WZASU v Minister for Immigration and Anor (No.2)
[2014] FCCA 96
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZASU v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2014] FCCA 96 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – Sri Lankan national – Tamil ethnicity – unparticularised grounds of review – jurisdictional error alleged – breach of minimum standards of fairness alleged – legal error alleged – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A(2), 91R, 422B, 424A, 424AA, 425, 476, Part 7 |
| Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Kioa & Ors v West & Anor (1985) 159 CLR 550 Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 Minister for Immigration & Multicultural Affairs v Rajalingam & Ors (1999) 93 FCR 200; [1999] FCA 719 SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs& Anor (2006) 228 CLR 152; [2006] HCA 63 SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62 SZMCD v Minister for Immigration & Citizenship& Anor (2009) 174 FCR 415; [2009] FCAFC 46 VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 307; [2005] FCA 212 WZAOO v Minister for Immigration & Citizenship & Anor (2012) 134 ALD 332; [2012] FMCA 1026 |
| Applicant: | WZASU |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 141 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 28 November 2013 |
| Date of Last Submission: | 28 November 2013 |
| Delivered at: | Perth |
| Delivered on: | 31 January 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Ms N Johnson |
| Solicitors for the First Respondent: | Sparke Helmore Lawyers |
| For the Second Respondent: | Submitting appearance, save as to costs. |
ORDERS
That the name of the first respondent be amended to read “Minister for Immigration & Border Protection”
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 141 of 2013
| WZASU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant filed an application under s.476 of the Migration Act 1958 (Cth)[1] on 24 June 2013. That application seeks judicial review of the Refugee Review Tribunal[2] decision[3] made 24 May 2013, which affirmed the delegate[4] of the first respondent’s[5] decision[6] to refuse to grant the applicant a Protection (Class XA) visa.[7]
[1] “Migration Act 1958”.
[2] “Tribunal”.
[3] “Tribunal Decision”.
[4] “Delegate”.
[5] “Minister”, then the Minister for Immigration & Citizenship, now the Minister for Immigration & Border Protection.
[6] “Delegate’s Decision”.
[7] “Protection Visa”.
Basic background matters
The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 5 June 2012.[8] An entry interview was conducted with the applicant on 28 July 2012.[9] On 14 September 2012 the applicant applied for a Protection Visa after the Minister decided to lift the bar under s.46A(2) of the Migration Act 1958.[10]
[8] Court Book (“CB”) 1.
[9] CB 1-23.
[10] CB 24 and 25-50.
Applicant’s claims
The applicant claims were contained in a statutory declaration accompanying his Protection Visa application.[11] The applicant claimed:
[11] CB 73-77 (“Applicant’s Statutory Declaration”).
a)to fear harm from the police, Criminal Investigations Department,[12] Eelam People's Democratic Party,[13] Sri Lankan Army[14] and the Karuna group;[15]
b)that the fear of harm was by reason of his Tamil ethnicity, Mullativu origin, imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam[16] and membership of particular social groups comprising young Tamil males from Mullativu and failed asylum seekers who departed Sri Lanka illegally;[17]
c)he witnessed the “barbaric” murder of a male head of a Tamil family when he was around 10 years of age and in 2006 he was questioned by the authorities about his friend’s murder;[18]
d)he had suffered past mistreatment since he was young including being:
i)stopped at roadblocks;
ii)detained for approximately two hours; and
iii)tortured and beaten and witnessing killings; and
e)to have been deprived of status and denied basic human rights because there was “no freedom” in Sri Lanka.[19]
[12] “CID”.
[13] “EPDP”.
[14] “SLA”.
[15] CB 75.
[16] “LTTE”.
[17] CB 73-76.
[18] CB 74.
[19] CB 73-74.
The applicant:
a)travelled to India in 2005 and to Dubai in October 2008 for work for 27 months; and
b)had no major issues after returning to Sri Lanka from Dubai in January 2011.[20]
[20] CB 74.
The applicant’s representatives provided a written submission to the Delegate on 21 September 2012,[21] and the applicant attended an interview with the delegate on the same day.[22]
[21] CB 92-103.
[22] CB 112.
Delegate’s Decision
The Delegate’s Decision made on 22 October 2012 refused to grant the applicant a Protection Visa.[23] The Delegate was not satisfied on the basis of the available independent country information that there was a real chance that the applicant would face serious harm for reasons of his Tamil ethnicity.[24] The Delegate noted that the applicant had never been targeted, arrested or abused to a degree that would constitute persecution.[25] The Delegate found that the applicant was not a person to whom Australia owed protection obligations.[26]
[23] CB 109-117.
[24] CB 115.
[25] CB 115.
[26] CB 117.
Application for review of the Delegate’s Decision and Tribunal proceedings
On 27 November 2012, the applicant lodged an application with the Tribunal to review the Delegate’s Decision.[27] The applicant also appointed a representative to assist him in connection with the review.[28]
[27] CB 118-124.
[28] CB 121.
By a letter dated 17 December 2012, the Tribunal invited the applicant to attend a hearing before it scheduled for 14 January 2013.[29] The applicant accepted this invitation,[30] and attended the hearing on 14 January 2013.[31]
[29] CB 128-131.
[30] CB 132-133.
[31] CB 134-135 and CB 181-184 at paras.26-43.
At the Tribunal hearing, the applicant gave evidence that he had not actually experienced torture but had witnessed lots of killing and experienced emotional disturbance.[32]
[32] CB 182 at para.29.
The Tribunal put oral particulars of information to the applicant at the hearing, pursuant to s.424AA of the Migration Act 1958. The information concerned the applicant’s:
a)statement at his entry interview that there was no specific incident and that nobody had harassed or attacked him in Sri Lanka; and
b)evidence at the Delegate’s interview that nothing specific happened to him, he did not have any problems other than with a loan when in Dubai.[33]
The Tribunal Decision confirms that the Tribunal explained to the applicant the relevance of this information and the consequences of it being relied on, namely, that it might lead the Tribunal to conclude that he did not face a real chance of serious harm should he return to Sri Lanka. The Tribunal informed the applicant that he could respond to the information verbally or in writing.[34]
[33] CB 183-184 at para.42.
[34] CB 183 at para.42.
The hearing was adjourned. The applicant was invited to respond in writing, or verbally at the adjourned hearing.[35] The applicant’s representative subsequently provided the Tribunal with a further statement by the applicant which the Tribunal considered.[36] At the resumed hearing on 21 January 2013 the Tribunal also considered the applicant’s oral response to the particulars of information put to the applicant under s.424AA of the Migration Act 1958.[37] The Tribunal then put further information to the applicant pursuant to s.424AA of the Migration Act 1958. That information was that the applicant had indicated at the interview with the Delegate that he left Sri Lanka because he did not have status.[38] Again, the Tribunal explained the relevance of the information and the consequences of it being relied on, namely, that it might lead the Tribunal to conclude that he left Sri Lanka because of discrimination not amounting to serious harm (for a Convention reason), and the applicant elected to respond immediately.[39]
[35] CB 184 at para.43.
