SZUOA v Minister for Immigration

[2015] FCCA 803

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 803

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

Legislation: 

Migration Act 1958, ss.424A, 424AA, .425(1), 476

SZTEQv Minister for Immigration and Border Protection [2015] FCAFC 39
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZUOA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1703 of 2014

Judgment of: Judge Street

Hearing date: 1 April 2015

Date of Last Submission: 1 April 2015

Delivered at: Sydney

Delivered on: 1 April 2015

REPRESENTATION

The Applicant appeared person.

Solicitors for the Respondent: Ms Rayment
Mills Oakley

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6000.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1703 of 2014

SZUOA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of the decision of the Tribunal made on 19 May 2014, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. 

2. The amended application identifies the following grounds:

   Ground One

   The applicant was denied procedural fairness because the Tribunal failed to comply with it’s own procedure to provide an opportunity to the applicant to comment on a particular aspect of information given to her Lawyer.

   Particulars

   (a) The opportunity was recorded at paragraph [11] of the decision record.

   (b) The opportunity purported to suggest the substance of the information held by the Tribunal.

   (c) The statement as to the substance of the information held by the Tribunal was incorrect and materially misleading.

   (d) There are no evidences to the alleged advices from her Lawyer/

   Ground Two

   Further and in the alternative, the conclusion that the Tribunal failed to inform the applicant that what will happen to the applicant if she return to Sri Lanka.

   Particulars

   The Tribunal failed to advice the applicant that involuntary or(being removed from Australia) returnees would only be fined or not imprisoned on return was incapable of support from the Tribunal.

   Ground Three

   Further and in the alternative, the Tribunal misconstrued section 36(2)(aa) and it’s jurisdiction by finding any significant harm arising from the treatment whilst, in custody in Sri Lanka on return must be intentional in circumstances where there is no requirements in the any for the infliction of torture have an intention element to constitute significant harm.

   Particulars

   In paragraph (37) of the decision record the Tribunal without any evidence is not satisfied the significant harm.

   Ground Four

   The Tribunal failed to apply the “real chance” test to it’s determination under section 36(2)(aa).

   Particulars

   At paragraph (39), the Tribunal found that the claims of mistreatment by (other) returnees have not been substantiated.

   The requirement by the Tribunal of evidence would have found substantiated claims of torture is indicative of a standard of proof inconsistent with the real chance test.

   Ground Five

   Further and in the alternative, the Tribunal erred requiring an element of intention to be present in relation to the suffering of significant harm whilst on reman in gaol in Sri Lanka.

   Particulars

   The Tribunal required an intentional in respect of the creation of the overcrowding and poor conditions in police stations and gaols. The correct test would be to assess whether the placement by the authorities of the applicant into those known conditions was intentional thereby exposing the applicant to significant harm.

   Ground Six

   Further and in the alternative, the Tribunal has failed to apply the correct test in relation to section 36(2)(aa) by referring to unspecified findings above at paragraph (39) thereby failing to disaggregate findings in relation to section 36(2)(a) from findings in relation to section 36(2)(aa).

3. The applicant also provided further affidavit evidence, but relevantly sought to advance an argument based on the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. That decision was overruled in SZTEQ vMinister for Immigration and Border Protection [2015] FCAFC 39, and there is no substance in the fresh further grounds sought to be raised by the applicant's letter dated 27 January 2015.

4. This is a case where the Tribunal did not accept the credit of the applicant in relation to the majority of the claims that she advanced.  It did accept part of her evidence, but did not accept those parts of her claim in which she alleged she had a genuine fear of persecution for a Convention reason.

5. The applicant arrived in Australia on 21 October 2012 on a Subclass 676 visa. The applicant applied for a protection visa on 7 December 2012.  The delegate refused the grant of the Protection visa on 11 August 2013.  The Tribunal conducted a hearing on 6 May 2014, at which the applicant appeared and was assisted by an interpreter, and the Tribunal carefully explored the applicant's history, claimed fears, and alleged events in Sri Lanka. 

