepted some key points of the applicant’s factual account of past events ([43] at CB 212).
However, the Tribunal took a different view to that of the applicant and his representative as to whether the incidents that the applicant recounted where of such character as to be seen as falling within the concepts of “serious” and “significant” harm (see, for example, [100] at CB 219).
A further element in the Tribunal’s reasoning was that the incidents derived from a historical context in the period of civil war in Sri Lanka. It understood that its task required it to assess the likelihood of the risk of harm in the future. A future which, on the information before it, it found was a period of “post-conflict” ([100] at CB 219).
It must be said that the applicant’s lengthy submissions before the Court did not satisfactorily address the nuances of this aspect of the Tribunal’s reasoning. As the Minister submitted, particularly in relation to grounds three, four and five, the applicant’s grounds, as explained by the submissions, are a “veiled” attempt at impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).
Ground One
Ground one of the application asserts various failures by the Tribunal which reveal jurisdictional error. In particular, that it failed to deal with a claim, failed to apply the applicable law, or failed to ask the correct question. All of these, however, are focussed on, and derive from, one aspect of the applicant’s claim to fear harm on return to Sri Lanka, that was as a failed asylum seeker.
The applicant claimed to fear “significant” harm on return to Sri Lanka as a failed asylum seeker of Tamil ethnicity. In the representative’s written submissions to the Tribunal, amongst other matters put in support of this proposition, reference was made to articles 34, 35, and 45 of the Sri Lanka Immigrants and Emigrants Act (“the IEA”). Drawing on these articles, the representative’s submission was that the applicant would, on return, be subject to the application of these laws given his “illegal” departure from Sri Lanka. This application would result in his being detained for one to five years (see [128] at CB 168 to [132] at CB 172).
The applicant’s submissions before the Court drew attention to the Tribunal’s consideration of the criterion at s.36(2)(aa) of the Act (“complementary protection”), and in particular at [103] (at CB 219):
“For the reasons discussed above the Tribunal does not accept that he faces a real risk of being detained for any period more than two or three days and, while it accepts that this would be of inconvenience and disturbing to him the Tribunal does not accept that this is of such a level as to be degrading to the extent of causing significant harm.”
The applicant’s argument was that the reference (at [103] at CB 219) to “[f]or the reasons discussed above” was a reference to what it set out at [79] (at CB 217)):
“The Tribunal finds, on the evidence before it he would , almost certainly, be interviewed and released within a matter of several hours and, given the independent evidence that people can be held for some hours, at worst he may face detention for two or three days while these checks are undertaken. While this would cause him some embarrassment and inconvenience and discomfort the Tribunal does not find it is at a level, having considered s.91R of the Act, to constitute serious harm or persecution.”
The applicant argued that the references to “detention for two or three days” (in [79] at CB 217) was directed to what would occur immediately upon the applicant’s arrival, and, with reference to country information, whether he would be granted bail.
The complaint was that in considering the matter of complementary protection, the Tribunal did not consider the applicant’s claim that he would be subject to penalties in the longer term as these arose from the IEA.
The applicant submitted that the Tribunal had found that on return to Sri Lanka the applicant would “face the consequences” for having departed illegally and “that the penalties applied are those applied for breaching the laws in this regard…” ([84] at CB 218).
The applicant further submitted that at [84] (at CB 218) the Tribunal “appears” to have accepted that article 45 of the IEA would be imposed on the applicant. Article 45 was in the following, relevant, terms (as extracted in the representative’s submissions at [130] at CB 170):
“(1) Any person who…
(b) leaves Sri Lanka in contravention of any provision of this Act…
shall be guilty of any offence under this Act and shall on conviction be liable in the case of an offence under… paragraph (b)… to imprisonment of either description for a term not less than one year and not more than five years and to a fine not less than fifty thousand rupees and not more than two hundred thousand rupee”
In summary, therefore, in looking at the complementary protection criterion, the Tribunal considered what would happen to the applicant immediately upon arrival, but did not consider the likelihood of significant harm as it had been said by the applicant’s representative to arise from the operation of the IEA, and to apply to the longer term. A position which the Tribunal was said to have earlier acknowledged in its decision record, but failed to consider under complementary protection.
The applicant relied on two authorities to support his argument. First, SZSSY v Minister for Immigration and Border Protection [2014] FCA 1144 (“SZSSY”), where the Court “accepted” that jurisdictional error could arise (and did in that case) where the Tribunal failed to deal with the implication of its own findings. In SZSSY, the Tribunal had made certain findings about the situation in Karachi, Pakistan but when it came to consider the question of relocation it did not deal with the implication of its findings in that context.
Second, the applicant relied on MZWDG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 497 (particularly at [39]) for the proposition that the Tribunal is obliged to take into account the implication of its own findings.
The Minister’s response was that the applicant’s ground was misconceived and based on an incorrect reading of the Tribunal’s decision record.