[36] CB 143-145 (“Applicant’s Tribunal Statement”), CB 184 at para.44.
[37] CB 185 at paras.45-49.
[38] CB 185 at para.49.
[39] CB 185 at para.49.
On 21 January 2013 the applicant’s representative provided further written submissions to the Tribunal.[40] The Applicant’s Tribunal Submissions claimed that the applicant feared persecution in Sri Lanka for reasons of his imputed political opinion (because he would be suspected of having links with the LTTE) and his membership of a particular social group of “failed Tamil asylum seekers”. The submission also referred to various country information said to support those claims.[41]
[40] CB 150-173 (“Applicant’s Tribunal Submissions”).
[41] CB 157-170.
Tribunal Decision
The Tribunal affirmed the Delegate’s Decision to refuse to grant the applicant a Protection Visa.[42]
[42] CB 205 at para.113.
The Tribunal:
a)accepted that the applicant was a citizen of Sri Lanka[43] and did not have a presently enforceable right to reside in another country;[44]
b)found that “significant parts” of the applicant’s evidence were “inconsistent” and “vague” and that at the hearing he appeared “evasive” and failed to give “direct or clear” responses to some of the Tribunal’s questions;[45]
c)found that the applicant was an “unreliable witness” and did not accept all of his claims and evidence as credible;[46] and
d)found that “significant aspects” of his claims were not supported by the country information.[47]
[43] CB 196 at para.81.
[44] CB 196 at para.82.
[45] CB 198 at para.88.
[46] CB 198 at para.88.
[47] CB 198 at para.88.
After considering the applicant’s claims and evidence at two hearings conducted on 14 and 21 January 2013, the Tribunal was not satisfied that the concerns that it had with the applicant’s evidence resulted from his past mental health problems.[48]
[48] CB 198 at para.88.
The Tribunal:
a)found, on the basis of accepted country information, namely, the 2012 UNHCR Guidelines, that the applicant did not have a real chance of serious harm merely because he was from the previously LTTE controlled area of Mullativu;[49] and
b)accepted that the applicant had:
i)witnessed traumatic events;
ii)been questioned; and
iii)been detained temporarily at checkpoints,
in the past, but found that the questioning and detention were conducted for a legitimate security purpose and did not constitute serious harm.[50]
[49] CB 199 at para.90.
[50] CB 199 at para.91.
On the basis of the applicant’s admissions at the Tribunal hearing, the Tribunal:
a)found that the applicant had not suffered torture in the past;
b)did not accept that the applicant’s past experiences constituted torture or “serious harm”; and
c)relied on accepted country information that indicated circumstances in Sri Lanka had improved and the authorities were focussed on individuals with particular profiles,
to find that the applicant did not face a real chance of serious harm in the future.[51]
[51] CB 199-200 at para.92.
The Tribunal:
a)accepted that the applicant had suffered stress and observed killings in the past, but found, on the basis of the applicant’s admissions at the hearing, that he had not suffered “serious harm”;[52]
b)found that the fact that the applicant was questioned once but not charged regarding his friend’s killing weakened his claim to be a suspected LTTE supporter;[53] and
c)found, with regard to the country information and the applicant’s circumstances, that although he may suffer discrimination in the reasonably foreseeable future, it would not amount to persecution.[54]
[52] CB 200 at para.93.
[53] CB 200 at para.93.
[54] CB 200 at para.94.
The Tribunal:
a)rejected the applicant’s claim that he faced “a real chance of being imputed with a pro-LTTE political opinion”;[55]
b)found, on the basis of the applicant’s evidence, that:
i)he did not fit into any of the risk profiles listed in the 2012 UNHCR Guidelines;[56] and
ii)he was not a person of interest to authorities for suspected LTTE links given that he was not detained or specifically questioned on his return from Dubai (in January 2011);[57] and
c)accepted that politicians may have suggested that all illegal departures are deemed to be LTTE sympathisers, but was “persuaded” by the country information that not all Tamils who depart Sri Lanka are suspected of LTTE links;[58] and
d)noted that the relevant profiles were not exhaustive and was satisfied, on the evidence before it, that there was “no circumstance or factor” which was “likely” to impute the applicant with such a political opinion, and, therefore, found that the applicant did not face a real chance of persecution because of an actual or imputed political opinion.[59]
[55] CB 200-201 at para.95.
[56] CB 200-201 at para.95.
[57] CB 201 at para.96.
[58] CB 201 at para.96.
[59] CB 201 at para.97.
The Tribunal:
a)accepted that the applicant was likely to be detained for a brief period, questioned and possibly charged with an offence, but found on the basis of accepted country information that all returnees faced similar treatment under a law of general application that was not applied in a discriminatory manner. The Tribunal did not accept that this constituted “serious harm” or that the applicant faced persecution because of his illegal departure;[60]
[60] CB 201-202 at para.98.
b)accepted that Tamils faced the possibility of discrimination in employment and at work, but was not satisfied that the applicant had been denied the capacity to earn a livelihood that threatened his capacity to subsist, or that this constituted serious harm given his evidence that he had enough money to support his family;[61]
[61] CB 202 at para.99.
c)found that the applicant had given evidence at:
i)the Delegate’s interview that he “did not have any problems other than a problem with a loan”; and
ii)his entry interview that there was “no specific incident and nobody had harassed or attacked him in Sri Lanka”,
which supported its finding that the applicant did not face a real chance of future persecution;[62]
d)accepted that the applicant may have been stopped and questioned by the authorities in the north of Sri Lanka, but rejected his claim to have been:
i)denied access to work or to earn a livelihood as a result;[63] and
ii)beaten by authorities, because he had not raised this claim at his entry interview, and did not accept his explanation for failing to mention a “fundamental” claim for protection;[64]
e)did not accept that being stopped at checkpoints, subjected to raids, visited by authorities, subjected to further registration and questioning amounted to serious harm;[65]
f)accepted that fishing was a controlled industry, but was not satisfied on the evidence that the applicant had been stopped from fishing by the SLA as he had claimed;[66]
g)accepted the applicant’s claims that discrimination and lack of status occurred generally in the Sri Lankan community, but found that this did not amount to serious harm;[67] and
h)found that the applicant’s membership of particular social groups comprising young Tamil males from Mullativu, and persons who departed Sri Lanka illegally was of itself “insufficient” to satisfy the refugee criterion and that “credible and reliable” evidence was necessary to establish such a claim.[68]
[62] CB 202 at para.100.
