SZWBY v Minister for Immigration
[2017] FCCA 1965
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWBY v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1965 |
| Catchwords: PRACTICE & PROCEDURE – Application for leave to further amend the application at the final hearing – application refused. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Cases cited: SZWBY v Minister for Immigration & Anor [2015] FCCA 539 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 154 ALD 221 |
| Applicant: | SZWBY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 313 of 2015 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 9 February 2017 |
| Date of Last Submission: | 9 March 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers Solicitor |
| Solicitors for the Respondents: | Mr A Keevers of Sparke Helmore Lawyers |
ORDERS
The application made on 9 February 2015, amended on 15 July 2015 and further amended on 26 February 2016 is dismissed.
Leave to amend ground four of the further amended application is refused.
The applicant pay the first respondent’s costs set in the amount of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 313 of 2015
| SZWBY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 9 February 2015, amended on 15 July 2015 and further amended on 26 February 2016, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) which, on 19 January 2014, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.
Leave was sought by the applicant at the final hearing on 9 February 2017 to amend ground four of the further amended application. This is dealt with below.
The evidence before the Court is as follows:
a)A bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
b)The affidavit of Michaela Byers, Solicitor, affirmed on 22 February 2016 which annexes a transcript (“T”) of the hearing before the Tribunal.
Background
The applicant is a citizen of Sri Lanka. He is of Tamil ethnicity and Hindu religion (CB 31). He left Sri Lanka illegally and arrived in Australia by boat without authority on 20 June 2012 (CB 32). Ultimately he applied for a protection visa on 31 October 2012 (CB 17 to CB 79). He was assisted by a registered migration agent.
The delegate refused the application on 18 July 2013 (CB 101 to CB 122). The applicant applied for review to the Tribunal on 23 July 2013 (CB 123 to CB 129). He continued to be assisted by a registered migration agent. The applicant, and his agent, attended a hearing before the Tribunal on 8 January 2015 (CB 155). The Tribunal affirmed the delegate’s decision on 19 January 2014 (CB 164 to 182).
The applicant commenced proceedings in this Court on 9 February 2015 which were summarily dismissed by a Judge of this Court on 5 March 2015 at the first Court date (SZWBY v Minister for Immigration & Anor [2015] FCCA 539). By consent of both parties, the Federal Court remitted the matter to this Court on 7 July 2015.
In written submissions filed in this matter, both parties have set out a summary of the applicant’s claims to protection, and the Tribunal’s findings. However, the applicant’s submissions are adequate to provide contextual background to the issues before the Court ([4] – [10] of the applicant’s written submissions filed on 25 January 2017):
“[4] At Court Book (CB) 110 – 111 the Delegate of the Minister for Immigration and Citizenship (the Delegate) set out the Applicant’s claims in relation to a protection visa. Below at paragraph 5 there are also references to where other details of the claims appear in the Court Book.
[5] In summary the claims are:
5.1 The Applicant is a Hindu of Tamil ethnicity and a national of Sri Lanka, born in Udappu, Puttalam District, northwestern province.
5.2 In September 2006, the Applicant’s cousin [name] was arrested by the Criminal Investigation Department (CID) for questioning and has remained missing since his arrest. The family complained to the International Committee of the Red Cross (ICRC).
5.3 The Applicant became frightened and did not stay at his own home but stayed with other members of his family (CB 66).
5.4 After his cousin went missing the Applicant relocated from Udappu to Colombo (CB 17).
5.5 Despite efforts to locate his cousin, the attempts were unsuccessful and the Applicant believed that the police were simply endeavouring to extort money from the family by suggesting to the family that they knew his cousin’s whereabouts (CB 66).
5.6 In 2009, the Applicant’s brother [name] was granted protection in Australia. The Applicant said that his brother was granted protection because the authorities had a suspicion that his brother was involved with the LTTE because his brother had been with their cousin who had disappeared (CB 170, [28]).
5.7 The Applicant claimed that the Sri Lankan authorities suspected that he was associated with the LTTE because his cousin had been accused of such an association, and because his brother had been accused of such an association, by virtue of his association with their cousin (T 21).
5.8 In 2007, the Applicant moved to Colombo and secured a supervisory role in a garment warehouse where the employees were of Tamil and Sinhalese background. There were tensions between the ethnic groups (CB 17).
5.9 In around May 2011, some Tamils were employed who had come from Vavuniya and Mullaitivu (CB 66).
5.10 The Sinhalese employees in the Applicant’s section would commemorate the anniversary of the end of the civil war in May each year.
5.11 In May 2011, the Sinhalese employees wished to distribute cakes but the Applicant advised the Sinhalese employees to desist but they became upset and they complained to the police, accusing the Applicant of employing LTTE people (CB 67).
5.12 The police visited the workplace and checked everybody’s police certificates and took no further action.
5.13 On 8 April 2012, the Applicant was visiting his home area in Udappu and spoke with the person he left in charge at the warehouse. The applicant stated that his temporary replacement had had enough of the conflict and decided to leave. He also advised that the other people who had come from Vavuniya and Mullaitivu were also departing.
5.14 On 28 April 2012, the CID had been to the warehouse and were looking for the Applicant. The Applicant was informed by the Personal Assistant (PA) to the manager that the Sinhalese workers had complained about the Applicant to the CID but the PA did not specify the nature of the complaints (CB 67). Later the cook also told him that the CID had returned (CB 67).
5.15 The Applicant feared that he would be taken by the CID, suffering the same fate as his cousin in 2006.
5.16 He resigned from his position at the warehouse and remained in Udappu, staying with his aunt and uncle until arrangements were made for him to depart Sri Lanka.
5.17 As the Applicant fears harm from the Sri Lankan authorities he cannot seek or access protection from the State.
5.18 The Applicant stated he would need to register with the police no matter where he resides in Sri Lanka, so the CID would find him anywhere.
5.19 The Applicant’s fear relates to his personal and family history (CB 111).
5.20 The Applicant would suffer serious harm amounting to persecution if returned to Sri Lanka for the reasons of his ethnicity or his imputed political opinion, being his perceived association with the LTTE, or a combination of the two.
[6] The Delegate accepted the following claims (CB 114):
6.1 The Applicant is of Tamil ethnicity and Hindu religion.
6.2 The Applicant was born in Udappu village, Puttalam, North Westerm province, Sri Lanka.
6.3 The Applicant was subject to ‘round-ups’ by the Sri Lanka authorities.
6.4 The Applicant has family members (a cousin whose present whereabouts are unknown and a brother who has been granted protection in Australia) who have had encounters with the Sri Lankan authorities.
6.5 The Applicant left Sri Lanka illegally by boat in May 2012.
[7] The Delegate did not accept that the Applicant was of ongoing concern to the Sri Lankan authorities, nor that he was subject to an arrest warrant (CB 114).
[8] In a letter to the Tribunal dated 2 January 2015 the Applicant’s migration agent set out further details in respect of the Applicant’s claims (CB 147-150):
8.1 The applicant was accused of employing Tamils from Vavuniya and Mullaitivu, which were former LTTE strongholds. These Tamils were suspected of being supporters or sympathisers of the LTTE. Part of the Applicant’s work duties was to distribute handbills to potential Tamil workers in his work area. He also stayed with the Tamil workers in the boarding facility provided by the employer. As a result, the Sinhalese workers complained about him to the CID, causing the CID to visit the Applicant at the workplace.
