FEDERAL COURT OF AUSTRALIA

WZATI v Minister for Immigration and Border Protection [2015] FCA 923

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the costs of the first respondent, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant is a male citizen of Sri Lanka of Tamil ethnicity who applied for a protection (class XA) visa under the Migration Act 1958 (Cth) on 29 October 2012.

2    The appellant claims he will be killed, harmed and mistreated in Sri Lanka by the authorities, the Sri Lankan government, the Sri Lankan Army (SLA) and the Sri Lankan Criminal Investigation Division (CID) because he is a Tamil person imputed to have pro-Liberation Tigers of Tamil Eelam (LTTE) beliefs. He says that his circumstances are exacerbated by the fact he worked, as a young Tamil male, in a shop run by the LTTE, his wife’s family’s land was used as a camp ground for the LTTE and his brothers have been imputed to be LTTE members. Noting he has already been interrogated and detained by the CID, he claims he would be targeted on his return, especially because he would be returning after a long period of time out of the country, which would be interpreted as an admission of guilt. He further claims that if it is discovered he sought asylum in Australia the risk of harm to him would be heightened, as the authorities would know he has spoken against the Sri Lankan government.

3    The appellant says that from 1996 to 1998 he worked in an ice-cream shop owned by the LTTE in Mangulam, Vanni, but says he was not involved in any LTTE activities.

4    The appellant further notes that in around 1997, the LTTE forcibly set up camp on his wife’s family’s land in Mullaitivu and took the family’s monthly food rations until the organisation left the area in 2002, when the road reopened following a peace agreement with the LTTE.

5    The appellant and his family then returned to Chunnakam, Jaffna. They lived in Jaffna for the next five years, until 2007 when the civil war recommenced and the appellant could not find work. The appellant says he then went to Colombo to apply for a United Kingdom visa.

6    The appellant says he was arrested by the CID when going to church in Colombo. He says the CID checked his identity card, which showed he was from Vanni, arrested him and detained him for many hours. He says he was interrogated and beaten by four men who asked him about his involvement with the LTTE and requested he sign a paper saying he was LTTE, which he refused to do. The appellant claims he told the CID he was not affiliated with the LTTE but had worked in an ice-cream shop owned by them in Vanni. The appellant was released, and he returned to Jaffna.

7    The appellant notes one of his wife’s aunts, a Catholic nun, made inquiries at the CID camp in Kotahena when the appellant was arrested. The appellant says his wife’s aunt was asked where the appellant lived and where he moved to, and that the CID members told her if the appellant lived in Vanni he must surely be LTTE.

8    The appellant further notes that in 2003 (or, as stated in his oral evidence before the Tribunal, 2004 or 2005), the SLA made a video of an anti-government protest in Jaffna at which he and his younger brother were present. The appellant says he was just watching the protest. He says that in 2007, a friend who was a member of the Eelam People’s Democratic Party advised him that the authorities had a video of him at the protest.

9    The appellant noted that he had difficulties with the SLA because they wanted the use of his motorcycle, which he was required to hand over to them on request and collect later from the army camp.

10    He further says the SLA was reluctant to grant him clearance to leave Jaffna because the authorities believed him to be a member of the LTTE, like his two younger brothers. After obtaining the clearance, he fled to Colombo and applied for a tourist visa to India. He and his family moved to Chennai, India in 2008.

11    He claims that after he left Sri Lanka, he heard that the SLA had come to his wife’s family’s house and his siblings’ houses to look for him.

12    The appellant and his family left India by boat, arriving in Australia on 28 June 2012. The appellant lodged an application for a protection visa on 29 October 2012. The application included the appellant’s wife and their two children, who rely on the appellant’s claim for protection.

13    On 21 March 2013, a delegate of the then Minister for Immigration and Citizenship refused to grant the appellant and his family protection visas.

14    The appellant sought review of this decision before the Refugee Review Tribunal, but the Tribunal affirmed the delegate’s decision on 10 September 2013.

15    The Federal Circuit Court gave judgment on 3 December 2014, dismissing the appellant’s application for judicial review of the Tribunal’s decision. See WZATI v Minister for Immigration & Anor [2014] FCCA 2750.

16    The appellant now appeals from the Federal Circuit Court’s decision by a notice of appeal filed on 9 December 2014.