It is the case that Tribunal decisions are to be read fairly (Wu Shan Liang). The applicant referred the Court to the Full Court’s judgment in Salahuddin v Minister for Immigration and Border Protection [2013] FCAFC 141; (2013) 140 ALD 1 (“Salahuddin”) to draw attention to the distinction drawn by the Full Court at [19]:
“Separate from a conclusion founded upon an assessment of the reasons of the Tribunal in a manner which is not ‘over zealous’ or designed ‘to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed’ (cf. Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), is a recognition of the care and attention given by the Tribunal in the present appeal to its fact-finding and reasoning process. When it is necessary to draw an inference that a particular matter has or has not been taken into account, French, Sackville and Hely JJ in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184, 75 ALD 630 said:
[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
These words of caution have oft been repeated: e.g., Daniel v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 21 at [32] per Goldberg J; SZQMA v Minister for Immigration and Citizenship [2012] FCA 433 at [39], [2012] FCA 433; 127 ALD 305 per McKerracher J; MZYPA v Minister for Immigration and Citizenship [2012] FCA 581 at [13] per Bromberg J; DZABK v Minister for Immigration and Citizenship [2013] FCA 328 at [11] per Flick J; Sauvao v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 827 at [36] per Cowdroy J. See also: Woolworths Ltd v Director of Liquor Licensing [2012] WASC 384 at [45] per E M Heenan J.”
The applicant submitted that, in the current case, the latter part of the distinction applies. The applicant urged the Court to carefully scrutinise the Tribunal’s reasons (with reference to Salahuddin at [20]). The argument was that, in coming to its conclusion on the matter of complementary protection, the Tribunal’s reasoning failed to take into account the longer term consequences of its earlier finding concerning the imposition of penalties on the applicant.
To make out his case, and as set out above, the applicant focused on [79] (at CB 217), [84] (at CB 218) and [103] (at CB 219) of the Tribunal’s reasons. However, I do not respectfully understand the Full Court in Salahuddin to be seeking to “qualify” what was said in Wu Shan Liang. Rather, I respectfully understand the Full Court to, as it plainly stated, draw a distinction between two separate tasks for a Court conducting judicial review of a Tribunal decision. The words “…Separate from a conclusion…” as they appear at the beginning of [19] of Salahuddin, in my respectfully view, make that clear.
In short, therefore, Wu Shan Liang provides a caution as to how the Court should approach the reading of a Tribunal decision. Salahuddin, and the authorities to which it refers at [19], provides a different cautionary direction, as to how the Court is to read a Tribunal decision as to whether a particular matter has been taken into account.
Implicit in the applicant’s submissions to the Court was that Salahuddin provides a particular path for the Court’s current consideration which is to be preferred to that in Wu Shan Liang.
As stated above, I did not respectfully understand Salahuddin to be in “conflict” with, nor to pose an alternative to, Wu Shan Liang. Nor should, or would, it, with respect, be properly read that way. I do not respectfully understand Wu Shan Liang to give direction to this Court to read Tribunal decisions with any less careful scrutiny than that stated in Salahuddin (at [20]).
I respectfully understood Wu Shan Liang to caution against an approach which starts with the proposition that error is there to be found, and “vigorous” efforts are employed to that end. This says nothing about not carefully scrutinising the Tribunal’s decision to be satisfied that the Tribunal has considered a matter which it is required to consider.
As stated above, in the current case, the applicant says that the Tribunal’s failure was to not consider the consequences of its earlier finding when it came to consider the question of complementary protection.
In my view, the proper approach is to, respectfully, have regard to both authorities, and not to immediately focus only on Salahuddin as the applicant’s submissions, in effect, invite. There can be no dispute that Tribunal decisions are to be read fairly. That is, holistically, with meaning derived contextually. Noting, of course, that such meaning should not excuse unresolved ambiguity in the Tribunal’s reasons (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9).
As set out above, the applicant’s arguments in relation to this ground essentially relied on three paragraphs in the Tribunal’s reasons. Those paragraphs need to be read in context, and holistically.
In that light, it is of note that the Tribunal found that the applicant had not come to the adverse attention of the authorities other than for “routine security checking” ([73] at CB 216).
In addressing the claimed past incidents, the Tribunal accepted these had occurred. These were the inquiries about his father which ceased in 2000, and inquiries of his mother of his own whereabouts, which the Tribunal found to be of the nature of “general monitoring and security”. It found that there was no ongoing interest in the applicant ([73] at CB 216 to [74] at CB 217).
In this context, the Tribunal considered independent material about the return of “illegal departures”. It gave greater weight to United Nations High Commissioner for Refugees (“UNHCR”) and Department of Foreign Affairs and Trade (“DFAT”) information about this than to other material which the applicant’s representatives had put before it. The Tribunal explained that the reason for this was that the UNHCR and DFAT information was specifically focussed on “refugees” who had illegally departed Sri Lanka, and that the UNHCR was the “internationally mandated body for refugee matters”. The Tribunal also found this information to be consistent with information from two other NGOs dealing specifically with returning departees to Sri Lanka ([75] at CB 217).
By comparison, the other information put before it, which the Tribunal found to be credible, was “in respect of detention in Sri Lanka in general and not specific to illegal departees returning” ([76] at CB 217).
Importantly, the Tribunal noted the applicant’s acceptance “…that the process of being monitored, detained and then released would be what he would face” ([77] at CB 217, emphasis added). In my view, even on a plain reading, the applicant’s reported evidence (not challenged now before the Court by the applicant) was that the period of concern from which harm would arise was that period immediately on arrival. The applicant’s concerns in this regard were made clear when the Tribunal reported that the applicant pressed that during this period “he could be harmed or killed” ([77] at CB 217).