8.2 The Applicant has a family profile and has been imputed to have a pro-LTTE opinion.
8.3 The Applicant was informed by the warehouse owner’s PA that the CID had come looking for him. There were repeated visits to the warehouse by the CID. This indicates that he was of ongoing interest to the authorities. He tendered his resignation immediately upon hearing this and made plans to leave Sri Lanka.
8.4 The Applicant had some issues with a Sinhalese mechanic at the workplace, who had ties with the underworld and the Sri Lankan army. He was one of the people who reported the applicant to the CID that the Applicant was a LTTE supporter/sympathiser. This person had threatened the Applicant that he will put him in gaol because of his ties with the LTTE. This had not been made earlier because upon his arrival at Christmas Island he was told he could only provide a short statement at his first interview. He had also arrived by boat and at that time was confused and somewhat mentally incapacitated.
8.5 The applicant is a young Tamil male from the northwest of Sri Lanka and as such he falls into the category of people members of which are generally suspected of having links with the LTTE. The Applicant’s cousin and his own brother had issues with the Sri Lankan authorities who suspected those young men of being associated with the LTTE.
8.6 Since the applicant left Sri Lanka the CID have visited his family home and the homes of other relatives in Sri Lanka to enquire about his whereabouts. This indicates that he is a person of interest to the authorities.
8.7 In September 2006 the Applicant’s first cousin (Applicant’s statement at CB 66-67) [name] was arrested by the CID because of suspected LTTE involvement. He remains missing since his arrest. The ICRC (International Committee of the Red Cross Protection Department in Vavuniya) reported in a letter dated 24 August 2011 (No. 424880) that that the Applicant’s cousin had been missing (whereabouts unknown) since an ‘allegation of arrest warrant’ was issued on 27 September 2006. This letter formed part of the material, which was before the Tribunal (CB 79). It was submitted by the migration agent that this letter demonstrated that the Applicant has a family profile of suspected links with the LTTE, which would attract the adverse attention of the authorities.
8.8 The Applicant’s brother [name] had issues with the Sri Lankan authorities and fled Sri Lanka. He was suspected of being a supporter/sympathiser of the LTTE. In 2009 he was granted protection in Australia. The fact that the Applicant’s brother fled Sri Lanka in such circumstances would attract the adverse attention of the CID to the Applicant. The Applicant’s fear relates to personal and family history because of perceived links to the LTTE (CB 149).
8.9 Tamils who depart illegally from Sri Lanka are considered to be supporters and sympathisers of the LTTE. This is an additional reason for his fear of serious harm, such as being arrested, detained, assaulted and tortured.
8.10 The Applicant was informed by his mother that there is an outstanding arrest warrant issued in his name. The Applicant believes that the arrest warrant relates to the allegation of his connection with the LTTE.
8.11 The Applicant claims that his unsuccessful claim for a protection visa in Australia will also make him vulnerable to being imputed with the political opinion of being a supporter or sympathiser of the LTTE.
The Tribunal Decision
[9] On 19 January 2015 the Tribunal made its decision, which was adverse to the Applicant.
[10] The Tribunal based its decision primarily of its findings that the Applicant was not a witness of truth and that the account of events on which his protection claims were based were false (CB 170, [27]). These adverse credit findings were based on a non-acceptance of the claims that the Applicant made in respect of his conduct from 28 April 2012 set out at
CB167-168, [12]-[22]. As a result, the Tribunal did not accept:
10.1 That the Applicant was involved in a conflict at a garment factory.
10.2 That certain Sinhalese employees reported him to the CID on suspected involvement with the LTTE.
10.3 That the CID attended the factory, his home and other places trying to locate him.
10.4 That the CID issued a warrant for his arrest and that the Sri Lankan authorities continue to have an adverse interest in him.
10.5 That he did not have a cousin who was abducted by the CID (CB 170, [28]).
10.6 That he did not approach the Sri Lankan authorities to secure his cousin’s release (CB 170, [28]).
10.7 His claims about his brother (CB 171, [29]).”
What emerges is that the applicant essentially claimed to fear harm on return to Sri Lanka because of his Tamil ethnicity. The applicant gave accounts of what he claimed had happened to him and members of his family in Sri Lanka.
The Tribunal comprehensively rejected the applicant’s claims to fear harm on the basis of his lack of credibility. The Tribunal found that the applicant was not a “witness of truth”. It found that his account of past events which he claimed to give rise to his fear, were “false” ([27] at CB 170).
The Application to the Court
The grounds of the further amended application to the Court are in the following terms:
“1. The Tribunal erred in making findings that were unreasonable resulting in the Tribunal not genuinely giving consideration to the applicant’s evidence.
Particulars
a. At [28] the Tribunal accepted the applicant’s brother in Australia has a protection visa;
b. At [28] the applicant squarely raised that the authorities had a suspicion that his brother was involved with the LTTE and that his brother was with his cousin;
c. At [10] the applicant squarely raised that in early April 2012 the applicant travelled with family to go to Vavuniya to meet with CID to negotiate the release of his cousin. The cousin is common ground with the claims made by his brother;
d. In footnote 3 on page 8 of the decision record, the Tribunal noted that the applicant provided a letter dated 24 August 2011 from the Red Cross and a letter from a Sri Lankan lawyer dated 23 December 2014 relating to the cousin;
e. Due to the credibility findings at [31] the Tribunal gave no weight to the documents mentioned at point (d);
f. At [55] the Tribunal disbelieved the applicant’s claims that a cousin was abducted in 2006 and disbelieved his evidence that his brother was wanted by Sri Lankan authorities and left Sri Lanka in 2009 for that reason;
g. At [55] the Tribunal found that there was no credible evidence that the applicant suffered in Sri Lanka as a result of his brother leaving that country and being granted a protection visa in Australia without any knowledge and/or evidence of the reason(s) the applicant’s brother was granted protection in Australia.
2. At [44] the Tribunal erred in making findings on the reasons for the applicant’s brother being granted protection in Australia without any evidence.
3. The Tribunal erred in misapplying the test of complementary protection by finding that the applicant was not at real risk of suffering significant harm on the convention ground of membership of a particular social group of ‘Tamil from Udappu’.
[4].The Tribunal erred in that it has a legal obligation to consider all of the applicant’s claims but failed to respond to a substantial clearly articulated argument such that it failed to exercise jurisdiction.
Particulars
a. That the applicant had a profile of someone who had a family member who had been abducted, his cousin (referred to as ‘brother’), because of suspected links with the LTTE, and that this placed the applicant at greater risk of serious harm (CB11-12, CB 67 and CB 149[g]-[h]);
b. At [28] the Tribunal accepted the applicant’s brother in Australia has a protection visa;
c. At [28] the applicant squarely raised that the authorities had a suspicion that his brother was involved with the LTTE and that his brother was with his cousin;
d. At [10] the applicant squarely raised that in early April 2012 the applicant travelled with family to go to Vavuniya to meet with the CID to negotiate the release of his cousin. The cousin is common ground with the claims made by his brother.