DELEGATE’S DECISION

17    The delegate considered the appellant’s evidence and accepted that the appellant is of Tamil ethnicity, that the LTTE had set up camp on his wife’s family’s property, that he worked in an ice-cream shop owned by the LTTE and that he had an incident with the CID in Colombo where he was detained and mistreated.

18    The delegate noted country information suggested persons with alleged association with the LTTE, or persons with family links, may be exposed to mistreatment or arrest by the SLA. The delegate also considered information that non-voluntary returnees to Sri Lanka (such as asylum seekers) are referred to both the Sri Lankan State Intelligence Service and police for questioning on arrival in Sri Lanka. Those with LTTE connections face additional questioning and may be detained. There was also information that Tamils who have been politically active abroad are subject to torture and other ill-treatment.

19    However, the delegate was not satisfied the appellant’s fear of persecution was well-founded, therefore was not satisfied the appellant met the criteria for the grant of a protection visa under s 36(2)(a) of the Act. As a result, no protection obligations were owed to the appellant’s wife and children as members of the family unit who had not made specific claims.

20    The delegate noted that the CID released the appellant from custody after questioning and the SLA granted him clearance to depart the area of Jaffna in 2007, which suggested the CID did not consider the appellant to be a person of interest or someone involved with the LTTE. The delegate also said the appellant appeared to have travelled to India on a passport in his own name in 2009, and if he was a person of interest he would have been apprehended at the airport. The delegate found there appeared to be no connection between the LTTE camp on his wife’s property and his presence at the protest in Jaffna, and his apprehension and mistreatment by the CID in Colombo, noting the appellant himself stated in his interview with the delegate that nothing happened to him as a result of working at the ice-cream shop.

21    Further, the delegate found that while the appellant may come under scrutiny on arrival in Sri Lanka, because he is a Tamil from the north, once it was established he has had minimal involvement and contact with the LTTE, he and his family would be released. The delegate said there was only a remote chance they would be further detained, noting the family did not depart Sri Lanka illegally and there was no evidence the appellant and his family have been politically active abroad.

22    The delegate then considered whether the appellant met the complementary protection criterion in s 36(2)(aa) of the Act. The delegate found the country information did not indicate that extremely widespread conditions of violence and systemic breakdown of law enforcement, which would pose a real risk of significant harm to the appellant, existed in Sri Lanka, even after the end of the civil war. The delegate further found that on return to Sri Lanka, the appellant would be subject to normal re-entry procedures and would not be exposed to significant harm once the authorities established his “extremely minimal LTTE contact, similar to that of many Tamils originating from the north”, thus there was not a particular risk to the appellant based on his profile.

23    The delegate was therefore not satisfied Australia owed protection obligations to the appellant and his family unit.

TRIBUNAL’s decision

24    On 27 March 2013, the appellant applied to the Tribunal for review of the delegate’s decision.

25    On 10 September 2013, the Tribunal upheld the delegate’s refusal to grant the appellant a protection visa. The Tribunal, like the delegate, found the appellant to be a credible witness, although it did not accept the appellant’s claim that after he left Sri Lanka the SLA went to his wife’s family’s house and siblings’ houses looking for him. The Tribunal did not consider this claim to be plausible given the Sri Lankan authorities had issued him a passport in 2007 and allowed him to depart the country legally in 2008.

26    The Tribunal did not consider that the appellant would be imputed with pro-LTTE beliefs because he worked in an ice-cream shop owned by the LTTE. Further, the Tribunal concluded he was not of ongoing interest to the CID as a person associated with the LTTE, noting he was released by the CID in 2007 following a brief period in detention, and he was ultimately able to obtain clearance from the authorities to leave Jaffna, obtain a valid passport and exit Sri Lanka without difficulty.

27    Nor did the Tribunal consider the appellant would be imputed with pro-LTTE beliefs on account of the LTTE using the land around his wife’s house as a camping ground. The Tribunal noted this occurred during the civil war and there was evidence that the government subsequently built a house on the land to replace the house destroyed during the war. It concluded there was no connection between the appellant’s treatment by the CID in 2007 with this use of his wife’s land by the LTTE.

28    Further, the Tribunal did not consider any imputation of pro-LTTE political opinions would arise from the appellant being recorded watching his brother in the 2003 protest. The appellant himself said none of his brothers had had any problems with the authorities, therefore the Tribunal found it was remote that the appellant would encounter any problems as a bystander to the event.

