FEDERAL COURT OF AUSTRALIA

CEM15 v Minister for Immigration and Border Protection [2019] FCA 1736

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant 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

KENNY J:

1    This is an appeal from the judgment of the Federal Circuit Court of Australia delivered on 17 January 2018, which dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 23 September 2015. The Tribunal had affirmed a decision of a delegate of the respondent Minister not to grant the appellant a Protection (Class XA) visa (protection visa). The Federal Circuit Court judgment has the citation CEM15 v Minister for Immigration & Anor [2018] FCCA 59.

BACKGROUND

2    The appellant is a citizen of Sri Lanka. He is also a Tamil and a Hindu. According to his protection visa application and the record of his entry arrival interview, he arrived in Australia by boat on 15 July 2012. He applied for the protection visa on 6 November 2012. The delegate refused his application on 23 August 2013.

3    On 2 September 2013, the appellant applied to the Tribunal for review of the delegate’s decision. The appellant appeared before the Tribunal on two occasions, 9 December 2014 (first Tribunal hearing) and 23 September 2015 (second Tribunal hearing). On each occasion, he was represented by a registered migration agent and assisted by an interpreter.

4    The appellant’s claims were set out in a number of documents, including in a statutory declaration dated 25 October 2012 accompanying his protection visa application and in written submissions dated 4 April 2014, 2 December 2014, 18 December 2014 and 18 September 2015. (The submissions of 18 September 2015 (September 2015 submissions) are central to the primary ground of this appeal.)

5    The appellant claimed to fear harm on the basis of his political opinion. The following matters were relied on (see, for example, Tribunal Reasons (TR), [22]-[29]):

(a)    he had actively supported and campaigned for a Tamil candidate of the United National Party (UNP), who in fact won a local council election. The appellant was one of the candidate’s main supporters and was the only Tamil supporter;

(b)    he was personally threatened by associates of a politician from another party (Mr X). In particular:

i)    in June 2011, stones and faeces were thrown at his house, resulting in broken windows;

ii)    in August 2011, eight of Mr X’s bodyguards abducted him and mistreated him, including by forcing him to kneel on stones in the sand for three hours while crowds passed by and by forcing him to pick up the ash from their cigarettes;

iii)    he was prevented from driving his taxi for some weeks; and

iv)    in March 2012, some of Mr X’s bodyguards surrounded him and threatened to “cut [his] throat and put [his] body where no-one will find [him]” if he did not leave;

(c)    in June 2012, his brother (who was politically active in the village) died in a car accident and circumstances suggested that he had been deliberately killed before the accident by people associated with the government;

(d)    in October 2012, a car pulled up beside the appellant’s wife and children when they were shopping; one of four men said they knew the appellant had fled the country and that as his wife was alone “she needed to come and stay with them”;

(e)    the appellant’s wife had had stones thrown at her and threats had been made that acid would be thrown at her; a supporter of the government party had threatened to kill the appellant and his wife and family; and the police had not responded to his wife’s complaints;

(f)    in March 2014, the appellant’s wife had been targeted by men in a car as a result of which she seriously injured her foot;

(g)    his children have been prevented from attending three schools in their area and have had to be sent to an international school; and

(h)    in 2015 his wife had received phone calls asking about his whereabouts.

6    The appellant also claimed to fear harm specifically because: his brother was killed by people associated with the government; he is a Tamil; he is a failed asylum seeker; and he departed Sri Lanka illegally.

THE TRIBUNAL’S DECISION

7    The Tribunal accepted that the appellant and his wife were supporters of the UNP, that the appellant was a supporter of a local Tamil UNP candidate (Mr T), and that he had campaigned for Mr T prior to local elections in 2011 (TR [32]). The Tribunal also accepted that, in the lead up to the local elections, opposition supporters had thrown stones and faeces at the appellant’s home and that the appellant had received threats on account of his support for Mr T (TR [33]).

8    The Tribunal did not accept, however, that the appellant had been threatened or harmed after the local elections in 2011 (TR [34]-[36]). In rejecting the appellant’s claims in this regard, the Tribunal stated that:

(a)    it was “not plausible or credible” that Mr X’s bodyguards “would continue to threaten” the appellant “for a substantial period” after the election in circumstances where Mr T had been elected and had not been harmed after the election; and it     had not identified any reports of political violence in the relevant area in the post-election period.

(b)    the appellant’s evidence was inconsistent with respect to a number of important matters (including the circumstances in which he was harmed by Mr X’s supporters and when his wife was threatened by people in a moving car) and this detracted from his credibility; and

(c)    it was not “plausible or credible” that Mr X’s supporters would threaten or attempt to harm the appellant’s wife or children or prevent the admission of his children to school for such a long period after the local elections and after the appellant had departed the country.

9    The Tribunal ultimately rejected most of the appellant’s claims concerning the harassment of him and his family, although it did accept the claims set out at [5(a) and (b)(i)] above. The Tribunal concluded that it did not accept that the appellant and his family were of any ongoing adverse interest to Mr X or his supporters or anyone else. While the Tribunal accepted that in June 2011 stones and faeces were thrown at his house, resulting in broken windows, and that the appellant had been threatened in the lead-up to the elections, it did not consider that this amounted to serious or significant harm (TR [40]). Although the Tribunal accepted that the appellant, if returning to Sri Lanka, would “want to involve himself in political activities in the manner he has done … in the past”, and that his wife would also engage in political activities, the Tribunal found (TR [40]) that “the chance or risk that he will be subjected to either serious harm or significant harm at the hands of [Mr X], his supporters, the government or anyone else” was remote.

