SZVHC v Minister for Immigration

[2016] FCCA 1674

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVHC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1674

Catchwords:
MIGRATION – Application for review of Tribunal decision – whether Tribunal failed to consider a claim – whether Tribunal did not apply correct test – no jurisdictional error found – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 91R, 424A, 476

Cases cited:

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22; (2015) 254 CLR 610
SZNOE v Minister for Immigration and Citizenship [2012] FCA 96
SZUXM v Minister for Immigration and Border Protection [2015] FCA 1514
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant: SZVHC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2872 of 2014

Judgment of: Judge Nicholls

Hearing date: 10 June 2016

Date of Last Submission: 10 June 2016

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

Applicant: In Person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 16 October 2014 and amended on 17 April 2015 is dismissed.

3. The applicant pay the first respondent’s costs set in the amount of $7,100.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2872 of 2014

SZVHC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. I have before me today an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act) made on 16 October 2014, and amended on 17 April 2015 seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 17 September 2014, which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents which has been tendered into evidence by the Minister (“the Court Book” – “CB”).

Background

1. The following background is revealed from that evidence. The applicant is a citizen of Sri Lanka. He arrived in Australia by boat on 17 May 2012. On arrival, he told the relevant Australian authorities that he was seeking protection because of financial difficulties. The Minister exercised his power pursuant to s.46A(2) of the Act and the applicant subsequently made an application for a protection visa on 27 August 2012 (CB 37 to CB 86). The applicant was represented by a registered migration agent (CB 87).

2. The applicant’s claims were initially set out in a written statement, which accompanied his protection visa application (CB 90 to CB 91), and were also set out in written submissions from his representative (CB 92 to CB 102).  The Minister’s delegate refused the application on 26 March 2013 (CB 103 to CB 132). 

3. The applicant applied for review to the Tribunal on 4 April 2013 (CB 134 to CB 139).  He continued to be represented, and the representative made further written submissions (CB 150 to CB 170). The applicant attended a hearing before the Tribunal on 26 September 2013 and a representative was present (CB 172). 

4. The Tribunal wrote to the applicant by letter dated 27 September 2013 seeking his comments on or response to certain information which it said would be the reason or part of the reason for affirming the delegate’s decision (CB 177 to CB 182).  The applicant’s representative responded by letter dated 11 October 2013 (CB 183 to CB 197).  The applicant provided further documents to the Tribunal in support of his claims (CB 198 to CB 205). He appeared at a hearing before the Tribunal on a second occasion on 9 September 2014, and again his representative was present (CB 213).

5. The applicant’s claims to fear harm if he were to return to Sri Lanka, as they were ultimately put to the Tribunal, were as follows. He would face harm because of his Tamil ethnicity, and what was said to be an actual or perceived adverse view of his political opinion.  Further, the applicant claimed to fear harm because of his membership of a number of particular social groups. The Tribunal provided a summary of what had been claimed in its decision record ([228] at CB 252 to CB 253). 

6. The applicant also relied on a number of claimed instances of past harm. These were that he had been detained by Sri Lankan authorities in 2003 on suspicion of smuggling guns for the LTTE, and that he had been beaten in 2009 by members of the Sri Lankan Army. The applicant also claimed that, as a fisherman, he would be discriminated against by Sinhalese fishermen and the Sri Lankan Navy.  Further, that on the boat journey to Australia, he received threats from Sinhalese crew members, and one crew member, in particular, who appeared to have a connection with smugglers in Sri Lanka.

7. The Minister’s written submissions filed in these proceedings have summarised the Tribunal’s lengthy decision record (74 typed pages).  In my view, the Minister’s summary is a fair summary of what appears in the Tribunal’s decision record, and for the sake of convenience today, and in that light, I adopt for the purposes of this judgment that part of the Minister’s written submissions ([4] – [19] of the Minister’s written submissions):

   “[4] The Tribunal accepted that the applicant was a Tamil who was born in Udappu in North West Sri Lanka. It also accepted that he lived there until April 2012 save for a period of almost 2 years when he moved for work. However, it found that the applicant had otherwise fabricated his claims for protection and was not a credible witness (at CB 253 [229]).