5. The Tribunal erred in that it failed to give proper, genuine and realistic consideration to the documentary evidence before which supported the applicant’s claims, thereby failing to properly consider all of the applicant’s claims and thereby failing to exercise jurisdiction.
Particulars
a. At [31] of its decision the Tribunal noted that the applicant had produced documents from Sri Lanka that supported his claims;
b. The Tribunal found that the contents of those documents did not outweigh or overcome the concerns the Tribunal held about the applicant’s credibility and accordingly, did not give any weight to those documents;
c. The Tribunal disregarded the documents ascribing them no weight without making any findings as to probative value of those documents and how their existence might impact on the issues to be determined;
d. The documents before the Tribunal were evidence that supported the applicant’s claims and the Tribunal failed to explain why they would make no difference to the outcome of the determination of whether the applicant would face serious harm for the reasons alleged.”
At the hearing, the applicant’s counsel advised that the applicant did not press ground three. The applicant sought leave to yet further amend the application in relation to ground four (see below at [123]).
Consideration
Ground one asserts that the Tribunal fell into jurisdictional error because it made findings that were unreasonable, and this led to it not giving genuine consideration to the applicant’s evidence.
Ground two asserts that the Tribunal made findings in relation to the grant of a protection visa to the applicant’s brother for which there was “no evidence”.
The applicant’s written submissions filed on 25 January 2017 sought to address grounds one and two together. The written submissions made reference to various authorities, which also concerned the concepts of irrationality and illogicality in administrative decision-making. In his submissions, understandably, given the tenor of the applicant’s submissions, the Minister has understood the ground to be an assertion of legal error arising from the making of illogical or irrational findings.
Given the above, and the applicant’s written and oral submissions, it is necessary to determine, exactly, the specific complaints and arguments made by the applicant in explanation of his grounds in written and oral submissions and the authorities, and the parts of those judgments, on which he relies.
The applicant submitted that the relevant authorities recognise that an administrative decision will be affected by jurisdictional error if it is “irrational, illogical or so unreasonable that no reasonable
decision maker could make it” ([17] of the applicant’s written submissions filed on 25 January 2017). The applicant then refers to the Full Federal Court’s judgment in ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; (2016) 154 ALD 221 (“ARG15”), which reviewed relevant authorities in this regard as follows (ARG15 at [44] – [47]):
“[44] It is convenient to commence the consideration of ground 1 by reference to the reasons of the majority in SZMDS. Significantly, that case related to a judicial review challenge to a decision of the Tribunal which dismissed a review application in respect of an unsuccessful application for a protection visa (which is also the case here). The state of satisfaction as expressed in ss 36 and 65 of the Migration Act was held to involve a jurisdictional fact. Justices Crennan and Bell held at [130] that illogicality or irrationality may constitute a basis for judicial review in respect of the Tribunal’s decision concerning the state of satisfaction required under s 65, but their Honours emphasised that not every lapse in logic would give rise to jurisdictional error and the Court should be slow, although not unwilling, to interfere in an appropriate case. They added at [131] that it was insufficient that different minds might reach different conclusions on the jurisdictional fact and that the test for illogicality or irrationality:
... must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
[45] After a detailed consideration of the Tribunal’s process of reasoning in the light of all the evidence before the Tribunal, Crennan and Bell JJ concluded at [135] that a logical or rational decision maker could have come to the same conclusion as the Tribunal:
On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims. There was. The Tribunal did not believe the first respondent's claim that he had engaged in the ‘practice of homosexuality’ in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.
[46] The other member of the majority in SZMDS, Heydon J, came to the same conclusion that the Tribunal’s reasoning was not illogical.
[47] Subsequent authorities have established that, for a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact or reason, ‘extreme’ illogicality or irrationality must be shown “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions and against the framework of the inquiry being as to whether or not there has been jurisdictional error on the part of the Tribunal” (see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 (SZRKT) at [148] per Robertson J; SZOOR v Minister for Immigration and Citizenship [2012] FCAFC 58; 202 FCR 1 (SZOOR) at [84] per McKerracher J (with whom Reeves J agreed); and Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [52] per Wigney J). Illogicality or irrationality in that extreme sense may be considered not only in relation to the end result, but also extends to fact finding which leads to the end result, albeit that, as Robertson J emphasised in SZRKT at [151], the overarching question is whether the decision was affected by jurisdictional error (see also the observations of Beech-Jones J in BKE v Office of Children’s Guardian [2015] NSWSC 523 at [113] and the cases referred to therein).”
It appeared from written submissions, that the focus of the applicant’s complaint was the Tribunal’s analysis and findings, which led to the rejection of the applicant’s claims concerning his brother and his cousin.
The applicant claimed to fear harm on return to Sri Lanka because he would come to the adverse attention of the Sri Lankan authorities because of his support for Tamil workers employed in the garment factory in which the applicant had worked since 2007. The applicant claimed that he was suspected of being an LTTE supporter because of his employment, and related events, and because his cousin was suspected as being a member of the LTTE, and was abducted for this reason in 2006. Further, the applicant made reference to his brother having fled Sri Lanka in 2009, and subsequently being granted a protection visa in Australia.
The applicant now submits that the Tribunal’s “reasoning process was flawed” because the Tribunal did not believe the applicant’s claims concerning his brother, which were said to be that the brother was perceived to have had LTTE links because of the brother’s relationship with his cousin ([19] of the applicant’s written submissions filed on 25 January 2017). The complaint is that the Tribunal did not believe this part of the applicant’s evidence on the basis that it disbelieved what had occurred at the garment factory. A similar complaint is made in relation to the cousin ([22] of the applicant’s written submissions filed on 25 January 2017).
The Tribunal understood that the applicant claimed that his brother had fled Sri Lanka in 2009, because the authorities suspected he was a supporter of the LTTE ([8] at CB 166). The Tribunal considered this aspect of the applicant’s claims ([28] at CB 170 to [29] at CB 170 to CB 171). The Tribunal accepted that the brother had been granted a protection visa in Australia ([28] at CB 170).
On a fair reading of the Tribunal’s decision, the Tribunal did not reject the applicant’s claims concerning his brother (that is, that the applicant would be at risk because of what was suspected about his brother) simply, or only, because it rejected his claims about the garment factory. Although it may be said that given the comprehensive rejection of the applicant’s credibility as to past events, and his own conduct, it was reasonably open to the Tribunal to reject his claims concerning his brother on this basis. That is, the applicant’s credibility was so discredited the Tribunal could not believe anything he said.
It is important to note in this context that none of the applicant’s grounds seek to impugn the Tribunal’s various findings as to the applicant’s credibility.
What is missing from the applicant’s attempt to assert unreasonableness (as pleaded), and for that matter, irrationality or illogicality (as submitted), is that the Tribunal took into account that the applicant’s brother did not give evidence to the Tribunal as to what had relevantly occurred ([28] at CB 170).