10     In making these findings, the Tribunal had regard, and gave weight, to various documents and country information provided by the appellant, specifically in relation to the actions of Mr X (TR [41]-[42]). The Tribunal also considered the position of the UNP and political violence in Sri Lanka, including in the applicant’s area of residence (TR [41]-[45]). These aspects of the Tribunal’s reasons are discussed in detail below. The Tribunal concluded that, “[c]onsidering [his] individual circumstances and the overall weight of the independent country information”, the appellant did not face a real chance of persecution or a real risk of suffering significant harm by reason of his pro-UNP political opinion, his Tamil ethnicity or “his membership of a particular social group consisting of his family” (TR [46]-[47]).

11    While the Tribunal accepted that the appellant’s brother was involved in organising a protest in 2012 (TR [48]) and that he died in a car accident in June 2012 (TR [49]), it did not accept that he was deliberately killed “by persons associated with the government” (TR [49]-[51]) and was not satisfied that the appellant faced a real chance of persecution in the reasonably foreseeable future or that there was a real risk that he would suffer significant harm on this account (TR [52]-[53]).

12    Further, the Tribunal went on to state that, having regard to the appellant’s individual circumstances and country information (including a report from the Australian Department of Foreign Affairs and Trade report dated 16 February 2015 and reports to which the appellant referred) it found that the appellant did not face a real chance of persecution or a real risk of suffering significant harm on account of his Tamil ethnicity (TR, [54]-[59]); as a failed asylum seeker (TR, [60]-[66]); or for departing Sri Lanka illegally (TR, [67]-[77]).

13    The Tribunal concluded that it was not satisfied that the appellant had a real chance of facing persecution on return to Sri Lanka for any Convention reason in the reasonably foreseeable future (TR [78]); and, accordingly, the appellant did not satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (TR [80]). Further, the Tribunal was not satisfied that there was a real risk that the appellant would suffer significant harm if removed to Sri Lanka (TR [79]); and, accordingly, found that he did not satisfy the complementary protection criterion in s 36(2)(aa) of the Migration Act (at [81]). The Tribunal affirmed the delegate’s decision on 23 September 2015.

FEDERAL CIRCUIT COURT PROCEEDING

14    On 22 October 2015, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court.

15    By a further amended application filed on 10 May 2017 (judicial review application), the appellant set out four grounds of review. The grounds relevant to this appeal were grounds 1 and 4, which stated:

1.     The Tribunal failed to perform its statutory function according to law in that it:

a.     mischaracterised the applicant’s claim that in the event that he were to return to Sri Lanka, he feared persecution or significant harm in the form of violent reprisal for his political activities; and

b.     failed to properly consider the applicant’s claim that in the event that he were to return to Sri Lanka, he feared persecution or significant harm in the form of violent reprisal for his political activities.

PARTICULARS

i.     The Tribunal failed to consider the applicant’s written submissions dated 18 September 2015 to the effect that notwithstanding that the political party he supported had been successful at Sri Lanka’s 2015 elections, he continued to fear if he were returned to Sri Lanka, he would face violent reprisal from a prominent opposition political figure and his supporters.

    …

4.     The Tribunal failed to respond to the applicant’s substantive claims and arguments in relation to events following the 2011 elections, and in so failing, did not perform its statutory task, or alternatively, acted in a manner that was illogical, irrational or legally unreasonable.

It is unnecessary to refer to grounds 2 and 3 since they have no bearing on this appeal.

16    A Federal Circuit Court judge dismissed the judicial review application on 17 January 2018. In relation to ground 1, her Honour held that the Tribunal had in fact considered, in some detail, the September 2015 submissions, and that its rejection of the likelihood of politically-motivated violence against the appellant after the 2015 election was based on probative evidence (Federal Circuit Court judgment at [16]).

17    Regarding ground 4, her Honour held that:

(1)    the Tribunal specifically considered and rejected the appellant’s claims that he was threatened and harmed after the elections and that his family had had problems since the elections in 2011 (at [26]);

(2)    the Tribunal explained its reasons for impugning the credibility of the appellant and the information it considered in doing so (at [26]);

(3)    the Tribunal made findings open to it on the evidence in a carefully considered decision, after holding two hearings and affording the appellant the opportunity to call witnesses and put numerous submissions before it (at [27]); and

(4)    the Tribunal’s findings of fact or reasons did not involve illogicality or irrationality of the relevant kind (at [27]-[28]).

18    The primary judge held that the Tribunal’s decision did not involve jurisdictional error (at [29]) and dismissed the judicial review application.

APPEAL TO THIS COURT

19    The appellant appealed from the Federal Circuit Court’s judgment. The notice of appeal, which was filed on 6 February 2018, stated:

1.    The Federal Circuit Court erred in not accepting the appellant’s argument below that the decision of the Tribunal is affected by jurisdictional error, in that:

a.    The Tribunal failed to consider lawfully the applicant’s claim that in the event that he were to return to Sri Lanka, he feared persecution or significant harm in the form of violent reprisal for his political activities.

PARTICULARS

i.     The Tribunal failed to consider the applicant’s written submissions dated 18 September 2015 to the effect that notwithstanding that the political party he supported had been successful at Sri Lanka’s 2015 elections, he continued to fear if he were returned to Sri Lanka, he would face violent reprisal from a prominent opposition political figure and his supporters.

ii.    Instead, the Tribunal effectively acted upon a concession once made by the applicant, but which concession was withdrawn prior to decision.