6. Those claims by the applicant were identified by the Tribunal in para.4 as follows:

   4. Her express claims and those arising on the evidence are that she fears harm in Sri Lankan in connection with the following, including cumulatively: she is viewed as a threat to Colonel Karuna and a cadre of the Eelam People’s Democratic Party (EPDP) named [M] because of threats she has made to expose information given by Colonel Karuna to the applicant’s late father in around 1991, which implicates [M] in the disappearance of the applicant’s brother in 1991. She claims that Karuna, [M] and their networks, including within the Sri Lankan police (SLP), Sri Lankan Army (SLA) and paramilitaries such as the EPDP, are looking for the applicant with the intention of harming and even killing her. She claims that Karuna and/or [M], in an attempt to give her an adverse profile amongst agents of the Sri Lankan authorities, have accused her of assisting the Liberation Tigers of Tamil Eelam (LTTE). She claims to face death, torture, harm including sexual mistreatment and other mistreatment at the hands of Karuna, [M] and/or their networks within the paramilitaries such as the EPDP, and within government agencies including the Criminal Investigation Department (CID), the SLA and the SLP.

7. The Tribunal identified in para.1 that it had concluded that the applicant is not a person in respect of whom Australia has protection obligations, and affirmed the delegate’s decision.  In relation to the applicant’s credibility, the Tribunal relevantly said as follows:

   10. As detailed below, significant aspects of the applicant’s claimed past adverse experiences and circumstances in Sri Lanka raise cumulative credibility concerns such that the Tribunal cannot be and is not satisfied about the truth of significant aspects of her claims and evidence. Her claimed past experiences and profile are central to her claims to fear harm in Sri Lanka in the reasonably foreseeable future, and the Tribunal’s cumulative credibility concerns regarding those and other factors, in the context of all the evidence before it, considered and detailed below, cause the Tribunal to not be satisfied that the applicant is a person in respect of whom the Tribunal has Protection obligations.

   11. The claims presented by the applicant, particularly in her written statement are extensive and detailed. The first seven to eight pages of her written statement comprise extensive excerpts of independent reports relating to ongoing human rights abuses in Sri Lanka. The excepts are largely from reports dated in 2011. The applicant told the Tribunal that her Protection visa application form and typed, English language statement provided in support of that application, were prepared with the assistance of a “lawyer” named [S]. She said that, in respect of the responses contained in the Protection visa application form, [S] read the questions out to her, she responded in Tamil and he wrote her responses in the form in English. In respect of her extensive written statement, she said that it was read back to her in her language and she did not identify any information contained in it being incorrect. She said however, that her lawyer did not include in that statement “things that I told him without evidence”. When asked what she means by this, she said that her father had filed a case about her brother’s disappearance and the CID took those documents from her father, but because she had no documentary evidence of this her lawyer did not include it in her written statement. As put to the applicant, the Tribunal considers that explanation unconvincing given that the applicant’s very long written statement appears to include many other claims which are not verified by independent or documentary evidence but which are less relevant to her claimed fears of future harm. In response the applicant offered only that her lawyer told her he cannot write a book. That response does not overcome the concern put to the applicant, which, while not determinative of any issue in the review, raises some concerns that her claims have evolved over time and that her evidence may not be reliable. That concern is compounded by the multiple and cumulative concerns detailed in the balance of the Tribunal’s considerations.

8. Then the Tribunal noted that it had asked the applicant whether any of her family members had experienced problems in Sri Lanka, and the Tribunal had made a finding as to her other siblings.  It is true that the applicant had a brother who disappeared in Colombo in 1991.  However, part of the allegations advanced by the applicant in relation to her brother’s disappearance were advanced as grounds for her fears belatedly, and the Tribunal made an adverse finding in relation to that belated fear concerning her brother’s disappearance.  Importantly, the Tribunal accepted the applicant's evidence in relation to her family that they had had no problems with anyone, and the Tribunal accepted that none of the applicant's family members who remain in Sri Lanka have been personally targeted for harm at any time in Sri Lanka.  The applicant also told the Tribunal that there has been no adverse interference with her paddy fields, even though they were transferred from her father to her name, and the Tribunal also accepted that as true. 