The Tribunal’s findings at [79] (at CB 217), on which the applicant now relies to make his argument, must be understood in light of the Tribunal’s explanation at [77] (at CB 217). That is, the applicant’s claims, as confirmed by the applicant himself, were considered in light of the “objective evidence from the agencies named above” ([77] at CB 217), in context the UNHCR, DFAT, NGO reports and the “other material” referred to at [75] and [76] (at CB 217).
The Tribunal makes plain at [76] that what follows are the reasons as to why it found the applicant did “not face a real chance of serious harm for reasons of having departed illegally and applying for asylum” ([77] at CB 217).
In this context, the Tribunal also explained it had considered the applicant’s profile prior to his departure (as explained previously), his lack of involvement with the LTTE, and the lack of ongoing interest in him in the past ([78] at CB 217).
While the applicant, in his submissions to the Court focussed on [79] (at CB 217) and [84] (at CB 218) of the Tribunal’s reasons, the meaning to be derived from both paragraphs must be ascertained by reference to the context set out above, and to the Tribunal’s reasoning expressed in the paragraphs between [79] (at CB 217) and [84] (at CB 218).
It is clear that at this part of the Tribunal’s reasoning, it expanded on its reliance on the information to which it made reference at [75] and [76] (at CB 217). I agree with the Minister that when this is read in context, the Tribunal dealt with the entirety of the applicant’s claim to fear harm by reason of his illegal departure.
Before the Court, the applicant submitted that the Tribunal’s reference to “penalties” at [84] (at CB 218) was a reference to “penalties” under the IEA. The legal error was said to be, in light of Salahuddin, that when it subsequently came to consider the matter of complementary protection (at [103] at CB 219), it did not consider the consequence of that finding and its impact on the complementary protection consideration. That is, the consequences of the application of the “penalties” set out in the IEA.
However, I agree with the Minister that the Tribunal’s reference to “penalties” at [84] (at CB 218) was, when understood in context, the penalties for illegal departure arising from the independent information to which it said it gave preference. This included the DFAT report.
Both parties took the Court to the extract of that report as set out in the Tribunal’s decision record (see [62] at CB 214 to CB 215). The Tribunal noted that it was required to consider this report and that this had been “provided in full to the applicant in a letter dated 1 October 2013” ([63] at CB 216).
That report makes specific reference to the IEA (see extract at [62] at CB 215.7). However, it also sets out information as to what has occurred to returnees who left illegally. That information makes clear that a custodial sentence has not been applied to any such returnees, in spite of the provisions of the IEA. At most, they have faced the imposition of fines of varying amounts.
When the Tribunal, therefore, made reference to “penalties” at [84] (at CB 218), it is clear that it was not referring to “penalties” under the IEA, but to the penalties as explained in the DFAT report, and as supported by other reports, to which the Tribunal had regard. That is, the “penalties” were being put on remand and fined.
When the Tribunal came to consider complementary protection and what the applicant would face on return as an illegal departee at [103] (at CB 219), the reference to the “reasons discussed above” includes the analysis and finding as set out above. Paragraph 103 (at CB 219) is fairly understood as being that the Tribunal had already found that the applicant would only be detained, at most, for a period of two to three days, and that this would not rise to significant harm.
The Tribunal did not make any finding as the applicant now contends, that he would face other penalties under the IEA such that it was required to consider this at [103] (at CB 219) under the complementary protection criterion. Ground one is not made out.
Ground Two
Ground two asserts that the Tribunal fell into jurisdictional error because it failed to apply the applicable law and failed to ask itself the correct question. The particulars explain that this occurred because it failed to ask whether the consequences to be faced by the applicant, as a result of his illegal departure, would involve the imposition of penalties for the breach of Sri Lankan law.
The ground directs attention to [84] of the Tribunal’s decision (at CB 218):
“The applicant has not claimed and the Tribunal finds he was not the captain, responsible for the smuggling operation or that he was party to stealing the boat. This being the case, the Tribunal finds, on the evidence before it, that he will only face the consequences of departing illegally and that the penalties applied are those applied for breaching the laws in this regard and nothing more sinister.”
[Emphasis added].
The applicant’s explanation before the Court in relation to ground two was that it was pleaded in anticipation of the Minister’s argument, in relation to ground one. This argument was said to be that [84] (at CB 218) allows an inference to be drawn that there was an independent finding by the Tribunal in relation to laws of general application. Therefore, if that is made out, it may be said by the Minister to provide an answer to the applicant’s attack in relation to complementary protection in ground one.
Ground two does not reveal jurisdictional error in the Tribunal’s decision. First, the errors asserted in ground one are not made out. To the extent therefore that ground two is predicated on these being made out, then, as set out above, that finding is not available to the applicant.
Second, the Tribunal found that there was no real chance that the applicant would suffer serious harm, or a real risk he would suffer significant harm, as a result of his illegal departure from Sri Lanka. As the Minister submitted, these findings are sufficient to independently support the Tribunal’s decision. That is, separately to the question of a law of general application, which is at the heart of ground two. In this sense, I agree with the Minister that ground two does not assist the applicant.