[63] CB 202 at para.101.
[64] CB 202-203 at para.102.
[65] CB 203 at para.103.
[66] CB 203 at para.104.
[67] CB 203 at para.105.
[68] CB 203 at para.106.
Having considered the evidence, both individually and cumulatively, the Tribunal found that the applicant did not face a real chance of persecution in Sri Lanka, now or in the reasonably foreseeable future.[69]
[69] CB 203 at para.106.
The Tribunal “had regard to” its earlier findings of facts and the accepted country information to find that the applicant did not satisfy the complementary protection criterion.[70] The Tribunal:
a)accepted that on return to Sri Lanka the applicant would be detained for a “few days”, questioned, possibly charged and fined, but did not accept that this amounted to “significant harm”;[71] and
b)did not accept that the applicant faced a real risk of being detained or subjected to significant harm on return to Sri Lanka by those from whom he claimed to fear harm.[72]
The Tribunal was therefore not satisfied that there were substantial grounds for believing that the applicant faced a real risk of significant harm on return to Sri Lanka.[73]
[70] CB 204 at paras.107-109.
[71] CB 204 at par 107-108.
[72] CB 204 at para.108.
[73] CB 204 at para.109.
Grounds of review
The application contains three grounds of review in the following terms:
1.Jurisdictional error
2Not following the minimum standard of fairness applicable to the proceedings of this tribunal.
3.The decision of the second respondent as the Refugee Review Tribunal member was affected by legal error.
Orders and directions made on 24 July 2013 permitted the applicant to file and serve an amended application or any affidavit evidence by 7 August 2013. No amended application has been filed and served. A further affidavit, affirmed 21 November 2013, was filed on 22 November 2013,[74] late, and a week before the hearing.
[74] “Applicant’s 21 November 2013 Affidavit”.
The Applicant’s 21 November 2013 Affidavit was admitted into evidence at hearing, save as to paragraph 4, insofar as paragraph 4 referred to two documents which were not before the Tribunal at the time of the Tribunal hearing, and which were otherwise not submitted to the Tribunal. One document referred to in paragraph 4 of the Applicant’s 21 November 2013 Affidavit was admitted into evidence, it being part of the 2012 UNHCR Guidelines referred to by the Tribunal in the Tribunal Decision. The Applicant’s 21 November 2013 Affidavit contains only two other relevant paragraphs (paragraphs 2 and 3), and those are only relevant insofar as they assert what the Court has taken to be further grounds of review, rather than factual material properly the subject of an affidavit. Those paragraphs provide that:
a)the Tribunal “failed to consider the current and future situation in Sri Lanka in applying s 36(2A) and (e) to my claims based on my ethnicity and social position”; and
b)the Tribunal “failed to consider my claims adequately based on his report paras 34, 35, 39, 42, 44, 46, 47, 53, 81, 88, 91, 92, 94 and 108 of the ….” Tribunal Decision.[75]
The Court will treat sub-paragraphs (a) and (b) above as additional grounds of review.
[75] Applicant’s 21 November 2013 Affidavit, paras.2 and 3.
The applicant’s oral submissions at hearing were largely irrelevant, relating to:
a)his failure to obtain any assistance from pro bono lawyers appointed following a referral by the Court; and
b)factual matters related to his personal circumstances, the civil war in Sri Lanka, and the recent activities of the Canadian and British Prime Ministers in relation to the Commonwealth Heads of Government Meeting in Sri Lanka.
At hearing the applicant made no particular allegation of error by the Tribunal, save for the implied assertion that the Tribunal had arrived at the wrong decision on the merits, an allegation reflected by the applicant’s submission that he would never accept the fact that he would not suffer harm if he were to return to Sri Lanka.
Consideration
The three grounds of review in the application
The three grounds of review in the application do not contain any particulars to make them meaningful and on this basis alone they probably cannot succeed. Grounds 1 and 3 contain bare assertions of jurisdictional and legal error respectively, and without particularisation cannot succeed, and are not made out.
Ground 2 asserts that the Tribunal failed to follow minimum standards of fairness. This ground does not have any merit as there are no proper particulars of the required standard, or any breach of them, or any other breach of procedural fairness by the Tribunal. Further, as this was a case to which s.422B of the Migration Act 1958 applied, the Tribunal was not required to afford the applicant common law procedural fairness.[76] The applicant was entitled only to the rights afforded to him under Part 7 of the Migration Act 1958. No breach of those provisions has been identified, nor is any evident on the materials before the Court. Rather:
a)the Tribunal put information to the applicant pursuant to s.424AA of the Migration Act 1958 at the Tribunal hearings, relieving it of any obligation to put the information to the applicant pursuant to s.424A of the Migration Act 1958;[77] and
b)the Tribunal also complied with its statutory obligation in s.425 of the Migration Act 1958 by validly inviting the applicant to the hearings on 14 and 21 January 2013. The applicant attended the hearings and gave evidence in support of his claims with an interpreter and his advisor in attendance.[78] Further, the Tribunal Decision includes a number of instances where the Tribunal specifically raised with the applicant at the hearing the concerns that the Tribunal had with his claims and evidence. Those concerns included:
i)the applicant’s credibility, the credibility of his claims and the limited evidence before the Tribunal to support the applicant’s claims;[79]
ii)the applicant’s lack of a genuine fear of serious harm;[80] and
iii)that the country information undermined the applicant’s claims.[81]
Accordingly, the Tribunal complied with its obligations under s.425(1) of the Migration Act 1958 by giving the applicant the opportunity to be heard.[82]
[76] Minister for Immigration & Multicultural & Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61; SZCIJ v Minister for Immigration & Multicultural Affairs & Anor [2006] FCAFC 62.
[77] SZMCD v Minister for Immigration & Citizenship& Anor (2009) 174 FCR 415; [2009] FCAFC 46.
[78] CB 181-184 at paras.28-43; CB 185-186 at paras.45-53.
[79] CB 182-185 at paras.33, 37, 40, 47 and 50.
[80] CB 182-185 at paras.35, 49 and 51.
[81] CB 183 at paras.39 and 40.
[82] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs& Anor (2006) 228 CLR 152; [2006] HCA 65 (“SZBEL”).