   [5] The Tribunal rejected the applicant’s claims that he had been detained in Udappu and Negombo for 14 days on suspicion of smuggling weapons and that there had been a court process in relation to the charges. The Tribunal found that the applicant gave inconsistent evidence, failed to raise significant claims at the earliest opportunity and developed his claims over time (at CB 253-254 [231-237]). For example, the applicant did not claim that there were allegations that he was transporting weapons in his interview before the delegate. Nor did he mention the payment of bail money or further court proceedings at any time before his first submission to the Tribunal (at CB 254 [234] and [236]).

   [6] The Tribunal also found that the applicant gave ‘vague and inconsistent’ evidence in relation to his and his father’s claimed political activities. For example, the applicant did not claim he was involved in politics at his entry interview. Whilst he initially claimed that his father had shifted political parties, he later claimed his father had always supported the opposition party. It was not until the second hearing that the applicant claimed that his father was ‘the trusted lieutenant and number two to the...chairman’ of the opposition (at CB 254 [240]).

   [7] The Tribunal did not accept the applicant’s explanations that the inconsistencies were minor, the result of miscommunications and that he had trouble remembering (at CB 255 [242-244]).

   [8] The Tribunal also rejected the applicant’s claim that he was subject to a reporting condition after the court case in 2003 that an arrest warrant was issued for his arrest in February 2011 and that CID officers had come to his house at that time. Again, the Tribunal found the applicant had given inconsistent evidence and had failed to provide significant claims at the earliest opportunity.

   [9] The Tribunal found it implausible that the applicant would have been able to remain in the same house without the CID finding him if they were interested in him. It also relied on country sources which indicated that people wanted by the authorities were frequently arrested and kidnapped. Nor did it find it plausible that the applicant would have forgotten about these ‘significant’ claims (at CB 256-257 [246-252]).

   [10] The Tribunal rejected the applicant’s claim that he was beaten by the army in 2009 while driving a truck because he did not refer to this incident in his application or written submissions lodged with the delegate or the Tribunal. It did not accept the applicant’s explanation that he was unsure how to present his claims (at CB 257-258 [253-254]). The Tribunal found that the documents provided by the applicant after the first hearing were fabricated. It found that the documents were inconsistent with the applicant’s evidence and that he tailored his evidence when the Tribunal put his concerns to him (at CB 258 [254]).

   [11] The Tribunal also drew adverse inferences from the applicant stating in his biodata interview that he was seeking protection because of ‘financial difficulties’. It rejected that this was because he was stressed, confused or was threatened by the captain on his boat to Australia (at CB 258 [255-256]).

   [12] The Tribunal noted that the applicant and his family had no actual involvement with the LTTE (at CB 259 [259]). Nor did it accept, relying upon country information, that he would be imputed with an anti-government political opinion because he was Tamil or because he was a fisherman from Udappu. In any event, it noted that the applicant claimed to have only worked as a fisherman for a brief time in 2000 after leaving school. Given that, the Tribunal also rejected the applicant’s claims that he was targeted or discriminated against because he was a fisherman (at CB 259 [260-261]). It also noted that the applicant’s family are living in Udappu and have not been harassed (at CB 260 [262]).

   [13] The Tribunal rejected the applicant’s claims that he found out a couple of days before the second Tribunal hearing that his friend had been abducted and killed. It found his evidence was ‘vague and evasive’ and considered it to be another example of the applicant developing his claims over time (at CB 260 [263]).

   [14] Accordingly, the Tribunal was not satisfied that there was a real chance that the applicant will be suspected of having links with the LTTE or being anti-government if he returns to Sri Lanka (at CB 259 [258] and 260 [264]).

   [15] The Tribunal relied upon country information and found that the applicant did not face a real chance of serious harm because of his ethnicity. It noted that prior to the end of the war in May 2009, Tamils (particularly in the north and east of the country) faced persecution. However, it found that in 2014 the security situation had stabilised and the country information indicated Tamils were not targeted because of their race (at CB 260-261 [266-267]).

   [16] The Tribunal did not accept that the applicant had been threatened on the boat to Australia because the applicant did not advance that claim in his application, during the delegate’s interview or in submissions made after the delegate’s interview (at CB 261-262 [268-270]). The Tribunal also considered the country information and found that as the applicant would not be regarded as having a link to the LTTE, he was not at risk of harm as a result of being a failed asylum seeker: CB262 at

   
   

   [271]-[273].