The importance of this was that apart from the fact, which the Tribunal accepted, that the brother was granted a protection visa, the only other relevant evidence presented was what the applicant himself said in his evidence about his brother ([28] at CB 170 to [30] at CB 171) .
In this regard, the Tribunal found that the applicant’s evidence was “scant” ([28] at CB 170). The applicant was not able to satisfactorily tell the Tribunal what his brother had done to create the “suspicion” of him by the authorities as to his involvement with the LTTE, as claimed by the applicant. Further, the applicant’s evidence was that he did not know what difficulties his brother had with the Sri Lankan authorities ([28] at CB 170).
Importantly, the applicant also gave evidence that he and his family had encountered “no difficulties” in his village as a result of the brother’s suspected LTTE links, including from 2007 when he was working in Colombo, and would have gone home each month to visit his mother ([29] at CB 170 to CB 171).
The Tribunal accepted that the applicant’s brother had been granted a protection visa and assumed that the relevant delegate of the Minister found the brother’s claims to be credible ([30] at CB 171).
However, it was open to the Tribunal, and not unreasonable, illogical or irrational, to proceed on the basis that it was not bound by credibility findings made by the delegate in relation to the applicant’s brother.
The Tribunal’s reasoning leading to it not accepting the applicant’s claim that his brother left Sri Lanka because he feared the authorities suspected him of LTTE links was based on the Tribunal’s comprehensive disbelief of the applicant’s truthfulness of his account of past events. This included the inability of the applicant to provide general information about his brother’s difficulties that he would have been expected to know.
Further, the Tribunal’s finding in this regard (the rejection of the claimed fear based on the brother’s claimed circumstances), was based on the Tribunal’s assessment of the applicant’s own evidence.
There were two aspects to the Tribunal’s findings with regards to this evidence. One, it was not unreasonable, illogical or irrational of the Tribunal, given its comprehensive rejection of the credibility of the applicant’s evidence and its disbelief about past events in Sri Lanka concerning the central account of his claimed fear, to then disbelieve other aspects of the applicant’s claims to fear harm.
However, this was not the entire basis on which the Tribunal found adversely to the applicant’s claims concerning his brother. The Tribunal also found that the applicant’s own evidence in relation to his brother did not support the proposition that the Sri Lankan authorities suspected his brother of LTTE involvement.
The applicant’s evidence to the Tribunal in this regard, was that he did not know what difficulties his brother had with the Sri Lankan authorities. Further, he was unable to say what had given rise to this claimed suspicion. It was reasonably open to the Tribunal to find that the applicant’s assertion that “all he knew was that his brother was with his cousin” was “scant” ([28] at CB 170).
It is important to note that the applicant’s ground one, and for that matter ground two, asserts jurisdictional error on the basis of unreasonableness, and as explained before the Court, specifically because it was said to be, in particular, irrational. The focus of the submissions to the Court was based on the reasoning process of the Tribunal. Neither ground, in its pleading, or in the written submissions, made any claim that the Tribunal misunderstood or failed to deal with any aspect of the applicant’s claims to fear harm (see further below concerning the corroborative documents).
Keeping this in mind, the Tribunal found that the applicant’s claimed difficulties with the Sri Lankan authorities occurred after his brother had left Sri Lanka. In this light, the Tribunal’s reasoning was that the brother’s circumstances were not a part of the difficulties the applicant claimed in relation to the events at the garment factory ([29] at CB 170 to CB 171).
In essence, ground one asserts legal error on the part of the Tribunal in the reasoning relating to the applicant’s brother and cousin, in that this reasoning was part of an adverse conclusion as to the applicant’s credibility.
The applicant’s argument before the Court was said to essentially derive from [28] (at CB 170) and [30] - [31] (at CB 171) of the Tribunal’s decision as follows:
“[28] Because he is not a witness of truth the Tribunal also disbelieves claims he made about having a cousin who was abducted by the CID and approaching the Sri Lankan authorities to secure his release including the occasion he related to the Tribunal in April 2012. The applicant does have a brother who lives in Australia as the holder of a protection visa granted to him by the department on 3 April 2012. The brother did not appear at the hearing and the only information provided to the Tribunal about him was the applicant’s evidence at the hearing which was scant. He said that the authorities had a suspicion that his brother was involved with the LTTE but when asked what his brother had done to create that suspicion, the applicant just said all he knew was that his brother was with his cousin.
…
[30] If the applicant’s brother was granted a protection visa, the Tribunal assumes that the delegate of the Minister who assessed his claim found him to be credible. However, the Tribunal is not bound by credibility findings made by a delegate whether they are adverse or positive. For the reasons given above, the Tribunal is satisfied that this applicant is not a witness of truth and so disbelieves his claims about his brother. At any rate, as the Tribunal has said above, the difficulties the applicant claims he encountered in Sri Lanka and which caused him to leave the country arose in 2011 when conflict commenced between himself, Tamil co-workers and Sinhalese workers at a garment factory in Colombo. The applicant did not claim to fear [h]arm on the ground that his brother left Sri Lanka in 2009.
[31] The applicant has produced documents from Sri Lanka to support his protection claims[1]. The Tribunal has carefully considered the contents of these documents but they do not outweigh or overcome the concerns the Tribunal holds about his credibility as discussed above and which significantly discredit him as a witness. Accordingly, the Tribunal does not give evidentiary weight to these documents.”
[Footnotes renumbered.]
[1] Those documents comprise a letter dated 24 August 2011 from the Red Cross stating that in September 2006 ‘an allegation of arrest was opened’ for a particular individual (who the applicant claims is his cousin) whose whereabouts are unknown; letter dated 23 December 2014 from a lawyer in Sri Lanka also claiming that the applicant’s cousin was abducted in 2006 and alleging the police are investigating the applicant in relation to an allegation that he is in the LTTE and have gone to various places to find him; letter dated 5 January 2015 from the proprietor of a company in Sri Lanka who stated that from January 2007 until May 2012 the applicant worked in that person’s garment factory.
To the department the applicant also submitted a letter dated 20 June 2012 from what appears to be a temple in Sri Lanka and a number of documents which have not been translated but which appear to relate to his identity and his education (see folios 77-82).
To understand the applicant’s argument it is necessary to first note the following from the applicant’s submissions. First, the applicant’s claims to fear harm were said to derive, in part, from his having approached the Sri Lankan authorities to secure the release of his cousin who had been “abducted” by the Sri Lankan police (CID). The Tribunal found that it disbelieved this claim because it found the applicant to not be a witness of truth ([11] and [22] of the applicant’s written submissions filed on 25 January 2017).
Second, and similarly, the applicant, in part, claimed to fear harm because his brother had been suspected by the authorities of having links to the LTTE. The brother was subsequently granted a protection visa in Australia. The Tribunal disbelieved the applicant’s claims concerning his brother. This again was based on its adverse credibility finding (see further below at ground five and [12] – [13] and [20] of the applicant’s written submissions filed on 25 January 2017).
Third, the applicant had also produced documents to the Tribunal to support his protection claims. The Tribunal gave no weight to these documents because of its adverse credibility findings ([15] – [16] and [25] – [26] of the applicant’s written submissions filed on 25 January 2017).
