SZUJX v Minister for Immigration - [2016] FCCA 1141

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUJX v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1141

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether Tribunal failed to ask itself the right question – whether Tribunal failed to apply the correct law – whether Tribunal made a finding that was manifestly unreasonable – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.91R, 476

Cases cited:
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister for Immigration and Citizenship v SZONJ [2011] FCAFC 85
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9
NAHI v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCAFC 10
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46
Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379
Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22; (2015) 320 ALR 467
Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18; (2004) 222 CLR 1
Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437
Minister for Immigration and Border Protection v Eden [2016] FCAFC 28
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11

Applicant:

SZUJX

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 1432 of 2014

Judgment of:

Judge Nicholls

Hearing date:

10 March 2016

Date of Last Submission:

10 March 2016

Delivered at:

Sydney

Delivered on:

13 May 2016

REPRESENTATION

Counsel for the Applicant:

Mr B Michael

Solicitors for the Applicant:

Fragomen

Counsel for the Respondents:

Mr D Hume

Solicitors for the Respondents:

DLA Piper

ORDERS

The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 28 May 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1432 of 2014

SZUJX

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 28 May 2014 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 29 April 2014 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents tendered by the Minister (“the Court Book” – “CB” and “RE1”), and the affidavit of Mr Farid Varess, solicitor, made on 25 February 2016 annexing a copy of the Department of Foreign Affairs and Trade (“DFAT”) “DFAT Country Information Report: Sri Lanka”, dated 31 July 2013, referred to at footnote 19 of the Tribunal’s decision record (CB 221), read by the applicant without objection.

Background

The applicant is a citizen of Sri Lanka and described himself as a Tamil-speaking Muslim. He arrived in Australia on 21 May 2012, by boat without authority (CB 1 to CB 13 and CB 36). He was ultimately permitted to apply for a protection visa, and did so on 22 September 2012 (CB 23). He was assisted by a firm of solicitors and migration agents who also represent the applicant before the Court.
The applicant claimed to fear harm if he were to return to Sri Lanka from the Sri Lankan authorities, in particular a certain Sinhalese police officer. The basis for that harm was said to be because he was a Tamil (“race”), a Muslim (“religion”), he had applied for asylum overseas and had left Sri Lanka illegally. He claimed to have been harmed in the past when Sri Lankan police took his trishaw because he attended a march in protest at the threatened destruction of a mosque by Sinhalese people (CB 49 to CB 53). The delegate refused the grant of the visa on 8 November 2012 (CB 95 to CB 119).
The applicant applied for review to the Tribunal on 14 December 2012 (CB 120 to CB 150, including an attached copy of the delegate’s decision). He continued to be represented by the same firm of lawyers and migration agents (CB 164).
The applicant’s representatives made written submissions to the Tribunal dated 8 February 2013 (CB 166 to CB 189). He attended a hearing before the Tribunal on 12 February 2013. His representative attended “by phone” (CB 190). At the hearing the applicant submitted documents in support of his claims (CB 194 to CB 196).
The Tribunal affirmed the delegate’s decision (CB 204 to CB 224). The Tribunal found the applicant had “fabricated and exaggerated key parts to his claims of past harm” ([26] at CB 210). It gave reasons for this finding ([27] at CB 210 to [35] at CB 214). Essentially the reasons arose from findings that he had given inconsistent information about claimed past events in Sri Lanka, particularly involving the Sri Lankan police officer from whom he claimed to fear harm (“Mr G”). The Tribunal was not persuaded by the applicant’s explanations for these inconsistencies. Further, the Tribunal found that the applicant also gave implausible evidence and claims at the hearing. The Tribunal rejected the factual basis of the applicant’s claims to fear harm “[d]ue to the material inconsistencies and non-persuasive explanations” ([32] at CB 213).
In light of these findings, the Tribunal then considered the applicant’s claims under the following headings ([34] at CB 214):
“…
a. his being a Tamil and political opinions arising from that
b. his being a Muslim and political opinions arising from that
c. his possible return to Sri Lanka as a failed asylum seeker and political opinions/social groups arising from that
d. his illegal departure from Sri Lanka and political opinions/social groups arising from that”