Third, the applicant’s allegation of error on the part of the Tribunal is that the Tribunal failed to address the question as to whether the IEA was a discriminatory law. That is, it did not ask the question as to whether the IEA was a law of general application.
In submissions, the applicant argued that (with reference, in particular, to [84] (at CB 218)), the Tribunal only addressed the question as to whether the consequences the applicant would face as a result of his illegal departure from Sri Lanka involved “penalties” for the breach of the law.
The applicant’s argument was that the Tribunal addressed the question of whether the penalties to be imposed under the IEA had some “sinister” aspect (at [84] at CB 218). However, the applicant argued, given that the issue before the Tribunal was whether the application of this law was persecutory, the questions to be addressed were whether the law was one of general application and, then, whether the law was proportionate to a legitimate object.
There can be no argument given relevant authorities with the applicant’s exposition of these principles (see applicant’s submissions at [36] and the references there to Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 (“Applicant A”) at 258-259, Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 (“Chen Shi Hai”) at 302-303, Applicant S v Minister for Immigration and MulticulturalAffairs [2004] HCA 25; 217 CLR 387 (“Applicant S”) at 402-403, VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927; (2004) 81 ALD 332 at [38] and [47], Erduran v Minister for Immigration & Multicultural Affairs [2002] FCA 814; (2002) 122 FCR 150 and SZMFJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 95; (2009) 107 ALD 134). The difficulty for the applicant derives from his reading of the Tribunal’s analysis.
The parties took a different view of what was meant by the Tribunal by the use of the word “sinister” as it appears at [84] (at CB 218) in the phrase “… nothing more sinister…”.
The applicant understands the word “sinister” to apply as a description of the word “penalties” as it appears at [84] (at CB 218). That is, that the Tribunal meant that the penalties were of some comparatively lesser character than serious or significant.
Some context is necessary to properly understand what the Tribunal meant. First, there was no claim made by the applicant that the IEA would be applied in a discriminatory fashion, or discriminatory in its objects, or intended intent (see the representative’s submissions to the Tribunal in relation to the IEA at [129] (at CB 170) to [132] (at CB 172)).
The articles of the IEA relied on by the applicant before the Tribunal make clear that the law applies to “any person who …leaves Sri Lanka in contravention of any provision of this Act…” (article 45(11)(b), as extracted at CB 170). Further, the applicant’s representative’s submissions argued that the applicant faced a real risk of significant harm because he departed Sri Lanka in contravention of provisions of the IEA ([131] at CB 170), and that the provisions “are being actively applied to returned failed asylum seekers in Sri Lanka” ([133] at CB 171). There is nothing in these submissions, or elsewhere in the presentation of the applicant’s claims, to say that he claimed that the law would have a discriminatory impact on him as a member of a group or characteristics recognised by the Convention (that is, race, religion, nationality, membership of a particular social group or political opinion, see Article 1A(2) of the Convention).
Second, the Tribunal made reference in its decision record to relevant DFAT advice that the IEA applied to all Sri Lankans who departed illegally, and that (extracted at [62] at CB 215):
“…Sri Lankans returnees are treated along standard procedures applying to all Sri Lankans, regardless of their ethnicity and religion. DFAT has not observed any difference in the way Tamil returnees are treated in comparison to Sinhala or Muslim returnees.”
As set out above, in relation to ground one, this DFAT report was one of the reports which the Tribunal said it preferred in relation to returnees who had departed illegally (see [74] – [76] at CB 217). The Tribunal makes further reference to this report in the paragraphs leading to [84] (at CB 218) (see further at [80] (at CB 217) and [82] (at CB 217 to CB 218)).
In these circumstances, the Tribunal’s analysis at [84] (at CB 218) is to be fairly understood either, as an express finding, or a finding having implicit in it, that the IEA was a law of general application. That is, that the Tribunal’s analysis proceeded on the basis that the IEA was a law of general application which was, in fact, applied without discrimination to all Sri Lankans who had departed illegally.
The reference to “nothing more sinister” both in the context of what is set out immediately above, and indeed, in context of the words that preceded it in [84] (at CB 218), is that the applicant would only be subject to the consequences of departing illegally, and would face the penalties imposed for breaching the IEA, and would not be subject to some different, that is discriminatory, consequences.
The enforcement, therefore, of such a law, that is, a law that is generally applicable, is not in the ordinary course a discriminatory law, and, therefore, does not rise to a matter of persecution for the purposes of the Convention (Applicant A).
The applicant also argued before the Court that the Tribunal fell into error by not asking whether the Sri Lankan law was appropriate and adapted to achieve some legitimate object. It is the case, that such a failure by the Tribunal may constitute jurisdictional error.
In addition, it is also of note that the fact that the application of a discriminatory law leads to discriminatory treatment, will not automatically be said to constitute persecution. That question depends on whether the discriminatory treatment is appropriate and adapted to addressing some legitimate object of the relevant country (Applicant A at 258, Chen Shi Hai at [28], Applicant S at [45] and what the High Court said in Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22; (2015) 320 ALR 467 in relation to a different way of approaching the issue set out in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 per North J).