9. The Tribunal carefully addressed the claim and evidence advanced in relation to the applicant's brother’s disappearance in 1991 in Colombo and expressed credibility concerns as to the evidence of the applicant, relevantly, as follows:

   16. As put to the applicant by the Tribunal, this document supports her claim that her brother disappeared in July 1991, which the Tribunal accepts occurred. However, this document also suggests that an official enquiry into that disappearance was conducted in Sri Lanka. The Tribunal asked the applicant what she understands the outcome of that enquiry to have been and what her own personal understanding of her brother’s disappearance and/or involvement in the inquiry regarding it has been. The applicant’s evidence on these matters was, as described below, vague, changing, inconsistent and unconvincing in multiple respects.

   17. In relation to how the inquiry into her brother’s disappearance, evidenced by the document referred to in paragraph 16 above, progressed and what the outcome was, she offered variously that: there was no verdict; and she doesn’t know the outcome. When asked if anyone from her family followed up on the progress of the inquiry she responded that they did not as they feared for their lives. Yet she also offered that her father had commenced a court case about the matter several years later and that he was very well connected and influential amongst the community, SLP and politicians, including the Sri Lankan President. When asked if her evidence is that, despite her father’s connections and reputation and her brother’s position within a Sri Lankan Government Department, no-one from her family dared approach the Presidential Commission to find out how it was progressing on the inquiry regarding her brother’s disappearance, she offered variously that: her brothers were married and their wives didn’t want them to be involved; and after 2005 her father fell ill and could not walk. When the Tribunal put to her that that was 11 years after date of summons from the Presidential Commission and asked her to comment on what her father did to pursue the matter before falling ill in 2005, the applicant varied her evidence further to the effect that there were letters but no results and after her father passed away in 2008 there were no further communications.  The Tribunal considers this evidence in its totality to be vague, evasive and unconvincing in supporting her claims that her family did not know and/or were too scared to follow-up on the progress or outcome of the Presidential Commission’s inquiry into her brother’s disappearance.

   18. When asked about her own involvement in any inquiries regarding her brother’s disappearance in or after 1991 she offered at one point that, when she met with Colonel Karuna in December 2011 she told him she would file a case against [M] in connection with her brother’s disappearance. She said that it was from this point on that she was viewed as a threat to [M] and Karuna and she remained house-bound after this out of fear of harm from them and/or their networks. The Tribunal put to her that her claimed express threat to Karuna in December 2011 that she would pursue the matter now appears to be central to her claim that she was adversely targeted by Karuna and [M] but is not mentioned in her extensive written statement, and asked why. She responded that her lawyer didn’t include this claim even though she told him about it. However, as put to the applicant, given that her representative included a range of other, less important details in the very long written statement submitted, and that she said he read it out to her before she signed it, it is difficult to accept that if she threatened Karuna in December 2011, thereby triggering his adverse interest in her, this central fact would not have been mentioned in her written statement. In response she repeated that her lawyer told her he cannot write a book.  Later in the hearing, when the Tribunal asked the applicant about her direct interactions with Karuna, [M] and/or their paramilitaries since May 2011, she expressly stated that she interacted directly with Karuna and [M] only once, when they conducted a community meeting in her area in May 2011. She said she never saw or spoke to Karuna or his men directly after that. This contradicts her claim that she told Karuna directly, in December 2011, that she intended to file a case against [M] in respect of her brother’s disappearance and casts further and significant doubt on the truth of that claim and the applicant’s overall reliability as a witness. Based on these cumulative concerns and the evidence in its totality, the Tribunal is not satisfied that the applicant directly threatened Karuna or anyone else with any action in connection with her brother’s disappearance in 1991.  

