WZAVK v Minister for Immigration

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAVK v MINISTER FOR IMMIGRATION & ANOR

[2019] FCCA 2272

Catchwords:
MIGRATION – Judicial review – citizen of Sri Lanka – decision of former Refugee Review Tribunal – whether failure to consider a claim – whether failure to have regard to information and to put information – whether failure to afford procedural fairness – whether failure to evaluate claim of fear of persecution – whether jurisdictional error.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.75

Immigrants & Emigrants Act 1948 (Sri Lanka), s.45C

Migration Act 1958 (Cth), Pt.7, Div.4, ss.36, 46A, 422B, 424, 424AA, 424A,

438, 474, 476

Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321
Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
Kaur v Minister for Immigration & Border Protection [2015] FCA 1
Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1
Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464
Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration v Chamnam You [2008] FCA 241
Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547
Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26
Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666
Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162; (2005) 83 ALD 545
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
WZASX v Minister for Immigration & Border Protection [2017] FCA 1415

Applicant:

WZAVK

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

PEG 419 of 2014

Judgment of:

Judge Antoni Lucev

Hearing date:

27 May 2015

Date of Last Submission:

27 May 2015

Delivered at:

Perth

Delivered on:

20 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))

REPRESENTATION

Counsel for the Applicant:

Mr D V Blades

Solicitors for the Applicant:

Putt Legal

Counsel for the First Respondent:

Mr B Dube

Second Respondent:

Submitting appearance, save as to costs

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The name of the second respondent be changed to “Administrative Appeals Tribunal”.
The originating application filed 22 December 2014, as amended on 29 April 2015, be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 419 of 2014

WZAVK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

The applicant has filed an application (“Judicial Review Application”) seeking review under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now Administrative Appeals Tribunal, (“Tribunal Decision” and “Tribunal” respectively). The Tribunal Decision dated 28 November 2014 affirmed a decision made by a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration and Border Protection (“Minister”), to refuse the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 202-221. An amended Judicial Review Application was filed on 29 April 2015 (“Amended Judicial Review Application”).
The Court acknowledges that these Reasons for Judgment have been significantly delayed. The essential reasons for that are the case load in the Perth Registry of this Court over several years, which, as recently as November 2017, was described by the Federal Court as “extreme”, and the judicial resourcing of the Perth Registry of this Court which was described by the Federal Court as “under resourced”: WZASX v Minister for Immigration & Border Protection [2017] FCA 1415 at [32] per McKerracher J, with all of the case management, and other, consequences and effects both obvious and not obvious that flow therefrom. In relation to this case it is pertinent to note that the Court has had access to and read all of the relevant papers including:
a)the Amended Judicial Review Application;
b)the affidavit of Monique Julia Vaughan affirmed 29 April 2015, and annexing a copy of a transcript of the Tribunal hearing (“Tribunal Transcript”);
c)the affidavit of Claire Campbell affirmed 13 May 2015, and annexing a copy of the un-redacted Irregular Maritime Arrival Entry Interview of the applicant dated 31 March 2012 (“Entry Interview Documents”);
d)outlines of submissions filed by the applicant on 13 May 2015 and the Minister on 20 May 2015;
e)the CB, in which the Tribunal Decision appears at CB 202-221; and
f)the Transcript of the hearing before the Court on 27 May 2015 (“Transcript”).
It is also relevant to note that there was no oral witness evidence or examination at the hearing of the matter before this Court.
In the above circumstances, the delay, which the Court regrets, has had no effect upon the Court’s reasoning in these Reasons for Judgment.

Background

The background to the proceedings is as follows:
a)the applicant, a Tamil Roman Catholic and citizen of Sri Lanka, arrived in Australia as an irregular maritime arrival in March 2012 and on 23 June 2012 the Minister exercised his power under s.46A of the Migration Act to “lift the bar” and allow the applicant to lodge an application for the Protection Visa: CB 1-16;
b)the applicant applied for the Protection Visa on 23 June 2012 making the following claims:
i)he fears that if he was forced to return to Sri Lanka he would be at risk of being killed, kidnapped, tortured or harmed on suspicion of having links to the Liberation Tigers of Tamil Eelam (“LTTE”): CB 47 and 51;
ii)he fears being returned to Sri Lankan as a returned asylum seeker who has fled Sri Lanka without travel documents: CB 47;
iii)he fled Sri Lanka in 2007 due to the “constant harassment” that he was experiencing from the Sri Lankan government and the “resurgence of war”: CB 47;
iv)when helping his father with fishing between 2000 and 2002, the applicant, being 16-17 years old at that time, was asked to transport basic goods for the LTTE across the sea and out of “coercion and a humanitarian compassion” he agreed to transport medical and food supplies as the LTTE were armed when they asked him to assist and he did not know how to say no, though on one occasion when he refused he was detained by the LTTE for 4 days: CB 48;
v)he and a relative were transporting goods for the LTTE one night when the boat was “showered with gunfire” and subsequently boarded by soldiers of the Sri Lankan Navy (“Navy”), and the applicant was hit on the head by a rifle butt and carries a scar on his head as a result. The applicant was detained by the Navy for one night and beaten and taunted with threats that they would shoot him, then the applicant was produced to the police and jailed for three months until his case was heard in court, and upon being found not guilty the applicant was constantly watched and seen as a suspect by the Navy and required to regularly report to the Navy: CB 48-49;
vi)he had witnessed incidents, causing him significant distress, including a shooting and a grenade going off in a church in 2006: CB 49-50;
vii)the decision to leave for India was made by the applicant when the Navy started “arresting people again”, claiming that 2-3 boys from his village were taken away and remain missing and that he was questioned constantly and responded that he did not have any LTTE links, and even after fleeing to India the Navy went to his home and “harassed” his mother about his whereabouts: CB 50. He was subsequently arrested in India for not having documentation and was detained from June 2007 to March 2010 and was then moved to a special camp for Sri Lankan Tamils and charged with transporting goods for the LTTE, but was released on bail in February 2011 and had to report regularly to the police and could only live in a refugee camp with his relatives: CB 50; and
viii)another man detained with the applicant returned to Sri Lanka and was detained in a military camp on the basis of suspected links to the LTTE, and the applicant fears the same could happen to him, further the shared information between the Sri Lankan intelligence and the Indian intelligence will mean that it is most likely that the charges put against the applicant in India will be known in Sri Lanka and as he will return without travel documents having left illegally, he will be under further threat of torture, arbitrary detention and death: CB 51;
c)on 27 August 2012 the applicant’s then solicitor/migration agent sent written submissions to the Delegate: CB 90-97;
d)on 29 July 2013 the Delegate refused to grant the applicant the Protection Visa: CB 135-159;
e)on 12 August 2013 the applicant lodged an application with the Tribunal for review of the Delegate’s Decision: CB 168-173;
f)the applicant’s solicitor/migration agent provided written submissions prior to the Tribunal hearing on 29 October 2014, which was attended by the applicant, the applicant’s solicitor/migration agent and a Tamil interpreter: CB 182-190;
g)post-Tribunal hearing submissions were provided to the Tribunal by the applicant on 3 November 2014: CB 191-198; and
h)on 28 November 2014 the Tribunal Decision was to affirm the Delegate’s Decision not to grant the applicant a Protection Visa: CB 202-221.