   [17] The Tribunal accepted that the applicant departed Sri Lanka illegally (at CB 263 [274]). It also accepted that, based on county information, the applicant would be interviewed at the airport upon return and a criminal background check would be run. However, it was satisfied that the applicant did not have an adverse profile and was also satisfied that the procedures were standardised for all persons who left the country regardless of ethnicity (at CB 263 [275]). The Tribunal accepted that the applicant may be arrested and imprisoned for a few days and fined for his illegal departure. However, it was satisfied that the laws in relation to illegal departure were laws of general application and therefore did not amount to persecution (at CB 264 [277-278]). Accordingly, it found that the applicant did not face a real chance of serious harm as a failed asylum seeker (at CB 264 [279]).

   [18] The Tribunal relied upon its earlier findings that the applicant had fabricated all of his claims (at CB 265-266 [283], [286] and [287]). It also found that while the applicant may be remanded in prison for a few days, the country information indicated that he would be subject to a fine and not a custodial sentence. It noted the lack of country information about returnees being exposed to significant harm and found being in ‘overcrowded, dark, unclean and cramped conditions’ for a few days would not amount to significant harm (at CB 265-266 [284]). In the circumstances the Tribunal was not satisfied the applicant was owed complementary protection obligations.

   [19] Accordingly the Tribunal affirmed the delegate’s decision.”

Application Before the Court

1. The application to the Court was prepared by counsel, Mr A Kumar, who also prepared and caused to be filed for the applicant an amended application on 17 April 2015.  There are four grounds to that application with particulars to each ground:

   “Ground 1

   The Tribunal erred when assessing complementary protection that short time detention would not amount to ‘significant harm’ (s 36(2A)) or ‘serious harm’ (s 91R(2)) of the Migration Act and thereby committed jurisdictional error and / or failed to apply correct test in respect of Convention nexus and / or consider complementary protection for consequences of illegal departure and / or denied capacity to subsist.

   Particulars

   (i) The Tribunal stated in its findings: ‘The Tribunal accepts .... that there is real chance that the applicant may be arrested and imprisoned for a few days... having left the country [Sri Lanka] illegally ... ... Negombo prison may be crowded and poor ...’ (CB264, RRT dec p45 at (274]). This constitutes ‘serious harm’ pursuant to (s 91R(2)(a) - (c)) of the Act.

   (ii) Short term detention for illegal departure was not considered under Complementary protection nexus (or if so was considered generally). The short term detention constitutes ‘significant harm’ pursuant to (s 36(2A)) (a), (d) and (e)) of the Act.

   (iii) Fishing as deprivation of livelihood constituted significant harm was not considered.

   (iv) The Tribunal stated that in detaining the Applicant (Convention nexus) was non-discriminatory (CB 264 at [277-78]] presumably as a law of general application and fell into error in failing to make findings and deal with the claims such as ‘large scale killings’ (CB 169.1) and failed to deal with the claims (and who was previously detained for 14 days (CB92).

   (v) Further fell into error in failing to make findings and address the law was reasonable and proportionate to achieve its objectives.

   Ground 2

   The Tribunal committed jurisdictional error (and denied procedural fairness) when it failed to consider the Appellant's membership of a particular social group a Convention nexus specifically claimed by the Appellant.

   Particulars

   (i) The Applicant claimed particular social group with attributes such young Tamil men from North West of Sri Lanka who left illegally. The Tribunal has not made any assessment of a particular social group claim.

   (ii) The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants' particular social group did not deal with the particular social group advanced by the Applicant.

   Ground 3

   The Tribunal denied the Applicant procedural fairness / was unreasonable when it refused the Applicant's adviser's request to file further submissions on behalf of the Applicant and thereby committed jurisdictional error.

   Particulars

   (i) The Tribunal rejected the adviser's request that the Applicant to be permitted to file further submissions (made at September 2014 hearing).

   (ii) The Tribunal thereby denied procedural fairness and / or was legally unreasonable within the meaning of Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332.

   Ground 4

   The Tribunal fell into error when it failed to consider applicant's claims and / or denied the Applicant procedural fairness and thereby committed jurisdictional error when it failed to put deal with Applicant's sur place claims as Convention nexus claim and / or complementary protection claims and constructively failed to exercise jurisdiction and I or applied the incorrect test in relation to the threat.