2.    The Federal Circuit Court erred in not accepting the appellant’s argument below that the decision of the Tribunal is affected by jurisdictional error, in that the Tribunal’s supposed response to the applicant’s substantive claims and arguments in relation to events following the 2011 elections was illogical, irrational, legally unreasonable or affected by an unidentified jurisdictional error.

20    That is, the appellant effectively challenged the primary judge’s rejection of the first and fourth grounds of the judicial review application.

THE PARTIES’ SUBMISSIONS

The Appellant’s submissions

21    The appellant was represented at the hearing of the appeal by Ms Costello of counsel. Written submissions had previously been filed on his behalf.

22    The appellant’s written submissions opened its argument with the statement that:

The crux of the first ground of appeal is that the Tribunal failed to consider a significant aspect of the appellant’s claimed fears of political persecution because it failed to consider his written submissions of 18 September 2015 to the effect that despite the change of government, he continued to fear harm and was in even more danger.

The second appeal ground is that the Tribunal’s reasons in respect of the appellant’s claims about what happened to him after the 2011 elections betray illogicality, irrationality, legal unreasonableness or an unidentified jurisdictional error.

The appellant submitted that the primary judge was wrong to find that the Tribunal considered “in some detail” his September 2015 submissions.

23    In support of his first ground, the appellant contended that the Tribunal’s failure to consider his September 2015 submissions could be inferred from:

(1)    the fact that the Tribunal omitted from its reasons any reference to the substance of the claims he made in the September 2015 submissions, including in its summary of his claims in the Tribunal’s reasons at [21]-[30];

(2)    the Tribunal’s reliance on the appellant’s concession at the first Tribunal hearing on 9 December 2014 that, if the UNP was successful in the 2015 election, then he would not have to live in fear, even though this concession was “obsolete” by the second Tribunal hearing on 23 September 2015, given that his September 2015 submissions claimed that “new developments” in Sri Lankan politics made it “a far more dangerous environment” for him, putting him at risk of serious harm; and

(3)    the Tribunal’s reliance on the 2015 election results without referencing the appellant’s submission that, notwithstanding that the UNP had become the largest parliamentary party and this had given it the Presidency and the Prime Minister, the ensuing political environment had in fact increased his fear of persecution.

24    The appellant submitted that:

The fact the Tribunal took into account some of the news articles about [Mr X] and oral evidence of [Mr T] and country information does not cure the decision from its infection with jurisdictional error … The Judge below was wrong finding that the Tribunal considered “in some detail” the 18 September 2018 [submissions].

25    Ms Costello, for the appellant, observed that at [41]-[46] of its reasons the Tribunal set out the matters it took into account in making its findings that the appellant did not face a real chance of persecution in the reasonably foreseeable future (or a real risk that he would suffer significant harm) by reason of his political opinion. She submitted that it should be inferred from the absence of any reference in those paragraphs to the substance of the appellant’s claim in his September 2015 submissions that the Tribunal did not take that claim or argument into account in making its ultimate decision.

26    Furthermore, Ms Costello drew attention to the fact that the Tribunal specifically referred to the appellant’s statement at the first Tribunal hearing that “if the common candidate for the UNP won, he would not have to live in fear”, without also referring to the appellant’s subsequent evidence about the effect of the election outcome on his safety. She submitted:

[W]e can infer with confidence from those paragraphs that the Tribunal has not taken into account the arguments made in the written submission of 18 September and that the Tribunal has taken into account an obsolete concession that the appellant had made at an earlier point in time in the context of a long process before the Tribunal in which conditions had changed considerably in the country.

27    Ms Costello submitted that the Tribunal erred by proceeding on the basis that the appellant had said that he would no longer face harm on returning to Sri Lanka if the UNP was successful in 2015 because, in doing so, it failed to take into account that the appellant had made a different claim at the second Tribunal hearing that his risk of harm had actually increased following the 2015 election (even though the UNP and Mr T were successful). She emphasised that the September 2015 submissions made a clear point, with reference to the evidence, that “the idiosyncrasies of Sri Lankan politics meant that the personalities of those in power could cause risk”. She contended that:

The claim was not that … because of who was in power generally in Sri Lanka he was in fear; rather, it was because the person who had a personal vendetta against him was in power he was at risk in the situation where that man was powerful and had impunity.

28    Ms Costello submitted that the appellant did not step away from this submission when he gave evidence at the second Tribunal hearing and that the appellant maintained his claim that it was “because of the personality-driven nature of power and risk in Sri Lanka that he maintains his fear based on what a particular person who has risen in power can do to him”. She submitted that the Tribunal failed to engage with, or misunderstood, that point, by focussing on “who holds power at a party level … rather than whether [a] particular person would harm the appellant”. She described this as “structural rather than personality-driven reasoning”.

29    Ms Costello submitted that the Tribunal was obliged to explore the nature of the appellant’s claim in the September 2015 submissions and the material upon which he relied in order to discharge its duty to conduct a review. She submitted that:

[W]here a specific submission on a central point is made in writing in a detailed way, supported by evidence, and reliance upon that written submission is emphasised in the oral hearing, the Tribunal’s failure to engage with the way the case has been put amounts to a failure to conduct its core task of reviewing the decision in light of the relevant statutory test and the claims and evidence before the Tribunal.