In any event, even if “normal” procedural fairness was required to be afforded to the applicant, it was so afforded. The relevant principles in relation to procedural fairness are to the following effect:
a)procedural fairness requires a decision-maker to alert the person entitled to be heard to the questions or critical issues to be addressed;[83] and
b)in SZBEL[84] the High Court approved of what was said in the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd,[85] that:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.[86]
[83] Kioa & Ors v West & Anor (1985) 159 CLR 550 at 587 per Mason J.
[84] SZBEL CLR at 161-162 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ; HCA at para.29 per Gleeson CJ, Kirby, Hayne, Callinan & Heydon JJ.
[85] (1994) 49 FCR 576 (“Alphaone”).
[86] Alphaone at 590-591 per Northrop, Miles & French JJ.
The applicant was afforded the opportunity, which in this case he took, to:
a)attend and make submissions at the 14 January 2013 hearing;
b)respond in writing to the particulars of information sought under s.424AA of the Migration Act 1958 at the hearing on 14 January 2013;
c)attend and make submissions at the adjourned hearing on 21 January 2013;
d)respond orally to particulars of information sought under s.424AA of the Migration Act 1958 at the adjourned hearing on 21 January 2013; and
e)provide further written submissions by way of the Applicant’s Tribunal Submissions to the Tribunal for hearing on 21 January 2013.[87]
[87] CB 181-186 at paras.26-54. See also paras.8-12 and 29 above.
All of the circumstances demonstrate that the Tribunal did accord procedural fairness to the applicant. Ground 2 is, therefore, not made out.
In relation to the three grounds of review in the application, the applicant has failed to make out any of those grounds, for the reasons set out above.
Grounds of review in the Applicant’s 21 November 2013 Affidavit
The first of the grounds in the Applicant’s 21 November 2013 Affidavit refers to s.36(2A) of the Migration Act 1958, and alleges a failure by the Tribunal to consider the current and future situation in Sri Lanka in relation to the applicant’s claims based on his ethnicity and social position. Relevantly, s.36 of the Migration Act 1958 provides as follows:
(1) There is a class of visas to be known as protection visas.
(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receivingcountry, there is a real risk that the non-citizen will suffer significantharm; or
(b) …
(c) …
(2A) A non-citizen will suffer significantharm if:
(a) the non-citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non-citizen; or
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
The reference to s.36(2A) of the Migration Act 1958 is a reference to the complementary protection provisions of the Migration Act 1958 as s.36(2A) of the Migration Act 1958 refers to a non-citizen who “will suffer significant harm if” the criteria in paragraphs (a) to (e) of s.36(2A) of the Migration Act 1958 are met. This refers back to s.36(2)(aa) of the Migration Act 1958 which refers to the Minister having “substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.
The Tribunal considered the applicant’s complementary protection claims as a consequence of it not being satisfied that the applicant’s Convention claims were made out. In considering the applicant’s complementary protection claims the Tribunal had regard to the findings of fact that it made with respect to the Convention claims.[88] The findings of fact made by the Tribunal canvassed, in the context of determining whether or not the Convention claims were made out, the applicant’s social position, whether that be determined by his work as a painter in Udappu[89] or as a fisherman (or when fishing),[90] or as a consequence of his being a Tamil male of a young age from Mullativu,[91] or because the applicant “did not have status”.[92] The Tribunal had earlier also made specific reference to the fact of the applicant’s origins in Mullativu and his Tamil ethnicity in the context of the Convention claims.[93] The Convention claims were rejected because the Tribunal found that the applicant’s fear of persecution for one or more of the Convention grounds was not well-founded.[94] In considering the complementary protection claims the Tribunal specifically referred to the applicant’s Tamil ethnicity, and also indicated that it had “considered all the circumstances in this case”, and that having done so did not accept that there was a real risk that the applicant would suffer significant harm as defined in s.36(2A) of the Migration Act 1958 as a necessary and foreseeable consequence of the applicant’s removal from Australia to Sri Lanka.[95] For the sake of completeness the Court notes that the Tribunal specifically found that the applicant would not be subject to any of the forms of significant harm specified in s.36(2A)(a) to (e) of the Migration Act 1958.[96]
[88] CB 204 at para.107.
[89] CB 202 at para.101.
[90] CB 203 at para.104.
[91] CB 203 at paras.103 and 106.
[92] CB 203 at para.105.
[93] CB 199 at para.90 and CB 200 at 95.
[94] CB 203 at para.106.
[95] CB 204 at paras.107 and 109.
[96] CB 204 at para.109.
The Tribunal considered the current and future position in Sri Lanka for a Tamil with the attributes of the applicant. The Tribunal did so as part of its consideration of the Convention claims, and made findings of fact, to which the Tribunal had regard in considering the complementary protection claims.[97] Further the Tribunal found that there was not a real risk that the applicant would suffer significant harm at the airport, or subsequently, on his return to Sri Lanka.[98] This is in accord with a factual finding made in relation to the Convention claims, to which the Tribunal had regard in determining the complementary protection claims, that finding being as follows:
Further, having regard to the reasonably foreseeable future, and based on country information indicating various improvements in Sri Lanka and also indicating that authorities focus their attention on individuals with a particular profile, which the Tribunal finds the applicant does not have, the Tribunal finds the applicant does not face a real chance of suffering serious harm in Sri Lanka now or in the reasonably foreseeable future.[99]
[97] CB 204 at para.107.
[98] CB 204 at para.107.
[99] CB 200 at para.92.
The Tribunal therefore has had regard to the current and future situation in Sri Lanka, and to the applicant’s claims based on ethnicity and social position, when considering the complementary protection claims. The applicant has therefore not made out the ground in the Applicant’s 21 November 2013 Affidavit which alleges a failure to consider the current and future situation in Sri Lanka in relation to his claims based on ethnicity and social position. Thus, the first of the grounds set out in the Applicant’s 21 November 2013 Affidavit must fail.
The second ground of review in relation to the Applicant’s 21 November 2013 Affidavit asserts that the Tribunal failed to consider his claims adequately based on the paragraphs of the Tribunal Decision as set out, namely paragraphs 34, 35, 39, 42, 44, 46, 47, 53, 81, 88, 91, 92, 94 and 108.
This ground does not allege a failure to consider the claims made at all, or that the claims had been misunderstood, or that there has been a failure by the Tribunal to fix its mind on and specifically consider the claims made, which are matters, which if alleged and made out, might ground an exercise of the discretion to grant prerogative relief.[100]
[100] Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 77 ALJR 1088 at 1092 and 1093-1094 per Gummow and Callinan JJ; [2003] HCA 26 at paras.24-25 and 33-34 per Gummow and Callinan JJ; Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at 259 per Allsop J; [2001] FCA 1802 at para.42 per Allsop J; MZXIV v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2006] FMCA 1454 at paras.44-45 per Riley FM.