   Particulars

   (ii) The Applicant had claimed that he would suffer harm upon return to Sri Lanka from boat crew identified as Janaka and / or Janaka's associates in Sri Lanka (CB 51 – CB 52).

   (iii) The Tribunal was aware of the claim (CB230 at [101]).

   (iv) The Tribunal did not make any findings on the claims.

   (v) The Tribunal committed jurisdictional error by ignoring the claim / integer of claims and keys evidence in relation to this claims.

   (vi) Alternatively applied the incorrect test (CB261 - 2 at [269] - [270]) when the Tribunal looked for comparator by reference to country information instead of dealing with the claims at hand and making findings on the claim.”

   [I note that particular (i) to ground four was “struck out” on the amended application, however the subsequent particulars were not “re-numbered”.]

Before the Court

1. When the matter was called today, the applicant appeared in person and was assisted by an interpreter in the Tamil language. The Minister was represented by Mr Reilly of counsel.

2. The applicant’s counsel had withdrawn from his representation of the applicant, and it appears this occurred on 3 June 2016.  At the commencement of the hearing, the applicant sought an adjournment of the hearing of his matter, and that request was ultimately refused. The applicant stated he needed more time to seek advice from an individual who was not a lawyer. I was not satisfied that the applicant intended or would be able to obtain further legal advice to assist him if an adjournment were to be granted, particularly as he intended to seek advice from an individual who is not a lawyer. 

3. The applicant made no submissions of relevant substance. However, I gave the applicant the opportunity to comment specifically on each of the grounds. With the assistance of the interpreter, I had each ground, and the particulars to the ground, translated for the applicant and gave him the opportunity to comment. I proceeded on the basis that Mr Kumar would have acted with instructions from the applicant and that therefore the applicant would have had at least some layman’s understanding of the basis of the assertions of error in each of the grounds. 

4. In relation to grounds two and four, the applicant could only state that what had been asserted by Mr Kumar was correct. He said he did not want to say anything about grounds one and three.

Consideration

1. It must be said that the applicant’s grounds, notwithstanding that they were prepared by counsel, present some challenge in understanding the exact assertions of legal error.  For example, ground one appears to focus on the matter of complementary protection, yet makes reference to “serious harm” which relates only to the Refugee Convention criterion, and not complementary protection.  Further, what is meant by “complementary protection nexus” is also difficult to understand.

2. As I explained to the applicant, notwithstanding these difficulties, I approached my understanding of the grounds by applying the most liberal view of the grounds as possible. In that light, the following matters from the Tribunal’s analysis appear to inform the applicant’s first ground.

1. First, the Tribunal summarised the applicant’s claims in its analysis ([228] at CB 252 to CB 253). On the evidence, I am satisfied that this was a comprehensive list of the bases for the applicant’s claimed fear as those were variously expressed and ultimately put before the Tribunal.

2. The key finding by the Tribunal was that the applicant had fabricated his claims and was not a credible witness ([229] at CB 253).  To some great extent, the applicant’s complaints, as expressed in the ground, appear to overlook this critical finding, and assert that the Tribunal did not consider a particular claim when, on the evidence, such consideration did take place. 

3. Ground one asserts that the Tribunal erred when assessing complementary protection. That error is said to arise because the Tribunal found that the applicant’s short-term detention upon arrival in Sri Lanka, if he were to return, would not amount to serious or significant harm. While the concept of significant harm plainly relates to the complementary protection concept, serious harm does not. The ground makes reference to s.91R(2) of the Act in the context of complementary protection. How this is relevant remained unexplained by the particulars.

4. In any event, given that the applicant appeared unrepresented and was unable to explain his grounds, it is best to deal with the individual elements raised in the ground and the particulars. 

5. First, to the extent that the ground asserts some legal error arising from the Tribunal’s finding in relation to “serious harm”, as the Minister correctly submits, the ground is misconceived. 

6. Second, the applicant’s complaint possibly may be that the Tribunal fell into legal error when it found that the applicant, being held on remand for a few days on return to Sri Lanka, in crowded and poor conditions (see particular (i) to ground one), did not amount to “significant harm”.  If that is the complaint, then for the reasons that follow that does not reveal jurisdictional error.

7. Even if the complaint in the ground were to be understood as a complaint that the error was the Tribunal’s finding that the conditions in detention did not did not amount to “serious harm”, it would still not be made out.