However, the difficulty for the applicant in the current case is that, as set out above, there was no claim by the applicant to the Tribunal that the IEA was discriminatory, or was applied in a discriminatory fashion in relation to some identified Refugees Convention group. Nor did the Tribunal make any such finding. To the contrary, it found that the IEA would not be applied in a discriminatory way.
In these circumstances, the question that the applicant now submits should have been asked, does not arise (see Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157; (2010) 190 FCR 23 per Perram J, particularly at [40] and [46] – [49], with whom Moore J agreed at [11], see also MZQAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 35; (2005) 85 ALD 41). Ground two is not made out.
Ground Three
Ground three asserts that the Tribunal fell into jurisdictional error because it misconstrued, and, therefore, failed to deal with a claim made before it. The error in the ground is also described as a failure to take into account a relevant consideration, by making a finding with no evidence to support it, or making a finding that was manifestly illogical or unreasonable.
The Tribunal’s error is described as follows. The applicant submits that he claimed that the CID came to his family home in 2009 and 2012. He claimed that on the first occasion they asked family members about the whereabouts of his father. On the second, his mother was questioned about his, and his father’s, whereabouts.
He claimed that on the second occasion in 2012 the CID “beat [his mother] around the face” and “brutally assaulted her”.
The applicant’s argument was that the Tribunal had accepted that the applicant had provided a generally credible account of his experiences in Sri Lanka, and that it accepted his account of the incidents he recounted. This included the 2009 and 2012 incidents.
However, the applicant directed attention to the Tribunal’s characterisation of the 2012 incident as being of the same nature as the 2009 incident, in circumstances where the 2012 incident involved for more serious and abusive questioning of his mother by the authorities.
The various assertions of legal error were, therefore, explained as follows.
First, given the physical and verbal abuse, the 2012 incident was not of the same character as the 2009 “visit”. The Tribunal therefore mischaracterised the claim, and therefore failed to deal with it.
Second, the Tribunal failed to take into account a relevant consideration, namely, that the 2012 incident involved threats of physical harm and claims of actual physical harm.
Third, given that the Tribunal accepted the applicant’s accounts of the 2009 and 2012 incidents, there was no evidence on which it could then find the 2012 incident was of the same nature as the 2009 incident. Further, there was no evidence before it on which to find that the 2012 incident involved no more than verbal abuse.
Fourth, in these circumstances, the findings were illogical or unreasonable.
The impugned paragraph ([45] at CB 213) appears in that part of the Tribunal’s decision record where the Tribunal set out its consideration of the applicant’s claims as they were said to arise from certain past incidents of harm. As stated above, the Tribunal’s decision record must be read fairly and in context. The impugned phrase (“of that same nature”) as it appears in the first sentence of [45] (at CB 213) is clearly a reference to the Tribunal’s finding in the last sentence of [44] (at CB 213) which preceded it.
That is, the descriptive phrase “of the same nature” was a reference, and a finding by the Tribunal, that the 2012 incident was of the same nature as the 2009 incident, in that it was also nothing more than a routine monitoring visit by the authorities.
The Tribunal understood, given its reference to “a more serious questioning”, that the character of what occurred was different in 2012 as to what occurred in 2009. However, its finding was that the motivation for the CID visit was routine monitoring. It was not as a result of the applicant having any particular profile which resulted in his family being targeted. The applicant’s assertion that this was a reference, or description, to what had occurred is in itself a mischaracterisation of the Tribunal’s analysis.
This view of the Tribunal’s analysis is supported by the Tribunal’s reference at [74] (at CB 217):
“Although he has claimed the authorities asked his mother about him after he had left I find that this too was for the purpose of general monitoring and security…”
[Emphasis added.]
The applicant also pointed to what he said was the Tribunal’s failure to consider the aspects of the claim made by him that his mother was physically harmed by the CID in the 2012 incident. That is, she was beaten.
As stated above, the applicant did assert in a statement accompanying his protection visa application, that in 2012 the CID “…beat [his mother] around the face” ([7] at CB 47). In submissions to the Tribunal, the applicant’s representative described what occurred as being that the CID “brutally assaulted her” ([63] at CB 146).
I agree with the Minister that the representative’s submissions were an “emotive”, if not a more colourful, description of the incident than that given by the applicant. However, it does not add to the applicant’s claim that his mother was beaten around the face by the CID in 2012.
However, I do agree with that part of the applicant’s argument that the Tribunal’s finding, or its proceeding on the basis, that the extent of the incident in 2012, involved only verbal abuse, did not take into account the applicant’s claim of physical harm to his mother.
In all, therefore, I do not agree that the phrase “of that same nature” assists the applicant in his various allegations of legal error. However, what remains of the applicant’s ground is that I agree that the Tribunal did not deal with the claim of actual physical abuse to his mother. The Tribunal’s characterisation of what occurs as “brief verbal abuse” can, in this specific sense, be seen as an error, in that it failed to address this integer.
Such a failure, that is the failure to deal with an integer of a claim, may result in jurisdictional error being revealed (WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 (“WAEE”)). However, the question now is whether this error in its findings by the Tribunal amounted to jurisdictional error. That is, what was its significance to the decision as a whole (WAEE at [46], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79] and VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965).