30    Relying on Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431, Ms Costello submitted that the Tribunal did not engage in an active intellectual consideration of the claims in the September 2015 submissions. The error was, so she submitted, a jurisdictional error because of its centrality to what was in issue, particularly noting that “the whole reason for the second hearing was to address the change in who held power”.

31    The appellant submitted that the Tribunal’s reference at [20] of its reasons to the September 2015 submissions did not satisfy the need for engagement with the content of those submissions. The appellant further submitted that the fact the Tribunal took into account some of the news articles about Mr X, the oral evidence of Mr T, and country information did not cure the decision of jurisdictional error. In this regard, Ms Costello contended that while there was reference to country information, particularly at [41] of the Tribunal’s reasons, there was no active intellectual engagement with the claim made by the appellant. Citing SZSSC v Minister for Immigration and Border Protection [2014] FCA 863; 317 ALR 365 at [81(a)], the appellant submitted that the result was that the Tribunal had not discharged its duty to review because it had failed to consider and deal with clearly articulated submissions of substance.

32    In support of his second ground, the appellant contended in written submissions that, in listing the reasons why it did not accept the appellant’s post-2011 election claims, the Tribunal did not refer to the appellant’s claims in his 2015 submissions. Rather, so the appellant submitted, the Tribunal rejected his post-2011 election claims on the basis it was “not plausible or credible” that Mr X’s bodyguard would continue to threaten him afterwards or for a substantial period afterwards, but did not refer to the substance of his September 2015 submissions. The result was, so the appellant submitted, that the Tribunal failed to perform its task in a reasonable manner. Referring to Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [105], Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at [82], and M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 at [81] and [89], the appellant submitted that “[i]t was untenable and arbitrary for the Tribunal to assert without explanation that it was not plausible or credible for the appellant or his family to have suffered threats and harms after the election of 2011” and that the “decision ultimately lacked an evident and intelligible justification”.

The Minister’s submissions

33    The Minister relied on written submissions filed on 17 August 2018, which were augmented by his counsel, Mr Goodwin, at the hearing.

34    The Minister submitted that, reading the Tribunal’s reasons as a whole, especially from [32]-[47], there was no basis for the appellant’s argument that the Tribunal failed to take into account the appellant’s claims in the September 2015 submissions. The Minister contended that the Tribunal addressed the issue of substance raised in the September 2015 submissions comprehensively. Regarding the situation after the 2015 election, Mr Goodwin submitted at the hearing that:

[A]t the foundation of the appellant’s claim to fear harm from [Mr X] was the fact that he had become a target in 2011 and the Tribunal rejected that… So, notwithstanding [Mr X’s] election in 2015, if the Tribunal essentially has rejected that there’s even a basis upon which … he would continue to be of adverse interest to [Mr X] following the 2011 elections, it doesn’t really matter that he got elected in 2015, and so that’s why I point to the first dot point at paragraph 34, because that’s essentially what the Tribunal is doing there.

35    The Minister submitted that the appellant’s argument that the claim made in the September 2015 submissions was that the appellant’s fear had actually increased following the election mischaracterised those submissions. Mr Goodwin contended that the appellant’s concession was not “obsolete” by the time of the second Tribunal hearing and the making of the decision (both of which occurred on the same day, as noted below), adding:

[I]n circumstances where his favoured party had won power, the more general claim to fear harm as a UNP member had essentially fallen away … and what remained and what the appellant wanted to make clear to the Tribunal is that he maintained his claim to fear harm from the particular individual that he had always feared harm from.

[I]t wasn’t necessarily a different case, it was simply the appellant making it clear to the Tribunal in his final submissions and in the second hearing that, notwithstanding his party winning power, the fear that emanated from [Mr X] continued. … [T]he only difference in quality … was that he was … elected at the 2015 elections as well, but, really, the appellant did not necessarily characterise that … as increasing the harm, but maintaining it …

36    Mr Goodwin emphasised that it was “important to contextualise how the claim was actually put”. He emphasised the Tribunal’s finding (TR [43]) that the appellant had not been seriously or significantly harmed by Mr X and his supporters in the past. He concluded by submitting that the appellant’s claims, particularly in his September 2015 submissions, were all dealt with by the Tribunal:

And although not explicitly stated in these direct terms, the Tribunal is essentially saying in its reasons, “Notwithstanding the change in political circumstances in 2015 and the fact that [Mr X] has been elected to Parliament, because you are of no adverse interest to him on the basis of my consideration of what you have said about the events that have occurred and the weight of country information, I simply do not find that you fear harm from him on the basis of your claims”. That’s really the best way to – for the Minister to put the fact that it was essentially – the claim was dealt with and particularly in the way that it was put by the final submission.

…

[E]ssentially the claim was dealt with in a fair and full reading of the reasons of the decision, but particularly in paragraph 44 the concession is referred to; the election is referred to; the election of [Mr X] is directly referred to, and the Tribunal does, however, note that the UNP is the largest party, and then goes on to consider the current – the situation of the applicant and of his preferred candidate and of what has happened since, and then is essentially summarising the position in paragraphs 46 and 47, to say taking all those matters into account, I find that the appellant does not fear harm.

37    In relation to the appellant’s second ground, the Minister contended that there was no basis to find that the Tribunal was unreasonable in its conclusion that the appellant did not face harm following the 2011 election. I would accept this submission, substantially for the reasons the Minister advanced in his written submissions. These reasons are set out below.

