FEDERAL COURT OF AUSTRALIA

BMW16 v Minister for Immigration and Border Protection [2017] FCA 1036

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    The appellant appeals the decision of the Federal Circuit Court (Court below) given on 15 February 2017 dismissing his application for judicial review of a decision by the Administrative Appeals Tribunal (the Tribunal) on 26 May 2016. In that decision, the Tribunal affirmed a decision by the delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), not to grant the appellant a Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).

2    The appellant is a citizen of Sri Lanka who arrived at Christmas Island in mid-2012 as an Irregular Maritime Arrival. He remained in detention on Christmas Island until October 2012 when he moved to mainland Australia. He is an ethnic Tamil who resided in a Liberation Tigers of Tamil Eelam (LTTE) controlled area. He applied for the protection visa on 14 November 2012 on the grounds that he fears persecution or significant harm based on his religious beliefs and imputed political opinions. Relevantly, the appellant claimed that his fear of persecution arose from his involvement in protests about the destruction of a Hindu temple in his home village and threats which were allegedly made against him personally by a Buddhist monk. The appellant claimed that the threats were made when the monk prevented him and other Tamil Hindus from entering the Buddhist temple constructed in place of the Hindu temple in order to engage in a traditional Hindu ceremony.

3    The grounds of appeal challenge the primary judge’s rejection of ground 1 of the further amended application for judicial review in the Court below, namely, that it was legally unreasonable for the Tribunal to not accept the appellant’s claim that he was singled out for threats, harassment or mistreatment due to his role in lobbying for the temple’s reconstruction. Specifically, the notice of appeal contends that the primary judge erred:

    in finding that various matters put forward by the appellant supported his claim that he was singled out by the Buddhist monk, but did not compel that conclusion (ground 1); and

    by applying a more stringent test in the form of a “no evidence” ground whereas the ground advanced was that “it was not open to [the Tribunal to] find” which is a less stringent test (ground 2).

2.    BACKGROUND

2.1    The appellant’s claims

4    As the appeal focuses upon the rejection by the primary judge of grounds relevant to the Tribunal’s consideration of the appellant’s claims to fear persecution as a Hindu and by reason of his involvement in protests about the temple, I will focus upon those aspects of the appellant’s claims in summarising the relevant background.

5    The appellant moved to his wife’s village when they married. In mid-2006, the appellant, his wife and their children were forced to leave their village due to intensified fighting between the Army and the LTTE. The appellant had a strong association with a temple through his wife and her family, and had held positions with the temple including as a member of the temple administrative committee. The temple was demolished by the Sri Lankan Army when it came to power in 2006.

6    In 2007 the appellant was told that the temple had been demolished and that a Buddhist temple had been built in its place. The appellant visited the site in late 2008. He registered a complaint about the destruction of the temple, visited an official concerning the temple’s destruction in early 2009, and wrote letters of protest to various officials. Following the abduction in mid-2009 of a member of the local community because, it was believed, of that person’s involvement in the temple issue, the appellant said that he went into hiding. The appellant stated that he feared that he would be abducted also.

7    In late 2010, the appellant, together with a large group of other Tamil Hindus, attempted to enter the temple for a traditional ceremony. However, they were prevented from doing so by a Buddhist monk. The appellant claims that the Buddhist monk threatened him personally and told the appellant that what had happened to the abducted community member would happen to him. At the hearing the appellant elaborated upon his claims as summarised by the Tribunal in the following passage:

40.    In [late] 2010 about 200 people went to perform [a] ceremony as no ceremonies had been performed since 2006. [The appellant] was involved in the organisation of the ceremony and they took speakers with them. As his family was wealthy they paid for the ceremony.

41.    At the temple location the monk refused to let the people in and wanted the speakers removed. The monk said they could not perform the [ceremony] and told them to leave. The applicant spoke to the monk in Tamil with his brother-in-law translating into Sinhalese and asked the monk for permission to perform the ceremony. There were seven members of the army present. The monks spoke to the Army members and said “we should have killed them earlier”. He pointed at the applicant and named him. He did not make this threat to other members of the committee. The Tribunal asked the applicant how the monk knew who he was and he said other people told the monk.