Tribunal Decision

In the Tribunal Decision the Tribunal:
a)provided a brief factual background to the applicant’s Protection Visa application, including his claims for protection and the findings of the Delegate, and stated that the issue to be determined was “whether the applicant has a well-founded fear of being persecuted in Sri Lanka for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm”: CB 203 at [2]-[8];
b)accepted the applicant was of Tamil ethnicity, that he had resided in the same area (a Tamil area) since birth until his departure from Sri Lanka and that he is a Roman Catholic: CB 204 at [12];
c)accepted the applicant’s claims that he transported food and medical supplies for the LTTE in 2000-2002, and was detained by the LTTE for four days when he refused to do so on one occasion, and in particular that in 2002 the applicant was accused and detained in Sri Lanka on suspicion of being involved with the LTTE and that he was released after being found not guilty of transporting goods for the LTTE: CB 204-205 at [13]-[14];
d)accepted that in the years before the LTTE’s military defeat in 2009 Tamils in Sri Lanka were routinely monitored and subject to surveillance and that the Navy arrested people in the applicant’s village and that the applicant had been questioned: CB 205 at [16];
e)noted that the applicant did not claim to have been a target of the incident inside a church nor claim to fear harm on the basis of religion, however, the Tribunal accepted the applicant was present when a grenade went off inside a church, but found there was not a real chance that the applicant will be persecuted “for reasons of his Christianity if he returns to Sri Lanka”: CB 205 at [17];
f)noted the applicant had given two different accounts of events from mid-2007: CB 205 at [18]-[19], namely that the applicant claimed:
i)in his Protection Visa application to have fled Sri Lanka for India by boat in 2007 as a result of the military’s constant surveillance of him; and
ii)in his entry interview undertaken shortly after his arrival in Australia that he fled Sri Lanka in February 2012;
g)as to the first account:
i)referred to two documents the applicant had provided in support of his claims of having fled to India in 2007 and that the two documents were examined by the Delegate to determine their authenticity;
ii)the results of the examination were inconclusive leading the Delegate to conclude that they were fraudulent on the basis that the applicant could not have been in India on 6 June 2007 or 18 July 2007 (the date of the two documents provided in support) as his national identity card was issued in Sri Lanka on 17 July 2007: CB 205-206 at [21];
iii)noted that the applicant’s migration representative had addressed this by explaining that although his national identity card was issued on 17 July 2007 he applied for it in 2006, and it was not issued until months later due to processing delays and it was sent to his home address and remained there until he asked for it to be sent to Australia: CB 206 at [22];
iv)the first document, a telegram, originates from when he was arrested in India on 6 June 2007 and he gave the Indian authorities his home address in Sri Lanka and what he provided to the Delegate is a copy of the telegram sent to his family after his arrest: CB 206 at [22]; and
v)as to the second document relating to the “Foreigners Act”, he was in a jail in India from 6 June 2007 and was not transferred to a different jail in India until 6 March 2010, and the date on this document was 18 July 2007 because this was the date the order to transfer was issued, however, the order was not acted upon until 6 March 2010 when the applicant was actually transferred to the different jail: CB 206 at [22];
h)as to the second account:
i)noted the applicant did not claim that he had gone to India but claimed that he departed Sri Lanka for Australia in February 2012 as he had issues with the Navy and the police in Sri Lanka because of his suspected involvement with the LTTE, and further detail included that he had been taken into custody 6 or 7 times and interrogated about his involvement with the LTTE, the most recent occasion being 2008, and that in 2011 the police broke into his home, and while he escaped his brother-in-law was taken into custody and they do not know his whereabouts: CB 206 at [23]; and
ii)put to the applicant the inconsistencies in relation to the applicant indicating that he was told by the smuggler not to disclose his time in India, and that this is why he did not do so in his entry interview: CB 206 at [23];
i)accepted that the applicant and others on board the boat on which the applicant came to Australia were told not to disclose their time in India, and that the applicant left Sri Lanka for India in 2007, but rejected the applicant’s claims that the police broke into his home in Sri Lanka in 2006 or 2011 and took his brother-in-law into custody but that he had been able to escape, or, that the police broke into his home in 2011 and asked his parents about his whereabouts: CB 206 at [24];
j)expressed the view that the applicant attempted to transpose the timing of an event he claimed to have occurred in 2011 to an earlier time, and in so doing his credibility was undermined, and noted that the applicant further submitted that a separate incident took place in 2011 where the police broke into his home in Sri Lanka and asked his parents about his whereabouts, a claim which the Tribunal rejected and regarded as fabricated and as an attempt by the applicant to vary his evidence to fit the changed timeline because he could no longer maintain what he had previously stated, and that this further undermined his credibility as a witness: CB 206 at [24];
k)found it plausible that within a month of being in India the applicant was arrested and charged because he was without documentation and that he was issued his ID card after departure from Sri Lanka, but did not accept the applicant’s claims that the “Foreigners Act” document was not acted on until March 2010, and considered that the applicant resided in the special camp in India from the date of that order until he left India: CB 207 at [25];
l)did not accept that the applicant was also arrested in India in 2007 because he was under suspicion of transporting goods for the LTTE as the Tribunal did not consider it plausible that the Indian authorities would arrest and detain him on that basis, with no evidence to suggest he was transporting goods for the LTTE other than that he had 4 friends who had helped the LTTE, and even accepting the Sri Lankan and Indian authorities engaged in intelligence sharing, the information was that in 2002 the applicant had been accused of and detained on suspicion of being involved with the LTTE but was found not guilty and released: CB 207 at [26];
m)noted the inconsistencies in the applicant’s claims regarding ongoing interest in him since he left Sri Lanka and, after detailing the inconsistencies, did not accept that the Sri Lankan authorities have any continued interest in the applicant as it did not consider that, if the applicant was a person of interest to the authorities, they would wait several years following the applicant's departure from Sri Lanka before making inquiries as to his whereabouts, and therefore it was more likely that any visits by the authorities to the applicant's home following his departure for India in 2007 were simply to establish if members of the household were present and accounted for: CB 207 at [27];
n)accepted that if he returns to Sri Lanka he will do so as a failed asylum seeker, and set out its discussions with the applicant concerning country information indicating that failed asylum seekers are not treated differently from other returnees and that it has not been observed that there are any differences in the way Tamil returnees are treated from Muslim or Sinhalese, to which the applicant responded this may be the case for those returning who have not previously encountered problems with the authorities, but that the situation for him was different given that he has previously been arrested in Sri Lanka and had problems with the authorities, and because he was arrested in India: CB 207-208 at [29];
o)referred to the submissions of the applicant’s solicitor/migration agent and the country information put forward referring to returnees with a similar profile to the applicant having been detained by the authorities on return and subjected to torture, and weighed that country information against other country information gathered by the Tribunal, and found the latter preferable and more authoritative and attached greater weight to it: CB 208 at [30]-[31];
p)did not accept that there is a real chance that the applicant will be mistreated because of any perceived association with the LTTE if he returns to Sri Lanka now or in the reasonably foreseeable future: CB 208 at [32];
q)on the evidence before it, did not find that there is a real chance that the applicant will be persecuted for reasons of his membership of the particular social group of failed Tamil asylum seekers or for any political opinion imputed to him because he will be returning to Sri Lanka as a Tamil who left Sri Lanka illegally and who has applied for asylum in Australia: CB 208-209 at [33];
r)accepted that the applicant upon his return would be charged with an offence under the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act”) in relation to his illegal departure, and found that there was only a remote chance that the applicant would be imprisoned due to his illegal departure, and that it is most likely that on return he would pay a fine, unless he was considered to be an organiser of irregular migration of people from Sri Lanka, but that there is no evidence that the applicant has been involved in any such irregular migration: CB 209 at [34]-[35];
s)having regard to the country information:
i)considered that the applicant will most likely be remanded in custody, and may spend up to a fortnight on remand, but did not accept that there is a real chance that the applicant will be mistreated for reasons of his race as a Tamil during any period which he may spend on remand if he returns to Sri Lanka now or in the reasonably foreseeable future; and
ii)even accepting the prison conditions in Sri Lanka are poor, did not accept that the applicant would be mistreated due to his Tamil race during any time he spent in jail, and found that the custody itself did not amount to serious harm as it was “the non-discriminatory enforcement of a generally applicable law”: CB 209 at [36]-[37];
t)found that the authorities interest in the applicant prior to his departure was consistent with adverse interest directed at Tamils generally when the LTTE remained a military threat to the Sri Lankan government, but there was not a real chance that the authorities would have any further interest in the applicant in the post-war period, and as the applicant’s LTTE links were not substantive, the Tribunal rejected the applicant’s submissions that his role in transporting goods for the LTTE is sufficient to establish a profile as a suspected LTTE member, and therefore found that the applicant did not have a profile that would make him of interest to the Sri Lankan authorities as identified in the United Nations High Commissioner for Refugees Guidelines (“UNHCR Guidelines”): CB 209-210 at [38]-[39];
u)did not accept that there is a real chance that the applicant will be persecuted for reasons of his race as a Tamil, his membership as failed Tamil asylum seeker, or his real or imputed political opinion in favour of the LTTE or against the Sri Lankan Government: CB 210 at [40];
v)in relation to the complementary protection criteria referred to the findings made in respect of the refugee criterion in s.36(2)(a) of the Migration Act to further find it did not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment: CB 320-211 at [41]-[45]; and
w)found that the applicant did not satisfy the criteria in s.36(2)(a) or (aa) of the Migration Act, and therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 210 at [47].

Judicial Review Application

In a consent order made by the Court on 21 April 2015 the applicant was granted leave to file the Amended Judicial Review Application and further affidavit evidence by 29 April 2015.

Amended Judicial Review Application

The applicant filed an Amended Judicial Review Application on 29 April 2015 containing four grounds which are set out below: ground 1 at [12], ground 2 at [25], ground 3 at [48] and ground 4 at [61].

Jurisdictional error

The Tribunal Decision may be set aside upon judicial review if it involves jurisdictional error: Migration Act, ss.474, 476; Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1 at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The Tribunal Decision may be affected by jurisdictional error where the Tribunal identifies a wrong issue, asks the wrong question, ignores relevant material or relies on irrelevant material in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given to the Tribunal under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ. In certain circumstances a denial of procedural fairness may also constitute jurisdictional error: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300.
The Court does not have the jurisdiction to review the merits of the Tribunal Decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
The applicant bears the onus of establishing jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.