29    It did not consider the army’s forcible requisitioning of the appellant’s motorcycle amounted to serious harm or demonstrated any adverse interest in the appellant or suspicion of LTTE involvement.

30    While the Tribunal considered the appellant’s treatment by the CID in 2007 constituted serious harm amounting to persecution, it noted the incident occurred during the civil war and therefore did not consider the treatment to indicate the appellant faced a real chance of serious harm in the foreseeable future if returned to Sri Lanka.

31    With regard to the country information presented, the Tribunal said there was no evidence before it to indicate the appellant fell within a group at risk of being prosecuted in Sri Lanka. The Tribunal noted the appellant’s evidence at the hearing that neither he nor any members of his family have been involved in the LTTE, and did not accept the contention that simply because the appellant is Tamil, or had gone to live in Vanni from Jaffna, the authorities would think he had LTTE links.

32    The Tribunal accepted country information, discussed with the appellant at the hearing, which indicated that asylum seekers returning to Sri Lanka are routinely detained and questioned, however only those with actual or perceived association with the LTTE remain at risk of harm. The Tribunal did not consider the appellant had actual or perceived association with the LTTE, or that he would face a heightened risk of harm for being a returned asylum seeker suspected of having spoken against the government. The Tribunal found that routine detention and questioning on arrival in Sri Lanka would not amount to serious harm.

33    Therefore, the Tribunal was not satisfied the appellant had a well-founded fear of persecution and found he did not satisfy the requirements of s 36(2)(a) of the Act.

34    With regard to the complementary criterion in s 36(2)(aa), in light of its consideration of the facts above, the Tribunal did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm at the hands of the Sri Lankan authorities, or any groups allied with the authorities. It did not accept the routine detention and questioning of the appellant as a returned asylum seeker would amount to significant harm as defined in s 36(2A) of the Act.

FEDERAL CIRCUIT COURT DECISION

35    The primary judge set out the Tribunal’s account of the facts, findings, and the nature of the country information it relied upon. His Honour then considered the appellant’s grounds for review before the Court below as follows.

36    The Court assumed the appellant’s first ground of appeal, “judicial error”, was intended to refer to jurisdictional error, and approached the appellant’s submissions on that basis. The appellant submitted that the Tribunal:

(1)    failed to examine the implications of the appellant’s treatment and detention by security forces in Sri Lanka;

(2)    did not examine the real situation of Tamils in Sri Lanka and the plight of returned asylum seekers in Sri Lanka, relying on reports submitted by the Commonwealth Department of Foreign Affairs and Trade (DFAT) rather than independent reports of human rights organisations; and

(3)    failed to examine the contents and implications of Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act 1979 (Sri Lanka) (POT Act), which the appellant submitted was mainly enacted to oppress the Sri Lankan Tamil revolt and would apply to him, along with the Immigrants and Emigrants Act 1949 (Sri Lanka), if forcibly returned to Sri Lanka.

37    At the hearing, the appellant provided to the Court below an Amnesty International Public Statement published 26 June 2014.

38    With regard to the appellant’s submission the Tribunal failed to examine the implications of the appellant’s treatment and detention by security forces in Sri Lanka, his Honour found the Tribunal accepted the appellant’s claims about his treatment by the authorities, excepting the appellant’s claim that the SLA came looking for him at various relatives’ houses after he had left Sri Lanka. His Honour found those credibility findings were matters which were open on the evidence, and insofar as they were factual findings, also open to the Tribunal. The primary judge considered the Court should not interfere in the Tribunal’s findings of fact where they were reasonably open on the evidence.

39    Further, his Honour held the Tribunal’s finding that the appellant would not be imputed with pro-LTTE beliefs because he worked in the ice-cream shop owned by the LTTE was also reasonably open to the Tribunal on the available evidence. His Honour found it would be impermissible merits review to determine the matter differently.

40    The primary judge noted the appellant’s apparent complaint about the Tribunal’s finding that the CID’s treatment of the appellant in 2007 occurred during the civil war and did not mean he faces a real chance of serious harm in Sri Lanka, now or in the foreseeable future, given the end to the civil war. Again, his Honour found this open to the Tribunal on the evidence, specifically, the country information.