The applicant submitted that the following chronology was of note. The applicant’s cousin was abducted in 2006. The applicant’s brother left Sri Lanka in 2009, came to Australia, and was granted a protection visa. The applicant made claims to fear harm arising from what occurred at a garment factory where he worked in 2012. The applicant then came to Australia.
As can be seen by the extracts of the Tribunal’s decision record above (at [37]), the Tribunal disbelieved the applicant’s claims regarding his cousin and his brother, and gave no weight to the “corroborating” documents, because of adverse credibility findings it had made about the applicant. These findings derived from its analysis of the “garment factory” aspect of his claims.
While these matters were relevant to ground one, in part they also related to the other grounds presented in the further amended application. Ground two specifically focused on one aspect of the way the Tribunal was said to have dealt with the claim concerning the applicant’s brother (“the brother’s claim”). That is addressed below. The claim concerning the cousin having been abducted (“the cousin’s abduction”), is the subject of leave sought by the applicant in relation to ground four (see further below). Ground five focused on a particular legal error asserted in relation to the corroborative documents (see further below).
For the purposes of ground one, the applicant’s complaint of irrationality (or illogicality as outlined in the applicant’s written submissions), as a “subset” of unreasonableness, was explained by asserting that the Tribunal, in dealing with the brother’s claim, the cousin’s abduction, and the corroborative documents, needed to “do more” than simply rely on an adverse credibility finding relating to another aspect of the applicant’s claims (“the garment factory claim”).
The argument was that irrationality (as a subset of unreasonableness), is revealed in circumstances where the Tribunal failed to give “proper” consideration to these other claims. However, it is important to note the key aspects of the Tribunal’s reasoning. Tribunal decisions are to be read fairly, and that includes holistically (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
It must be said that a part of the applicant’s argument before the Court appeared to take issue with the Tribunal’s focus on the garment factory claim which, the applicant emphasised, chronologically post-dated the events of the cousin’s abduction and the brother’s departure from Sri Lanka. Although not entirely clear, it appeared that the complaint was that it was not open to the Tribunal (that is, it was irrational), to reject the credibility of claims made by the applicant in these circumstances.
The Tribunal is not necessarily required to set out its consideration and findings on an applicant’s claims in a chronological fashion. In the current case, it was reasonably open to the Tribunal to express its analysis about the garment factory claim first, and then address the brother’s claim and the cousin’s abduction. After all, the garment factory claim directly involved the applicant. Further, the applicant’s argument fails to recognise that the relevant time for the Tribunal’s consideration of the criteria for the grant of the protection visa, was the reasonably foreseeable future, as determined at the time of the making of the decision.
The Tribunal understood that the applicant’s claims to fear harm emanated from his cousin’s abduction, his brother’s circumstances, and the applicant’s claim concerning the garment factory.
The Tribunal’s analysis must be read holistically. The Tribunal expressed its view that it had concerns about the applicant’s credibility (at [7] at CB 166). It then properly set out what it understood to be the applicant’s claims to protection ([8] at CB 166 to [11] at CB 167). The applicant makes no complaint about that summary.
The Tribunal then set out its “[c]redibility concerns” with reference to the applicant’s conduct since 28 April 2012 ([12] at CB 167 to [22] at CB 169). Plainly, in the context of the applicant’s claims, it was reasonably open to the Tribunal to focus on this date, given that it was at that time, that the applicant said the CID had taken a specific interest in him.
On the applicant’s claims, that interest from the CID was said to have arisen because it was at that time, that he had gone to the CID to negotiate the release of his cousin, whom he said had been abducted by the CID because he was a member of the LTTE.
This interest in the applicant included that the CID came looking for him at the garment factory where he worked. He claimed that Sinhalese workers at the factory told the CID that he had LTTE sympathies.
The Tribunal set out at some length the applicant’s evidence in relation to events in April 2012, and in the period immediately following ([12] at CB 167 to [18] at CB 168).
The Tribunal found that the applicant’s evidence was “unconvincing and not credible” ([19] at CB 168). The Tribunal gave reasons for this finding that were reasonably open to it on what was before it ([19] at CB 168 to [22] at CB 169). Before the Court now, the applicant’s counsel made it clear that the applicant did not seek to challenge those factual findings made by the Tribunal.
The Tribunal then set out its consideration of the applicant’s evidence about the “conduct of the CID”. Again, it was not unreasonable of the Tribunal to do this, given that the CID was the key agency of the state from which the applicant specifically claimed to fear harm ([23] at CB 169 to [26] at CB 170).
The Tribunal found that the applicant’s evidence about the conduct of the CID “added to the overall impression of the untruthfulness of his evidence” ([24] at CB 169).
Having set out its analysis of the evidence in relation to those key parts of the applicant’s claims dealing with what he said happened to him in Sri Lanka, and the conduct of the claimed persecutors, the Tribunal then set out its “[c]onclusions on credibility” ([27] at CB 170 to [33] at CB 171 to CB 172). Again, the applicant took no issue with this finding.
As set out above, the applicant’s attack centres on the way the Tribunal then dealt with the applicant’s claims concerning his cousin, his brother, and corroborating documents.
On a fair reading, the Tribunal’s key finding, expressed a number of times in its analysis, and with a focus on various elements in the applicant’s evidence, was that the applicant’s central claim (the garment factory claim), and the conduct of the CID (both issues relating to the applicant personally) were “false” ([27] at CB 170). This was the basis for the adverse credibility finding.
This finding is plainly expressed at [27] (at CB 170) as follows:
“At the beginning of the hearing, the Tribunal put the applicant on notice that while the delegate may have accepted some aspects of his evidence as credible, the Tribunal would nevertheless have to satisfy itself as to whether or not his evidence was truthful. Considered cumulatively, the concerns the Tribunal holds about the applicant’s credibility lead the Tribunal to find that he is not a witness of truth and the account of events on which his protection claims are based is false. Accordingly, the Tribunal disbelieves the applicant’s claims that he was involved in conflict at a garment factory where he worked in Colombo; that certain Sinhalese employees reported him to Sri Lankan authorities on suspected involvement with the LTTE; that the CID came to the factory, his home and other places to locate him; that the CID issued a warrant for his arrest and that the Sri Lankan authorities have any adverse interest in him.”
This led the Tribunal to disbelieve the applicant’s factual account of claimed events. It was a comprehensive rejection of the applicant’s credibility. It was reasonably open to the Tribunal on what was before it, as were the antecedent findings that informed it. It is in this light that the assertion of legal error in the applicant’s ground one is to be rejected.
It is also of note that in rejecting the applicant’s claims concerning his cousin because of its finding that he was not a witness of truth, the Tribunal noted the connection between the applicant’s claim concerning his cousin, and the applicant’s claims about what happened to him personally. That is, the applicant’s claim was that the cousin was abducted by the CID, and the applicant then said he subsequently approached the CID to negotiate the release of his cousin. The applicant claimed that it was his approaching of the CID that led, in great part, to the CID’s interest in him personally.