Before the Court

The applicant was represented by counsel at the final hearing of this matter. While the application pleaded five grounds, each with a number of alternatives, the applicant did not press grounds three, four and five.
The grounds of the application remaining for consideration therefore are as follows:
“1. The Tribunal engaged in jurisdictional error by failing to ask itself the right question or by failing to apply the correct law.
Particulars
a. In considering whether Muslims could live in Sri Lanka, the Tribunal considered whether there was material before it suggesting that there was any systematic persecution of Muslims by the Sri Lankan authorities: Tribunal’s Decision at [48].
b. The question it posed to itself was unduly narrow and reflected a failure by it to ask itself the right question or a failure to apply the correct law. The correct question would have entailed it asking itself whether there was any systematic persecution of Muslims by the Sri Lankan authorities or whether there was such persecution by non-State actors that the Sri Lankan authorities tolerated or were otherwise unwilling or unable to prevent.
2. The Tribunal engaged in jurisdictional error by failing to ask itself the right question, by failing to apply the correct law, or by making a finding that was manifestly unreasonable.
Particulars
a. The Tribunal acknowledged that there were attacks on places of worship (including for the purpose of dismantling them) and both verbal and physical attacks on Muslims and Muslim businesses, yet did not consider that there was any information before it that showed that these events resulted in serious harm to any victims. In doing so, the Tribunal:
i. misconstrued the persecution test and the meaning of serious harm by failing to recognise that these matters, in and of themselves, were capable of amounting to persecution;
ii. further and in the alternative, the Tribunal misconstrued the well-founded fear test by regarding these matters as capable of providing a foundation for a well-founded fear of harm.
b. Further or in the alternative, the Tribunal’s finding that the applicant’s fear of harm for reason of his religion was remote was manifestly unreasonable.”