41    In particular, his Honour referred to the country information set out by the Tribunal which indicated that Sri Lankan authorities do engage in activities which would amount to prosecution within the meaning of the Act and the 1951 Convention Relating to the Status of Refugees, but only in respect of those persons with profiles of a particular kind, including those suspected of being connected to the LTTE. His Honour noted the Tribunal did not accept the appellant had such a profile, given his evidence that neither he nor any member of his family had been involved with the LTTE, and the Tribunal’s finding the appellant would not be imputed with pro-LTTE beliefs simply because he was a Tamil or because of other claimed events.

42    His Honour found it was clear that the Tribunal did, in a reasonably comprehensive manner, give proper consideration to the implications of the appellant’s treatment and detention by the security forces in Sri Lanka.

43    The primary judge then considered the appellant’s assertion that the Tribunal did not examine the real situation of Tamils and returned asylum seekers in Sri Lanka, and relied only or mainly on DFAT reports rather than independent reports, such as the Amnesty International Statement. His Honour found the Tribunal decision set out information not only from DFAT reports, but also the 2012 United Nations Eligibility Guidelines and 2012 “Freedom from Torture” reports. His Honour found the country information relied upon justified the Tribunal’s conclusion that the appellant, who was found not to have any relevant LTTE links, either actual or perceived, would not be persecuted or otherwise at risk, noting the choice of country information and factual findings arising from it were matters for the Tribunal.

44    His Honour further noted the Amnesty International Statement did not assist the appellant as it post-dated the Tribunal’s decision, was very general in its content and did not purport to be indicative of the current position in Sri Lanka.

45    With regard to the application of the POT Act and the Immigrants and Emigrants Act to the appellant, his Honour found the Tribunal was aware of the provisions of the POT Act as it was referred to in country information cited extensively by the Tribunal. His Honour held it was unnecessary for the Tribunal to have regard to the POT Act in circumstances where the clear inference from the facts found was that, upon return to Sri Lanka, the appellant would not be considered to be a terrorist under the POT Act or a person of any interest to the Sri Lankan authorities. The primary judge found the Tribunal was not required to consider the provisions of the POT Act, and to the extent the appellant might be subject to the Immigration and Emigration Act, the Tribunal had considered the likely immigration treatment of the appellant.

46    Thus ground 1, asserting jurisdictional error, was not made out.

47    As to ground 2, the appellant appeared to contend the Tribunal failed to provide natural justice or procedural fairness. The primary judge noted that the appellant did not identify any breach of the provisions in Pt 7, Div 4 of the Act, which set out the requirements exhaustively with respect to procedural fairness in the Tribunal. Further, his Honour found no breach was evident on the materials before the Court, noting the Tribunal invited the appellant to the Tribunal hearing, the appellant by his lawyers provided written submissions, and the appellant and his wife attended the hearing and gave evidence, with a representative in attendance who also made submissions on the appellant’s behalf. Further, at the hearing, the Tribunal specifically raised with the appellant at the hearing issues that the Tribunal had with his claims and evidence, including, critically, that the country information did not support his claims. Therefore, his Honour said, even if “normal” procedural fairness was required to be afforded, it was so afforded.

48    If a failure to consider a claim by the appellant was a failure to afford procedural fairness (by reference to Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41), then to the extent necessary, his Honour pointed to his finding in relation to ground 1, that there was no failure by the Tribunal to consider any claim made by the appellant.

49    By ground 3 of his judicial review application, the appellant asserted bias in the Tribunal’s decision. He submitted the Tribunal was prejudiced by the policy statements issued by the Minister against asylum seekers who arrived by boat in Australia, and by the DFAT reports. The appellant relied on a document which his Honour inferred was a newspaper article, provided to the Court below, for which no source or date was provided, entitled “Scott Morrison attacks critics of Sri Lanka”. The appellant said this document indicated the then Minister was prejudiced in his attitude to Sri Lankan Tamil asylum seekers and by his policy statements influenced the Tribunal’s decision.

50    His Honour noted the relevant principles as follows:

(1)    It is well established that an allegation of bias is a serious matter which must be made distinctly and clearly proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 (Gleeson CJ and Gummow J) and 546-547 (Kirby J); [2001] HCA 17.