8. The Tribunal addressed the applicant’s claim that he faced serious harm because he departed Sri Lanka illegally, without a passport, and from an unauthorised point of departure.  The Tribunal accepted that this was the case, and further that the Sri Lankan authorities would have knowledge of this on the applicant’s return to Sri Lanka ([274] at CB 263). 

9. The Tribunal also accepted that, in the circumstances, the applicant would be interviewed by the authorities on return to Sri Lanka and would be subject to certain screening procedures.  It found that these would not amount to serious harm ([275] at CB 263).

10. The Tribunal also referred to country information that, under more recent procedures adopted by the Sri Lankan authorities, returnees who, in essence, left in the circumstances that the applicant had left Sri Lanka would be arrested at the airport on return and brought before a Court to apply for bail, and that bail is routinely given if surety and guarantee conditions are met.  In this context, the Tribunal accepted that the applicant would be placed in remand at the Negombo Prison for a few days pending the bail hearing. 

11. The Tribunal had regard to relevant country information as to the conditions in this prison. Further, it had regard to country information about the likely outcome following a charge of illegal departure ([276] at CB 263 to CB 264). 

12. The Tribunal found that while prison conditions may be crowded, and poor, returnees would not be mistreated. It found that being held on remand in the conditions described, and the subsequent penalty for illegal departure, would not amount to serious harm as that is defined in s.91R(2) of the Act ([277] – [278] at CB 264).

13. The Tribunal considered this same factual claim in light of the complementary protection criterion and the question of a real risk of significant harm in light of s.36(2)(aa) of the Act ([284] at CB 265 to CB 266). It found that the applicant would not suffer significant harm for reason of his detention or, for that matter, the imposition of the likely penalty for illegal departure.

14. As the Minister submits, again correctly in my view, these were all findings of fact reasonably open to the Tribunal to make on what was before it.  The Tribunal provided a rational and reasonable explanation for its findings, which were probative of the material before it.  The applicant’s complaints in this regard, therefore, can only be seen as a request for the Court to engage in impermissible merits review, and do not reveal jurisdictional error. 

15. Third, the ground, as explained at particular (iii), makes the claim that “[f]ishing as deprivation of livelihood constituted significant harm was not considered”. This, as the Minister submits, is unclear.

16. It is possible that what is meant here is that the Tribunal did not address, when it came to consider complementary protection, whether the applicant would suffer significant harm because of the likelihood that he would be deprived of his livelihood as a fisherman.

17. In this light, I note that the applicant’s employment history was set out, and explained, by the applicant and his representative, at various stages of the application for the protection visa and during the conduct of the review by the Tribunal.  While the representative’s written submissions of 14 September 2012 stated that the applicant “worked primarily as a fisherman during the time he has lived in Sri Lanka” (CB 92.9), the applicant subsequently gave evidence to the Tribunal that he worked as a fisherman for a short time after completing his studies, and he then went on to work as a truck driver.

18. The applicant’s evidence, as reported by the Tribunal, was that he could not recall the exact period he worked as a fisherman because “it was only for a short time” ([115] at CB 232).  The Tribunal relevantly found the following ([261] at CB 259 to CB 260):

    “…Furthermore, the applicant claimed in the first hearing to have only worked as a fisherman for a brief period of time after he left school in 2000, afterwards was engaged in either loading a truck and driving a truck and has only connection to the fishing industry was when working in Mullaitivu and loading fish into a truck.  This also leads the Tribunal to reject the applicant’s claims that he was targeted because of his occupation as a fisherman and Tamil fishermen are discriminated against by naval authorities and Singhalese fishermen who threaten to cut their nets.  The Tribunal does not accept that the applicant has a well-founded fear of persecution for any Convention reason if he returns to Sri Lanka because he is a Tamil from Udappu, had worked as a fisherman many years ago, drove a truck with fish when living in Mullaitivu between 2000 and 2003, his father was a retired fisherman or had any association with the fishing industry.”

19. These findings were all reasonably open to the Tribunal on what was before it. There is no legal error in the evaluation of the evidence, claims and submissions to prefer the applicant’s own evidence, given at the hearing, to what was written in the representative’s submissions at an earlier time. I also note that the Tribunal relied on the same factual findings in the subsequent assessment of the complementary protection criterion.