In the circumstances, having comprehensively disbelieved the applicant’s claims as they related to the events of April 2012 and following, and in particular the applicant’s claim regarding the CID, it was not unreasonable or illogical for the Tribunal to also reject an aspect of the claim that was closely linked to the claimed fear from the CID.
In relation to the applicant’s brother, the irrationality and unreasonableness is said to arise in two ways. One was for the same reasons as for the cousin. That is, it was irrational to reject the applicant’s claims regarding his brother only on the basis of its disbelief of his claims relating to the events of April 2012.
While it is the case that the Tribunal made reference to its finding that the applicant was not a witness of truth, on a fair reading, the basis for the Tribunal’s adverse finding was the applicant’s own evidence to it ([30] - [31] at CB 171 and see [37] above).
It is to be remembered that the applicant’s claim to fear harm in relation to his brother was that the brother was suspected of LTTE links and left Sri Lanka in 2009, and was granted protection in Australia. That is, the brother had an “LTTE profile” which would focus the attention of the CID on the applicant (see the applicant’s submissions to the Tribunal at CB 149).
The Tribunal’s relevant reasoning is set out at [28] (at CB 170) to [30] (at CB 171). The conclusion that the brother’s situation did not give rise to a well-founded fear of harm for the applicant contained a number of elements.
The Tribunal acknowledged that the brother had been granted protection in Australia. However, the brother did not appear at the Tribunal hearing, nor otherwise provide any statement to support the applicant’s case ([28] at CB 170).
The Tribunal was concerned that in the absence of evidence from the brother, the only evidence available to it on the issue of how the brother’s circumstances affected the applicant’s claim, was the evidence of the applicant himself ([28] at CB 170).
The Tribunal described that evidence as “scant”. There is nothing in the transcript of the Tribunal hearing provided by the applicant to the Court to indicate this finding was not reasonably open to the Tribunal. Nor did the applicant, in his submissions to the Court, point to any part of the transcript to impugn the Tribunal’s finding in this regard.
The Tribunal’s finding was explained in detail. In particular, the Tribunal noted that the applicant did not know of what difficulties his brother had had with the Sri Lankan authorities ([28] at CB 170).
The Tribunal found that the difficulties the applicant had with the Sri Lankan authorities “were not related to his brother” ([29] at CB 171). This was reasonably open to the Tribunal given the applicant’s evidence to it. Further, it was also reasonably open to the Tribunal to find, given what was before the Tribunal, that the applicant did not claim to fear harm because his brother left Sri Lanka in 2009 ([30] at CB 171).
To an extent, the applicant’s case now relies on the fact that the applicant’s brother had been granted protection in Australia (which was not disputed by the Tribunal). That is, the Tribunal’s finding that the applicant’s claims concerning his brother were not credible, was irrational in light of the fact that the brother had been granted a protection visa.
However, as the Tribunal correctly noted, it was not bound to follow the findings of a Ministerial delegate who assessed the brother’s claims and found them to be credible (see [30] at CB 171).
No irrationality is revealed in circumstances where the Tribunal relied on the assessment of the applicant’s own evidence in this regard. After all, the Tribunal was not conducting a review of the decision of the delegate in the applicant’s brother’s case, but a review of the decision by the delegate in the applicant’s own case.
The third area of complaint in ground one relates to the Tribunal’s findings in relation to the documents provided by the applicant in “corroboration” of his claims.
The applicant’s case here was explained as follows. The Tribunal had before it a letter dated 24 August 2011 from the International Committee of the Red Cross (“ICRC”) in Colombo (CB 79), and a letter from a lawyer in Sri Lanka dated 23 December 2014 (CB 160). The applicant’s submission was that both documents were corroborative of the applicant’s claims concerning his cousin’s abduction.
The Tribunal was said to have, in effect, ignored this “relevant material”. This was said to be irrational (although in submissions the term was used interchangeably with illogical and unreasonable), because the Tribunal did not find the documents were not authentic, the documents therefore had probative value, and this was not “evaluated” by the Tribunal. The illogicality is said to arise because the Tribunal’s assignment of “no weight” to the documents was simply on the basis of its disbelief of the applicant.
I do not agree with the applicant’s characterisation of the Tribunal’s relevant approach, its analysis, or that the Tribunal’s finding in this regard was illogical and infected the Tribunal’s decision.
First, contrary to the applicant’s assertion now, the Tribunal did evaluate the probative value of these documents. There is nothing before the Court to support the applicant’s proposition, particularly (although not exclusively) in light of the Tribunal’s express statement that it “has carefully considered the contents of these documents” ([31] at CB 171).
Second, the Tribunal set out a description of the contents of these letters at footnote 3 to [31] (at CB 171 and see above at [37] with footnote “3” renumbered to “1”). The documents are reproduced at Court Book page 79 and Court Book page 160. The Tribunal set out a description of what the ICRC letter (as at 24 August 2011) says about a person which the applicant claimed to be his cousin, as at 26 September 2006, and what the lawyer says about the applicant’s cousin (that he was abducted in 2006). This description was probative of these documents. It was a fair understanding of the contents of the letters and their claimed relevance to the applicant’s claims. The Tribunal did not ignore the documents as contended by the applicant. In the circumstances, his reliance on Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 does not assist him in this regard.
Third, having considered those documents, it was reasonably open to the Tribunal, in the proper exercise of its jurisdiction, to assign no weight to them (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) and SZUFQ v Minister for Immigration and Border Protection [2017] FCA 15 (“SZUFQ”)). It was not irrational or illogical in the circumstances, to do so.
Fourth, what was said in Minister for Immigration and Citizenship v SZNSP [2010] FCAFC 50; (2010) 184 FCR 485 (“SZNSP”) at [37] provides, in the circumstances of this case, the answer to the applicant’s ground. That paragraph is as follows:
“Several further observations should be made concerning the type of situation addressed in Applicant S20/2002 [2003] HCA 30; 198 ALR 59. The case does not relieve the RRT from giving consideration to corroborative evidence. It concerns only the timing of that consideration. The case establishes that the RRT does not act irrationally, and thereby fall into jurisdictional error, by first making an assessment of the applicant’s credit and then giving attention to the corroborative evidence.”
The Tribunal first made an assessment of the applicant’s credit and then considered the corroborative evidence.
In all, the applicant relied on various authorities (SZMDS v Minister for Immigration and Citizenship [2009] FCA 210; (2009) 107 ALD 361 and ARG15 and the authorities cited therein at [44] – [47]), to assert that a Tribunal decision will be affected by jurisdictional error where it is irrational or so unreasonable that no reasonable decision-maker could make it. The applicant has not established that the Tribunal fell into such error. Ground one is not made out.
Ground two asserts jurisdictional error because the Tribunal made findings in relation to the applicant’s brother being granted protection in Australia without any evidence on which to base these findings.
It must be said, that in his submissions, the applicant did not satisfactorily engage with relevant authorities, or explain the exact nature or extent of the ground.
As the Minister correctly submitted, to make out a “no evidence” ground, the applicant is required to demonstrate that there was no evidence “at all” before it, upon which its finding was based (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at page 356).