   19. As put to the applicant, her evidence indicates that it was only her father who took any legal or other action to try to locate her brother and/or bring his abductors to justice. While she told the Tribunal that she helped her father prepare a court case in respect of her brother’s disappearance but that the documents relevant to that case were taken by the CID in 1996, her evidence regarding what documents were prepared and/or taken by the CID and the detail of the claimed court case impressed the Tribunal as vague. For instance, she was unable to recall even the approximate dates when the court case was filed and said she had no documents in respect of the court case. Her evidence that her father filed that court case was also inconsistent with her earlier evidence that her father was too frightened to contact the Presidential Committee regarding their official inquiry regarding her brother’s disappearance. She told the Tribunal that she did nothing in connection with her brother’s disappearance after her father died in 2008. She gave no evidence that her father was harmed in any way in respect of his claimed involvement in inquiries and/or actions to locate the applicant’s brother or bring his abductors to justice. In such a context, and given the applicant’s lack of involvement in those claimed actions, as put to the applicant, it is difficult to accept that the applicant has been or would be singled out for harm by Karuna, [M] or any of their associates while her remaining family members continue to live and work without any adverse interference, or that she would be perceived by them as a threat who would expose [M]’s rumored involvement in her brother’s disappearance over 20 years ago. In response the applicant offered that she is targeted because she directly threatened Karuna in December 2011 that she intends to file a case regarding the matter. However, as reasoned above, the Tribunal is not satisfied that the applicant did in fact make such a threat to Karuna. These concerns cumulatively cast significant doubt on the applicant’s overall reliability as a witness and the truth of her claims that she: was ever harmed in Sri Lanka as she claims; has or had any adverse profile in Sri Lanka giving rise to a real chance of serious harm or a real risk of significant harm in Sri Lanka in the reasonably foreseeable future.

10. The Tribunal turned to an alleged incident by the applicant in May of 2011, and relevantly said in relation to the applicant’s credit:

    20. The applicant’s evidence is that: her father died in 2008; in May 2009, after the formal end of the Sri Lankan war, the applicant and her mother returned to live in their family home which Karuna had occupied since 2003, which he had then vacated; and the applicant returned to work in the paddy fields full-time since around May 2009. She said that she had no problems until May 2011, when Karuna, [M] and other paramilitaries came to inspect her local area and instructed paddy field workers/owners to contribute a portion of their produce to Karuna and the EPDP. The applicant told the Tribunal that there were around 300 attendees at that community meeting, and she was one of them. She said that she recognized [M]’s name as the person implicated in her brother’s disappearance in 1991, so she spoke to him personally and said words to the effect “what did you do with my brother?” The Tribunal asked why she would say this to him if: she believed there was an unresolved inquiry in respect of her brother’s disappearance; and she believed him to be a dangerous man aligned to a powerful figure like Karuna who was attending her local area accompanied by paramilitaries? She responded that, when her father was dying he told her that, if she ever sees [M] she should question him about her brother. When asked why her father would ask his unmarried daughter to put herself in harm’s way by confronting the person suspected of abducting and killing her brother she responded, unconvincingly, that she was looking after her father when he was ill and he must have sensed her anger about her brother’s disappearance. As put to the applicant, it is difficult to accept that her dying father would ask her to put herself in harm’s way by confronting the suspected abductor of her brother, and this in turn, in the context of the balance of the evidence and concerns detailed in the Tribunal’s considerations, casts doubt on the truth of her claim that she did in fact speak directly to [M] in respect of her brother’s disappearance in May 2011 or at any other time.