20. I cannot see on the evidence before the Court that the applicant ever claimed to the Tribunal, or that it arose in the circumstances presented, that he feared significant harm because he would be deprived of his livelihood as a fisherman.  At its highest, the applicant’s relevant claim was that as a fisherman from Udappu he would be perceived as an LTTE supporter, and on the evidence I find that the Tribunal dealt with this claim, and rejected it for reasons reasonably available to it on the material before it.  Particular (iii), therefore, does not reveal jurisdictional error.

21. Particular (iv) to ground one asserts that the Tribunal failed to deal with certain aspects of the applicant’s claims relating to detention.  The particular states that the Tribunal found that the applicant’s detention on return to Sri Lanka was non-discriminatory because such detention would be imposed as a result of a law of general application.  The complaint is that, in making this finding, the Tribunal did not consider the applicant’s claims relating to what are said to be “large scale killings”, and his detention previously for 14 days by the Sri Lankan authorities.

22. The particular directs attention to two parts of the material ultimately before the Tribunal.  The first is a reference to the applicant’s representative’s written submissions of 24 September 2013.  In those submissions, under the heading of “Complementary Protection”, the applicant’s representative referred, amongst other things, to country information reports of an incident involving what are said to be large scale killings in a Sri Lankan prison (CB 169.1)

23. In context, therefore, this claim before the Tribunal appears to be that the applicant would suffer significant harm while held on remand in a Sri Lankan prison and that a part of the country information before the Tribunal referred to a report of killings in a Sri Lankan prison. 

24. The Tribunal noted the applicant’s claim to fear harm as a result of being imprisoned on return to Sri Lanka (see in particular at [95] at CB 229). The only evidence before the Court of what occurred at the Tribunal hearing on both occasions, is the evidence in the Tribunal’s various references in its decision record, and these reveal that the matter of detention on arrival was discussed at the hearing ([148] at CB 239). It is also clear that the matter of conditions in the prison was also specifically discussed ([150] at CB 239).

25. As I have said, the Tribunal did consider the claim that the applicant would face harm while on remand. Relevant to this particular, the Tribunal made reference to having considered the information provided by the applicant’s representative in relation to prison conditions ([278] at CB 264).  The Tribunal rejected the claim that the applicant would suffer harm for reason of being imprisoned.  I cannot see error in the Tribunal’s relevant findings given that they were reasonably open to it on what was before it. The fact that the Tribunal gave weight to some country information over other country information, or was not persuaded by a particular piece of country information, does not, in the circumstances, reveal legal error (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]).

26. It is the case that in its decision record the Tribunal does not need to refer to all of the detail provided in an applicant’s submissions.  The claim made by the applicant to fear harm was that he would suffer harm because of being imprisoned and the conditions to be found in that prison.  On the evidence, the Tribunal considered and rejected this claim. In doing this it considered all the claims expressly made or clearly arising from the circumstances presented (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1, WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, and Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244).

27. The second reference in particular (iv) is to the applicant’s claim that he had been detained for 14 days in 2003. The application directs attention to the representative’s submissions of 14 September 2012 (CB 92.10). It is clear, having regard to the Tribunal’s decision record, that the Tribunal did consider this particular of the applicant’s claim. It did not accept that it had occurred ([232] at CB 253). Again, the Tribunal’s finding was reasonably open to it, and in this regard the particular can only be understood as seeking impermissible merits review.

28. Particular (v) to ground one asserts that the Tribunal fell into legal error because it did not consider whether the law relating to illegal departure was reasonable and proportionate to achieve its objective.  The answer to this complaint is that once the Tribunal found that the relevant law did not discriminate on a Convention basis ([277] at CB 264), it was not necessary to conduct the analysis that the applicant’s particular proposes, (Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22; (2015) 254 CLR 610 at [77]). In all, therefore, ground one is not made out.

29. Ground two asserts that the Tribunal fell into jurisdictional error because it failed to consider a certain particular social group of which the applicant claimed to be a member, and that such membership would put him at risk of harm.  The social group is identified in particulars to the ground as “Young Tamil men from the North West of Sri Lanka who left illegally”. 

30. As I have already said, the applicant did claim, through his representative, to be a member of a number of particular social groups.  The Tribunal summarised these at [56] of its decision record (CB 225).  The applicant’s representative’s submissions of 14 September 2012, identify these social groups (CB 92) and seek to explain them in those submissions, and subsequently in the representative’s further written submissions of 24 September 2013 (CB 150).