The ground lacks any, or any proper, particularisation. It is therefore not possible to precisely know how it is alleged that there was a failure to adequately consider the claims. Nothing said at hearing by the applicant assisted in this regard.
The Tribunal Decision is comprehensive, to say the least, and deals with the claims made, and it is not alleged to the contrary. It is only the “adequacy” of the manner in which certain claims were dealt with in certain paragraphs of the Tribunal Decision that are sought to be reviewed. The Court is of the view that in the absence of proper particularisation, a challenge to the “adequacy” of the manner in which some claims have been dealt with might be said to be no more than merits review, and for that reason alone there is no proper basis for judicial review, and, therefore, this ground ought to fail. In any event, for the reasons which follow, the paragraphs complained of do not give rise to reviewable error in dealing with the applicant’s claims.
Paragraph 34
Paragraph 34 of the Tribunal Decision relates to a question asked by the Tribunal at the Tribunal hearing as to why anyone would want to kill the applicant. The applicant replied stating that he was from Mullativu, he had left Sri Lanka illegally, and it might be thought that he was associated with the LTTE, and he did not have any connections with any groups that might help him to avoid harm.[101]
[101] CB 182 at para.34.
The Tribunal specifically considered, and rejected, the proposition that the applicant would be exposed to a real chance of serious harm by reason of his originating from Mullativu, his being considered to have links with the LTTE by reason of his originating in Mullativu and his Tamil ethnicity. The Tribunal considered these matters at length by reference both to the evidence of the applicant, and, in particular, country information including the 2012 UNHCR Guidelines.[102] The Tribunal also considered that if the applicant were to return to Sri Lanka, whether or not there was a real chance of serious harm arising by reason of the applicant’s illegal departure from Sri Lanka. Again, having regard to domestic Sri Lankan law, and country information, extensively set out in the Tribunal Decision,[103] the Tribunal rejected the proposition that the applicant would face persecution as a person returning to Sri Lanka after having left illegally.[104]
[102] CB 199 at para.90 and CB 200-201 at paras.95-97. The “2012 UNHCR Guidelines” refers to the December 2012 UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka. The 2012 UNHCR Guidelines were thus only 5 months old at the time the Tribunal Decision was made.
[103] CB 190-196 at paras.69-78.
[104] CB 201-202 at para.98 and CB 203 at para.106.
In the circumstances, it cannot be said that the Tribunal failed to adequately consider the claims made by the applicant as set out in paragraph 34 of the Tribunal Decision.
Paragraph 35
In paragraph 35 the Tribunal indicates that it asked the applicant if he had ever been harmed by any individual, group or authority in Sri Lanka, to which the applicant replied that he did not receive any direct harm except when he was studying and the SLA stopped him and asked him questions. This occurred in 2000 and 2002 when the SLA stopped him, asked him questions, asked for his ID, and made him sit on the ground for two hours. The Tribunal expressed a doubt as to whether this was serious harm, but the applicant replied that it was serious harm and that “he stopped going to classes after that incident”.[105]
[105] CB 182 at para.35.
The Tribunal specifically dealt with the questioning and temporary detention by the SLA of the applicant at various check-points, and accepted that those events had occurred, but found that it was for a legitimate security reason, and did not amount to serious harm.[106] The Tribunal went on to consider whether the applicant had been tortured at any stage, but the applicant himself admitted that he had not experienced torture, but had faced distressing experiences in the past (a fact which the Tribunal accepted), but which the Tribunal did not consider amounted to serious harm for a Convention reason. The Tribunal also took account of the fact that, having regard to country information, events such as those which had occurred in the past, even if they amounted to a form of discrimination or mistreatment, did not rise to the level of serious harm amounting to persecution for Convention reasons.[107]
[106] CB 199 at para.91.
[107] CB 199-200 at paras.91-94.
The Tribunal more than adequately considered the claims made by the applicant at paragraph 35 of the Tribunal Decision.
Paragraph 39
At paragraph 39 the Tribunal put to the applicant that country information indicated that conflict had ended in Sri Lanka in 2009 and that there had been a significant improvement in the situation in Sri Lanka, and not a worsening. The applicant said that it was not true that the situation had improved, and that things were the same for Tamils because there was no freedom in Sri Lanka, and whilst the problems between the government and the LTTE had finished there was still a problem with Tamils being kidnapped.[108]
[108] CB 183 at para.39.
The Tribunal put to the applicant that there was country information which indicated that the situation had improved in Sri Lanka, and that even though he came from Mullativu, and had departed illegally, it was not the case that he would be persecuted on return to Sri Lanka.[109] The Tribunal set out extensive country information dealing with the treatment of Tamils and persons with links to the LTTE,[110] and as to the treatment of returnees and persons who have departed Sri Lanka illegally, including Tamils.[111] The Tribunal had regard to that country information, and, in particular, the 2012 UNHCR Guidelines, when determining whether or not the applicant had a well-founded fear of persecution by reason of his Tamil ethnicity, place of birth in Mullativu and suspected links with the LTTE. The Tribunal found, as a matter of fact, that there was no circumstance or factor which was likely to lead to an imputation that the applicant held a pro-LTTE political opinion, a conclusion reached “having regard to all the country information, including the profiles identified in the [2012] UNHCR … Guidelines”.[112] Having regard to country information, the Tribunal rejected the applicant’s claims that the CID, EPDP, SLA and the Karuna groups would arrest and kill the applicant upon his return to Sri Lanka.[113] The Tribunal, on the basis of the country information, rejected the applicant’s claim that conditions in Sri Lanka had deteriorated, and found that he was not at risk of serious harm for a Convention reason. Put shortly, the Tribunal concluded that the applicant did not have a political profile which would see him subject to serious harm by any individual, group or authority in Sri Lanka for a Convention reason.[114] The Tribunal also considered the possible increased risks to Tamils by being stopped at check-points, searched, and subject to raids, but found that this did not amount to serious harm for a Convention reason.[115]
[109] CB 183 at para.40.
[110] CB 186-188 at paras.55-62.
[111] CB 190-196 at paras.69-78.
[112] CB 201 at para.97.
[113] CB 201 at para.96.
[114] CB 200-201 at paras.95-97.
[115] CB 203 at para.103.
In the circumstances, it cannot be said that the Tribunal failed to adequately consider the claims made by the applicant as set out in paragraph 39 of the Tribunal Decision.
