CED15 v Minister for Immigration and Border Protection

TRIBUNAL 4 The Tribunal recorded part of the background as follows: 19. The applicant arrived in Australia as an unauthorised maritime arrival on 20 June 2012. His claims as set out to the Department are summarised as follows: a. In 2007 the Sri Lankan Army (SLA) killed a Tamil family in his neighbourhood. The applicant saw the SLA leaving the house and saw his neighbours' bodies. The SLA held the LTTE responsible. The applicant spoke to crowds of people from the area about what he had seen and that it was the SLA that was responsible. b. The SLA found out that he knew about the murder and began causing him problems. They frequently came to his home and shop telling him that he had to attend the army camp. c. In 2010 his jewellery shop was attacked and robbed. An army cap was found in the shop and he thinks it was the SLA who did this. He reported the incident to the police but was told not to pursue the issue. d. On 15 March 2012 the SLA came to his home and asked the applicant to attend the army camp where he was kept for ten hours, beaten and warned that he should not have told people that the SLA had killed his neighbours. He was asked about who in his village was helping Tamil political parties. After being released he went to live with an uncle for a while and left Sri Lanka on 1 June 2012. e. He fears harm from the SLA and Karuna group because he knows about the family's murder and spoke to other people about it. 5 The Tribunal set out in its reasons a thorough account of its questions and the appellant's answers given during the hearing. The Tribunal noted, at [49] of its decision, that it put to the appellant "that his evidence today was so different from previous evidence that it had doubts he was telling the truth about anything he was saying". The Tribunal noted that it "put to him several of the major discrepancies in the evidence provided including how many times the SLA came to his home and shop, how many times he was detained and beaten by the SLA, when his wife was threatened with a pistol and his failure to make any reference to the 2010 burglary of his jewellery store at his hearing". The Tribunal recorded, at [60], that the appellant was represented by a migration agent who "noted that there are inconsistencies in the appellant's evidence over the course of his application but he continues to rely on his claims". 6 The Tribunal stated at [63] to [66]: 63. The tribunal accepts the difficulties of proof faced by applicants for refugee status and complementary protection. In particular there may be statements that are not susceptible of proof. It is rarely appropriate to speak in terms of onus of proof in relation to administrative decision making: see Nagalingam v MILGEA & Anor (1992) 38 FCR 191 and McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; 6 ALD 6 at 10. The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992, at paragraph 196-197 and 203-204 recognises the particular problems of proof faced by an applicant for refugee status and states that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt. Given the particular problems of proof faced by applicants a liberal attitude on the part of the decision maker is called for in assessing refugee status and complementary protection obligations. 64. However, the tribunal is not required to accept uncritically any or all allegations made by an applicant. Moreover, the tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out. In addition, the tribunal is not obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality. See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547. 65. The tribunal has serious concerns about the applicant's credibility due to discrepancies and significant inconsistencies in his account of key events in Sri Lanka. These discrepancies include the applicant's new claim that the Tamil family killed in 2008 were his relatives, his failure to mention the 2010 burglary of his jewellery shop at the hearing, which had been a key part of his narrative at departmental stage and inconsistencies in other key aspects of his claims. While some details of the applicant's evidence appeared consistent, other parts of his evidence differed significantly such that the tribunal has difficulty accepting most aspects of his claims and finds that he is not a credible witness. 66. When the discrepancies in his evidence were put to him for comment, the applicant was unable to provide any meaningful explanation for these discrepancies apart from claiming that everything he had said from the beginning was the truth. Given the differing versions of the applicant's evidence, this is not possible. 