Consideration

Ground one asserts that the Tribunal fell into jurisdictional error because it asked itself the wrong question. Having regard to the particulars and submissions in explanation of the ground, the error is said to arise from, and to be, as follows.
At [48] (at CB 217), the Tribunal considered country information, which it had discussed with the applicant at the hearing to the effect of whether there was evidence of systematic persecution of Muslims by the Sri Lankan authorities and stated:
“At the hearing, the Tribunal discussed a newspaper report it had regarding a protest by Buddhists in a named town seeking the removal of a Mosque, largely consistent with the applicant’s claim in that regard. The Tribunal stated it accepted this was a controversial event and that Muslims in other parts of Sri Lanka may have organised protests in the way the applicant claimed. The Tribunal noted the country information provided by the migration agent to the department that Muslims are about 7-8% of the Sri Lankan population. It discussed with the applicant it had no material before it suggesting there is any systematic persecution of Muslims by the Sri Lankan authorities. As such, the Tribunal may not accept Muslims cannot live in Sri Lanka.”
[Emphasis added.]
The applicant’s submission before the Court was that the Tribunal narrowly confined its understanding of persecutory conduct as being limited to conduct by the State or its agents, and did not allow for the possibility that persecution can be carried out by non-state actors in circumstances where the state tolerates (or condones) such conduct (Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at 12 – 13, 29 and 389 – 39 and Minister for Immigration and Citizenship v SZONJ [2011] FCAFC 85 at [7]).
The applicant directed attention to a DFAT report of 31 July 2013 which, on the evidence before the Court, was before the Tribunal (see Mr Varess’ affidavit at [1], [61] at CB 221 and footnote 19 at CB 221). The applicant submitted that this report contained information concerning various attacks on Muslims, Muslim businesses and places of worship in 2012 to 2013 in which the Sri Lankan government was not involved or implicated.
In all, the submission was that the Tribunal’s misunderstanding as to the relevant law, and its failure to apply the current law as to what could constitute “persecution” for the purposes of the Act, meant it did not take this information into account. Jurisdictional error is revealed because the information could have led to a different outcome in the review.
It is by now so well settled, and it is trite to say that Tribunal decisions are to be read fairly. That is, not with “an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”). Of course this does not mean that any ambiguity, or lack of clarity, can simply be excused (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9). However, a fair reading requires a holistic and contextual understanding of the Tribunal’s analysis and its reasons for decision.
In the current case, the applicant focusses on the last two sentences at [48] (at CB 217) to argue that the Tribunal’s reference to “no material” before it suggesting systematic persecution of Muslims by the Sri Lankan authorities, and its subsequent statement as to what it may accept should be read as the Tribunal proceeding on the basis that only the state’s conduct was relevant to establish persecution.
As set out above, the Tribunal considered the applicant’s claims to fear harm under four broad headings which it saw as encompassing the ambit of the applicant’s claims. The impugned sentences at [48] are part of the Tribunal’s consideration of the claims made by the applicant to fear harm because of his Muslim religion if he were to return to Sri Lanka.
On a fair reading of the Tribunal’s reasoning (as explained above), I do not agree with the applicant’s submissions. First, while the paragraphs under the heading of “Religion” (at [46] at CB 216 to [51] at CB 217) are plainly focussed on that part of the applicant’s claims to fear harm because of his religion, the entirety of the analysis to the extent that it relates to harm for religious reasons is also relevant and must be read with [48] (at CB 217).
At [45] (at CB 216), albeit under the heading of “Tamil Race”, the Tribunal sought to consider the source of the applicant’s claimed fear of harm. The first sentence of [45] (at CB 216) makes clear that the Tribunal understood, contrary to the applicant’s submissions now, that persecutory harm could emanate from non-state actions:
“The Tribunal has had regard to his claims of fearing Singhalese in general, not just the Sri Lankan authorities. He made no claims of suffering harm in the past from Singhalese in general, identifying only Mr G (who is a Singhalese). The migration agent submitted the information regarding a ‘precursor to more threatening underlying sentiment of Singhalese’ which the Tribunal considers more detail below in relation to the applicant’s claims regarding religion, however, makes the observation here it considers that to be a speculative risk of harm. Given the applicant’s claims regarding harm from Singhalese are vague and without detail and the submissions of the migration agent are speculative, the Tribunal is not satisfied the applicant has a real chance of serious harm from Singhalese in general because he is a Tamil now or in the reasonably foreseeable future if he returns to Sri Lanka. The Tribunal has had regard too to his claims regarding life in Sri Lanka being difficult. The implication is that is because he is a Tamil (and a Muslim). His claims again are vague and without detail. While the Tribunal accepts the standard of living he would have in Australia is higher than that he would experience in Sri Lanka, the applicant has not clearly identified any harm arising from having a hard life in Sri Lanka or clearly identified the source or motivation for that harm. Given the lack of detail, the Tribunal is not satisfied there is more than a speculative chance and therefore not a real chance he will suffer serious harm.”