Paragraph 42
At paragraph 42 of the Tribunal Decision the Tribunal sets out that it explained to the applicant that there were particulars of information raised under s.424AA of the Migration Act 1958, which particulars were ultimately fully set out in the Tribunal Decision,[116] which if accepted would be the reason, or part of the reason, why the Tribunal might affirm the Delegate’s Decision. That information was that:
a)the applicant explained at the entry interview in July 2012 that there was no specific incident and nobody had harassed or attacked him in Sri Lanka, which if accepted by the Tribunal, might lead it to conclude that there may be evidence that there is not a real chance of future serious harm or future significant harm;
b)the applicant told the Delegate that there was nothing specific that happened to him but it was an accumulation of circumstances, which might lead the Tribunal to conclude that there is an absence of a real chance of future serious harm; and
c)a record on the Department’s file indicating that the applicant did not have any problems other than with a loan when in Dubai, and that this might be evidence that the applicant did not face a real chance of serious harm should he return to Sri Lanka.[117]
[116] CB 184 at para.44.
[117] CB 183-184 at para.42.
The Applicant’s Tribunal Submissions addressed the particulars of information raised by the Tribunal.[118] The Court also notes that in relation to the loan the applicant indicated that he had had to borrow money to leave Sri Lanka (to go to Dubai in 2008) but that particular debt had been settled by payment.[119] The Tribunal also considered what happened with respect to the loan, but even if it had not, it is not a matter which, on the evidence, could have constituted a basis for a fear of serious harm in the event that the applicant is now returned to Sri Lanka. The admission that there were no specific incidents of harassment or attack of the applicant in Sri Lanka was obviously relevant to the issue of future harm, and formed part of the Tribunal’s consideration.[120] The accumulation of circumstances referred to by the applicant was considered by the Tribunal in the Findings and Reasons in the Tribunal Decision, and are dealt with in more detail under the heading below in relation to the applicant’s claim of inadequate consideration by the Tribunal in relation to paragraph 44 of the Tribunal Decision. The Tribunal Decision deals specifically with the particulars of information relevant to this issue, finding that:
a)the admission that no specific incident or harassment had taken place in Sri Lanka supported a conclusion that the applicant had not suffered past harm; and
b)the fact that the applicant said that he had no problems other than a problem with a loan supported its conclusion that there was not a real chance the applicant would suffer serious harm upon return to Sri Lanka, now or in the reasonably foreseeable future.[121]
[118] See para.10(b) above and sub-para.(b) below.
[119] CB 185 at para.48.
[120] CB 199 at para.92.
[121] CB 202 at para.100.
In all of the above circumstances, it cannot be said that the Tribunal failed to adequately consider the claims made at paragraph 42 of the Tribunal Decision, which were in fact, responses to information sought by the Tribunal under s.424AA of the Migration Act 1958.
Paragraph 44
At paragraph 44 the Tribunal Decision summarises the Applicant’s Tribunal Submission, which was a response to the particulars of information sought under s.424AA of the Migration Act 1958 at the 14 January 2013 hearing, and it would seem, in particular, as an explanation of the accumulation of circumstances said to be relevant to the applicant’s claim, as follows:
a)that the applicant had observed the troubles and hardships that Tamils face, especially those from Mullativu, since he was a small child, and that the Tamils were targeted by the authorities who suspected them of being associated with the LTTE;
b)when working as a painter in Udappu the applicant was stopped and harassed by the SLA two or three times a month at various check-points and he eventually stopped going to Udappu because he was not allowed to pass, and that the questioning and harassment turned to physical beatings and verbal abuse from the SLA;
c)that when the applicant tried to fish, the SLA were on the beach stopping Tamils who tried to fish;
d)there was an incident where a friend and neighbour who lived three houses from the applicant was shot dead;
e)the applicant was suppressed to the point where he could barely earn a living, and he therefore travelled to Dubai in 2008;
f)Tamils, especially those from Mullativu, have no voice in Sri Lanka and even though the war has finished the SLA and the police are still very suspicious of Tamils;
g)the applicant cannot avoid discrimination and harassment no matter where he goes in Sri Lanka, and it is even worse in Colombo than elsewhere;
h)the applicant would be killed if he returned to Sri Lanka as the authorities believe that anyone from the north of Sri Lanka is involved in the LTTE; and
i)the applicant had no choice but to leave Sri Lanka just to survive, and he cannot live in a country that will not accept his race, and where he cannot live peacefully and freely to support his family in an acceptable way.[122]
[122] CB 184 at para.44.
The Court has already observed that the Tribunal dealt with, at some length, and rejected, the applicant’s claims that he feared harm because:
a)he was from Mullativu;
b)he had suffered past mistreatment;
c)he would be suspected of LTTE links because of his place of birth and his Tamil ethnicity; and
d)because of his illegal departure from Sri Lanka.[123]
[123] See paras.47 and 50 above; see also CB 199-202 at paras.90-98.
In relation to the assertion that the SLA beat and verbally abused the applicant when he was working as a painter in Udappu, the Tribunal considered the timing and nature of that claim, and specifically the fact that it had not previously been raised, which it considered to be inexplicable through interpreting deficiency given that it was so fundamental to a claim of protection, and in all of the circumstances rejected the applicant’s claim that he had been beaten or verbally abused by the SLA.[124]
[124] CB 202-203 at para.102.
The Tribunal specifically dealt with the issue of whether or not the applicant would suffer serious harm if he returned to Sri Lanka after a lengthy absence, and concluded, on the basis of country information that he would not, notwithstanding that he had departed illegally.[125]
[125] CB 201-202 at para.98 and CB 203 at para.106.
The Tribunal also accepted that the applicant had suffered mistreatment in the past, but did not conclude that that mistreatment was such as to raise a well-founded fear of future persecution. Likewise, the Tribunal found that discrimination and harassment may continue to occur, but that it was not serious harm for a Convention purpose, including in Colombo where Tamils were at an increased risk of being stopped at check-points, and being subject to search operations, both at check-points and at the places at which they were staying.[126]
[126] CB 203 at para.103.
The Tribunal also considered the position of Tamil fishermen, setting out particular country information concerning the position of Tamil fishermen,[127] and concluding that fishing was a regulated industry in Sri Lanka, that permits are required in accordance with relevant regulations, and that the Tribunal was therefore not satisfied that the applicant was in fact stopped from fishing (other than impliedly, lawfully, by reference to relevant regulations).[128]
[127] CB 189-190 at paras.63-68.
[128] CB 203 at para.104.
The Tribunal fully and comprehensively considered the matters set out in the Applicant’s Tribunal Submission, much of which was, in any event, simply a repetition of the applicant’s claims. In the circumstances the assertion by the applicant that the Tribunal did not adequately consider the claims arising from the matters set out at paragraph 44 of the Tribunal Decision is not made out.