42.    After the ceremony the applicant returned to [a village about 30km away from the temple]. He paid protection money to a person in the next village who was in Army Intelligence. This person came to his house in November 2011 and told him to leave for 6-7 years as the Army was watching him and his life was at risk, but the applicant stayed. Then there was a roundup of people in the temple area … in [early] 2012 and they captured [a number of] people. The person running a shop opposite his home … was questioned about the applicant’s location.

8    With respect to those people taken by the Army in early 2012, the appellant had earlier claimed that they were allegedly taken to the army camp, but were reportedly put in gaol. He also claimed that two of those taken had been involved in the temple protests. After this, the appellant claimed that the Army had been searching for him but he had gone into hiding and decided to try to leave Sri Lanka.

9    The appellant claimed to fear that he would be harmed, abducted, tortured, or killed if he returned to Sri Lanka like other people who had been involved in the temple issue, and there was nowhere safe to which he could relocate.

2.2    The Tribunal’s decision

10    The appellant attended a hearing conducted by the Tribunal on 23 February 2016 with his legal representative. On 26 May 2016, the Tribunal affirmed the delegate’s decision.

11    The Tribunal accepted a number of the appellant’s claims, relevantly that:

(1)    the temple had been destroyed and that a Buddhist temple in his village had been built in its place (Tribunal’s reasons at [56]);

(2)    the appellant wrote letters to a number of people requesting that they be allowed to rebuild a Hindu temple at the same location and continue their religious practices there (Tribunal’s reasons at [57]); and

(3)    the community attempted to conduct a ceremony at the destroyed temple site in late 2010, were told to leave by a Buddhist monk, and conducted the ceremony outside the grounds of the destroyed temple (Tribunal’s reasons at [58])

12    The Tribunal also appears to have accepted that in 2010 the community constructed a small makeshift temple in front of the land where the original temple was located (Tribunal’s reasons at [39]).

13    However, the Tribunal did not accept other critical aspects of the appellant’s claims. Specifically, the Tribunal found that:

59. The Tribunal does not find the applicant’s evidence credible that he was personally singled out by the Buddhist monk and threatened when no other members of the temple committee were targeted or threatened. Whilst the Tribunal accepts that the applicant is a member of the temple administrative committee, there is no reason to think that that [sic] the monk would know who the applicant was, and why he was any more troublesome than any other member of the committee, particularly as his brother-in-law was the person speaking in Sinhalese. The temple is his wife’s family temple and his wife’s [family] have all been involved in seeking its reconstruction. His wife’s older brother is the President of the temple committee and has not been threatened. The applicant was one of many signatories to the letters of protest and not identified as the author. The Tribunal does accept that it is possible that the monk made a general threat to the people wanting to conduct the [ceremony] “wanting to get rid of them”. Despite the applicant’s claims of being threatened he stated that he remained living in his house for a further 18 months without any specific threats being made to him until someone who was in Army Intelligence warned him that the Army was watching him and he was at risk. He didn’t leave until two months after the army rounded up and detained … other people in the temple area [in early 2012].

14    Having regard to the country evidence, the Tribunal accepted that there are continuing disputes about the “Sinhalisation” of Hindu temples in the eastern provinces but found that there was no evidence before it that any Tamil individuals have been harmed in disputes about Hindu temples in the eastern provinces since 2013 (Tribunal’s reasons at [63]).

15    The Tribunal then considered whether the appellant faced a real risk or real chance of serious or significant harm as a result of those disputes in the context of his past involvement in protests and his claim that he would continue to protest if he were to return to Sri Lanka now or in the foreseeable future (Tribunal’s reasons at [64]). The appellant said that army personnel had enquired about his whereabouts from his sister-in-law and brother-in-law in 2012 who said that he had left the country. The appellant told the Tribunal that his wife and her family were involved in trying to acquire land for the temple and that one of his wife’s relatives continues to perform ceremonies in the makeshift temple. He also told the Tribunal that he advised members of his wife’s family to approach an official who openly supported cessation of the destruction of Hindu temples and reconstruction reconciliation efforts, but that nothing had happened yet. The Tribunal concluded that:

68. Considering the above information cumulatively, the Tribunal does not accept that the applicant was singled out for threats, harassment or mistreatment due to his role in lobbying for the temple reconstruction. While the Tribunal has accepted that there continue to be disputes about attempts by Sinhalese to take Hindu temples and that little progress has occurred in restoring Hindu temples in the eastern provinces, the Tribunal is not satisfied that the applicant will face a real chance of serious harm (having regard to the examples provided in s.91R(2) of the Act) or a real risk of significant harm (having regard to the exhaustive definitions in s.36(2A) and s.5(1) of the Act) as a result of his continued lobbying for a reconstruction of a Hindu temple or for practising his Hindu faith if he returns to Sri Lanka, now or in the reasonably foreseeable future.