The Tribunal referred to “information regarding a ‘precursor to more threatening underlying sentiment of Singhalese’ which the Tribunal consider [in] more detail below in relation to the applicant’s claims” in relation to religion and “the implication is that is because he is a Tamil (and a Muslim)” ([45] at CB 216). This makes it clear that the Tribunal understood that the applicant’s claims to fear harm from the “Singhalese in general”, that is, beyond the confines of state conduct, was relevant to the consideration of both the race (ethnicity), and religious grounds of the applicant’s basis of feared harm.
Second, the Minister submitted that what appears at [48] (at CB 217), and for that matter at [49] (at CB 217), should be read as the Tribunal recounting what had occurred at the hearing with the applicant and not a statement of some “final legal conclusion”.
The applicant’s response was that the Minister’s “suggestion” that [48] (at CB 217) was included by the Tribunal in the decision record simply as some “transcription of questioning” without significance to the Tribunal’s reasoning was “inherently implausible”. That is, the applicant argued given what was said in [48] (at CB 217) was included in the decision record gives rise to the assumption that the Tribunal considered it relevant.
In my view, that inference is available. However this does not address the Minister’s argument. I did not understand the Minister to argue that what the Tribunal said at [48] (at CB 217) was irrelevant to the Tribunal’s task. Rather, the Minister’s argument had greater nuance.
I understood the argument to be that [48] (at CB 217) should not be read on its own as the Tribunal’s “pronouncement” on its understanding of a relevant legal principle. Rather, what is set out at [48] (at CB 217) is a part of the Tribunal’s reasoning process to be read with the remainder of the whole of the decision record.
What is set out here is reflective of a part of what transpired at the hearing in relation to some country information, and as that was relevant to the applicant’s claims. In my view the relevance of what is reported by the Tribunal at [48] (at CB 217) was to reveal that during the hearing the Tribunal discussed with the applicant certain aspects of one of the issues in the review. The issue being the “systematic persecution of Muslims by the Sri Lankan authorities”. This issue was part of the claim made by the applicant. The Tribunal’s reported discussion of it reveals its view of the evidence dispositive of that issue and that that view was put to the applicant for comment.
Third, I also agree with the Minister that the last sentence cannot be fairly understood as a definitive statement by the Tribunal that it “must not, or cannot, accept” the applicant’s claim in its entirety because there was no persecution by state authorities.
Rather, on a fair reading, the Tribunal was reporting on its discussion with the applicant at the hearing of one integer of the claim to fear harm as a Muslim from Sinhalese generally. That integer was the claimed persecution of Muslims by the state in Sri Lanka. The Tribunal’s report of what was said at the hearing about this was that it had no material before it that the state systematically persecuted Muslims and “as such” the Tribunal told the applicant it “may” not accept his claim that Muslims could not live (safely) in Sri Lanka.
This is not a definitive statement of the relevant legal principle. It is not even a definitive statement of the Tribunal’s ultimate conclusion on the applicant’s claim. It is a report of an indication given by the Tribunal to the applicant at the hearing of what “may” transpire when it came to draft its decision record.
Fourth, the Tribunal did consider the DFAT report to which the applicant now, otherwise, refers (see [61] at CB 220 to CB 221). That document may well have included material supportive of the applicant’s claims as the applicant now asserts. However, the choice of and weight to be assigned to such country information is for the Tribunal to assign and determine (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] per Gray, Tamberlin and Lander JJ, Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27] per French J (as he then was) and Aporo v Minister for Immigration and Citizenship [2009] FCAFC 123; 113 ALD 46 at [45] per Spender, Moore and Foster JJ).
The applicant claimed to fear harm in Sri Lanka, in part, because in the past, in 2012, he had participated in, or attended at, a protest against Sinhalese people who were threatening to “knock down” a mosque ([21] – [23] at CB 105). This was obviously a part of his claim to fear harm, and an example of the harm feared as a Muslim emanating from “Sinhalese people”.
At [50] of the Tribunal’s decision record (at CB 217) it considered country information concerning attacks on mosques in Sri Lanka. In particular, the Tribunal made reference to country information obtained from the “Aljazeera” website which reported on 2000 Buddhists marching to a mosque demanding its demolition (CB 195). It also made reference to DFAT country information reports on attacks on mosques in Sri Lanka.