7 The Tribunal set out from [69] to [80] what it described at [68] as the "key discrepancies in the applicant's evidence". Those of particular significance to the appellant's arguments in this appeal were set out in paragraphs [69] to [71] of the Tribunal's decision. Those paragraphs are set out in full below when dealing with particular grounds of appeal. However, the central points made by the Tribunal in those paragraphs were: (1) The Tribunal accepted that a family in the appellant's neighbourhood was murdered in 2008. At the hearing, the appellant said that the head of that family was his cousin. The Tribunal did not accept that he would not have mentioned that fact in his "initial statement" or "departmental interview", rather than for the first time at the hearing, if it were in fact true. (2) The accounts given by the appellant of what happened when he saw the SLA on the night of the murders had been "confused" and were in some respects inconsistent with an affidavit provided by his wife. The confusion and inconsistencies included whether the appellant had been seen by the SLA on the night, whether the SLA beat his gate and whether there was anyone else around at that time. 8 Whilst the appellant focusses in the appeal on paragraphs [69] to [71], those paragraphs did not contain the only "key discrepancies" upon which the Tribunal's conclusions were based. The Tribunal dealt with other discrepancies in the appellant's evidence from paragraphs [72] to [80] of its reasons and the Tribunal set out its reasons for not accepting various aspects of the applicant's evidence and claims from paragraphs [81] to [86]. 9 The Tribunal accepted that a family who were neighbours of the appellant were killed in November 2008. It did not accept that the family who were killed were the appellant's relatives, nor that the appellant went outside during the shooting or that the SLA saw the appellant, fired shots in the air or damaged his gate, or that the appellant told crowds of people that he saw the SLA at his neighbours' home; it accepted the appellant heard shots and went to see the victims' bodies along with other neighbours: at [81]. 10 The Tribunal also rejected that the SLA thought that the appellant had told people he saw them or that the SLA abused or threatened him or that he was detained and abused in a Sri Lankan Army camp or that his jewellery store was robbed and that he found a SLA cap in it or that he reported the robbery with the police refusing to pursue the matter. 11 The Tribunal did not accept that the appellant faced a real chance of serious harm as a result of the past incidents the subject of his claims or as a result of his actual or imputed political opinion or his ethnicity or profile as a Tamil man from the North or East of Sri Lanka or residing predominantly in a Tamil region, or as a failed asylum seeker from a western country: at [122]. 12 In relation to complementary protection, the Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there was a real risk he would face significant harm: at [123]. The Tribunal did not accept that the appellant had the profile of a person who might be of interest to Sri Lankan authorities on his return (at [99]), but accepted he might be arrested for having departed illegally and might be detained for a few days awaiting a bail hearing: at [105], [111], [115]. The Tribunal considered the risk of harm whilst on remand was remote. 13 The Tribunal considered the risk that the appellant would be imprisoned instead of fined for a breach of Sri Lanka's departure laws, or for any other reason, to be remote: at [112], [113]. In any event, the Tribunal considered the relevant Sri Lankan law, namely the Immigrants and Emigrants Act, was one of general application that was applied in a non-discriminatory manner: at [108]. The Tribunal also considered that the Sri Lankan authorities did not possess the relevant "intention" for the appellant to face a real risk of "significant harm" as that term is defined in the Act: at [120]. 14 The Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.

FEDERAL CIRCUIT COURT 15 The appellant sought judicial review of the Tribunal's decision in the Federal Circuit Court. 16 The Federal Circuit Court dismissed the appellant's application for review, concluding the Tribunal's decision was not affected by jurisdictional error. 17 The grounds relied upon in the appeal were said to be (and were in form) a subset of those argued before the Federal Circuit Court. The appellant says that the Federal Circuit Court erred in not accepting that the Tribunal committed jurisdictional error on the basis of one or more of the grounds it put forward to that Court.

APPEAL TO THIS COURT 18 As recorded above, there are two grounds of appeal. Ground 1, which is qualified and explained by a number of particulars, asserts error on the part of the Federal Circuit Court in not finding jurisdictional error on the part of the Tribunal on the basis that the Tribunal failed to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact. Ground 2 is qualified and explained by one particular.