16    In relation to actual or imputed political opinion, the Tribunal referred to a 2015 report from the Department of Foreign Affairs and Trade (the 2015 DFAT report) assessing that there are no official laws or policies that discriminate on the basis of political opinion or any systemic political discrimination against any particular group. Nor based on independent country information did the Tribunal accept that the appellant would face a real chance of serious or significant harm for his real or imputed political opinions as a result of his local opposition to the destruction of Hindu temples and his lobbying for reconstruction of the temple in his home village.

2.3    The decision of the Court below

17    The primary judge rejected the first ground of appeal that it was not open to the Tribunal to make the finding at [68] of its reasons and therefore unreasonable for it to have done so. The Minister submitted below that the Tribunal’s finding at [68] was based on the Tribunal’s earlier conclusion rejecting the appellant’s claim that he was personally singled out by the Buddhist monk at [59] of the Tribunal’s reasons. However, in his particulars to this ground, the appellant said that there was only one answer to the question of whether he was personally threatened and that was an affirmative one.

18    The primary judge rejected the appellant’s submissions and dismissed the application for judicial review. With respect to the first ground of review, the primary judge accepted that a court may find that a decision could not reasonably have been reached on the ground that the evidence or other material goes all one-way (Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [137] (Gummow J)). However his Honour found among other things that the matters relied upon by the appellant did not compel the conclusion for which the appellant contended and that other inferences were able to be drawn.

19    The primary judge also rejected the second ground of judicial review based upon an alleged failure to comply with s 425 of the Act. That finding is not challenged on appeal.

3.    CONSIDERATION

3.1    Relevant principles: legal unreasonableness

20    The parties were agreed that the relevant legal principles for determining whether findings made by, or the reasoning employed by, an administrative decision-maker were legally unreasonable were recently explained in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 (CQG15) at [36]-[44] (the Court) and ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 (ARG15) at [83] (the Court). These may be summarised relevantly as follows.

(1)    The question of whether a credibility finding is tainted by jurisdictional error is a case specific inquiry, and is not assessed by reference to fixed categories or formulae (ARG15 at [83](b)).

(2)    Without derogating from the case specific nature of the inquiry, adverse credibility findings may involve jurisdictional error on recognised grounds such as legal unreasonableness or reaching a finding without a logical, rational or probative basis (ARG15 at [83](d)).

(3)    To establish jurisdictional error based on illogical or irrational findings of fact or reasoning, “extreme” illogicality must be demonstrated “measured against the standard that it is not enough for the question of fact to be one on which reasonable minds may come to different conclusions” (Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [148]; CQG15 at [60]). Thus, “[e]ven emphatic disagreement with the Tribunal’s reasoning would not be sufficient to make out illogicality”: CQG15 at [61].

(4)    Findings or reasoning along the way to reaching a conclusion by the decision-maker that are illogical or irrational may establish jurisdictional error (Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [132] (Crennan and Bell JJ).

(5)    With respect to the significance of an illogical or irrational finding to the administrative decision necessary to establish jurisdictional error, Wigney J in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 (SZUXN) at [55] explained (in a passage approved by the Full Court in CQG15 at [60]):

55. … Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result… Where the impugned finding is but one of a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error will generally not be made out….

(citations omitted)

(6)    More specifically, with respect to adverse credibility findings, Wigney J explained in SZUXN (in a passage also approved in CQG15 at [60]) that:

56    An irrational or illogical finding, or irrational or illogical reasoning leading to a finding, by the Tribunal that the review applicant was not a credible or honest witness may in some circumstances lead to a finding of jurisdictional error. That would particularly be the case where the adverse credibility finding was critical to the Tribunal’s decision that it was not satisfied that the applicant met the criteria for the grant of a visa. Whilst it is frequently said that findings as to credit are entirely matters for the Tribunal, such findings do not shield the Tribunal’s decision-making processes from scrutiny… Considerable caution must, however, be exercised before too readily acceding to a proposition that adverse findings as to credit expose jurisdictional error … That is because assertions of illogicality and irrationality can all too readily be used to conceal what is in truth simply an attack on the merits of the Tribunal’s findings and decision.