It is here that the context in which this finding appears is important. As set out above, [45] (at CB 213) sits in that part of the Tribunal’s analysis dealing with the claimed incident. It must not be forgotten that the reason the applicant recounted these past events was part of his attempt to show, through instances of past harm, that he had a fear of serious and significant harm on return to Sri Lanka.
The ultimate question the Tribunal was required to answer was the likelihood of serious or significant harm that the applicant may face on return to Sri Lanka in the reasonably foreseeable future. It is the case that instances of past harm can have an important role in determining what is likely to occur in the future (Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574). However, the relevant test for the Tribunal is a forward looking test.
At [45] (at CB 213) the Tribunal was considering the applicant’s claims in the context of a well-founded fear of persecution in the Refugee Convention sense. It is well settled that the concept of a “well-founded fear” contains both a subjective and an objective element (Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 396 and Wu Shan Liang at 263).
In relation to the incident of 2012, while the Tribunal made an error of fact, it is not an error in the exercise of its jurisdiction. Notwithstanding the Tribunal’s error in relation to the physical harm to the applicant’s mother in 2012, it nonetheless accepted that the incidents of 2012 and the other claimed incidents, which led it to find that the applicant did have a subjective fear of serious harm if he were to return.
That is, the Tribunal was required to consider the question as to whether the applicant had a well-founded fear if he were to return to Sri Lanka. Whatever omissions may have occurred in its analysis did not affect the Tribunal’s finding that the applicant met the subjective element of that test ([46] at CB 213).
The Tribunal’s subsequent finding that this fear was not well-founded was because it could not be satisfied that the fear was objectively made out. That is, irrespective of what had occurred in the 2012 incident, the applicant was not of particular interest to the Sri Lankan authorities and did not, even at the time of the 2012 incident (and before), have a “profile of concern” to the Sri Lankan authorities. Absent such a profile, the applicant’s fear, on return, was not well founded.
These findings were reasonably open to the Tribunal on what was before it. The detail of the 2012 incident (as to the physical or verbal abuse of his mother) was, therefore, not a part of the Tribunal’s ultimate conclusion as to why the applicant’s fear was not well‑founded. In this sense, no jurisdictional error is revealed. Ground three is not made out.
Ground Four
Ground four asserts that the Tribunal fell into jurisdictional error because it misconstrued, and thereby failed to deal with, a claim. As with ground three, the claimed error was also expressed to be the making of a decision without evidence or was illogical or unreasonable.
The error was said to arise as follows. The applicant claimed that in either 2006 or 2007 a group of 4 to 5 police and army personnel interrogated him at a boarding house in Negombo. He referred to his statement accompanying his protection visa application, where he had stated that he was “dragged, pushed and told to go to my knees and put my hands behind my head… I was petrified and thought that I was going to be killed, however, they verbally abused me” ([6] at CB 47). In submissions to the Tribunal, his representative stated that the applicant was verbally abused, accused of being in the LTTE, and was beaten on the back of his head with their guns ([22] at CB 140).
The applicant again pointed to the Tribunal’s finding that it had accepted that the applicant had provided a “consistent and generally credible” recount of past events in Sri Lanka ([43] at CB 212).
The complaint is that the Tribunal “dismissed” the importance of this incident by characterising the incident as a general security check to clarify the applicant’s identity, yet the Tribunal also noted that what had occurred was “excessive”.
The Tribunal’s relevant reasoning is at [73] (at CB 216):
“As explained above I find no evidence that the applicant has ever come to the adverse attention of the Sri Lankan authorities for any reason other than routine security checking. On the one occasion he was checked at his school this was a matter of clarifying identity and a general security check which, albeit excessive, the Tribunal finds there was nothing more sinister than that. The Tribunal is not satisfied that there is any link between the limited interest in the applicant's father which it finds was due to his unexplained disappearance in 1998. The Tribunal finds that it was the circumstances of the disappearance coupled with the fact that he was male and Tamil that led to the investigation but, the fact that there was no further investigation for seven years from 2000 to 2007 leads the Tribunal to find that the authorities were satisfied with the applicant's mother's explanation even though they told her they didn't believe her. If this was not the case the Tribunal finds the authorities would have continued to monitor and check. The applicant has not been party to the fishing industry, left his home area or ventured into the LTTE areas in the North or East. He has done nothing to raise concerns that he was anything other than a student, casual worker in local fishing and construction and worked in a communication shop selling phone cards and books”
[Emphasis added].
See also the Tribunal’s paragraph [74] (at CB 217) and [47] (at CB 213).
In his submissions to the Court, the applicant did not refer to that part of his representative’s submissions to the Tribunal at [22] (at CB 140) which also stated:
“…This physical and verbal abuse continued until the officers
re-entered the house, whilst he was told to remain outside, the Applicant’s identify was verified by the other adults in the house, the CID wrote down his details to record the incident. He was then released.”
[Emphasis added.]
The applicant’s complaint is not made out with the selective reading of his representative’s submissions. The totality of those submissions plainly provide the basis for the Tribunal’s finding that the incident in 2006 or 2007 was about clarifying his identity, and nothing more than that. The Tribunal did not make this finding without evidence. The Tribunal’s finding was reasonably open to it on what was before it. The submission now that the Tribunal mischaracterised the claim must be rejected. Ground four is not made out.