Ground 1 - particular (a) 19 Particular (a) claims that the Tribunal failed to have regard to the fact that "the later provision … of further claims or evidence was not necessarily contradictory or inconsistent, but the organic development and gradual revelation of his history". 20 Particular (a) does not identify any specific matter of fact or evidence which it is asserted the Tribunal failed to consider. Rather, it is a complaint that the Tribunal could have viewed the giving of inconsistent or incomplete evidence to have been an "organic and gradual revelation" of the appellant's history rather than a matter of inconsistency. Perhaps the Tribunal could have so concluded; but to fail to so conclude is not jurisdictional error. The assessment of those matters was precisely the task the Tribunal was to undertake in exercising its jurisdiction and undertaking a review. The appellant's complaint is really that he would have preferred the Tribunal to conclude that the provision by the appellant of "later" claims or evidence was an organic development of his history, rather than the provision of new claims and evidence inconsistent with earlier claims and evidence. In these general terms, this particular invites review of the merits of the Tribunal's conclusions rather than the identification of jurisdictional error on the part of the Tribunal. 21 In his written submissions, the appellant was more specific. The complaint centred on paragraphs [69] and [70] of the Tribunal's reasons, which provided: 69. The applicant has consistently claimed that a Tamil family of four in his neighbourhood was killed and has provided a TamilNet news article referring to the murders, which took place in November 2008. The tribunal accepts that a family in the applicant's neighbourhood was murdered at that time, along with Tamils in other villages. 70. However, in his evidence to the department, the applicant merely claimed that the family were his neighbours and acquaintances. At the hearing the applicant claimed for the first time that the head of the family, Vinayakamoorthy, was his cousin. He claimed that he had previously mentioned this while he was "at the camp" however this significant detail is not mentioned in either his written statement or in the decision record summary of his evidence at departmental interview. The tribunal does not accept that, if this was true, the applicant would have failed to mention a familial relationship with the deceased Tamil family in either his written statement or at his departmental interview. Given the concerns the tribunal holds about the applicant's credibility and his failure to mention his relationship with the Tamil family at key times during the processing of his application, the tribunal does not accept that the applicant previously mentioned that Vinayakamoorthy was his cousin while he was "at the camp". 22 The appellant submitted that the "later" evidence, given for the first time to the Tribunal, that the man killed by the army in 2008 was the appellant's cousin was a detail of less importance than the horrific murder of the family and the appellant's fear of the army because of his being a witness. 23 It is not demonstrated that the Tribunal committed any jurisdictional error in reaching its conclusions in paragraphs [69] to [70]. The conclusions which the Tribunal reached were open on the evidence before it. Specifically, it was open to the Tribunal to conclude that the appellant would have mentioned earlier than he did that the head of the deceased family was his cousin if it were true. Reasoning which takes into account the time at which claims were, or were not, made is entirely orthodox. 24 The fact that a different decision-maker may have reached a different conclusion on the evidence which was before it is not of itself a basis for concluding that there was jurisdictional error: DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30]. 25 The appellant does not assert error on the part of the Federal Circuit Court other than in failing to accept his submission that there had been jurisdictional error on the part of the Tribunal. 26 Ground 1, read only with particular (a), is not made out.

Ground 1 - particular (a) and (b) 27 A written submission in support of particular (a) and particular (b) in the notice of appeal centred on paragraph [71] of the Tribunal reasons, which provided: As noted in the delegate's decision record, the applicant's account of what happened when he saw the SLA outside his neighbour's house has been somewhat confused. His initial statement did not refer to the SLA seeing him as they left the house or beating his gate. The tribunal further finds it implausible that the applicant would be the only one in his neighbourhood to go outside if there were shots fired and "explosion noises" in his neighbourhood in the middle of the night as he claimed. Furthermore, the applicant's claim that he saw the SLA going into the house appears inconsistent with his wife's affidavit which refers to an "armed group". The applicant's evidence to the tribunal that there was no one else around when the SLA came towards his house and that they chose not to pursue him because it was difficult to cross his gate is also inconsistent with his wife's affidavit, which states that other neighbours shouted and made noise when "armed people" kicked the applicant's gate and they ran away. As such, the tribunal gives little weight to the affidavit of the applicant's wife as corroborative evidence of his claims. 