Ground 1: Failure to consider a claim

Ground 1 is as follows:
1. The Tribunal made a jurisdictional error by failing to consider and make findings on an integer of the applicant's claim for protection under the Refugees' Convention, namely that despite being out of Sri Lanka for several years, he remains a target for the Sri Lankan authorities by reason of an imputed political opinion of support for the LTTE especially in light of his detention in India (CB 95).
Particulars
(a) The applicant claimed in his statement accompanying protection visa application that he was held in … [name deleted] Special Camp ( 'Special Camp') for Sri Lankan Tamils in India, and was charged by the Indian authorities with transporting goods for the LTTE (CB 50);
(b) The applicant's agent submitted in a submission dated 27 August 2012 that:
(i) the applicant remains a target for the Sri Lankan authorities for having an imputed political opinion of having links with the LTTE, especially in light of his detention in India (CB 95);
(ii) the Special Camp is notorious within India for its human rights violations (CB 93);
(iii) Tamil Nadu's intelligence organization, Q branch, has been noted for its surveillance of the possible activities of Sri Lankan Tamils in India (CB 95);
(iv) media reports have identified the Q branch as involved in the vetting process of asylum seekers from Sri Lanka upon arrival in India (CB 95);
(v) LTTE suspects are placed in a holding camp for three to four days while the Q branch conducts an investigation as to their combatant status (CB 95-96);
(vi) if the LTTE suspects are not cleared of suspicion of LTTE involvement. they are held by the police in separate camps (CB 95-96);
(vii) the Special Camp is controlled by the Q branch police (CB 94); and
(viii) there is evidence of intelligence sharing between the Indian and Sri Lankan authorities (CB 96).
(c) The applicant informed the Tribunal at the hearing that:
(i) even when in India, he remained fearful of the Sri Lankan authorities (transcript page 7);
(ii) the applicant was arrested on suspicion of assisting the LTTE (transcript page 8);
(iii) the Sri Lankan authorities detained and threatened his family several times in 2011 as a result of his arrest in India (transcript page 12);
(iv) the Sri Lankan authorities further required the applicant's father to report to the … [name deleted] police station in 2013 and answer questions as to his location, as the applicant was still on a wanted list (transcript page 13);
(v) the communication between the Indian and Sri Lankan authorities in regards to suspected LTTE members was 'very good', and that if he had been handed over to the Sri Lankan authorities he would have been tortured (transcript page 13);
(vi) while detained in India the prospect of criminal charges under Sri Lankan legislation was put to the applicant (transcript page 15); and
(vii) the applicant was informed that the only reason he had not been returned to Sri Lanka was because he was currently facing the Indian courts (transcript page 15).
(d) The Tribunal
(i) found that the applicant resided at the Special Camp from the time of arrival in India in June 2007 until he left India in February 2012 (CB 207, [26]); and
(ii) accepted the applicant’s claim of intelligence sharing between India and Sri Lanka (CB 207, [26]).
(e) Although the Tribunal did not accept that the applicant's arrest in India in 2007 was because he was under suspicion of transporting goods for the LTTE, the Tribunal nevertheless did not consider and made no finding on whether he remains a target for the Sri Lankan authorities for having an imputed political opinion of having links with the LTTE, especially in light of his detention in India (CB 95).

Applicant’s submissions

The applicant submits that:
a)the applicant’s then solicitor/migration agent made a number of submissions to the Delegate (see particulars (a)-(b)) and the applicant further informed the Tribunal of a number of matters at the Tribunal hearing (see particular (c));
b)the Tribunal accepted at CB 207 at [25] that the applicant had been detained at a special camp in India (“Special Camp”), and that the Sri Lankan and Indian authorities shared intelligence information regarding suspected LTTE members: CB 207 at [26], and further held that it discussed with the applicant country information indicating that returned failed asylum seekers were not mistreated, whether of Tamil ethnicity or not, and that the applicant responded that his situation was different given he had previously been arrested in Sri Lanka and had been detained in India: CB 207-208 at [29];
c)the Tribunal held at CB 208 at [32] that, having regard to the country information at CB 208 at [29], it did not accept that there was a real chance that the applicant would be mistreated because of a perceived association with the LTTE, and again at CB 210 at [40] that he would not face mistreatment due to a perceived political opinion of support for the LTTE;
d)the Tribunal did not consider or make any finding on whether the applicant remained a target for the Sri Lankan authorities by reason of imputed political opinion of support for the LTTE, as enlivened through a prolonged period of detention in India for many years on charges of supporting the LTTE: CB 95, in circumstances where the Tribunal accepted that significant intelligence sharing between Sri Lanka and India occurred;
e)the Tribunal has overlooked the applicant’s claim that he remained a target for the Sri Lankan authorities by reason of an imputed opinion of support for the LTTE, and while the Tribunal did not accept that his arrest and detention in India was related to LTTE involvement in Sri Lanka, that is a separate question to whether the Sri Lankan authorities would suspect him of such involvement by reason of his lengthy detention in the Special Camp, bearing in mind the evidence that was before the Tribunal was that persons were selected for incarceration at the Special Camp based on their ethnicity and their suspected involvement with the LTTE; and
f)although the Tribunal has made findings about suspicion of transporting goods, it has not addressed those findings in the context of the applicant’s detention in the Special Camp, which the Tribunal accepted had occurred, and in light of the applicant’s claim that he would be targeted for harm based on his incarceration at the Special Camp in India, that is something that the Tribunal should have specifically addressed, in addition to and separate from the claim that he was under suspicion of transporting goods for the LTTE in Sri Lanka.

Minister’s submissions

The Minister submitted that:
a)a key finding of fact by the Tribunal was that the applicant’s arrest and detention in India was not due to “charges of supporting the LTTE” and such a finding of fact was open to the Tribunal to make on the evidence before it and the Court cannot review the merits of the Tribunal Decision: Wu Shan Liang, CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ;
b)it is clear that the Tribunal understood the applicant’s claims as indicated at CB 203 at [2] and the Tribunal further noted the applicant’s claim that he “cannot return to Sri Lanka because intelligence sharing between the two countries means that information about him could be passed to the Sri Lankan armed forces”: CB 205 at [20];
c)while the Tribunal accepted there is intelligence sharing it made findings of fact that it did not accept that the applicant was detained in India because of any LTTE connections and accordingly, it was not required to consider whether such information would be passed onto Sri Lankan authorities or whether it would affect the applicant’s imputed political opinion: CB 205 at [20];
d)at CB 207 at [29] the Tribunal noted the applicant’s response to the question that although failed Tamil asylum seekers are not treated any differently from other returnees his case would be different as he had been arrested in India, and the Tribunal went on at CB 208 at [32] to find that having regard to country information, the applicant would not be mistreated because of any “perceived association with the LTTE”;
e)in respect of the submission that the Tribunal did not consider or make any findings on whether the applicant remained a target for the Sri Lankan authorities by reason of imputed political opinion enlivened through a prolonged period of detention in India, rather than reading CB 207 at [26] in isolation one needs to have regard to CB 207-208 at [29]-[30] and [32], as when read in their context it is clear that the Tribunal did not accept that the applicant was held by the Indian authorities and charged because of an imputed political opinion and support for the LTTE, and the Tribunal in those paragraphs proceeds to consider the remaining issues with respect to whether or not the Sri Lankan authorities would consider the applicant to have a purported political opinion of support for the LTTE, and the Tribunal on the evidence before it was of the view that it could not be so satisfied; and
f)in light of the unchallenged and critical finding of fact by the Tribunal that the applicant’s arrest and detention in India was not due to suspicion of support for the LTTE, the conclusion reached by the Tribunal was open to it and no jurisdictional error arises in respect thereof.

Consideration – ground 1

The applicant’s contention is that the Tribunal did not consider or make a finding on whether the applicant remains a target for the Sri Lankan authorities, by reason of an imputed political opinion of having links with the LTTE, particularly in light of his detention in the Special Camp in India.
It is a well-established principle that the Tribunal must consider all the claims made by an applicant and all of the integers of those claims as articulated by the applicant: Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 (“Htun”) at [42] per Allsop J; Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321; Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [34] and [62] per Kenny, Griffiths and Mortimer JJ. An applicant’s claims to meet the criteria for a Protection Visa are mandatory considerations under the Migration Act: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1; (2004) 219 ALR 27 (“NABE (No 2)”) at [63] per Black CJ, French and Selway JJ; Htun at [42] per Allsop J.
The Tribunal is entitled to accept or reject or give such weight to the evidence proffered as it thinks appropriate in all the circumstances: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 (“Lee”) at [27] per French J, and that is part of its fact-finding function: Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. Further, where the Tribunal is obliged to consider a claim, it must engage in an active intellectual process clearly addressing that claim: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [47]-[54] per Lindgren, Rares and Foster JJ; Minister for Immigration & Citizenship v Khadgi & Anor [2010] FCAFC 145; (2010) 190 FCR 248; (2010) 274 ALR 438; (2010) 119 ALD 26 at [57] per Stone, Foster and Nicholas JJ.
In Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALD 630 (“Applicant WAEE”) at [47] per French, Sackville and Hely JJ, the Full Court of the Federal Court stated:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected…
The Tribunal articulated the applicant’s claims at the outset of the Tribunal Decision and it is evident that it understood the applicant’s claim to fear returning to Sri Lanka on the basis of his imputed political opinion as a supporter of the LTTE and his detention in India:
2… The applicant fears returning to Sri Lanka on the basis of his ethnicity as a Tamil and his imputed political opinion as a supporter of the LTTE that arises from his ethnicity as a Tamil. His claims are derived from his experience of arrest in Sri Lanka for transporting goods for the LTTE, his experience of violence and detention because of his suspected links with the LTTE and his record of arrest and imprisonment in India…
In the Tribunal Decision the Tribunal considered and found at CB 205 at [20], 207 at [25]-[26] and 208 at [31]-[32] as follows:
20. The applicant claims that within a month of being in India he was arrested and charged for being without documentation and was held in … [name deleted] Central jail from 6 June 2007 to March 2010, when he was transferred to … [name deleted] special camp (for Sri Lankan Tamils). He claims he was arrested on suspicion of transporting goods for the LTTE and was released in February 2011 and put on bail and transferred to … [name deleted] refugee camp in … [name deleted] where he stayed until he left India by boat in February 2012. He claims that he cannot return to Sri Lanka because intelligence sharing between the two countries means that information about him could be passed to the Sri Lankan armed forces. He claims that one of the men who was held with him at … [name deleted] special camp was returned to Sri Lanka and detained at … [name deleted] military camp on suspicion of links to the LTTE and he fears he could be detained indefinitely by the Sri Lankan authorities…
25. The Tribunal accepts as plausible his claim that within a month of being in India he was arrested and charged for being without documentation on 6 June 2007... It finds that pursuant to the order he resided in the special camp at … [name deleted] until he left Sri Lanka in February 2012.
26. The Tribunal does not accept that his arrest in India in June 2007 was also because he was under suspicion of transporting goods for the LTTE. He claims that he was taken to … [name deleted] jail where he remained until March 2010, whereupon he was transferred to … [name deleted] special camp. He claims he was released in February 2011 on bail and transferred to … [name deleted] refugee camp in Chennai where he stayed until he left India by boat in February 2012. He claimed at the Tribunal hearing that he was charged with assisting the LTTE and that for the 3 years he was in … [name deleted] jail he was taken to court every 15 days. He claims that the outcome of the charges is not known as the court process has not been concluded. Whilst the Tribunal accepts the applicant's claim of intelligence sharing between the two countries (which is supported by the country information contained in his representative's submission of 27 August 2012) the Tribunal does not consider it plausible that the Indian authorities would arrest and detain him on this basis, with no evidence to suggest he was transporting goods for the LTTE, other than that he had 4 friends who had helped the LTTE, and accepting there was intelligence sharing, information that in 2002 he had been accused of and detained on suspicion of being involved with the LTTE for which he was found not guilty and released.
31. The Tribunal has considered the country information put forward by the applicant's representative and whilst it accepts that there are documented cases in which people who have returned to Sri Lanka have been subjected to torture, it has weighed these reports against the country information referred to above (which includes DFAT reports, and reports by the Danish Immigration Service and the UK Home Office), which it finds preferable and authoritative and to which it attaches greater weight.
32. Having regard to the country information referred to above, the Tribunal does not accept that there is a real chance that the applicant will be mistreated because of any perceived association with the LTTE if he returns to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal made further findings at CB 211 at [39]-[40] and [46] as follows:
39…The Tribunal considers that there is not a real chance that the authorities have any further interest in the applicant in the post-war period. The Tribunal considers that the UNHCR Guidelines suggest that the person's association with the LTTE needs to be substantive (for example as former combatant or cadre, administration or media worker, fundraiser, or an LTTE supporter who was involved in transporting goods for the LTTE) or persons with family links to such a person. In this case the applicant was found not guilty of transporting goods for the LTTE. The Tribunal does not consider that the applicant has a profile that would make him of interest to the Sri Lankan authorities. It does not consider that the applicant's circumstances fit the risk profiles identified in the UNHCR Guidelines such that he is identified to be a person in need of international protection.
40. The Tribunal does not accept for the reasons given above that there is a real chance that the applicant will be persecuted for reasons of his race as a Tamil, his membership of the particular social groups of 'failed Tamil asylum seekers', or his real or imputed political opinion in favour of the LTTE or against the Sri Lankan Government. The Tribunal does not accept that the applicant has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.
46. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

