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].