(citations omitted)

21    Finally, it is important to emphasise the last point made in the passage at [56] in SZUXN as to the relationship between legal unreasonableness on the one hand, and the need to observe the proper boundaries of judicial review, on the other hand. The jurisdiction of the Federal Circuit Court was limited to deciding whether the Tribunal’s decision was made lawfully under the Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error.  This Court in turn must decide whether the Federal Circuit Court wrongly decided that there was no jurisdictional error.  The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s visa application must be assessed under the Migration Act, or if it failed to hear and determine his application in accordance with the requirements of procedural fairness: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court).  However, neither this Court nor the Federal Circuit Court has jurisdiction to grant the appellant a visa, to consider whether the appellant satisfies the criteria for the grant of protection visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). The question of whether or not this Court or the Court below agrees with the Tribunal’s decision is not, therefore, a basis for finding that decision invalid, even if another decision-maker might have taken a different view of the evidence and reached a different decision.

3.2    Ground 2: did the primary judge conflate the test for determining whether the Tribunal’s decision was legally unreasonable with the no-evidence rule?

22    It is convenient to begin with a consideration of ground 2 as this raises the issue of whether or not the primary judge applied the correct test in determining the ground of legal unreasonableness. The parties were agreed that the primary judge did not expressly limit his consideration of the unreasonableness ground to the question of whether there was no evidence at all that might sustain the Tribunal’s finding rejecting the appellant’s claim that he was singled out for threats by the Buddhist monk. However, his Honour considered that there was “a close analogy” between the type of unreasonableness alleged below, on the one hand, and judicial review on the “no evidence ground”, on the other hand (reasons below at [22]). With respect to the latter, his Honour said that:

22. …it is necessary to show that there was not a skerrick of evidence to support the relevant finding or decision. That is no easy task. To establish unreasonableness in the manner asserted by the applicant is no easier.

23    In my view, no error is apparent in his Honour drawing this analogy with the no-evidence ground, given that the appellant put his case below on the basis that “[t]here was only one answer to the question whether the applicant was personally threatened. That answer was in the affirmative …”: Court below at [23] (quoting from the application). To establish a case put in those terms, i.e., that all of the evidence supports only one finding or answer is likely, as a matter of common sense, to be as difficult as establishing that none of the evidence could sustain a particular finding. I do not consider that his Honour was saying anything more than that. To make that observation does not cut across the principles outlined above. In particular, it does not deny that a finding may taint a decision with jurisdictional error in cases where a particular finding is not open on the evidence, even though it cannot be said that there is no evidence on the point. As Greenwood J in SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 (SZDTZ) explained in a passage on which the appellant placed particular emphasis:

32. A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.

3.3    Ground 1: did the primary judge err in determining that certain findings were open to the Tribunal and not legally unreasonable?

24    The critical finding by the Tribunal is at [59] of its reasons (quoted at [13] above). In my view, the reasoning at [59] sets out a logical and rational basis for the rejection of the appellant’s evidence that he was personally singled out and threatened by the Monk, namely:

(1)    on his own evidence, no other members of the temple committee were targeted or threatened;

(2)    there was no reason to think that the monk would know who he was;

(3)    there was no reason why the monk would consider that the appellant was any more troublesome than any other member of the committee;

(4)    his wife’s family had a closer connection to the temple and yet even the President of the temple committee had not been threatened;

(5)    he was only one of many signatories to the letter of protest and was not identified as its author; and

(6)    he remained living in his house for 18 months thereafter, despite the alleged threats.

25    That being so, as the primary judge held:

25. … the simple logic employed by the Tribunal was that the applicant was only one member of a group of people on the temple committee and that none of the others had been threatened, not even the President of the temple.

26. It was that group which posed the threat to the monk and which had taken part in the protest. There was nothing, in the Tribunal’s view, that made the applicant stand out.

27. In these circumstances, it was unlikely that the applicant would have been singled out. That was a logical basis for a rejection of the claim to have been singled out.