    21. A further concern regarding the applicant’s claimed direct interactions with Karuna and/or [M] in May 2011 is the following internal contradiction in her written statement. Specifically, that statement says, on the one hand, that Karuna came to her during that community meeting, after she confronted [M], and said that [M] “was not the cause of my brother’s disappearance”. However, contradicting that, she writes that Karuna also told her, on the same occasion, that if she tells anyone that he had implicated [M] in the past, [M] “will have to take me away as he did for my brother”. As put to her, this seems contradictory as, on the one hand she claims Karuna is denying any involvement between [M] and her brother’s disappearance, while also threatening that [M] will harm her like he did her brother. The applicant’s response to this concern impressed the Tribunal as confused and raised additional credibility concerns. She told the Tribunal firstly that Karuna had said to her, in front of other people that day, that [M] was not involved in her brother’s disappearance. When asked why he would do that in front of other people if his concern was to keep that allegation quiet, she changed her evidence immediately, saying Karuna was actually speaking to her in private after the community meeting. When the Tribunal put to the applicant its concerns about this seemingly contradictory and changing evidence, she offered only that she is telling the truth.  However the above concerns cumulatively raise significant doubt regarding the truth of the claims made, including that she asked [M] what he did with her brother and that Kuruna threatened her and/or adversely targeted her as a result.

    22. The applicant told the Tribunal that, after this incident, she spoke to her brother who is a friend and/or associate of Karuna and has been for many years. She said her brother spoke to Karuna and told him that the applicant will not say anything about Karuna having implicated [M] in her brother’s disappearance. She said she never spoke to anyone outside her immediate family about Karuna implicating [M] in her brother’s disappearance. She continued to work at the paddy fields and to live alone with her mother in the same residence that had been occupied by Karuna between 2003 and 2009. Despite her place of residence and work being well-known to Karuna her evidence did not reveal her to have been approached at her home in any way, adversely or otherwise, by Karuna, [M], their associates or any agents of the Sri Lankan authorities at any point, until the claimed incidents of September 2012, detailed further below. Her ability to continue living and working at places known to both Karuna and [M] and their networks within the paramilitaries and agencies of the Sri Lankan authorities, including the SLA and SLP, compounds the Tribunal’s concerns about the truth of her claims to have: confronted [M] in May 2011 about what happened to her brother in 1991; been or be viewed as a threat or of adverse interest to Kuaruna or [M] or anyone else since May 2011 or any other time in Sri Lanka.

1. The Tribunal then turned to deal with the 2011 incident, and again made adverse findings of credibility.  Relevantly:

   24. However, the applicant’s oral evidence to the Tribunal differed significantly from the above, written account. Of particular concern, the applicant’s oral evidence to the Tribunal was that: when Karuna’s men spoke to her labourers at her paddy field in December 2011 she was at her home, she was not present at her field and she did not see Karuna’s men speaking to her labourers; she heard that Karuna’s men had spoken to her labourers the next day when she went to her field and saw that her labourers were gone; she saw her labourers working at a neighbouring paddy field and spoke to them there and they told her directly that Karuna’s people had spoken to them the previous day and they were too scared to continue working for her. Her oral evidence to the Tribunal was to the effect that Karuna’s men had told her labourers not to work for her. She made no reference in her oral evidence to the Tribunal to Karuna’s men asking whether she had mentioned anything about Murugesu or Karuna as she expressly claimed in writing.

   25. As put to the applicant, her written and oral accounts differ in significant respects, including in that her written statement refers to her directly approaching Karuna’s men when she saw them speaking to her labourers, and Karuna’s men then leaving immediately. As put to her by the Tribunal, that account is very different from her oral evidence to the Tribunal that she was not even at her field on the day Karuna’s men spoke to her labourers in December 2011, and that she was at her home that day.  In response she offered that she had given the same account to the lawyer who wrote her statement, however that explanation is unconvincing given that she had earlier told the Tribunal that her written statement was read out to her and she considered all its contents to be correct. 

   26. The Tribunal also notes the following further discrepancy in the accounts given regarding the claimed events of December 2011. As detailed earlier, at one point in her oral evidence to the Tribunal the applicant said that, during this claimed incident she approached Karuna directly and threated to commence action regarding [M]’s rumoured involvement in her brother’s 1991 disappearance. However, in her subsequent oral evidence to the Tribunal she said she had no direct interaction with Karuna after May 2011. These inconsistencies, in the context of all the evidence before the Tribunal, compound the Tribunal’s concerns regarding the truth of the claims and evidence advanced in respect of the incidents of December 2011 and her claims and evidence more generally.