CONSIDERATION

Ground 1

38    The reasons given by the Tribunal for its decision in this case make it plain enough that the Tribunal considered the September 2015 submissions. First, the Tribunal expressly referred to the submissions at [20] of its reasons when it identified the material before it. Secondly, as explained below, it clearly drew on country information in these submissions in [41] of its reasons. Thirdly, analysis of the Tribunal’s reasons, with reference to the Tribunal’s two hearings and the September 2015 submissions, shows that the Tribunal did in fact address the substance of the claims made in the 2015 September submissions.

39    In the September 2015 submissions (at p 2) the appellant said:

[Mr X’s] actions in the aftermath of the 2015 presidential elections in Sri Lanka bore out his reputation for thuggery and violence. On 27 January 2015, [Mr X] (while still serving as a minister) was arrested on allegations of ‘attacking and destroying the property of then Candidate Maithreepala Sirisena’s office at Garaa-yak-gama, Aanamuduwa in the wake of the presidential election’. This arrest, however, did not spell the end of [Mr X’s] career or influence (just as past arrests did not halt his political rise). Despite having been arrested and charged in January 2015, [Mr X] (having been released on bail) retained his seat in the North-Western Provincial Council and was elected to the national Parliament of Sri Lanka in August 2015. Although [Mr X] no longer controls a ministry, his election to the Parliament is a marker of his continuing political influence even in spite of the defeat of Mahinda Rajapaksa. As a member of the SLFP and UPFA, [Mr X] is hence in the unusual position of being a member of a party and alliance headed by Maithripala Sirisena himself.

The narrative in this paragraph referenced numerous sources, including articles in the Hiru News (27 January 2015), The Sunday Times (4 April 2010, 22 August 2015), Newsfirst (28 January 2015), Asian Tribune (17 January 2015), and The Hindu (13 July 2015).

40    In TR [41], the Tribunal evidently drew on these sources (as well as other sources of information previously provided by the appellant or identified by itself) when it said:

In making my findings, I have taken into account the various news articles submitted and referred to concerning [Mr X]. I have taken into account the submitted Sunday Times report concerning the arrest of five suspects alleged to having [sic] committed various crimes at the house of [Mr X]. However, I note that this report is from 2004 (and not 2011 as referred to in the second written submission) which is a substantial period of time ago and have [sic] only given it limited weight in my assessment. I have also taken into account the other reports referred to in the agent's submissions concerning the conduct of [Mr X]. One concerns a reported attack in 2008 on Janath Vimukthi Peramuna (JVP) protestors by [Mr X] and another politician and I have given this some weight though it occurred a substantial period of time ago and was directed at another political party than the applicant. Another report concerns the arrest of [Mr X] in 2010 after it was alleged that he led armed mob which attacked an attack [sic] on a fellow candidate's son. Another report from September 2013 refers to allegations of [Mr X]’s supporters assaulting supporters of another SLFP candidate. Another report from that month notes that [Mr X] had 43 unauthorised election offices and that this was one of the main reasons that led to election violence. Another article from December 2013 reports on [Mr X] being accused of an attack on the residence of an opposition leader. A further report from January 2015 reports on [Mr X] being charged with an attack on one of Maithirpala Sirsena’s campaign offices. The reports collectively suggest that [Mr X] and his supporters may have been involved in political violence (mostly around election times) though they do not suggest that he has ever been convicted of any offence. I have given these reports some weight in assessing whether the past events claimed by the applicant happened and in determining what may happen to the applicant in the future. I have also taken into account the oral evidence of [Mr T] …

(Emphasis added)

41    The emphasised statement in the above passage clearly derived from the September 2015 submissions. Further, the Tribunal’s reference to the evidence of Mr T (in the last sentence) indicates that the passage was written having regard to both the September 2015 submissions and the evidence presented at the second Tribunal hearing. Further, having regard to the whole of the Tribunal’s reasons, I accept that, as the Minister contended, in its reasons at [41], the Tribunal was in fact referencing the claims made in the September 2015 submissions.

42    As we have seen, the appellant’s contention was that the Tribunal failed to consider the substance of his claims in the September 2015 submissions. The substance of those claims was not in contest. Both parties accepted that the gravamen of these claims was that notwithstanding that the UNP had become the largest parliamentary party at the national level in Sri Lanka after the 2015 elections, Mr X’s political power continued to be significant (owing at least in part to political arrangements made by the UNP with the SLFP after those elections), with the result that the appellant continued to be at risk of serious harm from him or people associated with him.

43    I accept that, as the Minister submitted, in making this claim the appellant was not making an entirely new case. Rather, as the transcript of the second Tribunal hearing clearly shows, the appellant accepted that his claim to fear harm simply because he was an active supporter of the UNP had fallen away with the electoral successes of the UNP in the 2015 elections, although he said there remained the danger presented by Mr X, whom he had previously identified as the principal source of the harassment and harm suffered by him and his family. This is borne out by the appellant’s evidence at the first and second Tribunal hearings.

44    At the first Tribunal hearing on 9 December 2014, the appellant said in evidence (transcript at 27-28) that:

On 8 January [2015] there’s going to be another election, presidential election. For that they have put the candidate, a common candidate from UNP, if he win then we don’t have to live in fear. I’m not telling as soon as he wins we can go back, but after he win the election within hundred days he will dissolve the parliament and he will have a new election. In that election, our [candidate] will definitely win. After that, I won’t have any problem …. [T]here is no necessary for me to live here. I’ll definitely go back.