It is evident that the Tribunal has clearly engaged in an active intellectual process, directly addressing the claim that the applicant fears returning to Sri Lanka because of an imputed political opinion of having links with the LTTE, especially in light of his detention in India, but has made a finding that it did not accept that the applicant was arrested and detained in India because he was transporting goods for the LTTE: CB 207 at [26]. That was a finding of fact which was open on the materials before the Tribunal, and accordingly one which the Tribunal could make: Lee at [27] per French J; Wu Shan Liang, CLR at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ. The applicant’s claim in this respect was summarised in his outline of submissions as being by reason of imputed political opinion of support for the LTTE “as enlivened through a prolonged period of detention in India for many years on charges of supporting the LTTE” (italic emphasis in applicant’s submissions: underlined emphasis by the Court). Having regard to the fact that the Tribunal rejected, as it was entitled to do, that the applicant was arrested and detained in India because he was transporting goods for the LTTE, the factual basis for ground 1 does not exist. It is important to recognise that the claim is not merely that the applicant would be imputed with a political opinion of having mixed with the LTTE merely because he was in India, or in India in a particular kind of camp: the basis for the claim was, as the Court’s emphasis in the above quote highlights, based on the fact that the detention arose on the basis of charges supporting the LTTE. A specific element of the factual basis for ground 1 having been found not to exist, the Tribunal then made findings of greater generality in relation to the applicant’s profile, and whether any perceived links with the LTTE were or were not substantive, and found that they were not sufficient to give rise to a need for protection under the Refugees Convention, and those factual findings taken together with the Tribunal’s otherwise comprehensive treatment of the applicant’s detention in India, preclude a finding that there was jurisdictional error in this regard by the Tribunal: Applicant WAEE at [47] per French, Sackville and Hely JJ.
The Court is of the view that it was open for the Tribunal to make the finding of fact it did, with regard to the UNHCR Guidelines, and that the applicant did not face a real chance of persecution for Convention reasons on the basis of his Tamil ethnicity and imputed political opinion as a supporter of the LTTE and as a returned asylum seeker, including in relation to his period of detention in India.
Ground 1 is not made out, and there is therefore no jurisdictional error in the Tribunal Decision arising from ground 1.

Ground 2: Failure to have regard to information and put information

Ground 2 is as follows:
2. The Tribunal made a jurisdictional errors in its findings (CB 209, [34]-[37]) on the applicant's claim that he applicant faced persecution by returning to Sri Lanka from Australia as a returned asylum seeker and a person who fled Sri Lanka without travel documents (CB 47, [4]; CB 144) by:
(a) finding that there was no evidence before it that the applicant has been involved in facilitating or organising people smuggling, when the was such evidence before it in the form of the applicant's statement at entry interview that he "took turns to drive the boat" that brought him to Australia (CB 11, applicant's answer to question 10(d)), and possibly in the redacted material on CB 12); and
(b) finding that the applicant "in his particular circumstances only faces a remote chance of being imprisoned due to his illegal departure from Sri Lanka" in circumstances where:
(i) The Tribunal stated that it discussed with the applicant the country information indicating that the most likely penalty is a fine unless a person is considered to be an organiser of irregular migration of people from Sri Lanka;
(ii) the applicant responded that a friend of his had been detained on return to Sri Lanka and he is unsure if he has been released and fears that the same could happen to him;
(iii) The transcript of the Tribunal hearing demonstrates that at the relevant part of the hearing (transcript pages 13-15) the Tribunal did not discuss with the applicant information that an organiser of irregular migration of people from Sri Lanka will likely be penalised by more than a fine.

Proposed amendment to ground 2

At hearing the applicant sought to amend ground 2 of the Amended Judicial Review Application, that amendment omitted particular (b) of ground 2 of the Amended Judicial Review Application, however sought to add further sub-particulars to particular (a) of ground 2 as follows :
(a) finding that there was no evidence before it that the applicant has been involved in facilitating or organising people smuggling, when the was such evidence before it in the form of the applicant's statement at entry interview that he "took turns to drive the boat" that brought him to Australia (CB 11; applicant's answer to question 10(d), and in subsequent answers to questions given in attachment CAC-1, pages 14-15 of affidavit of Clare Amy Campbell affirmed 13 May 2015, questions l1(b)-13 ), in particular that:
(i) The applicant was personal friends with the people smuggler identified only as … [People Smuggler], having known him for some time when he worked as a fisherman in … [name deleted];
(ii) The applicant stayed in the house of … [People Smuggler] in … [name deleted] for a period of approximately one year, during which time … [People Smuggler] 'looked after' the applicant;
(iii) The costs of the applicant's passage to Australia were covered by … [“People Smuggler”];
(iv) The applicant participated in the process of leaving Sri Lanka by driving a van for 5- 6 hours, helping to read a GPS, and helping to pilot the boat
The amendment was opposed by the Minister because the amendments were provided just prior to the hearing and the Minister had had already filed submissions in accordance with the Court’s earlier orders of 21 April 2015. The Minister did accept that it had, since the filing of the Amended Judicial Review Application, provided an un-redacted copy of the Entry Interview Documents that were not initially in the Court Book, but argued that the applicant was adding sub-particulars, and in particular, particular 2(a)(iv), that were nonetheless open to plead on the Court Book and did not arise out of the furnishing of the Entry Interview Documents. The applicant’s position was that the proposed amendments do refer to the material that was subsequently provided, however, the applicant consented to removing particular 2(a)(iv).
The Court granted leave to amend ground 2 of the Amended Judicial Review Application in the terms set out at [26] above, save for particular 2(a)(iv): Transcript, p.3.

Applicant’s submissions

The applicant submits that:
a)the Tribunal found at CB 209 at [35] that the applicant in his particular circumstances only faced a remote chance of being imprisoned due to his illegal departure from Sri Lanka, and further that there was no evidence the applicant was involved in, or organised people smuggling;
b)it was accepted that the applicant worked as a fisherman, had transported goods by sea for the LTTE, and by necessary implication was skilled in handling a boat and sailing: CB 204-205 at [13]-[14], and the applicant stated in his entry interview that he assisted with navigation and piloting of the boat on which he came to Australia: CB 11;
c)there is no further discussion of actual involvement in people smuggling beyond what is said in the Entry Interview Documents, but what was said at the entry interview by the applicant, recorded in the Entry Interview Documents at questions 11(b)-(c), clearly gives rise to a claim that was before the Tribunal, being that the applicant feared harm, be it significant harm or serious harm, upon returning to Sri Lanka by reason of his involvement in people smuggling and interaction with the person who organised and paid for the applicant’s passage to Australia (“People Smuggler”);
d)the evidence suggests, and ought to have led the Tribunal to say, that the applicant had claimed that he was involved, as he lived with the People Smuggler, a person centrally involved in organising the boat trip to Australia, for 12 months;
e)on the evidence there is a clear reference to facilitation of people smuggling through taking turns to drive the boat and through close involvement with the People Smuggler therefore, at the very least, the Tribunal had to consider whether that brought the applicant within the UNHCR Guidelines that states that something more than just being an illegal returnee to Sri Lanka is required to bring a person to the interest of the authorities, and while it may well be that the Tribunal might have concluded along the lines that what the applicant stated was not strong enough to constitute people smuggling, the Tribunal did not specifically turn its mind to this issue;
f)the Tribunal should have properly considered the issue, rather than making a broad statement that there was no evidence the applicant was involved in people smuggling, particularly given that the UNHCR Guidelines state that a person is at heightened risk of detention if they are suspected of involvement in the illegal migration of people, and the evidence before the Tribunal clearly gives rise to that suspicion, notwithstanding that the applicant’s involvement or facilitation might likely be on the lower end of the spectrum;
g)at CB 209 at [34] the Tribunal put to the applicant country information indicating that unless a person was considered to be an organiser of irregular migration from Sri Lanka the most likely penalty under the I & E Act would be a fine;
h)the I & E Act defines “facilitating persons to leave Sri Lanka” and makes doing so a criminal offence, and the distinction between illegal departure and people smuggling ought to have been appreciated by the Tribunal given the evidence before it;
i)in the country information annexed (Anexure B) to the Tribunal Decision reference is made to s.45C of the I & E Act (at CB 216) and the country information clearly gives rise to a possibility that the applicant may be suspected of involvement in the organisation of “irregular migration”, and those facts were not considered by the Tribunal; and
j)the Tribunal Transcript demonstrates that the Tribunal did not in fact put this information to the applicant, rather, the Tribunal discussed the risk factor of Tamil ethnicity only.