The applicant’s written submissions addressed grounds one and two together. While making some reference to the applicant’s brother, the references appeared to be put in relation to ground one, although it must be said that it is not entirely clear.
In any event, before the Court, the applicant’s counsel explained that all the grounds (including ground two), related to the same “issues”, but each ground was directed to a different characterisation of legal error. At best, in relation to ground two, the assertion of legal error appeared to be that the Tribunal’s disbelief of the applicant’s claims in relation to his brother was based on “no evidence”.
The complaint suffers from the same difficulties addressed in ground one. The Tribunal did not make a finding that the applicant’s brother was not granted protection in Australia. It accepted that to be the case.
The applicant’s ground two again failed to focus on the distinction plainly, and in my view properly identified by the Tribunal given its statutory task, between the brother’s claims to protection per se, and the applicant’s claims to fear harm as he said arose, in part, from his brother’s circumstances, and how he would be adversely affected by these circumstances given the perception of and past conduct of, the claimed persecutors.
The Tribunal dealt with the applicant’s claims in this regard. The evidence before it for finding that the applicant’s claims to fear harm for reason of his brother’s circumstances were not made out, was the applicant’s own evidence to it (see above at [67] – [69]). In all, ground two is not made out.
It is convenient to deal with ground five before addressing the matter of ground four and the proposed further amended application.
Ground five asserts that the Tribunal failed to give proper, genuine and realistic consideration to the corroborative documentary evidence submitted by the applicant in support of his claims.
The particulars do not specifically identify these documents, other than with reference to what the Tribunal said at [31] (at CB 171). In that light, it appears this ground is directed to those documents identified above at [77].
The written submissions, it must be said with respect, again failed to identify with precision the exact argument that the applicant apparently seeks to put before the Court. For example, the ground is focused on the corroborative documents and the Tribunal’s alleged failure to give proper consideration to them. The written submissions however, appear to “elevate” the complaint to “the Tribunal failed to genuinely and realistically consider all of the [a]pplicant’s claims” (see [33] of the applicant’s written submissions filed on 25 January 2017).
The written submissions addressed grounds four and five together. There is a difficulty with the “pleading” of ground four which is addressed below (see at [112]). It may be that the written submissions suffer from a lack of clarity because of that difficulty.
In any event, the applicant’s case in relation to ground five appears to emanate from the same complaint as set out above. That is, in short, the Tribunal did not give proper, genuine and realistic consideration to the corroborative documents because it gave them “no weight” in light of its adverse credibility finding, which arose from its consideration of the garment factory claim.
The applicant’s written submissions however, appear to argue a different jurisdictional error. The claim in the submissions is that the Tribunal failed to deal with an aspect of the applicant’s claims, said to be that he feared harm because of the perception by the authorities that he had links to the LTTE because of his brother and cousin. The applicant relies on such authorities as Applicant 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 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 in support of this claim.
This assertion appears to emanate from the proposition that the Tribunal overlooked relevant evidence before it, being the documentary evidence provided by the applicant. Instead of “properly” considering these documents, the Tribunal proceeded to find adversely to the applicant’s credit because of its disbelief of the garment factory claim, and therefore did not consider the perceived link of the applicant to the LTTE because of the applicant’s brother and cousin.
As set out above, the applicant’s case before the Court suffered from a lack of clarity and precision. In any event, the following provides answers to all the iterations of the applicant’s complaints, as expressed, and said to arise from ground four (as currently pleaded), and ground five, as best as they could be understood.
First, and directed to the “common” element of the corroborative documents with grounds one and two, what is relevantly set out above need not be repeated. It also stands in answer to ground five and for that matter, ground four.
Second, the weight that the Tribunal decides to assign to any piece of evidence is a matter for the Tribunal (NAHI, SZUFQ and Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [151]). To the extent that the applicant’s complaint is that the Tribunal did not assign weight to the documentary evidence, in the circumstances presented, that assertion of jurisdictional error is not made out.
Third, as the Minister submits, and as set out above, the Tribunal was entitled to make an assessment of the applicant’s credibility and then consider the corroborative evidence (SZNSP at [37]).
Fourth, contrary to the applicant’s contention that the Tribunal disregarded the documents, the Tribunal did consider the documents. It did not simply ignore them. As set out above, the Tribunal made specific reference to the contents of the documents and that it had “considered” their contents.
I agree with the Minister that in the current case, the Tribunal made an assessment of the applicant’s credit, and then assessed the value of the corroborative evidence and the effect of the contents of the documents, on the view it had otherwise formed of the applicant’s credit. No jurisdictional error is revealed in the circumstances (SZNSP
at [33] – [36]).
Fifth, the applicant’s submissions complain that the Tribunal did not consider the applicant’s claim to fear harm because of his cousin and brother and the perception of his own LTTE links, as it arose from these relationships. That assertion must be rejected for the reasons set out above.
No jurisdictional error is revealed in ground five.
At the hearing before the Court, the applicant sought leave to yet further amend ground four (see [10] above for the terms of ground four as in the further amended application filed on 26 February 2016).
The explanation for the amendment was that there was “some confusion” arising from the applicant’s initial claims on arrival in Australia, as between his cousin and his brother.
The ground appears to have been drafted with that state of confusion unresolved, such that for example, where the ground refers to the “cousin’s” links with the LTTE, and the claimed basis of harm for the applicant arising from that, the claim relates only to the applicant’s brother, and does not make the claim in respect of the cousin. In short, it was unclear whether the references to the “cousin” and the “brother” were the same person.
At the Court hearing, the Minister’s solicitor did not, understandably, given the circumstances, have instructions as to whether to agree to, or oppose, the leave sought. I agreed with the Minister that the applicant’s explanation as to the proposed amendment meant that the ground proposed was a “different” ground to that pleaded, at least insofar as the focus of the ground was concerned.
I did not grant leave for the further amended application to be again, yet further amended in this regard. Rather, I heard argument on the proposed ground, and granted leave for further written submissions, in particular to enable the Minister to have a fair opportunity to consider his position on the leave sought, and the merits of the proposed ground.
Written submissions were subsequently filed. The applicant filed supplementary written submissions on 23 February 2017 which included the terms of the proposed ground. The proposed ground four was expressed as follows:
“4. The Tribunal erred in that it has a legal obligation to consider all of the applicant’s claims but has failed to respond to a substantial clearly articulated argument such that it failed to exercise jurisdiction.
Particulars
a. That the applicant had a profile of someone who has a family member, his cousin [name] who was suspected of links with the LTTE, and that this placed the applicant at greater risk of serious harm (CB 11-12, CB 67 and CB 149[g]-[h]);
b. At [28] the applicant squarely raised that the authorities had a suspicion that his brother was involved with the LTTE because of his connection with his cousin [name], and that as a result the applicant is perceived to have links with the LTTE and is therefore at greater risk of harm;
c. At [10] the applicant squarely raised that in early April 2012 the applicant travelled with family to go to Vavuniya to meet with the CID to negotiate the release of his cousin.
d. The applicant squarely raised that he was concerned that he would suffer the same fate as his cousin and be falsely accused of having LTTE links (CB 13);
e. There is country information that persons with a profile of having family members with perceived links with the LTTE are at risk of serious harm in Sri Lanka from the authorities.”