   …

   29. She expressly told the Tribunal that  she would not have left Sri Lankan if the incidents of September 2012, detailed below had not occurred. However, as put to the applicant under section 424AA of the Act, the Department file relating to her Australian Tourist visa application shows that she signed that application form in August 2012, before the claimed incidents of September 2012 had occurred, suggesting that she intended to leave Sri Lankan before those incidents, and compounding the Tribunal’s concerns regarding the overall truth of her evidence. The Tribunal also put to the applicant, under section 424AA of the Act, that the same Department file indicates that her sister-in-law emailed the Department on 26 September 2012 and informed the Department that the applicant was staying in a hotel in Colombo, which appears inconsistent with her written claim that, after December 2011, she did not leave the house in [B] at all, even to go shopping. As explained to the applicant, that information cumulatively cast significant doubt on the truth of the claims that: the incidents of September 2012 triggered her decision to leave Sri Lanka; she feared leaving her home in [B] and did not leave that home even to go shopping after December 2011; that she had any adverse profile or that any person or agency or group in Sri Lanka had or has any intention or desire to harm her in any way.  In response to these concerns the applicant offered only that she is in a confused state. That response does not address or overcome the Tribunal’s concerns.

2. The Tribunal then turned to the alleged September 2012 incident, and again expressed concerns as to the applicant's credibility, relevantly, as follows:

   31. The cumulative concerns detailed above cast significant doubt on the truth of the applicant’s claims that she and/or her mother were shot at in September 2012, and her claims that she was detained, mistreated and threated by the SLP and associated paramilitaries after this.

   …

   33. While claiming in writing that, when she was interrogated by the SLP, in addition to being  accused of giving the LTTE rice, vegetables and coconuts, she was also accused of “harbouring LTTE cadres in our residence”, she made no mention of being accused or harbouring LTTE cadres in her oral evidence to the Tribunal. When questioned about this she responded that she didn’t say that to her lawyer and she does not know why it is in her written statement. However earlier in the hearing she told the Tribunal that her statement was read back to her in her own language by her representative and she did not notice any errors. The Tribunal is not satisfied that the applicant was ever accused of harbouring LTTE cadres in her residence, and considers the existence of that assertion in her written claims to raise further concerns about whether those written claims are a true reflection of the applicant’s circumstances.

3. In relation to the applicant's claim for protection, relevantly, the Tribunal found in para.34:

   34. Also, as discussed with the applicant, independent sources, including the UNHCR guidelines in respect of Sri Lankan, dated in December 2012 (excerpted at Appendix 2), appear to acknowledge that residents of many northern parts of Sri Lankan which were under LTTE control during the war, inevitably came in contact with the LTTE. However, that report expressly states that, simply being from an LTTE controlled area, where it can be assumed that some contact with the LTTE was had, does not necessarily, in and of itself, impute a person with links to the LTTE which would give rise to a need for international protection. As put to the applicant, even though the Tribunal accepts that the applicant’s family gave produce from their paddy fields to the LTTE, on the applicant’s own evidence her family also gave produce to the Sri Lankan Army and other paramilitaries, and no members of her family unit, despite remaining in [B] and retaining their paddy fields in the area, have been imputed with any links with the LTTE or harmed in any way, other than her brother disappearing from Colombo in 1991. Based on the evidence before it, while the Tribunal accepts that the applicant and her family gave various entities and individuals, including from the LTTE, the EPDP, Karuna and his men and the SLA and SLP produce from their paddy fields, the Tribunal is not satisfied, on the evidence before it that this has given the applicant any profile linked to the LTTE or any other entity which would  give rise to a real chance of serious harm as contemplated by sections 91R(1)(b) or 91R(2) of the Act, or a real risk of significant harm as contemplated by section 36(2A) of the Act, in Sri Lanka in the reasonably foreseeable future.