26    Further, in concluding at [68] (quoted at [15] above) that “[c]onsidering the above information cumulatively” the Tribunal did not accept that the appellant was singled out for threats or mistreatment by reason of his role in lobbying for the temple reconstruction, fairly read the Tribunal was referring back to its finding at [59]. Contrary to the appellant’s claims, I do not accept that the Tribunal’s reasons at [68] should be read as referring back only to the country information and other claims made by the appellant which the Tribunal had considered immediately above paragraph [68] which post-dated the appellant’s departure from Sri Lanka. In this regard, while the reference to “considering the above information cumulatively” introduced some looseness of language, nonetheless as the Full Court emphasised in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 (WAEE):

The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

27    Against this, the appellant contends that the primary judge wrongly found that the matters relied upon by the appellant supported, but did not compel, a conclusion that the appellant had been singled out by the Buddhist monk. The evidence, in the appellant’s submission, “is all one way to establish that the Monk threatened the appellant.” The matters referred to by the appellant below included that:

(i)    the attempt by a large number of Hindu members to perform a ceremony at the temple in October 2010 “would have been obviously seen as a public demonstration by the Hindus to regain some of the rights in relation to their religious worship. It would have been seen as a challenge to the authority of the Buddhist monk”;

(ii)    it would have been a daunting environment for a Hindu to dare challenge the Buddhist Monk with seven Army officers standing by him;

(iii)    as the Monk wanted to intimidate the Hindu community, it was necessary for him to intimidate the spokesperson who appeared to defy him;

(iv)    there is no credibility issue as to whether the appellant did what he did as the Tribunal accepted that his brother-in-law translated what the appellant said to the Buddhist monk;

(v)    while others involved in the administration of the temple were present, it was only the appellant who had the courage to ask the monk for permission, showing that it was the appellant who was the predominant driving force behind the defiant effort by the Hindu community to worship there;

(vi)    the reference to the appellant’s brother-in-law who was interpreting into Sinhalese what the appellant said in Tamil, as someone who should be in more trouble with the monk than the appellant, is illogical and in fact it should have been the contrary;

(vii)    other matters showed that the appellant was the driving force behind the letter of protest; and

(viii)    the monk threatened the appellant only after talking to the military personnel and there is a strong possibility that they may have told the monk who the appellant was, or at least it could not be excluded as a reason.

28    However, the matters relied upon by the appellant as to why he said that it was not open to the Tribunal to reject his claim that he was personally threatened largely comprise inferences which he sought to draw from the circumstances in which the Monk refused permission. At its highest, the appellant put a persuasive case in support of the inferences which he said must be drawn. However, as the primary judge found, while those matters support the conclusion for which the appellant contended, they did not compel it (reasons below at [24]). Equally, the fact that the appellant had consistently made the same claim may lend credibility to his claims but again did not require them to be accepted, as the primary judge correctly held at [28]. That is so irrespective of whether that consistency was considered alone or in combination with the other reasons given by the appellant for accepting his account.

29    By way of example, the matter alleged at (iii) involves drawing an inference from an inference, namely, an inference that the monk wanted to intimidate the Hindu community and, based upon that inference, that it was therefore necessary for the monk to intimidate their spokesperson, being the appellant. However, as the primary judge held, even accepting the first inference, it was equally open to infer that the monk would have threatened the whole community rather than singling out only the appellant (reasons below at [24]).

30    As a second example, with respect to (vii) above the appellate contended that, as he had organised a letter of protest to various political leaders and his was the first signature on the letter with his identity number disclosed, the Monk “could have believed” that he was the person behind the letter of protest. At the hearing of the appeal, the appellant also submitted that, by putting his identity number down first on the letter, he may have encouraged others to put aside their likely apprehension about signing the letter, given the Tribunal’s finding at [61] that DFAT was aware that the former government in Sri Lanka had sanctioned religious discrimination before 2015. However, the fact that such arguments might reasonably be put does not demonstrate that, in the course of rejecting his claim to have been singled out by the Monk, the Tribunal at [59] reasoned illogically or irrationally by placing weight instead upon other matters, namely (as earlier mentioned), that the appellant was only one of a number of signatories to the letter and was not identified as its author.

31    As a third example, in its own terms the reason given at (viii) above for submitting that the Tribunal should have found that the Monk knew the appellant’s identity is put in terms only of a “strong possibility” or as something “which could not be excluded”. Again the submission falls well short of establishing that on the state of the evidence, this was a reason which alone or with the other matters identified by the appellant should have compelled the Tribunal to accept that he had been singled out by the Buddhist monk.