When the Tribunal member then asked “[s]hould I just await the election and delay my decision until then?”, the appellant answered “Yeah”.

45    The Tribunal concluded the hearing on 9 December 2014, and the appellant provided further written submissions on 18 December 2014. After that, no further step was taken in the proceeding until the appellant’s migration agent lodged the September 2015 submissions. They addressed the appellant’s position having regard to the outcome of the elections earlier that year, stating:

As [the appellant] has repeatedly stated (including in his prior Tribunal hearing), he fears retribution from [Mr X]. At the time of [the appellant’s] previous hearing, [Mr X] was a minister in the government of North-Western Province, a prominent local supporter of the Sri Lanka Freedom Party (SLFP) and United People’s Freedom Alliance (UPFA), and a man noted for his use of violence, intimidation and terror against political opponents. …

[Mr X]’s actions in the aftermath of the 2015 presidential elections in Sri Lanka bore out his reputation for thuggery and violence. … Despite having been arrested and charged in January 2015, [Mr X] (having been released on bail) retained his seat in the North-Western Provincial Council and was elected to the national Parliament of Sri Lanka in August 2015. Although [Mr X] no longer controls a ministry, his election to the Parliament is a marker of his continuing political influence even in spite of the defeat of Mahinda Rajapaksa. As a member of the SLFP and UPFA, [Mr X] is hence in the unusual position of being a member of a party and alliance headed by Maithripala Sirisena himself.

This state of affairs – in which individuals, like [Mr X], previously willing to risk criminal conviction to harass and intimidate the supporters of Maithripala Sirisena are at the same time members of a party which Sirisena rejoined after the presidential election and in which he is supported by a significant faction – is, while unusual to Australian eyes, revealing of certain characteristics of Sri Lankan politics. … [T]he current state of Sri Lankan politics reveals the inadequacy and inappropriateness of viewing Sri Lankan political affairs, activities and allegiances in terms of ideology or belief. … The current era is one in which Maithripala Sirisena, once a prominent figure in the SLFP, now leads a government in which members of the UNP hold prominent positions (including Ranil Wickramasinghe as Prime Minister) while still maintaining leadership (with varying degrees of authority) over the SLFP, which itself is torn between participation in government and opposition. This state of affairs demonstrates, in itself, the extent to which Sri Lankan politics turns upon personalities and the influence of individual leaders rather than rigid partisan or ideological cleavages.

It is, furthermore, precisely this state of affairs that still places [the appellant] at risk in Sri Lanka. In his previous interview with the Tribunal (on 9 December 2014), [the appellant] stated that if the UNP won Sri Lanka's upcoming presidential and parliamentary elections he would not be at risk. In practice, however, it is not the UNP that holds political power in contemporary Sri Lanka but instead an uneasy coalition of that party and sections (loyal to Sirisena) within the SLFP, with other members of the SLFP alternating between loyalty to the nominal head of their party and opposition. In this environment, in which the SLFP still wields significant influence, [Mr X] (as a prominent figure in the SLFP, powerful and influential enough to win a seat in the national Parliament even after the events of January 2015) will be able to harm [the appellant] (whether as retribution or as part of a campaign against a perceived political opponent) with the state proving unable or unwilling to stop him. This is not the state of affairs anticipated by [the appellant] when he said that, if the UNP controlled government in Sri Lanka, he could return safely; it is, instead, a far more dangerous environment in which [Mr X] still retains the ability (owing to the SLFP's partial role in government) to operate with impunity. This political influence is heightened by [Mr X]’s seeming opportunism; although previously a stalwart supporter of Rajapaksa, [the appellant] instructs that [Mr X] has aligned himself with Sirisena.

…

Through his conduct, [the appellant] has marked himself out as a political opponent of [Mr X]. [The appellant] instructs that he will remain at risk even in spite of the coalition between the SLFP and the UNP…

(Emphasis added)

46    When the Tribunal re-convened on 23 September 2015, it made it clear that the reason for this second hearing included the fact that there had been a change of government in Sri Lanka and also that it had received the September 2015 submissions. Further, at the outset of the hearing, the Tribunal had also acknowledged: “I have to obviously consider your claims … to fear the particular politician in question and any of his supporters”.

47     After describing the outcome of the 2015 elections, the Tribunal member said to the appellant:

So in terms of being a UNP supporter, I may think the chance of you being persecuted or significantly harmed is remote.

The appellant responded “I believe that”.

48    This was, plainly enough, not the end of the matter. Having ascertained that the appellant no longer relied on the fact that he was a UNP supporter to support his application, the Tribunal member asked:

… I think we were last here about December of last year. Has anything happened since then that you want to tell me about that you think may be relevant to your case?

49    The appellant responded:

I came here on 9 December. I told them the election was going to be on 8 January. I did say definitely (indistinct) was going to win the election. I guess that he did win. After that government there was no problems for my family back home there, so that my wife would get some phone calls from unknown numbers. But it doesn't happen all the time, like once every five months or once every two months. They wouldn't threaten her, they would just say, “When would [CEM15] come back. We just need to speak to him,” that's all. Nothing else has happened.