These reports concerned non-state sponsored attacks involving “Sinhalese generally”. Noting that the assessment of country information is for the Tribunal to determine, it was reasonably open to the Tribunal on what was before it to find that there was no information that the attacks resulted in serious harm to “any victims” or any injuries. This consideration was, given the Tribunal’s reference to submissions by the applicant’s representative, in direct consideration of claims made by the representative on the applicant’s behalf.
In all, ground one is not made out.
Ground two asserts that the Tribunal fell into jurisdictional error by failing to ask the right question, by failing to apply the correct law, or by making a finding that was manifestly unreasonable.
Having regard to the particulars there are two distinct assertions of legal error. The first in particular (a) to ground two, is that the Tribunal misconstrued the test for “persecution” and the meaning of “serious harm”. The second, in particular (b) to ground two, is that the Tribunal’s finding that the applicant’s fear of harm by reason of his religion was remote, was manifestly unreasonable.
The applicant’s submissions in relation to particular (a) to ground two directed attention to [51] (at CB 217) of the Tribunal’s decision:
“The Tribunal has rejected the applicant suffered any harm in the past because he is a Muslim. While accepting there have been attacks on Mosques in the past, the Tribunal is not satisfied the applicant faces more than a remote risk and therefore does not face a real chance of suffering serious harm due to his being a Muslim, now or in the reasonably foreseeable future if he returns to Sri Lanka.”
The applicant contends that the Tribunal reached this conclusion despite having specifically accepted DFAT information that there had been attacks on mosques, and on Muslims and their businesses. This is a reference to what the Tribunal stated at [50] (at CB 217):
“The Tribunal is mindful of the country information regarding attacks on Mosques. The DFAT Country Information report contains information referring to an increase in anti-Muslim sentiment in recent years, including attacks on Muslim places of worship, verbal and physical attacks on Muslims and Muslim businesses. There is no information any of those events resulted in serious harm to any victims. The report the Tribunal located regarding the incident at a Mosque details the Muslim attendees were evacuated under police escort when 2000 Buddhists marched on the Mosque (seeking for it to be dismantled). There are no reports of injuries. As noted above, the migration agent submitted the attacks on Mosques indicate ‘a precursor to more threatening underlying sentiment of Singhalese’ and notes extremist Buddhist political parties are part of the governing coalition.”
I understood the applicant to make two specific attacks on the Tribunal’s findings in this regard. First, that the Tribunal focussed on “serious harm” in the past by its reference to “previous attacks” on mosques and Muslims and did not focus on “future attacks”.
It is the case that at [50] (at CB 217) the Tribunal focussed on the past. There is no legal error in doing so given that past events can assist in determining what is likely to occur in the future (Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 at 574).
In the current case the Tribunal’s focus on past events was not only appropriate but necessary given that the applicant’s claims of future harm depended to a significant degree on what he said had occurred in the past.
The applicant claimed to fear harm on return to Sri Lanka in part because he was a Muslim. He gave evidence of his involvement in a protest against the destruction of a mosque by Sinhalese, which brought him to the specific attention of a Sri Lankan police officer (Mr G) who he claimed had committed other acts of harm against the applicant. In this circumstance it was entirely appropriate and, with reference to ground two, was rational for the Tribunal to consider whether the events the applicant claimed occurred in the past had in fact occurred, and if so, whether the cause of his claimed fear (the attacks on mosques) constituted persecution for a Convention reason (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [82] and [192]).
The applicant’s focus on [50] (at CB 217) for this argument in particular (a) to ground two derives from a reading of the Tribunal’s decision inconsistent with the accepted principle that such decisions are to be read fairly (Wu Shan Liang).
The Tribunal rejected the applicant’s claim that his attendance at a “protest against the removal of a Mosque” had brought him to the attention of Mr G ([28] at CB 213). The Tribunal gave reasons for this finding reasonably open to it on what was before it.
At [50] (at CB 217) the Tribunal specifically addressed the applicant’s claim of fear of harm as a Muslim from Sinhalese, particularly in the context of the claimed attacks by Sinhalese on mosques. The Tribunal accepted that other than for the identity of the police at the protest in which he had participated, the applicant gave “consistent and coherent evidence” ([47] at CB 216).