(2)    To prove actual bias on the part of the Tribunal requires evidence of a state of mind such that the Tribunal is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Jia Legeng at 532 (Gleeson CJ and Gummow J).

(3)    A reasonable apprehension of bias requires a reasonable apprehension of such pre-judgment: Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 at 434; [2001] HCA 28.

51    His Honour found that the Tribunal properly raised various concerns about the appellant’s case with him and canvassed relevant issues in accordance with its obligations under the Act. His Honour said the Tribunal gave the appellant the opportunity to persuade the Tribunal to the requisite degree of satisfaction in relation to his claims, and the decision did not demonstrate pre-judgment or give rise to a reasonable apprehension of pre-judgment by the Tribunal.

52    Regarding the appellant’s allegations of bias in relation to comments attributed to the then Minister, the primary judge found the statement provided did not assist the appellant. His Honour noted that writs were issued on 5 August 2013 to cause the federal election to be held on 7 September 2013. The Honourable Scott Morrison was appointed by the Governor-General as Minister on 18 September, thus his Honour found it would not have been possible for the then Minister to have influenced the Tribunal in the manner asserted at the time of the Tribunal’s decision, 10 September 2013, as he had not been appointed yet, and could not have made the comments attributed to him in his capacity as Minister.

53    Further, his Honour found the appellant’s assertion that the Tribunal was biased by reason of reference to DFAT reports was misconceived, as the Tribunal was entitled to have regard to country information of its choosing and derive factual findings from it where, as in this case, that country information was put to the appellant for comment.

54    His Honour concluded no ground of review was made out and dismissed the application for judicial review.

APPEAL TO THIS COURT

55    The appellant filed a notice of appeal from the Federal Circuit Court decision on 9 December 2014. Two grounds of appeal are raised:

1.    The Tribunal made a jurisdictional error by failing to consider the application which is the subject of review in light of the information, evidence and arguments which were relevant to the application and which were provided to it.

2.    The Tribunal made a jurisdictional error by failing to consider in respect of the applicant’s claims for protection under the Refugees Convention and the Complementary provisions of the Migration Act 1958 (s 36(2A)) updated country information submitted by the applicant concerning harm that the applicant would be likely to suffer upon return to Sri Lanka as a failed asylum seeker.

Minister’s submissions

56    The Minister submits there are no particulars in support of the above grounds of appeal and the appellant has not identified any error in the primary judge’s reasons for judgment. For the latter reason alone, it is submitted, the appeal may be dismissed: see SZLZM v Minister for Immigration and Citizenship [2008] FCA 1263 at [9]-[12]; SZOVB v Minister for Immigration and Citizenship (2011) 125 ALD 38 at [30]; [2011] FCA 1462.

57    The Minister contends the Tribunal plainly did consider all relevant information, evidence and arguments provided to it in relation to the appellant’s application for review. In particular, the Minister submits the Tribunal considered updated country information submitted by the appellant concerning harm that the appellant claimed he would be likely to suffer upon return to Sri Lanka as a failed asylum seeker.

58    It is submitted the primary judge was clearly correct to dismiss the appellant’s application for the reasons given, and there is no error, let alone appellable error, in his Honour’s reasons.

Appellant’s submissions

59    The appellant filed an outline of submissions dated 18 August 2015 in response to the Minister’s submissions, to the following effect:

This is in response to the First Respondent’s outline of submissions sent by

Counsel for the First Respondent, dated 12 August 2015.

I.    My appeal is based on:

a.    Jurisdictional Error – which refers to the fact that the Tribunal committed by exceeding or by failing to exercise proper jurisdiction.

b.    Bias: A conscious or unconscious prejudice or partiality such as

to affect capacity to decide and issue on its merits alone.

c.    Natural justice: falling to extend the minimum standed of fairness that has to be applied in the adjudication of a dispute.

II.    Reference is made to the First Respondent’s submission paragraph 14 where reference was made to the fact that the Tribunal found me to be a credible witness. If so, my submission is that my evidence as a whole should have been given credibility.

III.    Reference is made to the First Respondent’s submission paragraph 15 where the Tribunal had not accepted that the Sri Lankan army came in search of me.

IV.    Reference is made to the First Respondent’s submission paragraph 16.2 clearly points to the fact that I was arrested by the CID interrogated and mistreated.