Paragraph 46
At paragraph 46 of the Tribunal Decision the Tribunal has set out the fact that the applicant asserted that at the entry interview he said things in a concise or abbreviated manner. The Tribunal again put to the applicant that he had said that no one had attacked or harassed him and that that statement did not appear to be due to his conciseness or abbreviation. The applicant responded that there were different types of torture and he had been involved in “basic torture and beatings”. His fear was not of normal beatings, but his fear was of being killed because he was from Mullativu.[129]
[129] CB 185 at para.46.
As indicated above, the Tribunal considered the effect of the statement by the applicant that he had not been attacked or harassed, and also the effect of his being a native of Mullativu. For reasons set out above, it cannot be said that the Tribunal did not adequately consider these issues.[130]
[130] See paras.46-51 above.
Paragraph 47
At paragraph 47 of the Tribunal Decision the applicant says that he witnessed a murder when he was about ten years of age, and said that there was a second incident in 2006 when he was seeking help for a person to go overseas, and that person, who was a friend of the applicant, was at his house at around 8.00pm, and was later that night shot and killed. The applicant was questioned the next day concerning the shooting and killing of his friend. In response to the Tribunal’s suggestion that it was a reasonable police investigation method to investigate a person who may have been the last person to see his friend alive, the applicant asserted that he was investigated because he was from Mullativu with perceived LTTE links. In response to a question from the Tribunal the applicant said that he was not charged but that he was treated as if he was an accused.[131]
[131] CB 185 at para.47.
The Tribunal specifically considered what it perceived to be the applicant’s claim that he had suffered mental trauma in the past, “including witnessing a murder in one incident, and also another incident where he was with a friend who was killed that night.”[132] The Tribunal accepted that those experiences were traumatic,[133] and accepted that the applicant had faced distressing experiences in the past, but that these did not amount, as he claimed, to torture, and did not amount to serious harm for a Convention reason.[134] The Tribunal otherwise dealt with and rejected the claim that the applicant would be perceived to have, or have had, LTTE links.[135]
[132] CB 199 at para.91.
[133] CB 199 at para.91.
[134] CB 199-200 at para.92.
[135] See para.50 above.
The Tribunal dealt with these claims having regard to the factual material that was before it. In the circumstances, the claim that the Tribunal has not dealt adequately with the claims referred to in paragraph 47 of the Tribunal Decision cannot be made out.
Paragraph 53
Paragraph 53 of the Tribunal Decision is no more than a summary of the applicant’s claims as he put them to the Tribunal when invited to do so, namely that he fears serious harm because he:
a)was born in Mullativu;
b)had been mistreated in the past;
c)would be suspected of links with the LTTE because of where he was born; and
d)had departed Sri Lanka illegally.
For reasons otherwise set out above, each of these matters was fully and adequately dealt with in the Tribunal Decision, and no claim that these matters were not adequately considered can be made out.[136]
[136] See paras.47-50 above, and CB 199-202 at paras.90-98.
Paragraph 81
At paragraph 81 of the Tribunal Decision the Tribunal said that the applicant claimed to be a citizen of Sri Lanka, a claim which the Tribunal accepted having regard to documents provided by the applicant. The Tribunal also accepted that Sri Lanka was the receiving country for the purposes of the complementary protection provisions of the Migration Act 1958.
Nothing in paragraph 81 of the Tribunal Decision was determined in a manner adverse to the applicant, and the assertion that there has not been an adequate consideration of the claims arising out of paragraph 81 of the Tribunal Decision has not only not been made out, but is also a nonsense.
Paragraph 88
At paragraph 88 of the Tribunal Decision the Tribunal makes findings that significant parts of the applicant’s evidence were inconsistent and vague, and that the applicant appeared evasive and failed to provide direct or clear responses to some questions put by the Tribunal. The Tribunal went on to find that the applicant was an unreliable witness, and did not accept all of his claims, and found aspects of his evidence to be lacking credibility. In this regard, the Tribunal also had regard to country information which was not supportive of the applicant’s claims.[137]
[137] CB 198 at para.88.
In considering the issue of credit the Tribunal had regard to observations made by the High Court and the Federal Court in a number of well-known cases including, for example, Minister for Immigration & Ethnic Affairs v Guo & Anor[138] and Minister for Immigration & Multicultural Affairs v Rajalingam & Ors.[139] The Tribunal also had regard to the observations of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors,[140] where a single Justice (who agreed in the outcome with the majority Justices) observed that it was for the Tribunal to reach conclusions on the facts objectively shown, provided that there is proper speculation about whether or not there is a real chance of persecution.[141]
[138] (1997) 191 CLR 559 (“Guo”).
[139] (1999) 93 FCR 200; [1999] FCA 719.
[140] (1996) 185 CLR 259 (“Wu Shan Liang”).
[141] Wu Shan Liang at 293 per Kirby J.
The Tribunal observed that it was not necessary for it to uncritically accept allegations made, nor was it necessary to unpick every minor discrepancy in the evidence, and that it was necessary also to have regard to the special circumstances in which refugee cases arose.[142] The Tribunal had regard to proper principles as to the determination of credibility. It also had regard to the departmental guidelines on the assessment of credibility, and the claims made by the applicant as to his mental health problems, which caused the Tribunal to consider the applicant’s evidence “carefully”. Ultimately, the Tribunal was satisfied that any past mental health problems were not the cause of the applicant’s vague and inconsistent evidence.[143]
[142] CB 197-198 at paras.86-87.
[143] CB 198 at para.88.
The Tribunal approached the task of determining the applicant’s credibility by reference to proper principles, and had proper regard to the evidence which bore upon the applicant’s credibility, in the application of those principles. There was no error in the approach, and this was not a case where it could be said that there was no evidence warranting the credibility finding made by the Tribunal. In the circumstances, the Tribunal’s approach was correct, and the determination of credit was solely a matter for the Tribunal, the determination being based on evidence and being reasonable in the circumstances.[144]
[144] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J; Minister for Immigration & Citizenship v SZOCT & Anor (2010) 189 FCR 577 at 594-595 per Buchanan J; [2010] FCAFC 159 at para.63 per Buchanan J; WZAOO v Minister for Immigration & Citizenship & Anor (2012) 134 ALD 332 at 346 per Lucev FM; [2012] FMCA 1026 at para.30 per Lucev FM.
In all the circumstances, there was proper and adequate consideration of the matters with which the Tribunal dealt at paragraph 88 of the Tribunal Decision.