Having accepted this, the Tribunal properly turned to consider whether such events could give rise to serious harm (“systematic persecution”) consistent with the definition of that term in the Act. At [48] (at CB 217) the Tribunal considered country information “largely consistent” with the applicant’s claim.
At [50] (at CB 217) the Tribunal turned to consider country information regarding attacks on mosques in Sri Lanka. The applicant’s second attack now on the Tribunal’s decision was that having regard to the country information referred to by the Tribunal (including at [48] (at CB 217) and see Mr Varess’ affidavit in relation to the DFAT report at 3.17 and 3.18) the attacks on the mosques “must have been serious harm within the meaning of s.91R” of the Act.
This aspect of the applicant’s argument seeks impermissible merits review from the Court. As the Minister submits, the refugee criterion for the grant of a protection visa is not satisfied only by the subjective fear of persecution. The fear must be well founded. That is, there is an objective element (Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 429).
In Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22; (2015) 320 ALR 467 (“WZAPN”) the High Court confirmed that the consideration of claims in regard to s.91R of the Act involved a “qualitative judgement”. As the Minister submitted, this involves a balancing of the nature and gravity of the harm with its likelihood depending on the circumstances of the case. This involves matters of fact and degree (WZAPN at [35], [41], [45] and [51]).
The applicant’s attack on [50] of the Tribunal’s decision record (at CB 217) is no more than a challenge to the evaluative process and analysis undertaken by the Tribunal. That is, an attack on the relevant jurisdictional task statutorily set out for the Tribunal. That the applicant may wish the Tribunal to have come to a different view does not reveal jurisdictional error where the Tribunal’s evaluation and subsequent findings (having regard to the totality of its decision record) were reasonably open to it.
At the heart of the applicant’s argument sits the references to parts of the definition of “serious harm” as set out in s.91R(2) of the Act. The applicant now says that such instances “refer to detriment or disadvantage of a severity that the person threatened cannot be expected to tolerate” and “so that refusal to return to the country of the applicant’s nationality is the understandable choice of that person” (with reference to WZAPN at [70], [89], and [98] and with reference to the observations of McHugh J in Minister for Immigration and Multicultural Affairs v Respondents S152-2003 [2004] HCA 18; (2004) 222 CLR 1 at 26).
The applicant’s argument, if accepted, would have the effect of denying to the Tribunal the capacity to conduct the very “qualitative assessment” that in my respectful view sits at the heart of the relevant reasoning of the High Court in WZAPN.
In essence, the applicant argues that the Tribunal should have found that the attacks on the mosques, and the conduct which the applicant feared, were by their nature “significant physical harassment of the person”, the applicant. The argument was that the applicant should not be expected to tolerate such conduct effected against him.
In relation to the applicant specifically, the Tribunal found that he did not face a “difficult” life in Sri Lanka because of his ethnicity, or relevantly, religion. It found that his claims in this regard were ([45] at CB 216)
“…vague and without detail. While the Tribunal accepts the standard of living he would have in Australia is higher than that he would experience in Sri Lanka, the applicant has not clearly identified any harm arising from having a hard life in Sri Lanka or clearly identified the source or motivation for that harm. Given the lack of detail, the Tribunal is not satisfied there is more than a speculative chance and therefore not a real chance he will suffer serious harm.”
Ultimately the Tribunal’s finding at [51] (at CB 217, see [37] above) is to be fairly read as a concluding finding in relation to the applicant’s claim to face serious harm on return to Sri Lanka because of his Muslim religion. The Tribunal rejected that he had suffered such harm in the past. It gave reasons for this reasonably open to it on the material before it. In light of its evaluation of the applicant’s evidence, and country information, it found the likelihood of such harm in the future as being remote.
I cannot see error in the Tribunal’s understanding and application of s.91R of the Act in this regard. Its evaluation of the applicant’s circumstances, and the country information, was for the Tribunal to conduct in the proper exercise of its jurisdiction. No legal error arises where the Tribunal, for reasons given, and findings open to it, finds contrary to what the applicant wanted.
I also note in this context the applicant’s argument appeared to be that the Tribunal had before it, and accepted country information that showed physical attacks had occurred on Muslims in the past (see the DFAT report at 3.17 and 3.18 annexed to Mr Varess’ affidavit at page 10). The argument was that it was not open to the Tribunal to find as it did at [50] (at CB 217) in light of this.