31. The particular social group posited by the applicant’s ground now was not, on the evidence, identified as such before the Tribunal as a particular social group to which the applicant belonged. However the characteristics of the now claimed social group, that is, young Tamil men from the North West of Sri Lanka who left illegally, were all variously parts of the applicant’s claims which were considered by the Tribunal. 

32. The Tribunal relevantly found as follows ([281] at CB 265):

    “Having considered the applicant’s claims singularly and cumulatively, the Tribunal does not accept that the applicant will face a real chance of serious harm because of any real or imputed political opinion, his Tamil race, or his membership of any particular social group…”

    Importantly, the Tribunal said:

    “…Having considered the applicant’s claims singularly and cumulatively, Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason were he to return to Sri Lanka in the reasonably foreseeable future.”

33. The Minister submits that once the Tribunal made that finding, which encompassed all of the applicant’s claims and integers of his claims, it was not necessary for the Tribunal to then also consider whether the social group which is now alleged by the applicant’s ground was, in fact, a social group, or that the applicant was a member of such a social group, or that he feared harm for this reason.  Given the authorities on which the Minister relies, the submission is accepted (SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] and SZUXM v Minister for Immigration and Border Protection [2015] FCA 1514). Ground two is therefore not made out.

34. Ground three asserts a denial of procedural fairness or, in the alternative, that the Tribunal acted unreasonably in refusing the applicant’s representative’s request said to have been made at the hearing of 9 September 2014 to provide further submissions. 

35. The difficulty for the applicant now is that, despite opportunity to do so, he has not put into evidence any transcript of the Tribunal hearing or, indeed, any other evidence of what occurred at the Tribunal hearing. I note, in this regard, that the applicant was legally represented up until very recently, and that orders had been made while the applicant had been legally represented, and continued to be so for some period after the making of those orders, which gave the applicant the opportunity to file any evidence by way of affidavit, including any transcript of the Tribunal hearing.  The only relevant evidence of what occurred at the Tribunal hearing is, as I said before, the Tribunal’s own references in its decision record. 

36. The Tribunal’s account reveals that it asked the representative at the hearing if he wanted to make any submissions.  The representative made oral submissions.  There is nothing to suggest that he sought more time to make further written submissions ([222] at CB 251 and [223] at CB 251 to CB 252). In the circumstances, given the absence of any relevant evidence from the applicant, it is not now open to the Court to speculate as to what may have otherwise occurred at the Tribunal hearing (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). The applicant’s third ground, therefore, is not made out.

37. Ground four, in essence, asserts legal error on the basis that the Tribunal failed to deal with what are described as the applicant’s “sur place claims”.  This is identified in particulars as being the claim to fear harm on return to Sri Lanka from the boat crew, or a particular member of the boat crew, that brought the applicant to Australia, or the crew member’s associates in Sri Lanka. 

38. That claim was presented in the representative’s written submissions of 24 September 2013 under the heading of “Additional Sur Place” claim (CB 151.5 to CB 152.2). 

39. The Tribunal’s account of the hearing reveals that this matter was discussed at the hearing with the applicant ([135] at CB 236 and [151] at CB 239). The matter of the fear of harm from the Sinhalese boat crew was part of the matters raised in the Tribunal’s letter sent pursuant to s.424A of the Act dated 27 September 2013 (CB 178 to CB 179). The applicant’s representative addressed the matter raised by the Tribunal in a subsequent letter in response (CB 189 to CB 191).

40. The applicant’s ground four at particular (iii) correctly asserts that the Tribunal was aware of the claim (see [101] at CB 230).  It is not possible, however, for the Court to accept the assertion at particular (iv) that the Tribunal did not make any finding about this claim.  The Tribunal considered this claim at some length ([268] at CB 261 to [270] at CB 262). The Tribunal gave reasons which were open to it on what was before it for rejecting these “sur place” claims. Ground four, therefore, is not made out.

Conclusion

1. None of the applicant’s grounds in the amended application prepared by counsel reveal jurisdictional error in the Tribunal’s decision record, even in circumstances where those grounds are read, as I have explained above.  It is appropriate, therefore, that the application to the Court, as amended, be dismissed. I will make that order.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 6 July 2016