Ground Five
Ground five asserts that the Tribunal misconstrued the applicant’s claims and failed to consider whether, on a cumulative basis, the claims gave rise to a well-founded fear. The applicant referred to the claims involving an incident in 2000 (see [4] at CB 46 of the applicant’s statement accompanying his protection visa application), the incident in 2007 when the authorities went to his home and threatened his mother ([5] at CB 46), and the incident in 2012 (see above).
The applicant’s argument was that in relation to all of these incidents the applicant claimed that part of the “routine process” employed by the police involved threats of actual physical violence and verbal abuse. This was also linked to information, that the applicant’s representative had provided, that torture was routinely used as an interrogation technique. In this latter light, the Tribunal failed to consider whether serious or significant harm was likely, given that he was subject to routine security checks.
The Tribunal was also said to have failed to cumulatively consider whether the incidents referred to above, and the incidents of 2006 and 2009, gave rise to a well-founded fear.
Even further, the Tribunal was said to have fallen into error because it “discounted” the events in 2006, 2007 and 2012, as verbal abuse or excessive conduct, and did not recognise that this would amount to serious or significant harm.
In relation to his complaint that the Tribunal failed to assess his claims on a cumulative basis the applicant relied on SZGUW v Minister for Immigration & Citizenship [2008] FCA 91 at [54] and [57] – [60]. The proposition was that the Tribunal was obliged to consider the claims, not only individually but cumulatively. The Minister did not dispute this proposition.
The answer to the applicant’s complaint, again in large part, is to be derived from his own misreading or misrepresentation of the Tribunal’s reasoning. It is not necessary to repeat again the relevant reasoning and findings of the Tribunal in relation to the incidents of 2006, 2007, 2009 and 2012. What is set out above in relation to these matters as they formed part of the grounds above, also stands in answer to ground four to the extent that it relies on a particular characterisation of the claims made, and the Tribunal’s views and findings about these claims.
For the remainder, the Tribunal’s relevant approach to the applicant’s claims was as follows. The applicant claimed to fear harm in Sri Lanka because he was Tamil. The Tribunal recognised this. It further recognised that he feared harm because of an imputation that he was a LTTE supporter ([42] at CB 212).
In support of this claim, the applicant had referred to a number of incidents of claimed past harm (as described above). The Tribunal’s view of this is also dealt with above. What appears to have been missed in the applicant’s reading of the Tribunal’s analysis is that the focus of the test that the Tribunal was required to apply is a forward looking test. That is, the real chance of likelihood of harm in the foreseeable future if he were to return to Sri Lanka.
In this light, a critical element in the Tribunal’s analysis was that the period of “conflict” in Sri Lanka ended in May 2009 ([28] at CB 211 and see also [50] at CB 213). The Tribunal made various findings that the instances of claimed past harm put forward by the applicant were part of a routine monitoring of Tamils by the authorities at the time of conflict (the 2012 incident was of the “same nature” – see above) and not of a more “sinister character”.
Further, the applicant did not have a profile in the past that would have attracted particular attention from the authorities. This would remain the case in the future (see [50] – [51] at CB 213).
The applicant’s attempt to “re-agitate” the complaint about these incidents in ground five is again an example of his attempt at impermissible merits review before this Court. Simply repeating in ground five the complaints made elsewhere in his application does not alter the view of the Tribunal’s reasoning set out above.
As to the “cumulative” complaint, the applicant did not satisfactorily answer the Minister’s reference to [89] (at CB 218) and [104] (at CB 219), where the Tribunal makes specific reference to having considered the claims “cumulatively”.
On their own such statements, in certain circumstances, may not assist a Tribunal. However, in the current case these findings can be understood as deriving from the relevant reasoning of the Tribunal. The applicant did not have a profile that attracted particular attention in the past. In light of the absence of any such profile, and in light of the changed circumstances in Sri Lanka concerning Tamils after the cessation of conflict, the claimed incidents, when aggregated (and even taking into account that part of the claims which the Tribunal accepted) do not rise to the point of affecting the Tribunal’s conclusion. In short, the incidents occurred in the past, the Tribunal found they were of a “routine character”, and in that sense did not rise to the level of serious or significant harm.
The applicant has not satisfactorily explained before the Court how an aggregation of these events, in light of the Tribunal’s relevant findings, provides a basis to say that the Tribunal failed to consider claims in the context of the real chance test. In this light, ground five seeks to challenge the Tribunal’s factual findings, albeit in an indirect fashion. Ground five is not made out.
Ground Six
Ground six asserts that the Tribunal failed to consider the applicant’s claim to fear harm because he was verbally abused, intimidated and “extorted by Singhalese”. In this regard the applicant draws attention to the representative’s submissions to the Tribunal at [42] – [43] (CB 143):
“[42] Between 2010 and 2012 when the Applicant left Udappu, he would assist his mother with any chores when he visited. Every couple of months she would ask him to go to Chilaw, Chilaw DS Division, Puttalam District, North-Western Province, Sri Lanka (‘Chilaw’). Chilaw was a larger town and he would go there for clothing and to pawn jewellery or take money to buy back pawned jewellery on behalf of his mother.