…

Yes. I can’t really talk about the country's situation now, it's because the situation is pretty good now. 90 per cent of the time Sinhalese and the Muslims are getting along well. I can't be selfish and talk bad things about the country. This government is running the country very well. The current government's aim is to promote religion, race, economy and language; like, bring it forward. I don’t believe I would have problems when this government (indistinct) what I’m saying is generally people don’t have problems in the country now, but personally I’m a bit scared that I might face some sort of problems. The person who was against me, he was in the state - the state government, now he has gone to the parliament, and he’s in the same political party as (indistinct) because now it’s a joint party, because he is a member of parliament, so he does have powers. My fear is if I go back to the country, he might do something to me. It’s not like I want to go back, I’m actually organising everything to go back. I can’t just suddenly go and arrive in the country, I have to organise with the ministers that I know and with him, and organise things and make peace before I arrive there. I will try to make that situation, and definitely go back. I won’t take long. I like to go and live in my country. I’m not asking for citizenship here. You let me live here for three years, and just give me some more time, that's all.

(Emphasis added)

50    In his address to the Tribunal, the appellant’s representative relied on and augmented the appellant’s September 2015 submissions.

51    It may be inferred from the transcript of the second Tribunal hearing on 23 September 2015 that the Tribunal understood and appreciated the claims and submissions being made by the appellant at that time. As already noted, the Tribunal clearly stated at the outset of the hearing that it would have to address the appellant’s claims regarding Mr X and his associates. When read fully and fairly, the reasons for decision that were provided the same day do not lead to that, contrary to its stated intention, it in fact failed to do so.

52    It is clear from the transcripts of the Tribunal hearings, especially the second hearing, that the appellant’s claim regarding Mr X was not a new claim. It is also clear that the Tribunal correctly understood the appellant to be saying that, after the 2015 elections, his fear of harm from the actions of Mr X and people associated with him had not gone away, because, by virtue of the resulting political arrangements, Mr X continued to have a great deal of political power even though the UNP was the largest parliamentary party.

53    Read in the context of the two Tribunal hearings and the appellant’s submissions, including the September 2015, the Tribunal’s reasons show that the Tribunal was addressing the whole of the claims made by the appellant, including the substance of the 2015 September submissions.

54    First, the Tribunal did not accept the claimed factual basis said to support the appellant’s fear that Mr X or people associated with him would harm him on his return to Sri Lanka. I accept that, as the Minister submitted, the foundation of the appellant’s claim to fear harm from Mr X and people associated with him was that he had been targeted by such people before and after the 2011 elections. In its reasons at [34], however, the Tribunal specifically held that it did not accept that the appellant or his family had been harmed after the 2011 elections. The Tribunal held that given the outcome of the 2011 election, it was implausible that Mr X’s bodyguards would threaten the appellant afterwards and for a substantial period afterwards. Having rejected that the appellant was of adverse interest to Mr X and his associates after the 2011 elections, there was little, if anything, to support the appellant’s claim that he would be of adverse interest to them after the 2015 elections. On this analysis, the election of Mr X to the legislature did not put the appellant at risk of any harm.

55    Secondly, the Tribunal specifically rejected the substance of the appellant’s claim in his September 2015 submissions at [40] of its reasons when it held that “the chance or risk that [the appellant] will be subjected to either serious harm or significant harm at the hands of [Mr X], his supporters, the government or anyone else is remote”. The finding is substantially repeated at [43] of the Tribunal’s reasons where it stated that “[w]hilst I accept that [Mr X] and his supporters may have been involved in electoral and political violence in the past as per the reports, I have not accepted that the [appellant] has been seriously or significantly harmed by them in the past”.

56    The Tribunal’s analysis shows that it considered the country information to which the appellant had referred and specifically addressed the material concerning Mr X, accepting that “reports collectively suggest that [Mr X] and his supporters may have been involved in political violence (mostly around election times)”. Indeed, it stated that it had given these reports some weight “in assessing whether the past events claimed by [the appellant] happened and in determining what may happen to [the appellant] in the future”. At this point, the Tribunal was clearly emphasising and acknowledging the retrospective and prospective elements of its inquiry concerning Mr X and his supporters. The Tribunal’s reference to evidence presented at the second Tribunal hearing confirms that the Tribunal was here addressing all the appellant’s claims about Mr X, including his most recent ones.

57    It may be accepted that, as the Minister submitted, the Tribunal addressed the current political environment in Sri Lanka so far as it affected the appellant not only in its reasons at [43] but also at [44]. In these paragraphs, the Tribunal set out its assessment of the political situation in Sri Lanka at the time of the hearing (after the 2015 elections) in so far as it was referable to the critical question raised by the September 2015 submissions – whether or not the appellant had a well-founded fear that he would suffer serious politically-motivated harm from Mr X or his associates. The Tribunal’s analysis at this point was responsive to the September 2015 submissions (and the submissions made by the appellant’s representative at the hearing).

58    In finding that the appellant would not face relevant harm if returned to Sri Lanka in its reasons at [44], the Tribunal took account (as it was entitled to do) of the appellant’s statement at the first Tribunal hearing that, if the UNP were successful, “we would not have to live in fear” (see [44] above). It must be borne in mind that the appellant did not take issue with the Tribunal’s comment at the second Tribunal hearing that, given the outcome of the 2015 elections, “in terms of being a UNP supporter, I may think the chance of you being persecuted or significantly harmed is remote” and indeed affirmed that the situation in Sri Lanka “is pretty good now”. Rather, at this second hearing, the appellant focussed on the continuing risk of harm presented by Mr X.