Minister’s submissions

The Minister addressed this ground on the assumption the applicant was pleading the Tribunal fell into error as there was no evidence before the Tribunal to conclude at CB 209 at [35] that there was no evidence that the applicant had been involved in facilitating or organising people smuggling. The applicant confirmed it did not plead ground 2 as a “no evidence” ground, it was properly characterised as an orthodox jurisdictional error ground alleging the Tribunal ignored relevant material, namely the Entry Interview Documents: Transcript, pp.18-19 and 22.
The Minister submitted that:
a)it was no part of any of the applicant’s claims for protection to the Delegate or the Tribunal that he was involved in facilitating or organising people smuggling, the applicant’s entry interview states that “we all took turns driving the boat – there was no captain. … I also took turns to drive the boat”: CB 11, and it was for the applicant to place this material before the Tribunal and the Tribunal is not required to consider a claim not made;
b)none of the material contained in the additional answers provided in the un-redacted Entry Interview Documents indicates that any claim was made that the applicant was involved in facilitating or organising people smuggling; and when the complete answer given by the applicant is considered, for example, “we all took turns driving the boat”, it could not in any way be inferred that this was “evidence” sufficient to sustain a “no evidence” jurisdictional error or a failure to consider;
c)the Minister concedes that the Tribunal Transcript does not disclose that the Tribunal put to the applicant that the likely penalty of a fine applies to returned asylum seekers unless “a person is considered to be an organiser of irregular migration of people from Sri Lanka”, but the information put by the Tribunal dealt with the applicant’s claim for protection on the basis of being a returned asylum seeker and the specifics of the claim as made by the applicant;
d)there was no obligation on the part of the Tribunal to put to the applicant “information” with respect to “people smuggling” because it was information which falls under the exception in s.424A(3)(a) of the Migration Act, and in the absence of any claim by the applicant that he was involved in those activities, it was not required to be put to the applicant for comment;
e)the way in which it is suggested that the answers given in the Entry Interview Documents could be considered as constituting evidence of facilitating or organising people smuggling cannot establish that that was evidence which was something which should have put the Tribunal on notice of a claim by the applicant;
f)to say that the manner in which the responses by the applicant as recorded in the Entry Interview Documents is sufficient to suggest to the Tribunal that it should have asked itself if the applicant was involved in facilitating or organising people smuggling requires an extreme stretch of the imagination; and
g)to the extent that the Tribunal Decision does not completely accurately record this aspect of the Tribunal hearing, any error arising from the Tribunal Decision is not material, and if there was a constructive failure to exercise jurisdiction (which is not conceded), the Court should refuse to exercise its discretion to grant relief because the error did not affect the outcome of the Tribunal Decision.

Legislative provisions

It is convenient at this point to set out some of the legislative provisions which are relevant to both grounds 2 and 3, and firstly, s.424A of the Migration Act which relevantly provides as follows:
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
(2) …
(b) if the applicant is in immigration detention--by a method prescribed for the purposes of giving documents to such a person.
(2A) …
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
(4) …
Also, s.424AA of the Migration Act provides as follows:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
Section 45C of the I & E Act is of significance and is as follows:
45C. (1) Any person, who-
(a) organizes one or more persons to leave Sri Lanka in contravention of any of the provisions of this Act; or
(b) attempts or does any act preparatory to or aids and abets any other person to, so organize under paragraph (a).
shall be guilty of an offence.
(2) Any person guilty of an offence under subsection (1) shall upon conviction by a Magistrate, be liable to imprisonment of either description for a term not less than one year and not more than five years.
(3) In this section, the expression “organize ...” with its grammatical variations, includes-
(a) the recruitment of a person on a promise of securing employment outside Sri Lanka ;
(b) knowingly making false promises of employment in a foreign country or making any false representation or disseminating misleading information with the intention of inducing persons to leave Sri Lanka for foreign employment;
(c) soliciting pecuniary benefits from persons whether or not any such benefit was realized;
(d) the transportation of persons by sea, land or any other manner without obtaining valid travel document;
(e) receiving and harbouring persons whether in Sri Lanka or in a foreign country.

Consideration – ground 2

The applicant’s contention is that the Tribunal failed to consider relevant material, when it made a finding that the applicant was not involved in facilitating or organising people smuggling, in the context of the applicant’s fears for being returned to Sri Lanka as a failed asylum seeker.
The Tribunal has the power to obtain information under s.424 of the Migration Act, however, is does not have a general duty to make its own enquiries in order to make the applicant’s case or investigate the applicant’s claims: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [43] per Gummow and Hayne JJ. It is well recognised that the Tribunal is not obliged to investigate or conduct an inquiry to discover whether a visa applicant's case might be better put or supported by other evidence: Minister for Immigration & Citizenship v SZNVW & Anor [2010] FCAFC 41; (2010) 183 FCR 575; (2010) 114 ALD 666 at [36] per Keane CJ and [49] per Emmett J; Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ.
The Court notes that the Full Court of the Federal Court has observed as follows in:
a)Applicant WAEE at [44] per French, Sackville and Hely JJ:
It is central to the exercise of the dispositive powers conferred by s 415 that the tribunal has first conducted a review. That is to say it must have considered the application which is the subject of review in light of the information, evidence and arguments which are relevant to the application and which are provided to it or which it obtains for itself. So much is contemplated by ss 423, 424, 425 and 426 of the Act.
b)NABE (No 2) at [58] and [61] per Black CJ, French and Selway JJ:
58…It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
61. In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):
‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112.’
We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.