4. The Tribunal continued in respect of the applicant's claims to make the following adverse finding:

   35.    In respect of the balance of the applicant’s claims and evidence, based on the totality of the evidence before it, including the multiple, significant and cumulative concerns detailed above, the Tribunal cannot be and is not satisfied as to the truth of significant and central parts of the applicant’s claims and evidence, or her overall credibility as a truthful witness. Specifically, on balance, taking into account all the evidence before it, the Tribunal is not satisfied that the applicant: made any direct approach to Mugugesu and/or Karuna in May or December 2011 in connection with her brother’s 1991 disappearance; has been singled out by Karuna, Murugesu or anyone else as a threat for any reason, including in connection with her brother’s disappearance in 1991; has been implicated by the SLP or any other entity or paramilitary linked to the Sri Lankan authorities as a person who is linked to the LTTE; was shot at, detained, mistreated or been threatened or intimidated by anyone in Sri Lanka in September 2012 as she claims; had, or believed herself to have had, any profile in Sri Lanka giving rise to a real chance of any harm in Sri Lanka, including serious harm or significant harm, before leaving Sri Lanka; has or believes herself to have any profile which gives rise now, or in the reasonably foreseeable future, to a real chance of serious harm contemplated by sections 91R(1)(b) or 91R(2) of the Act, or a real risk of significant harm as contemplated by section 36(2A) of the Act, in Sri Lanka in the reasonably foreseeable future.

5. The Tribunal materially then found:

   36.    Based on all the evidence before it, including the applicant’s claimed past circumstances and what is accepted of her current personal and family circumstances and profile in Sri Lanka, the Tribunal is not satisfied that the applicant faces a real chance of serious harm for any of the reasons claimed or arising on the evidence, either singularly or cumulatively. It follows that the Tribunal is not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

6. I am satisfied that those findings by the Tribunal were open, and I am satisfied that it cannot be said that the findings lack an evident and intelligible justification. The adverse findings of credit were clearly open on the material before the Tribunal, and in that regard it is the applicant's own evidence that the Tribunal accepted about the fact that her family had no problems in Sri Lanka, other than her brother’s disappearance. 

7. The Tribunal turned to the issue of complementary protection and relevantly found as follows:

   37. The Tribunal has also considered whether the applicant is eligible for complementary protection.  Based on the cumulative reasoning and findings of fact detailed in the Tribunal’s considerations above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, she faces a real risk of: being arbitrarily deprived of her life; the death penalty being carried out on her; being subjected to torture; being subjected to cruel or inhuman treatment or punishment; or being subjected to degrading treatment or punishment for any reason claimed or arising on the evidence, including cumulatively.

   38. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   39. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa)

8. The first alleged ground in the application does not identify any jurisdictional error.  It is clear that the Tribunal carefully took into account the claims advanced by the applicant, and to the extent relevant, the Tribunal clearly made adverse findings in relation to s.91R(1)(b) and s.91R(2), to the effect that the applicant would not face a real risk of significant harm if returned to Sri Lanka and that there is no real risk of significant harm as contemplated by s.36(2A) of the Act to the applicant in Sri Lanka in the reasonably foreseeable future. 

9. I am satisfied that the Tribunal dealt with the claims that were advanced by the applicant.  I am satisfied that there is no error in relation to the Tribunal’s approach in the determination under s.91R, and that the findings were open.  For the reasons referred to above, there is no substance in the second ground. 

10. The third ground does not identify any jurisdictional error, and the finding that the applicant was not a person to whom Australia owed protection obligations was clearly open on the material and can’t be said to be a finding that lacks an evident and intelligible justification.  I accept the first respondent’s submissions that there is no substance in the arguments raised in the applicant's letter dated 27 January 2015. 

11. For the reasons identified in the first respondent’s submissions, as well as for the reasons I have identified above, in these circumstances, the application is dismissed.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015