Paragraphs 91 and 92
At paragraph 91 of the Tribunal Decision the Tribunal considered the applicant’s claim of mental trauma based on his witnessing a murder, and also the incident where his friend with whom he had had a discussion was killed later that night. The Tribunal accepted that those experiences were traumatic. The Tribunal also accepted that the applicant had, from time to time, been temporarily detained and questioned by the SLA at various check-points, but found that this was a legitimate security function during a time of conflict in Sri Lanka. The Tribunal, having “regard to all the evidence”, rejected the suggestion that the past mistreatment amounted to serious harm.[145]
[145] CB 199 at para.91.
In paragraph 92 of the Tribunal Decision the applicant claimed to have been tortured, by reason of having witnessed killings and as a consequence suffered emotional disturbance, rather than having been tortured himself. The Tribunal again accepted that that experience might be distressing, but based on the applicant’s admission that he had not actually experienced torture, and having regard to the circumstances in which the events occurred, the Tribunal did not accept that the applicant’s experiences could be described as torture, and did not accept that they amounted to serious harm for a Convention reason. Further, the Tribunal said that so far as the reasonably foreseeable future was concerned, based on country information indicating improvements in Sri Lanka, and the authorities focusing on individuals with a particular profile which the applicant did not meet, there was not a real chance of the applicant suffering serious harm in Sri Lanka now or in the reasonably foreseeable future.[146]
[146] CB 199-200 at para.92.
The Tribunal’s consideration of the applicant’s assertion of a fear of serious harm because of past mistreatment was further considered in paragraph 93 of the Tribunal Decision where the Tribunal held that the past mistreatment (as described above) did not constitute serious harm amounting to past persecution for a Convention reason. Further, the Tribunal observed that if in fact the position was as posited by the applicant in relation to the authorities’ attitude towards a person suspected of being an LTTE supporter, then it is likely that the authorities would have seized the opportunity to charge the applicant with some offence in relation to the death of his friend occurring on the same night that his friend was speaking to the applicant at the applicant’s home.[147]
[147] CB 200 at para.93.
In all of the above circumstances, it cannot reasonably said that the applicant’s asserted fear of serious harm because of past mistreatment was not adequately considered by the Tribunal, and that assertion insofar as it relates to paragraphs 91 and 92 of the Tribunal Decision is not made out.
Paragraph 94
Paragraph 94 of the Tribunal Decision is a finding that discrimination or mistreatment of the applicant, arising from any discrimination that the applicant may suffer in future, would not rise to the level of serious harm amounting to persecution for a Convention reason.[148] The Tribunal reached that conclusion having regard to:
a)country information, which the Tribunal had extensively set out and reviewed,[149] in relation to the cessation of hostilities, and various improvements in conditions in Sri Lanka since the cessation of hostilities; and
b)the applicant’s particular circumstances.[150]
[148] CB 200 at para.94
[149] CB 186-196 at paras.55-78.
[150] CB 186-188 at paras.55-62.
In the circumstances, it cannot be said that paragraph 94 of the Tribunal Decision evinces a failure to adequately consider the applicant’s claims.
Paragraph 108
At paragraph 108 of the Tribunal Decision the Tribunal rejects the applicant’s claim that there is a real risk that he will be detained or subjected to significant harm by the SLA, or other authorities, or any other individual or group if he returns home to Sri Lanka. That claim was rejected having regard to a finding of fact made by the Tribunal that the applicant was not at any real risk of suffering significant harm at the hands of the Sri Lanka authorities, or government, or anyone else by reason of his Tamil ethnicity, or because of any links with the LTTE (the Tribunal having found that he had no such links in any event).[151] The Tribunal accepted that the applicant would be detained and questioned upon arrival in Sri Lanka, but did not accept that that constituted a real risk of significant harm, because even if the applicant was detained in a prison for a few days and fined for illegally leaving Sri Lanka, that did not constitute significant harm as that term is defined in s.36(2A) of the Migration Act 1958. The Tribunal’s finding in relation to the possible short term imprisonment of the applicant and finding of the applicant must be considered in the context of its consideration of:
a)country information in relation to the treatment of persons returning to Sri Lanka having departed illegally;[152] and
b)the operation of Sri Lankan domestic law with respect to persons who may be charged with an offence of departing illegally, that being a law of general application not applied in a discriminatory manner, which does not have an unintended, or intended, consequence of disproportionate impact on particular individuals or groups;[153] and
c)prison conditions in Sri Lanka.[154]
The Tribunal having considered those matters at some length, the Court does not consider that it can be said that the Tribunal did not adequately consider the issues that it dealt with at paragraph 108 of the Tribunal Decision in relation to the claim that the applicant would be detained or subjected to significant harm if returned to Sri Lanka.
[151] CB 204 at para.107.
[152] CB 190-196 at paras.69-78.
[153] CB 201 at para.98.
[154] CB 204 at para.108.
It follows from what the Court has said above that the claim in relation to paragraph 108 of the Tribunal Decision is not made out.
Generally
From the above consideration of the second ground of review in the Applicant’s 21 November 2013 Affidavit, including as it relates to each of the paragraphs in respect of which the applicant asserts that the Tribunal did not adequately consider his claims, it follows that the Court is of the view that the Tribunal did adequately consider those claims, and that not legal error arises in relation to that consideration. Indeed, it appears to the Court that this was, again, effectively an attempt at merits review, which is a function not to be undertaken by this Court on judicial review.
The Tribunal’s findings of fact, including its assessment of the applicant’s credibility and the credibility of his claims, were open to be made on the evidence before it and for the reasons that it gave. The Tribunal was not obliged to uncritically accept any and all allegations made by an applicant,[155] and the weight to be given to his claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[156] The Tribunal was the sole arbiter of the facts, and the Court cannot review the merits of the Tribunal Decision. Also, the question of what constitutes “serious harm” within the meaning of s.91R of the Migration Act 1958 is a question of fact and degree for the Tribunal as sole arbiter of the facts.[157]
[155] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J.
[156] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[157] VBAS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 307 at 315 per Crennan J; [2005] FCA 212 at paras.26-28 per Crennan J; VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at para.24 per Ryan, Lindgren and Sundberg JJ.
Grounds of review at hearing
As indicated above,[158] at hearing the applicant made no particular allegation of error by the Tribunal, save for an implied assertion that the Tribunal had arrived at the wrong decision on the merits. For reasons set out above,[159] it is not open to this Court to undertake a merits review of the Tribunal Decision.
[158] See para.27 above.
[159] See para.85 above.
Conclusion and orders
None of the grounds of review have been made. The application therefore fails. Accordingly, there will be an order dismissing the application.
There will also be an order amending the name of the Minister, as first respondent, to “Minister for Immigration & Border Protection”.
The Court will hear the parties as to costs.
I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 31 January 2014
[157] Guo.
19
2