The applicant submits that the evidence contained in the Entry Interview Documents was before the Tribunal, and was evidence which was material to the applicant’s claim that he fears being returned to Sri Lanka as a failed asylum seeker, by reason of his involvement in people smuggling. The relevant sections are:
10.(d)    We all took turns driving the boat - there was no captain; Q: How did you know were to go? we had a GPS/compass that showed us which way to travel; I also took turns' to drive the boat.
11(a)     When did you start arrangements for your travel to Australia? A: 17 February 2012
11(b) Who made those arrangements for you? A: … [People Smuggler] client knew him from … [People Smuggler] when he worked as a fisherman; client stayed at … [People Smuggler’s] house for approx 12 months in … [name deleted] and he looked after me; organised my travel to AUSTRALIA from SRI LANKA, he also paid for my passage;
12(l)      Additional Information
Client claims that … [People Smuggler] paid and organised trip for him; … [People Smuggler] said arrangements to pay the money he put up for client's travel will be made once he has settled and client will need to get details from his mother about contacting … [People Smuggler] to make those repayment arrangements
13.    When and how did you leave (country of origin) and who travelled with you? A: I left SRI LANKA from … [name deleted], on 17 February 2012 and drove for approx 5-6 hours in a van with my friend … [People Smuggler] to … [name deleted]; I was taken to a house and stayed for approx 30 minutes; I was then picked up by motorbike and taken to the sea shore approx 30 minutes away; I am not sure if it was the main harbour for [name deleted], but there were several other boats nearby and I waited at a small hut which the fishermen used for drying fish approx 10-15 minutes; there was approx. 4 other passengers waiting when I arrived; we were put onto a small boat and sailed for approx 24 hours (we left on the night of the 17th and when we got onto the big boat it was the night of the 18th)- we travelled on the open ocean this whole time - there was approx 4-5 of us; we didn't stop anywhere until we met with a big boat; when we got onto the big boat, there was already other passengers on the big boat when we arrived; we waited approx 10 minutes and 3 people on the big boat got onto the small boat - I am not sure who they were; we sailed for approx 18 days before we had to make a distress call; Q: Boat stop anywhere ? No; Q: Anyone else get on/off the boat? No.
The relevant portions of country information provided by DFAT which was before the Tribunal at CB 215-216 (Annexure B) included:
3.73… A returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka can also be charged with an offence under Section 45C of the I & E Act for organising or attempting to organise for another person to leave in contravention of the I & E Act. The I & E Act empowers authorised officers to detain and examine any person arriving in or leaving Sri Lanka and to require the production of any documents by such a person…
3.77 Some returnees have been charged with people smuggling offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to robbery of a vessel used to travel to Australia, causing grievous harm to persons and people smuggling.
3.78 For offences committed under the I & E Act, a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees may be applicable. The Attorney General's Department advises that no one to date has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Department further advises that the Magistrates Court in Colombo has been handing out fines of around 5,000 Sri Lankan Rupees for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, has been handing out fines up to 50,000 Sri Lankan Rupees to act as a deterrent.
On 10 September 2014 the applicant was invited to appear before the Tribunal to give evidence: CB 179-180. The applicant’s solicitor/migration agent subsequently provided a response to the hearing invitation as well as written submissions: CB 181-189, and in those detailed submissions there is no claim that the applicant was, or ought to be considered to be, a “people smuggler”. At the Tribunal hearing, the applicant, an interpreter and the applicant’s solicitor/migration agent were present. The Tribunal Member put to the applicant country information which states that failed asylum seekers returning to Sri Lanka are not treated any differently because of their Tamil ethnicity and the applicant responded that he would face problems because he had lots of problems, having been arrested in Sri Lanka and in India. The applicant did not make a claim that the applicant was also a people smuggler and that this would add to his fear of returning to Sri Lanka as a failed asylum seeker: Tribunal Transcript pp.13-14. That is significant particularly in circumstances where the applicant was represented by a solicitor/migration agent.
The Tribunal member allowed the applicant’s solicitor/migration agent to provide post-hearing submissions, which were provided on 3 November 2014. Again, there is no claim in those detailed submissions that the applicant was, or ought to be considered to be, a people smuggler, and that this would add to his fear of returning to Sri Lanka as a failed asylum seeker: CB 191-198.
In the Tribunal Decision the Tribunal considered and found at CB 209 at [34]-[35] as follows:
34. The Tribunal also discussed with the applicant at hearing that it accepted that he will be charged with offences under the Immigration and Emigration Act of Sri Lanka relating to his illegal departure from Sri Lanka. The Tribunal discussed with him the country information indicating that the most likely penalty is a fine unless a person is considered to be an organiser of irregular migration of people from Sri Lanka^. The applicant responded that a friend of his had been detained on return to Sri Lanka and he is unsure if he has been released and fears that the same could happen to him.
35. The Tribunal finds that the applicant in his particular circumstances only faces a remote chance of being imprisoned due to his illegal departure from Sri Lanka. There is no evidence that the applicant has been involved in facilitating or organising people smuggling.
The Court notes that the reference to the discussion in the Tribunal Decision at CB 209 at [34] is not strictly an accurate record of the discussion according to the Tribunal Transcript at pp.12-13, however, it is not material as this error did not affect the outcome of the Tribunal’s Decision.
The Tribunal clearly put to the applicant country information and the penalty likely to be imposed, albeit specifically in relation to his illegal departure status from Sri Lanka, and neither the applicant nor the applicant’s solicitor/migration agent raised any claim that he would also suffer a period of imprisonment because he would be charged as a people smuggler: Tribunal Transcript pp.12-13. Therefore the Court is satisfied that the Tribunal did not breach ss.424AA of the Migration Act.
The Court is further of the view that the evidence that each of the persons on the boat that brought the applicant to Australia took turns driving the boat, and the applicant’s friendship and living for 12 months with the People Smuggler is not sufficient to put the Tribunal on notice that the applicant is claiming to be a “people smuggler”. Indeed, the logical extension of the applicant’s argument that because the applicant took a turn in driving the boat is sufficient to make him a people smuggler is that each of the persons on the boat is therefore a people smuggler because each of them took turns to drive the boat, thereby rendering everyone on the boat a facilitator of people smuggling. That is an illogical and extreme argument because it renders every person seeking to arrive in Australia illegally by boat from Sri Lanka a people smuggler, or a person facilitating people smuggling, where they render any form of assistance, be it driving the boat, navigating, fishing for food or cooking when on such boats.
The Court is of the view that the Tribunal was therefore not required to consider the claim that the applicant was involved in facilitating or people smuggling as it was not expressly made, and did not “squarely” arise on the materials before it: NABE (No 2).
Ground 2 is not made out, and there is therefore no jurisdictional error in the Tribunal Decision arising from ground 2.

Ground 3: Failure to afford procedural fairness

Ground 3 is as follows:
3. The Tribunal made a jurisdictional error through failing to accord procedural fairness to the applicant by not putting to him for comment the view of the Tribunal expressed at CB 207, [27] that he had made conflicting claims regarding the authorities ongoing interest in him since he left Sri Lanka.
Particulars
(a) The Tribunal stated at [27] that the applicant claimed that:
• "in 2011 the authorities went to his house and took his mother away in a van and questioned her for two hours and then released her", and
• "during 2011 this happened intermittently and ... it has not happened since".
(b) The Tribunal stated that the above statements conflicted with his claim that after he left Sri Lanka in 2007 the navy went to his home and harassed his mother about his whereabouts and this has continued to date.
(c) The Tribunal did not put to the applicant at the hearing its perception that there was an inconsistency between the claims set out in paragraphs (a) and (b) above.
(d) The inconsistency was not:
(i) An obvious and natural evaluation of the material before the Tribunal: and
(ii) not obviously open on the known material.

Applicant’s submissions

The applicant submits that:
a)at CB 207 at [27] the Tribunal found that it did not accept the applicant’s claims that the Sri Lankan authorities would intermittently question his family as to his whereabouts having characterised the evidence of the applicant on this issue as “conflicting” and found it more likely that any visits by the authorities to the applicant’s household post-2007 would have been to ascertain if members of the household were “present and accounted for”, and that it did not accept that the authorities had any continued interest in the applicant;
b)a necessary implication of the Sri Lankan authorities wishing to ascertain whether the applicant’s family was “present and accounted for”, as held by the Tribunal, is that the authorities held a continued interest in the family, and on the evidence before the Tribunal the only reasonable explanation for such continued interest would be as a result of the actions of the applicant;
c)in his responses at the Tribunal hearing the applicant told the Tribunal that the Sri Lankan authorities had questioned his family as to his whereabouts before his arrest in India and after his release into the Special Camp on bail, and as the Tribunal had previously accepted that information-sharing between the Indian and Sri Lankan authorities occurs, the applicant submits that this pattern of questioning is entirely logical and consistent with his claims;
d)there is reference at CB 144 to evidence given at the interview with the Delegate that the applicant fled to India by boat around 2007, and that after he left Sri Lanka the Navy came to his house and harassed his mother about his whereabouts, and other evidence was given of the police breaking into the applicant’s home in 2011 to ask his parents about his whereabouts, and an incident that took place in 2006: CB 188, while the evidence given at the Tribunal hearing was that in 2011 when the applicant was arrested in India, the Sri Lankan authorities went to his house and threatened people, took his mother in a van for two hours of questioning, and then they released her;
e)the Tribunal found at CB 207 at [27] that the statement by the applicant that his mother was taken for questioning in 2011 and that further questioning occurred intermittently during 2011 and has not occurred since, conflicted with his earlier statement that the Sri Lankan authorities questioned his family about his whereabouts in 2007 and that the questioning has continued over the period to date;
f)the relevant part of the transcript demonstrates that the Tribunal did not put the perceived inconsistency between these statements to the applicant for comment, instead the Tribunal merely put to the applicant that it wished “to clarify whether the authorities have in fact been to your house since 2011”;
g)any inconsistency between the two statements (particulars (a) and (b) of ground 3 respectively) is not obvious and open on the material and, given the applicant’s lack of English language proficiency and admitted previous fabrications on the instruction of the people smugglers, in order to accord procedural fairness the Tribunal was required to put this perceived inconsistency between earlier and later statements to the applicant for comment before drawing adverse inferences: Kaur v Minister for Immigration & Border Protection [2015] FCA 1 (“Kaur”) at [63] per Robertson J;
h)the first statement given by the applicant relates to the authorities going to his house in 2011 and taking his mother away in a van, while the “inconsistent” statement is that after the applicant left Sri Lanka in 2007, the Navy went to his home and harassed his mother at that point and that this has continued to date; and
i)the Tribunal appears to have been troubled by the fact that there was an inconsistency between what the applicant says about his mother being taken away in 2011, and then at another time saying that after he left Sri Lanka in 2007 the Navy went to his home and harassed his mother, yet these two statements are entirely consistent with each other and are relevant to the applicant’s claims because they go to the question of whether his family is being harassed on an ongoing basis, and therefore the applicant would face that same harassment if he returned, so that in resolving questions of fact procedural fairness obliged the Tribunal to put the putative inconsistency to the applicant.

Minister’s submissions

The Minister submitted that:
a)the Tribunal transcript reveals that the Tribunal explored in some detail with the applicant the inconsistencies in his evidence, and that these questions were asked in circumstances where the applicant admitted on a number of occasions that he had lied in earlier interviews: see Tribunal Transcript, pp. 12-14 and 16-17;
b)it cannot be established that the Tribunal failed to comply with procedural fairness requirements set out in Division 4 of Part 7 of the Migration Act as it is clear on the material before the Court that the applicant’s evidence to the Delegate was that he left for India in 2007, and that after he had left the Navy came to his house and harassed his mother about his whereabouts and continued to harass her, while the evidence at the Tribunal hearing was that the applicant’s mother was taken in a van in 2011 and this happened intermittently in 2011 and then stopped in 2011 and it was this information that the Tribunal considered inconsistent;
c)both the information given at the Delegate’s interview and Tribunal hearing fell under the exception in s.424A(3)(b) of the Migration Act, and this matter is distinguishable from Kaur given the inconsistency in that matter clearly arose on an evaluation of available material, and unlike Kaur it cannot be said to have been only a putative inconsistency that required further clarification or comment;
d)the conclusions that the Tribunal reaches with respect to the points that are discussed at CB 207 at [27] were reached because the Tribunal was not satisfied, because of the inconsistencies, that there was an ongoing interest by the Sri Lankan authorities in the applicant’s behaviour, and the Tribunal ultimately concluded that having regard to those inconsistencies, and also the change in circumstances in Sri Lanka since 2006, that it could not be satisfied that there was any ongoing interest in the applicant by the Sri Lankan authorities; and
e)the finding that the applicant had provided inconsistent evidence was clearly open on the available evidence.