59    There can be no doubt that Tribunal took account of the outcome of the 2015 elections (TR [44]), including matters highlighted in the September 2015 submissions, such the fact that Mr X had been elected to the legislature as a SLFP member and that the UNP had entered into a national unity government with the SLFP.

60    The Tribunal clearly had in mind and addressed the evidence and argument at the second Tribunal hearing. In its reasons at [45], it specifically referred to the fact that Mr T (who had given evidence by telephone to the Tribunal at the second Tribunal hearing on the day of the Tribunal’s decision) had not been harmed in the years since the appellant had left Sri Lanka and that “a substantial period of time has passed since [the appellant] was involved in campaigning for him”.

61    Further, in its reasons at [45], the Tribunal specifically addressed the appellant’s claim that his wife had received calls enquiring about his whereabouts, which was a matter referred to by the appellant at the second Tribunal hearing, stating that it did not accept this had happened or, if it had, that “there was any malice involved” given the passage of time and the fact that there was no apparent reason “why [the appellant] would continue to be of such ongoing adverse interest to [Mr X] or his supporters”. The Tribunal’s discussion about this matter clearly referenced statements made by the appellant concerning his wife at the second Tribunal hearing, as well as his statements at that hearing about his fear of reprisals – that he was “a bit scared that [he] might face some sort of problems” on returning to Sri Lanka and that before he went back, he would need to “organise things and make peace”.

62    The Tribunal’s conclusions in its reasons at [46] and [47] that the appellant had not shown an entitlement to a protection visa flowed from a detailed analysis of the issues that arose from his evidence and submissions, including the September 2015 submissions. In this way, the Tribunal in fact addressed the substance of the appellant’s claims in the September 2015 submissions.

63    It follows that I reject the appellant’s submission that the Tribunal did not address the appellant’s claim in his September 2015 submissions and at the second Tribunal hearing to fear politically-motivated harm from Mr X and his associates. I also reject the appellant’s submission that the Tribunal failed to take into account that the appellant had made a different claim at the second Tribunal hearing, to the effect that his risk of harm had increased following the 2015 election. It does not appear to me that this was the claim that the appellant made in his statements to the Tribunal at the second Tribunal hearing. Rather, the transcript of that hearing shows that the appellant’s claim, as communicated by him to the Tribunal on 23 September 2015, was that the 2015 elections had not removed his fear of harm from Mr X and people associated with him. It is also unhelpful to describe the Tribunal’s reasoning as “structural rather than personality-driven”. The Tribunal took account of the country information with respect to the 2015 elections, pre- and post-election violence with respect to the 2011 and 2015 elections and the conduct of Mr X and his associates, as well as its findings about the appellant’s claimed instances of harm after the 2011 elections, before concluding the appellant did not face a real chance of persecution in the reasonably foreseeable future in Sri Lanka on a Convention ground and there were no substantial grounds for believing that as a necessary and foreseeable consequence of his removal to Sri Lanka the appellant faced a real risk that he would suffer significant harm on such a basis.

64    The nature of the review that the Tribunal is required to undertake in a case such as this has been explored in numerous cases, including in MZYTS. The Court explained, in MZYTS at [38], that a decision

could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same.

In MZYTS the Court concluded that the Tribunal had failed to address the applicant’s claim that there were cyclical and increasing risks of violence to actual or perceived members or supporters of the leading opposition political party in Zimbabwe, of which the applicant was one, and that there was therefore a constructive failure to exercise jurisdiction. For the reasons stated, the Tribunal in this case did not make a similar error, and no constructive failure to exercise jurisdiction has been established.

Ground 2

65    Neither party directed any oral argument to this ground at the hearing of the appeal, both choosing to rely instead on their written submissions.

66    I would reject the appellant’s second ground. First, for the reasons already stated, I would reject the appellant’s submission that the Tribunal did not take account of his September 2015 submissions. Secondly, it cannot be said that the Tribunal’s finding that the appellant did not face harm following the 2011 election was unreasonable in the relevant sense, having regard the Tribunal’s explanation for this finding. At [34] of its reasons, the Tribunal stated that its reasons for this finding were that: (1) Mr T had not been harmed since the 2011 election and no country information before the Tribunal indicated that there had since been political violence in the relevant area at the relevant time; (2) there were inconsistencies in the appellant’s description of past instances of harm and threats of harm that diminished the appellant’s credibility; and (3) it was implausible that Mr X’s bodyguards would continue to threaten the appellant after the elections in which Mr T had been elected and for a substantial period afterwards; and (4) it was implausible that the appellant’s family would continue to be harassed for so long after the appellant had left the country.

67    Furthermore, the Tribunal set out in its reasons at [35]-[39] its specific findings with respect to the alleged August 2011, March 2012 and October 2012 incidents (see [5] above) and its assessment of relevant documentary evidence, none of which were challenged by the appellant It considered a range of country information (TR [41]); and, importantly, drew a distinction between pre-election and post-election harassment, accepting (TR [40]) the pre-election incidents had occurred (whilst holding that they did not constitute serious harm or significant harm) but not accepting the appellant’s account of post-election harm or harassment (TR [43]).

68    It is clear that the Tribunal’s ultimate findings in its reasons at [46] and [47] depended on its assessment of the appellant’s individual circumstances and what it referred to as the “overall weight” of the country information. No error of the kind alleged by the appellant is shown in this approach in this case.

DISPOSITION

69    For the foregoing reasons stated, I would dismiss the appeal, with costs.

Associate:        

Dated:    23 October 2019