At [50] (at CB 217) the Tribunal noted the relevant contents of the DFAT report. It found there was no information that any of the events (attacks on mosques and Muslims and Muslim businesses) resulted in “serious harm to any victims”. In relation to “the incident at a Mosque”, the Tribunal found that Muslim attendees were evacuated under police escort and that there were no reports of injuries.
The applicant’s submissions appeared to argue that the Tribunal’s reference to this country information meant it accepted that all of what was said applied to the applicant’s circumstances.
A fair reading of [50] (at CB 217), in my view, reveals that the Tribunal accepted the country information to the extent that there had been attacks on mosques, Muslims, and Muslim businesses, but that there was no information that this amounted to “serious harm”. This was reasonably open to the Tribunal on what was before it. Further, in relation to the attack by 2000 Buddhists, the Tribunal found there were no reports of injuries. This again was open to the Tribunal. In all, particular (a) to ground two is not made out.
Particular (b) to ground two asserts, in the alternative to particular (a), that the Tribunal’s finding that the applicant’s fear of harm for reason of his Muslim religion was remote, was manifestly unreasonable. This ground also directs attention to the DFAT report, and what is said to be the Tribunal’s acknowledgement that there had been attacks on mosques and attacks on Muslims and Muslim businesses, yet found that these events did not give rise to “serious harm”. That is, in light of the country information it was unreasonable for the Tribunal to find that the risk was “remote”.
The applicant submitted that the Tribunal’s finding was unreasonable in two ways. First, that once the Tribunal accepted that there had been attacks on places of worship and, verbal and physical attacks on Muslims and Muslim businesses, no reasonable decision maker, in the “Wednesbury sense” (Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223), could come to the view that the risk of serious harm was remote.
Second, that there was no intelligible or evident justification, that is, no disclosure of any reasoning process in the Tribunal’s decision record, in proceeding from accepting what was said in the country information (as set out at [50] (at CB 217)), to the finding as expressed at the end of [51] (at CB 217), that the risk of serious harm was remote.
Recent authorities relevant to the applicant’s ground are Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; (2014) 231 FCR 437). The Minister also referred to the most recent Full Court judgment on this issue in Minister for Immigration and Border Protection v Eden [2016] FCAFC 28 (and see also Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11).
In Eden (at [57]), the Full Court reduced the relevant principles in Li, Singh and Stretton to “a few short propositions”. Noting that this was not meant to “supplant or derogate from the detailed analysis and explanation of the relevant principles” in the other leading authorities.
For current purposes the following is of particular relevance (Eden at [59] – [60], [62] and [64] – [65]):
“[59] Second, the Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory (Li at 363[66]). It does not involve the Court reviewing the merits of the decision under the guise of an evaluation of the decision’s reasonableness, or the Court substituting its own view as to how the decision should be exercised for that of the decision maker: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [12] (Allsop CJ) and [58] (Griffiths J); see also M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 90 ALJR 197 at 203[23]. Nor does it involve the Court remaking the decision according to its own view of reasonableness: Stretton at [8] (Allsop CJ).
[60] Third, there are two contexts in which the concept of legal unreasonableness may be employed. The first involves a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration. The second involves an ‘outcome focused’ conclusion without any specific jurisdictional error being identified: Li at 350[27]-351[28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Singh at [44]; Stretton at [6] (Allsop CJ).
…
[62] Fourth, in assessing whether a particular outcome is unreasonable, it is necessary to bear in mind that within the boundaries of power there is an area of ‘decisional freedom’ within which a decision-maker has a genuinely free discretion: Li at 351[29] (French CJ), 363[66] (Hayne, Kiefel and Bell JJ). Within that area, reasonable minds might differ as to the correct decision or outcome, but any decision or outcome within that area is within the bounds of legal reasonableness: Li at 363[66] (Hayne, Kiefel and Bell JJ); Stretton at [7] (Allsop CJ). Such a decision falls within the range of possible lawful outcomes of the exercise of the power: Li at 375[105] (Gageler J); Stretton at [11] (Allsop CJ).
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[64] Sixth, where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable: Singh at