Consideration – ground 3

The applicant’s contention is that the Tribunal did not afford the applicant procedural fairness because it did not put to the applicant for comment the view expressed at CB 207 at [27] that the applicant had made conflicting claims regarding the authorities’ ongoing interest in him since he left Sri Lanka.
Procedural fairness is in effect practical and the concern is to avoid practical injustice: Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1; (2003) 77 ALJR 699; (2003) 195 ALR 502; (2003) 72 ALD 613 at [37] per Gleeson CJ.
An exhaustive statement of the natural justice hearing rule is set out in s.422B of the Migration Act: Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [56]-[58] per Hayne, Kiefel and Bell JJ.
The Court notes that:
a)section 424A(1) of the Migration Act requires the Tribunal to put clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review for comment; and
b)section 424A(3)(b) of the Migration Act provides that s.424A of the Migration Act does not apply to information where the applicant gave that information for the purposes of the application for review.
Any failure to comply with the terms in s.424A of the Migration Act may result in jurisdictional error: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; (2005) 79 ALJR 1009; (2005) 215 ALR 162; (2005) 83 ALD 545 at [77] per McHugh J.
The Minister submitted that the inconsistencies, or “information”, identified by the Tribunal at CB 207 at [27] could be categorised as an exception to the concept of information under s.424A(3)(b) of the Migration Act. The High Court addressed what constitutes “information” for the purpose of s.424A of the Migration Act in SZBYR v Minister for Immigration & Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2007) 235 ALR 609; (2007) 96 ALD 1 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ as follows:
[18] Third and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”:
does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

The Court notes that in Kaur at [54] and [57]-[58] per Robertson J the Federal Court said that:
54.    The Court is not concerned with good administration in itself nor simply with the merits of the decision. Whether or not findings were open to the Tribunal, the thrust of some of the submissions on behalf of the Minister, does not presently arise. Further, “[f]airness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.” See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 295 ALR 638 at [156] per Hayne, Crennan, Kiefel and Bell JJ.
57.    As to the first applicant’s submission that the issues were not apparent, Alphaone and Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 (SZGUR) at [9] per French CJ and Kiefel J stand for the propositions that “[p]rocedural fairness requires a decision-maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power”, the decision-maker “must also advise of any adverse conclusion which would not obviously be open on the known material” and “a decision-maker is not otherwise required to expose his or her thought processes or provisional views”.
58.   It may be a matter of some difficulty to identify the level of abstraction, or particularity, at which the issues are to be identified: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [38]–[40]. Ultimately, in the present context, the matter is to be tested by reference to the fairness of the procedure: see SZQJH v Minister for Immigration and Border Protection [2013] FCAFC 147; (2013) 140 ALD 11…
In this case the Court notes that:
a)the applicant attended a Protection Visa interview on 26 June 2012 and made the following claim which is recorded in the Delegate’s Decision CB 144:
After these experiences he decided to flee to India by boat. He left with many others in around 2007. After he left the navy came to his house and harassed his mother about his whereabouts. This continues even now.
b)the Delegate made findings:
i)at CB 147 that:
As stated above, I am satisfied that the NIC submitted by the applicant is his own original identity document. Given it was issued to him in Sri Lanka on 17 July 2007 it is not possible that the applicant could be arrested in India on 6 June 2007 or that an order about where he was to reside in India could be issued on 18 July 2007. On this basis I consider that the Foreigners Act document and the Sri Lanka Telecom document are fraudulent.
On the basis of the NIC which places the applicant in Sri Lanka on 17 July 2007, and the fraudulent documents submitted in support of his claim that he resided to India in 2007, I do not accept that the applicant went to India in June 2007 or that he resided there from that time until February 2012.
… I do not accept that the police broke into his home in 2011.
ii)at CB 154 that:
As previously stated, I do not accept that he was visited by authorities in 2011 as claimed. While the applicant may be screened and questioned on arrival in Sri Lanka, I do not consider he would be of adverse interest to the Sri Lankan authorities beyond his departing Sri Lanka illegally. There is no evidence that there are any other risk factors that would make him of interest to authorities should he return to Sri Lanka.
c)at the Tribunal hearing the issues regarding the applicants’ claims were put to the applicant by the Tribunal Member for him to comment, as follows:
Tribunal: When you first arrived in Australia you had an interview with our authorities on arrival here. And in that entry interview you claimed that you had been taken into custody 6 or 7 times, and interrogated about your involvement with the LTTE. And you said the most recent occasion you were taken into custody by the Sri Lankan authorities was in 2008 - there was no month just 2008. You then told our authorities that in 2011 the police broke into your home in … [name deleted] and that you escaped but your brother-in-law had been taken into custody. And you also said at that entry interview with our Australian authorities that you didn't go to India - but left Sri Lanka for Australia in 2012.
Sorry- let me just clarify-you didn't mention when you first arrived in Australia that you'd gone to India at all. Do you have anything to say about that? Because obviously that story was told when you first arrived here, and it contradicts your subsequent claims about having gone to India. And it also conflicts because you told the Australian authorities that you had been taken into custody 6 or 7 times in Sri Lanka and that is not what you've told me this morning.
Would you like to respond to that…?
(Tribunal Transcript pp.9-10).
Tribunal: Alright. And, since you claim you left Sri Lanka and went to India, have the army or the navy or any other Sri Lankan authorities been around to your home?
Applicant: When I was arrested in India they went to our house and threatened people. My mother was taken in a van and she was inquired for two hours and then they released her.
Tribunal: And when was this?
Applicant: It was in 2011 when I was in India.
Tribunal: Was your father at your house at that time?
Applicant: No. My father wasn't there.
Tribunal: Have they been to your house on any other occasions?
Applicant: When I was arrested in India they went ... after that they didn't go.
Tribunal: So they've only just been once to your house in 2011, is that right?
Applicant: In 2011 they were going intermittently, and then they stopped going to the house in 2011.
Tribunal: So they haven't been to your house since 2011.
Applicant: They can go at any time. I can't say when they will go.
Tribunal: Well I want to know - you told me that on one occasion in 2011 they came to your house and took your mother away for questioning and then they released her. And you've told me that they authorities came intermittently in 2011 and then they stopped coming. So I'm just trying to clarify whether the authorities have in fact been to your house since 2011.
Applicant: After 2011, last year in 2013, my father received a letter asking him to go to... police station for reporting.
(Tribunal Transcript pp.12-13).
d)in the Tribunal Decision:
i)at CB 205 at [18]-[19] the Tribunal observed as follows:
18.    The applicant has given two differing accounts of events from mid 2007. On the one hand he claims to have fled Sri Lanka for India by boat in 2007 (which claim was made in his protection visa application), which conflicts with his claims in his entry interview undertaken shortly after his arrival in Australia that he fled Sri Lanka in February 2012.
19.    In his protection visa application he claims that after the fighting resumed in 2006 and as a result of the military's constant surveillance of him, he fled to India by boat in mid 2007. He claims that after he left the navy went to his home and harassed his mother about his whereabouts and this has continued to date.
ii)at CB 207 at [27] and 210 at [39] the Tribunal made findings as follows:
27. The applicant has made conflicting claims regarding the authorities ongoing interest in him since he left Sri Lanka. He has claimed that in 2011 the authorities went to his house and took his mother away in a van and questioned her for two hours and then released her. He claims that during 2011 this happened intermittently and that it has not happened since. This conflicts with his claim that after he left Sri Lanka in 2007 the navy went to his home and harassed his mother about his whereabouts and this has continued to date. Further he claims that in 2013 his father received a letter asking him to report to the local police station and that he did so, whereupon he was questioned as to the applicant's whereabouts. He claims that he is on a "wanted list". The Tribunal does not accept these claims as plausible. It does not consider that, if the applicant was a person of interest to the authorities, they would wait several years following the applicant's departure from Sri Lanka before making enquiries of his whereabouts. The Tribunal considers that it is more likely that any visits by the authorities to the applicant's home following his departure for India in 2007, were simply to establish if members of the household were present and accounted for. It does not accept that the authorities have any continued interest in the applicant.
39.    In the Tribunal's view the authorities' interest in the applicant prior to his departure for India in mid 2007 was consistent with adverse interest directed at Tamils generally when the LTTE remained a military threat to the government, when Tamils were widely accused and suspected of having links with the LTTE, even where there was no substantial basis for holding those suspicions. The Tribunal considers that there is not a real chance that the authorities have any further interest in the applicant in the post-war period. The Tribunal considers that the UNHCR Guidelines suggest that the person's association with the LTTE needs to be substantive (for example as former combatant or cadre, administration or media worker, fundraiser, or an LTTE supporter who was involved in transporting goods for the LTTE) or persons with family links to such a person. In this case the applicant was found not guilty of transporting goods for the LTTE. The Tribunal does not consider that the applicant has a profile that would make him of interest to the Sri Lankan authorities. It does not consider that the applicant's circumstances fit the risk profiles identified in the UNHCR Guidelines such that he is identified to be a person in need of international protection.
The Court is of the view that the conflicting claims regarding the authorities ongoing interest in the applicant since he left Sri Lanka, were issues that were readily apparent to the applicant and the adverse conclusion, made by the Tribunal at CB 207 at [27], was obviously open on the known material before the Tribunal, and therefore the fact that the Tribunal did not specifically put to the applicant the inconsistency, does not constitute procedural unfairness: Kaur at [57] per Robertson J. In any event, the Court notes that the applicant provided the Tribunal with a copy of the Delegate’s Decision with his review application, therefore all the information contained in the Delegate’s Decision, including the information regarding him fleeing to India in 2007 and his house and mother being visited by authorities in 2011, was clearly given to the Tribunal for the purpose of the applicant’s review and is therefore information subject to the exception in s.424A(3)(b) of the Migration Act. Minister for Immigration v Chamnam You [2008] FCA 241 at [11] and [16] per Sundberg J.
Ground 3 is note made out, and there is therefore no jurisdictional error in the Tribunal Decision arising from ground 3.