V.    Reference is made to the First Respondent’s submission paragraph 17 clearly pints to the fact that the CID’s treatment of me constituted serious harm.

VI.    Reference is made to the First Respondent’s submission paragraph 18 which refers to the country information. Its assessment which shows bias and prejudice as it was based mainly on the reports submitted by the Department of Foreign Affairs and Trade of Australia and the directions given by the First Respondent in regard to asylum seekers who arrived in Australia by boats.

VII.    I submit herewith document entitled: Torture of Tamil Detainees in Sri Lanka Has Continued, Says Charity, which is supported by J Julian Borger, Diplomatic Editor, 13th August 2015 issued from the United Kingdom.

VIII.    I also submit a recording from the ABC 24 programme entitled: The 7.30 Report.

My submission is that the Refugee Review Tribunal should have considered all the evidence and acted on the presumption of my personal circumstances in relation to the then existing situation in Sri Lanka before it came to its conclusion in regard to the claims made by me and other members of my immediate family. In contrast is My submission is that the Tribunal acted on conjectures based on bias.

I appeal, therefore, that a fresh inquiry be constituted to examine in a proper manner my claims for a Protection Visa to remain in Australia.

Consideration

60    This appeal was originally listed for hearing in March this year, however was adjourned pending the High Court’s determination of an appeal from the decision of North J in WZAPN v Minister for Immigration and Border Protection (2014) 144 ALD 82; [2014] FCA 947. At [30], North J found that serious harm, for the purposes of s 91R(1)(b) of the Act, was constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty. His Honour held the interpretation in s 91R(2)(a) is informed by international human rights standards, finding at [42] that the decision-maker must ask whether the deprivation of liberty was “on grounds and in accordance with procedures established by law, whether the detention was arbitrary, and whether the applicant was treated with humanity and respect for the inherent dignity of the person”.

61    In Minister for Immigration and Border Protection v WZAPN (2015) 320 ALR 467; [2015] HCA 22, the High Court determined North J’s construction of s 91R(2)(a) in WZAPN was incorrect, while the decision of the Full Court in SZTEQ v Minister for Immigration and Border Protection (2015) 229 FCR 497; [2015] FCAFC 39 was correct.

62    Relevantly, the plurality (French CJ, Kiefel, Bell and Keane JJ) held at [45] of the judgment:

To resolve the question before the court, it is enough to say, in light of the collocation of threats to life and liberty in s 91R(2)(a), that the question of whether a risk of the loss of liberty constitutes “serious harm” for the purposes of s 91R(1)(b) requires a qualitative judgment. This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty. Whether the likelihood of detention in any case rises to the level of serious harm instanced by s 91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention.

63    There is nothing in the circumstances of this case to support the view that either the Tribunal, or the primary judge on judicial review, erred so far as any finding concerning “serious harm” for the purposes of s 91R(1)(b) of the Act, as it was at the time of the Tribunal’s decision, is concerned.

64    At the hearing of the appeal, the appellant confirmed the matters raised in his outline of submissions and also provided the Court with a document which, through the interpreter, he said he wished to stand in the place of oral submissions. The Court read out that document to confirm its contents.

65    In essence, the further “oral” submissions noted:

(1)    the POT Act;

(2)    the Immigrants and Emigrants Act;

(3)    that the appellant considers that under legislation he will be arrested on arrival in Sri Lanka;

(4)    he has already been mistreated when he was taken into custody in Sri Lanka “for alleged connections with the LTTE”;

(5)    he was able to escape through a bribe to relevant authorities which is common practice in Sri Lanka;

(6)    he is not now in a position to pay a bribe; and

(7)    therefore he has a well-founded fear of returning to Sri Lanka which was not properly examined by the Tribunal.

66    These submissions repeat in a number of respects the grounds upon which the appellant sought judicial review in the Court below, all of which were, with respect, carefully considered by the primary judge.

67    It is not necessary to repeat what the primary judge said in dismissing that review application. In short, as the primary judge explained, and as set out above, each of the matters in relation to which the appellant felt aggrieved was carefully considered and the Court concluded that the findings made by the Tribunal were open to it.

68    Similarly, having considered the terms of the Tribunal’s decision, and the review of it made by the primary judge, no jurisdictional error is indicated in the Tribunal’s decision and no error can be detected in the decision of the primary judge.