446[45]-447[47]. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable: Singh at [47]. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes: Li at 367[76] (Hayne, Kiefel and Bell JJ); Stretton at [13] (Allsop CJ).
[65] Seventh, and perhaps most importantly, the evaluation of whether a decision is legally unreasonable should not be approached by way of the application of particular definitions, fixed formulae, categorisations or verbal descriptions. The concept of legal unreasonableness is not amenable to rigidly defined categorisation or precise textural formulary: Stretton at [2] and [10] (Allsop CJ) and [62] (Griffiths J). That said, the consideration of whether a decision is legally unreasonable may be assisted by reference to descriptive expressions that have been used in previous cases to describe the particular qualities of decisions that exceed the limits and boundaries of statutory power. A number of those cases, and the descriptive expressions used in them, are referred to in Li and in the judgment of Allsop CJ in Stretton (at [5]). The expressions that have been utilised include decisions which are ‘plainly unjust’, ‘arbitrary’, ‘capricious’, ‘irrational’, ‘lacking in evident or intelligible justification’, and ‘obviously disproportionate’. It must be emphasised again, however, that the task is not an a priori definitional exercise. Nor does it involve a ‘checklist’ exercise: Singh at 445[42]. Rather, it involves the Court evaluating the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.”
As set out above there are two contexts in which legal unreasonableness may apply (Eden at [60] and see also Singh). It would appear in the current case that the applicant seeks to draw on both contexts, notwithstanding that one context requires the presence of a justification, looking to what the Tribunal has put in explaining (justifying) its decision, and the other relies on the absence of any such explanation or justification (the “outcomes” focus).
In any event, I understood this aspect of the applicant’s argument to flow from the initial assertion of Wednesbury unreasonableness. Whatever the basis for the complaint, the applicant’s particular to the ground does not succeed in revealing legal error.
I do not agree with the applicant that the Tribunal moved from an acceptance of country information concerning serious harm to Muslims in Sri Lanka to a finding that the risk of such harm was remote without any analysis, let alone an intelligible justification for the conclusion.
As set out above the applicant claimed to fear persecutory harm, relevantly on the basis of his Muslim religion, which he said would lead to, amongst other things, his having a “hard life” in Sri Lanka, and that he could not live there. Further, he made certain relevant claims of past harm.
The Tribunal found that it was not satisfied that the applicant would face more than a remote risk, and therefore did not face a real chance of suffering serious harm due to his Muslim religion if he were to return to Sri Lanka.
The intelligible justification for this arose from and can be seen in, its various findings of fact concerning the applicant’s claims and evidence and country information before it. The Tribunal considered, and rejected the claim that past harm would form the basis for future harm. Further, that country information did not support the applicant’s claimed fear of harm from the authorities for reason of religion, or from Sinhalese generally. As set out above, these findings were all reasonably open to the Tribunal on what was before it.

The applicant’s submission now that the Tribunal went from an acceptance of country information “favourable” to the applicant to an adverse conclusion cannot be accepted on a fair and holistic reading of the entirety of its decision record.
The applicant’s submissions concerning the “outcome based” context, in the circumstances cannot be seen as more than a disagreement with the Tribunal’s ultimate conclusion. It is not for the Court to remake the decision according to its own view of reasonableness (Eden at [59]). Particular (b) to ground two is not made out.

Conclusion

In all, the grounds of the application pressed by the applicant, noting again that grounds three and four were not pressed, do not reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate:

Date: 13 May 2016