In his supplementary written submissions filed on 9 March 2017, the Minister opposed the grant of leave to yet further amend ground four. In essence, the Minister’s submissions were that the discretion to grant the leave should not be exercised in favour of the applicant on the basis of the efficient conduct of cases before the Court, and because the proposed ground lacked merit.
The Court does have the discretionary power to allow an amendment of a pleading at any time up to final judgment (see rr.7.01 and 7.03 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) and s.42 of the Federal Circuit Court of Australia Act 1999 (Cth)). In particular I note r.7.03 of the FCC Rules.
It is important to note that the current proceedings were commenced on 9 February 2015. The applicant did not appear to be legally represented at that time. In March 2015, the applicant was unrepresented before Judge Street (see [6] above).
Following remittal from the Federal Court, the applicant filed an amended application on 15 July 2015. He was, at that time, represented by a solicitor who prepared and filed the grounds of the amended application. Although not in the terms currently proposed, there was a distinction between the claims as they related to the brother, and to the cousin (see ground (1)f. of that amended application).
On 4 November 2015, a Registrar of the Court made orders for the progress of this case. Amongst those, the applicant was given leave to (further) amend the application on or before 26 February 2016. The applicant’s solicitor was present at the making of this order.
A further amended application was filed on 26 February 2016. It was prepared by a solicitor. It is the application currently before the Court.
The matter was set down for hearing on 9 February 2017. The applicant’s written submissions were filed on 25 January 2017. They were drafted and signed by counsel.
As set out above, the applicant sought leave to yet further amend the further amended application at the hearing. The only reason put in support was that the ground as pleaded was “confusing”.
There was no explanation whatsoever to explain why it was only at the hearing that that state of affairs became apparent to the applicant and his legal representatives, one of whom had represented him at the time of the making of what is now said to be the “confusing” ground four.
The ground described now as “confusing” was prepared by a solicitor and filed in February 2016. That is a year before the hearing. There was no explanation proffered as to why no action was taken in the year available to address this deficiency. Written submissions were prepared by the applicant in preparation for the final hearing. These were drafted by counsel. There is no mention of any confusion about ground four in those written submissions.
I agree with the Minister that in considering the discretion to grant the leave, it is important to note that notwithstanding the reasonable time and opportunity available to the applicant, seeking leave to amend was only done at the hearing (Aon Risk Services v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [96]
and [101] – [102]).
The applicant has not satisfactorily explained the failure to address this matter at a more appropriate and earlier time.
Nor does the proposed ground have such merit that it calls for the exercise of the discretion.
It appears that the proposed ground seeks to rely on Dranichnikov for the proposition that the Tribunal fell into jurisdictional error because it failed to “respond to” a “substantial, clearly articulated argument relying upon established facts” in the consideration of the applicant’s claims to fear harm (Dranichnikov at [24]).
The ground asserts, and as confirmed in supplementary written submissions, that the Tribunal failed to “respond to” that clearly advanced claim by the applicant, that his cousin had been abducted by the CID as a suspected LTTE member and had been missing ever since.
The submissions before the Court explained that in this context, the Tribunal failed to consider that the applicant would be at risk of harm because he had a family member, his cousin, who either had, or was suspected of having, LTTE links. The applicant’s contention is that the Tribunal failed to consider whether he would face similar harm to that of his cousin.
Before the Court, the applicant directed attention to written submissions made by the applicant’s then migration agent to the Tribunal. The submission now was that those submissions “crystallised” the claim as follows (CB 149.5 and see [9] of the Minister’s supplementary submissions filed on 9 March 2017):
“(g) In September 2006, the applicant’s cousin brother [name] was arrested by the CID on suspected LTTE involvement. He remains missing since his arrest. The ICRC has stated that ‘Up to now, the ICRC has no information concerning the fate of the sought person’. (Attached a letter No: 424880, from ICRC). This clearly demonstrates that he has a family profile link to the LTTE which would attract the attention of the authorities. In page (8) of the Delegate’s decision it stated that ‘On the basis of the above information, I accept that the applicant’s cousin’s whereabouts are unknown’.”
This proposed ground, and the arguments in support, or explanation of it, suffer from the same difficulty as the applicant’s grounds of the further amended application. That is, it stems from the Tribunal’s approach of having first addressed the garment factory claim (which directly involved the applicant (see above at [44]), then, that the Tribunal formed an adverse view of the applicant’s credit and then rejected the remainder of the applicant’s claims in this light.
What is generally set out above stands in answer to this ground.
First, it cannot be said that the Tribunal ignored or overlooked the applicant’s claim concerning his cousin. It made specific reference to it when setting out its understanding of the applicant’s claims (see [8] and [10] at CB 166).
The Tribunal did “deal” and “respond to” this claim. As set out above, the Tribunal found adversely to the applicant’s credit in relation to the central garment factory claim. This was the claim relating to events said by the applicant to have involved him personally.
The Tribunal had specific regard to relevant country information, particularly in the form of UNHCR guidelines that focused on the profile of persons who might suffer harm in Sri Lanka. These included persons suspected of LTTE links and in particular referred to the following persons ([35] at CB 172):
“… (6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.”
[See also [50] - [51] (at CB 177).]
Relevantly, the Tribunal found ([46] at CB 176):
“[46] The applicant is not an activist and suspicion of supporting the LTTE as set out above, arises from actual involvement or being in a family of someone with actual involvement. For the reasons given above, the Tribunal is not satisfied that the applicant comes from such a family and he did not claim to have had actual involvement in the LTTE. One source of country information referred to the arrest of 220 Tamils in April 2012 during which they were held for several days without charge. No further detail is given with respect to this claimed incident and it does not cause the Tribunal to depart from its assessment of risk for Tamils in the light of the country information mentioned above. The representative submitted that the applicant belonged to a particular social group of young Tamils from the north but there is no need for the Tribunal to determine whether such a social group exists. For the reasons given above, the Tribunal is satisfied that the risk of the applicant suffering serious harm because he is a young Tamil from Udappu is remote.”
In all, the Tribunal understood the claim made by the applicant concerning his cousin, and how he said it created a fear of harm for him. It also noted information that a person with such links would be at risk of harm if they were to return to Sri Lanka.
However, as set out above, the Tribunal had found as a fact, that it did not accept the applicant had a cousin who had been abducted by the CID. This was reasonably open to the Tribunal on what was before it, and for the reasons that it gave.
Given that the Tribunal had rejected the factual basis for the applicant’s claim, and did so absent doubt, it was not required to further consider the claim (Applicant WAEE at [47]).
Absence such merit in the proposed ground four to support the grant of leave to amend, that leave is refused. I will make the order refusing the leave to yet further amend the application.
The applicant pressed the leave to amend ground four on the basis that the existing ground four should be amended given its “confus[ed]” character. Given that that amended ground lacks merit, ground four, as it currently stands, is also not made out for the reasons set out above.
No jurisdictional error in the Tribunal’s decision is apparent. Therefore it is appropriate to dismiss the application. I will make that order.
I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 18 August 2017
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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Appeal
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