69    As to II and III of the appellant’s outline of submissions, these each raise credibility findings. The fact that the appellant was found to be credible in respect of a number of matters does not of course mean that the Tribunal was bound to accept all of his evidence as credible. In particular, the Tribunal did not accept that the “Sri Lankan army came in search of me”. That was a matter of fact for the Tribunal to deal with and, just because the Tribunal did not accept the appellant’s evidence on this point, does not reveal any jurisdictional error on its part. The primary judge was not in error in so finding. Paragraphs IV and V of the appellant’s outline of submissions take the question of serious harm further, referring to the occasion involving the CID. The Tribunal’s point, ultimately, was that the event occurred during the civil war and it is unlikely that the appellant would be subject to any harm now if he were to return to Sri Lanka. That was a question of fact for the Tribunal to decide and no jurisdictional error is revealed by its findings. The primary judge was not in error in coming to that conclusion.

70    In VI, VII and VIII of the appellant’s outline of submissions, the question of reliance on country information is raised. The appellant would like the Court to look at two recent pieces of information, one from the United Kingdom dated 13 August 2015 and another from an ABC program. Both are acknowledged by the appellant to be of recent origin. It is not open to the Court on this hearing to consider those recent materials. In any event, the Court does not consider it appropriate to do so.

71    The primary question is whether the Tribunal showed bias and prejudice by relying on a limited range of country information provided by the Department and a direction alleged to have been given by the relevant Minister at material times in regard to asylum seekers arriving in Australia by boats. It is well demonstrated by reference to the Tribunal’s reasons that it took into account a wide variety of country information including that provided by the appellant’s lawyers and migration agents at material times. There is no evidence to show that the Tribunal limited the scope of materials it considered.

72    As to the suggestion that the Tribunal, in effect, acted at the direction of the Minister as to how to exercise its discretion, that question was dealt with by the primary judge at [64] of his reasons and as a matter of fact it does not appear that anything was said or done at any time material to the Tribunal’s consideration of the application before it.

73    The Minister in his submissions before the Court emphasised that while it is recognised and was recognised by the Tribunal that some people having a certain profile, such as a political profile, some journalists and human rights defenders, may be at risk of serious harm, the appellant did not fall into such a category.

74    The appellant in oral submissions said that he was concerned, nonetheless, that ordinary people would betray him to the authorities, if he returned to Sri Lanka, as having had a connection with the LTTE in the past.

75    The difficulty with the appellant’s submission is that the question of who would suffer serious harm in what circumstances was fully considered by the Tribunal and it formed the conclusion, on the country information available to it, that a person in the position of the appellant would not in fact be likely to suffer serious harm.

76    There was also a question raised by the appellant as to the reliance by both the delegate initially and the Tribunal later on the fact that the appellant left Sri Lanka in 2008 or 2009 to go to India. He was at pains to point out that he had the passport at an earlier time and that it was renewed in 2007, before he experienced difficulties with the CID and then later left Sri Lanka.

77    The fact finding by the Tribunal, I consider, does not place such a significance on the grant or renewal of the passport. At [24] of the Tribunal’s decision, the Tribunal first found to be not plausible the claim that after the appellant left Sri Lanka, the SLA came to his wife’s family’s house and his siblings’ houses looking for him. It further said that it did not consider that the Sri Lankan authorities who issued him a passport in 2007, “and allowed the applicant to depart legally from Sri Lanka in 2008”, would come looking for him subsequently.

78    In other words, reliance is not actually placed on the issuing or the renewal of the passport, but the fact that the applicant was able to depart legally from Sri Lanka in 2008 and, taken with other facts found by the Tribunal, it did not consider that the Sri Lankan authorities “would come looking for him subsequently”.

79    The appellant also mentions paying bribes. His submissions in this regard appeared to raise fresh claims and evidence which cannot now be considered. If relevant, they should have been put before the Tribunal.

80    In the circumstances, no jurisdictional error can be detected in the findings made by the Tribunal and the primary judge was not in error in coming to that conclusion. The appeal in this Court must be dismissed.

Conclusion and orders

81    The Court, in these circumstances, would order:

(1)    The appeal be dismissed.

(2)    The appellant pay the costs of the first respondent, to be taxed if not agreed.

Associate:

Dated:    24 August 2015