32    The appellant also submitted that the Tribunal’s finding at [59] that there was no reason why the Buddhist monk would consider the appellant to be more troublesome than any other temple committee member “particularly as his brother-in-law was the person speaking in Sinhalese” is illogical because his brother-in-law was merely interpreting what the appellant said into Sinhalese, being the language spoken by the monk. However, as the primary judge held at [27], it was equally open to the Tribunal to infer that the monk would pay less attention to the appellant who he did not understand, than to his brother in law who he did. The submission that the appellant’s brother in law would have been looked upon more favourably by the Monk for his proficiency in Sinhalese because propagating that language together with Buddhism in Tamil areas is the motivation of the Buddhist monks, does not demonstrate that the inference drawn by the Tribunal was not open to it. It demonstrates no more than that a different inference might have been drawn.

33    In addition, the appellant challenged as unreasonable the Tribunal’s reliance upon the appellant’s evidence that he remained living in his house for 18 months after the alleged threats by the monk against him. He submitted that that factor would have been relevant only if he had remained in the village where the temple was located. However, in his submission reliance upon that factor was illogical in circumstances where the Tribunal found that he had returned to his home village after the incident at the temple. That submission must also be rejected. In my view it was open to the Tribunal to consider that, if the appellant’s identity was known to the monk as the appellant claimed, the fact that he continued to live in his home village for another 18 months after the temple incident did not sit well with his claim to have been threatened personally by the monk.

34    In short, in line with the principles earlier explained, whether taken cumulatively or individually, the matters relied upon by the appellant below and on appeal are not sufficient to establish that the Tribunal’s findings were unreasonable because they were not open on the evidence or they were illogical or irrational. It must be recalled that extreme illogicality is required and that disagreement with a finding, even emphatic disagreement, will not suffice. As such the appellant ultimately seeks impermissibly to take issue with the merits of the Tribunal’s decision.

35    The appellant also submitted that the primary judge erred at [30] in holding that the Tribunal correctly understood the appellant’s evidence about the threat made by the Buddhist monk. In so finding, his Honour explained that:

31. In his entry interview, the applicant says that the monk “didn’t say this to me directly, he said it to people who got to the temple area”. However, at the hearing when the Tribunal asked who the monk was threatening, the applicant said, “he showed me – he showed – he pointed at me and he specified my name”. The Tribunal accurately recounted this evidence at [41] of its reasons, “[h]e pointed at the applicant and named him”... This argument fails on the facts.

36    In this regard, the appellant said that his Honour’s finding failed to appreciate his argument that his statements at the entry interview had to be understood in a context. First, he spoke through a Tamil interpreter at the entry interview whereas he spoke to the monk through a Sinhalese interpreter who was his relative. Secondly the entry interview “took place in the environment that the applicants are supposed to be brief… and there was no clarification or elaboration.” The appellant further said that “[i]n any case the message is clear that the discussion there [i.e. at the entry interview] was about threat to the appellant given by the Monk …”. In short, the submission appears to be that the Tribunal should have reached a different construction of the appellant’s evidence at the entry interview because of the context in which that evidence was given. As such, the submission again impermissibly again strays into the area of merits review.

37    Finally, the appellant submitted that:

(1)    the Tribunal failed to consider the claim that he was at risk because he was a “prime mover” in agitating the temple issue, as opposed to the question of whether he was singled out and the subject of direct threats by the monk; and

(2)    the primary judge erred in holding at [29] that this characterisation of his claim had not been advanced before the Tribunal.

38    Irrespective, however, of whether the primary judge was correct at [29] in so holding, the short point is that this claim was considered by the Tribunal. I agree with the respondent’s submissions that the Tribunal accepted that the appellant was prominent in the agitation of the temple issues, as he claimed, including that he was a member of the administrative committee for the temple, that he wrote letters advocating for the temple to be rebuilt at the same location, and that he was the spokesperson for the group that sought permission from the monk to hold the ceremony in 2010. However, not only did the Tribunal reject the appellant’s claim to have been personally threatened by the monk. The Tribunal also considered more recent country information on the basis of which it was open to the Tribunal to find that, irrespective of his prominence in agitating the issue, the appellant was not at risk of harm if returned: see above at [14]-[16].

4.    CONCLUSION

39    For these reasons, the appeal must be dismissed with costs.

Associate:

Dated:    1 September 2017