Ground 4: Failure to evaluate

Ground 4 is as follows:
4. The Tribunal made a jurisdictional error through failing to evaluate the applicant's claim of fearing persecution derived from his experience of arrest in Sri Lanka for transporting goods for the LTTE, and his experience of violence and detention because of his suspected links to the LTTE and his record of arrest and imprisonment in India (CB 188).
Particulars
(a) the Tribunal considered that “the UNCHR Guidelines suggest that a person's association with the LTTE needs to be substantive (for example as a former combatant or cadre, administration or media worker, fundraiser. or an LTTE supporter who was involved in transporting goods for the LTTE”;
(b) the Tribunal stated that the applicant was found not guilty of transporting goods for the LTTE;
(c) the Tribunal found that the applicant did not have a profile that would make him of interest to the Sri Lankan authorities;
(d) the Tribunal accepted his credible and consistent claims to have been accused of and detained on suspicion of being involved with the LTTE in 2002 and that following the resumption of hostilities in 2006 he was subjected to surveillance by the navy and had to report regularly to the navy checkpoint (CB 201, [39]);
(e) the Tribunal accepted there was evidence that the applicant had four friends who had helped the LTTE and that there was intelligence sharing between India and Sri Lanka (CB 207, [26]);
(f) The Tribunal failed to evaluate the applicant's claims against the UNHCR Guidelines (set out in Applicant's post hearing submissions to the Tribunal, CB 192) which do not require a finding of guilt by a court in relation to the charge of transporting goods for the LTTE for a person to attract protection obligations.

Applicant’s submissions

The applicant submits that:
a)at CB 209-210 at [38]-[39] the Tribunal applied the UNHCR Guidelines relating to the risks faced by individuals with links to the LTTE and further discussed these with the applicant at the Tribunal hearing, making a number of findings particularised in ground 4 at (a)-(e);
b)the UNHCR Guidelines do not require that a court or other judicial authority make a formal finding of guilt on a prosecuted charge for a person to have perceived links to the LTTE, in particular the continued interest of the Navy in the applicant’s whereabouts and activities, as accepted by the Tribunal, clearly indicates that his perceived links to the LTTE were not extinguished by his acquittal and therefore the Tribunal failed to evaluate an integer of his claims for protection in reference to its own adopted UNHCR Guidelines, or in the alternative failed to consider relevant facts; and
c)the Tribunal dismissed the applicant’s imputed affiliation with the LTTE on the basis that the applicant says that he had been acquitted by the court of such an offence in around 2006, yet the UNHCR Guidelines do not require a finding of guilt by the court in relation to the charge of transporting goods for the LTTE for a person to fall within this heightened risk profile, and the Tribunal should have considered the further evidence given by the applicant that the Navy and other authorities had been harassing his family after his departure to India.

Minister’s submissions

The Minister submitted that:
a)in relation to the applicant’s experience transporting goods for the LTTE, and consequent detention and adverse treatment, the Tribunal accepted the applicant’s claims, and further found, in relation to the claims regarding the authorities ongoing interest in the applicant, that visits following his departure from Sri Lanka in 2007 were simply to establish if members of the household were present and accounted for and did not constitute interest in the applicant;
b)the Tribunal considered the UNHCR Guidelines and:
i)noted the applicant’s post-hearing submissions, and further noted that although it accepted that the applicant had provided credible and consistent claims to have been accused of and detained on suspicion of being involved with the LTTE in 2002, and subject to surveillance in 2006, found that information now suggested that the situation since the end of May 2009 was vastly different; and
ii)accordingly, did not consider that the authorities would have further interest in the applicant in the post-war period;
c)the Tribunal’s finding in relation to the applicant’s submission can accordingly be seen to have been subsumed into a finding of a higher level of generality that it “does not consider that the applicant has a profile that would make him of interest to the Sri Lankan authorities” and that finding is further supported by the fact that the Tribunal did not accept that the authorities had a continued interest in the applicant or continued to visit his house: CB 207 at [27];
d)the Tribunal did not make the conclusion on the issue based upon the fact that the applicant was found not guilty in 2002, but also upon findings with respect to the country information that had indicated that circumstances had changed; and
e)the applicant was given an opportunity to file further submissions with respect to why the applicant would meet the UNHCR Guidelines and the issue the Tribunal had raised at the Tribunal hearing that it had been some time since the applicant had provided assistance to the LTTE, and since he had been found not guilty of assisting the LTTE. The applicant’s solicitor/migration agent subsequently filed further submissions and the Tribunal noted and seemingly considered them.

Consideration – ground 4

The applicant contends that the Tribunal failed to evaluate an integer of the applicant’s claims for protection in reference to the UNHCR Guidelines, or in the alternative failed to consider relevant facts, being the applicant’s evidence that the Navy and other authorities had been harassing his family after his departure to India.
The Tribunal can have regard to country information, and the weight that the Tribunal gives the country information is a matter for the Tribunal, as part of its fact-finding function: Wu Shan Liang, CLR at 272 per Brennan CJ; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 (“NAHI”) at [11] per Gray, Tamberlin and Lander JJ.
The Court notes that the Tribunal:
a)accepted the applicant’s claims regarding assistance given to the LTTE and the applicant’s detention on suspicion of being involved with the LTTE, and further that he was found not guilty of transporting goods for the LTTE and released: CB 204-205 at [13]-[14];
b)made findings that it considered it more likely that any visits by the authorities to the applicant’s home following his departure for India in 2007 were simply to establish if members of the household were present and accounted for, and did not accept that the applicant was of any continued interest by the authorities: CB 207 at [27];
c)considered the post-Tribunal hearing submissions made by the applicant’s solicitor/migration agent referring to country information, however, weighed that country information against other country information, and preferred and found more authoritative the other country information, and therefore gave that other country information greater weight than the country information provided by the applicant’s solicitor/migration agent: CB 208 at [30]-[31]; and
d)did not accept that there is a real chance that the applicant will be mistreated because of any perceived association with the LTTE if he returns to Sri Lanka: CB 208 at [32].
The Tribunal considered the UNHCR Guidelines at CB 209-210:
a)at [38] of the Tribunal Decision as follows:
38. The Tribunal also discussed with the applicant at hearing the UNHCR Guidelines and its view that he did not have the requisite profile of association with the LTTE that would attract the adverse attention of the authorities. His representative has submitted that the applicant's role in transporting goods for the LTTE is sufficient to establish him with a profile as a suspected LTTE member or supporter and the fact that he was found not guilty had little impact on his profile as a supporter of the LTTE. The submission refers to country information regarding the continued mistreatment of Tamils perceived to be connected to or supporters of the LTTE. As discussed above the Tribunal accepts his credible and consistent claims to have been accused of and detained on suspicion of being involved with the LTTE in 2002, that he was ultimately found not guilty of transporting goods for the LTTE and released, and that following the resumption of hostilities in 2006 he was subjected to surveillance by the navy and had to report regularly to the navy checkpoint. As discussed with the applicant at the hearing the situation since the end of the civil war in May 2009, is vastly different.
b)at [39] of the Tribunal Decision, as set out at [58(d)(ii)] above.

The Court notes that the Tribunal referred to country information which suggested that the situation since the end of May 2009 was vastly different to that prior to the end of Sri Lanka’s civil war, and that it did not consider that the applicant would be of any further interest to the authorities in the post-war period: CB 209-210 at [38].
In reality this ground simply seeks to invite the Court to engage in impermissible merits review contrary to longstanding principle: Wu Shan Liang. The UNHCR Guidelines were no more than country information that the Tribunal was entitled to rely on and interpret in the way that it ultimately did, having regard to its factual findings: Wu Shan Liang; NAHI. Further, the Tribunal did not base its finding that the applicant would not be of any further interest to the authorities solely on the evidence that the applicant was found not guilty of transporting goods for the LTTE and released. In particular, the Tribunal had regard to country information with respect to the situation for Tamils, including Tamils who might have previously had, as the applicant did, some association with the LTTE, and found that because of changes in Sri Lanka since the end of the civil war in 2009 the applicant, on the facts as found by the Tribunal, was not at risk of harm. That was a finding the nature of which subsumed, in any event, the matters sought to be relied upon by the applicant: Applicant WAEE at [44]-[47] per French, Sackville and Hely JJ. There is therefore no basis for a finding of jurisdictional error on the basis asserted by the applicant, or otherwise.
Ground 4 is not made out, and there is no jurisdictional error in the Tribunal Decision arising from ground 4.

Conclusions and orders

The Court has concluded that the Amended Judicial Review Application filed 29 April 2015 be dismissed. There will be an order accordingly.
The Court will also order that the name of the second respondent be changed to “Administrative Appeals Tribunal”: Tribunals Amalgamation Act 2015 (Cth), s.3, Sch.2.
The Court will hear the parties as to costs.

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev

Associate:

Date: 20 August 2019

[2019] FCCA 2272

20 August 2019 (and delivered by telephone by Judge Kendall pursuant to s.75 of the Federal Circuit Court of Australia Act 1999 (Cth))