[43] Chilaw was a predominantly Sinhalese town and as a Tamil the Applicant would be confronted with verbal abuse, intimidation and bribery by the Sinhalese. The Sinhalese men would call out to him in Tamil and accuse him of being an LTTE member. They would threaten to report him to the police as a LTTE Member unless he paid them. Often he would hand over what money he had in his pockets, so that they would let him proceed.”
He submitted that the Tribunal did not deal with this.
The applicant submitted that harm by non-state actors is capable of amounting to persecution for a Convention reason if the state tolerates, condones or supports such conduct for a Convention reason (Minister for Immigration v Khawar [2002] HCA 14 ; (2002) 210 CLR 1 at
[27] – [31] per Gleeson CJ). There is no dispute with this proposition.
The contest between the parties before the Court was really whether this could be characterised as a claim such that the Tribunal was obliged to deal with it. The applicant’s position was that it was a claim expressly made. The Minister’s submission was that the representative’s statement, and reference to “Sinhalese” was part of the “background” to the applicant’s case contained in the representative’s submissions, and did not require specific findings by the Tribunal.
The applicant also drew attention to the applicant’s statement accompanying his protection visa application ([8] at CB 47). He submitted that what he claimed there was that he, as Tamil, was harassed by the Sinhalese population. Therefore, the representative’s submissions to the Tribunal needed also to be understood in light of this claim.
The applicant’s statement relevantly said ([8] at CB 47):
“Since 2009, the situation for Tamils has barely improved in Udappu. We are still treated as second-class citizens and denied of many of our basic rights and opportunities. We are harassed by the authorities and the Singhalese population and are afraid to complain or exercise our rights for fear of punishment and indefinite imprisonment.”
The Minister referred the Court to:
1)WAEE at [46]:
“It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.”
2)Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67]:
“In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were ‘utterly implausible’. However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word ‘implausible’. The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged.”
The Minister’s response was that the Tribunal was not required in its written reasons to refer to every piece of evidence or contention made by an applicant before it. Further, that there was a distinction between the Tribunal’s failure to advert to evidence, or a contention, that if accepted may have led it to come to a different conclusion on the review. That is, that the applicant had a well-founded fear.
The applicant’s own reference in his statement can fairly be understood as a statement referring to the situation for Tamils in Udappu since 2009. There is nothing here to say that the applicant sought to “personalise” this statement beyond identifying as a Tamil and, therefore, implying that as a Tamil he would be treated by the Sinhalese as all Tamils were treated by then.
It is not clear whether the representative’s submissions take this statement any further. For example, as stated above, the submissions state (at [43] at CB 143):
“Chilaw was a predominately Sinhalese town and as a Tamil the applicant would be confronted with verbal abuse, intimidation and bribery by the Sinhalese”
[Emphasis added].
While the submissions seek to apply some “personal” element, I agree with the Minister that the thrust of the representative’s submissions, consistent with the applicant’s initial statement, is that Tamils were subject to abuse, and the like, by Sinhalese.
When viewed in this light, the Minister’s submission that this reference by the applicant’s representative appeared under the heading of “Background” in the submissions gains relevance, and weight.
It is clear that the core of the applicant’s claim to fear harm on return to Sri Lanka derived from his Tamil ethnicity. What he had put forward as having occurred in the past, and would occur in the future, was based on, or revolved around, his Tamil ethnicity.
The Tribunal understood this central basis to the applicant’s claims, see its references to “single Tamil male” (at [19] at CB 210), “his status as Tamil” (at [36] at CB 211), and “the applicant’s claims to fear harm and the reasons for that are his race, as a Tamil” (at [42] at CB 212). The Tribunal concluded (at [51] at CB 213):
“The Tribunal is satisfied, on the evidence before it, had the applicant remained in Sri Lanka he would not face a real chance of serious harm for reasons of his ethnicity, his status as a single Tamil male or any other Convention ground. Neither would he face a real chance in the reasonably foreseeable future.”
See also at [88] (at CB 218).
As referred to above, the Tribunal found the applicant’s evidence to be generally credible. This is not a case where the Tribunal’s decision turned on an adverse view of the applicant’s evidence or claims. Rather, as also set out above, at the core of the Tribunal’s reasoning was that past events which it accepted had occurred, albeit for different reasons than those advanced by the applicant, did not rise to serious or significant harm. The applicant was not “singled” out from other Tamils. Further, bearing in mind the forward looking aspect of the relevant test, the circumstances in Sri Lanka had changed for Tamils.
I agree with the Minister that a fair reading of the representative’s submissions, when seen in light of the applicant’s own statement, is that at some point around 2009 the Sinhalese population, separate to the authorities, abused Tamils. Given the Tribunal’s findings in relation to the applicant’s claims which arose from his Tamil ethnicity, I agree with the Minister that the Tribunal was not obliged to specifically refer to the representative’s submissions, or the applicant’s statement, as to how the Sinhalese were said to have dealt with Tamils. Ground six is not made out.
Conclusion
None of the grounds reveal jurisdictional error. The application to the Court, as amended, should be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and forty-five (145) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 21 December 2015
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