28 The written submission in support of particular (a), included: [T]he Tribunal said, as a matter of some weight in assessing the Appellant's credibility, that his "initial statement" did not refer to the army seeing him or beating at his gate on the night of his neighbour's murder. This was correct if it referred to his statement dated 24 October 2014 [sic], but it failed to take account of the fact that that statement was "only a summary of my claims" and said "… I will provide further information during my interview …" 29 It is correct that the reasons of the Tribunal did not refer to the qualifying words in the Statutory Declaration (which is probably the "initial statement" to which the Tribunal referred) dated 24 October 2012. The lack of reference in the Tribunal's reasons to the qualifying words does not mean that the Tribunal did not take those words into account: Minister for Immigration and Citizenship v MZYZA [2013] FCA 572 at [31]-[32]. Whether or not the Tribunal took those qualifying words into account, the Tribunal is correct that the Statutory Declaration dated 24 October 2012 did not refer to the army seeing him or beating at his gate. Even if the Tribunal did fail to take the qualifying words into account, that could not be regarded as jurisdictional error. 30 The written submission in support of particular (b) stated that the Tribunal failed to take into account the information recorded at the entry interview conducted on 20 August 2012, on the appellant's arrival and before the Statutory Declaration dated 24 October 2012, which said "they saw me" and "they broke my front gate". It was also contended at least implicitly, that this failure affected the Tribunal's conclusion that his account was "confused". I am not satisfied that the Tribunal failed to take that information into account or that, even if it did, there was any jurisdictional error for the following reasons. 31 The Tribunal's reasons at [71] included: As noted in the delegate's decision record, the applicant's account of what happened when he saw the SLA outside his neighbour's house has been somewhat confused. His initial statement did not refer to the SLA seeing him as they left the house or beating his gate. 32 The delegate's decision record, which was referred to by the Tribunal in the passage set out immediately above, included the following: The applicant's claims centre around four key events; witnessing the murder of his neighbours in November 2008, his jewellery shop being robbed in 2010, reporting the robbery to the police and his harassment, detention and abuse by the Sri Lankan army between 2008 and 2012. The applicant has maintained that these four events occurred through is Entry [20 August 2012], IAAAS [24 October 2012] and PV interviews [3 April 2013] however details regarding these incidents and events linking them have changed at each instance, which has lead me to doubt his credibility as a witness … The timeline surrounding the murder of the applicant's neighbours changed repeatedly as did his explanation of how he discovered their bodies and if he was alone or with other people at the time. Details in the applicant's explanation of the events of that night such as what he heard, where he was standing when he saw the army leaving and how long he waited before going to his neighbour's house changed repeatedly and he was unable to provide a clear account in his PV interview. Additionally he changed his explanation of when and how he found the bodies. At Entry he stated that the were not discovered until the next day when he told the President of the Rural Development Society that he had heard gunshots and they went to the neighbour's house together. Later he stated he went to the neighbour's house after the army had left (around midnight) and then at his PV interview he stated he waited in his home for several hours and did not go to his neighbour's until around 5am. The applicant stated that he witnessed members of the army leaving his neighbour's house and that they saw him. He stated that they came to his house and beat his gate but then left. The applicant was asked in his PV interview why they couldn't just jump the fence if they wanted to speak to him. The applicant stated that the fence he was looking over was only chest high but that the wall surrounding his house was six feet high. The applicant provided a copy of an article published on Tamilnet on 26 November 2008 reporting the murder of a family of four in Ka'lucaangnchchikudi as well as several incidents in surrounding villages. The applicant stated that the day after the murder people from the village and surrounding villages gathered and he told them what he had seen. The applicant stated he believed there were plain clothed police and army officers in the crowds that he was speaking to. I accept that a murder occurred in the applicant's village on the night of 25 November 2008. I also find it plausible that the applicant may have seen or heard the disturbance and could have witnessed people leaving his neighbour's house. I find it implausible that if the applicant was the sole witness to a murder that the perpetrators, being aware of this, would leave without so much as speaking to the applicant. The applicant's inconsistent account of what happened that night and how and when the bodies were discovered cause me to doubt the credibility of this claim. 33 The Statutory Declaration dated 24 October 2012 included: 1. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the DIAC officer … 5. In 2007 they killed a Tamil family that was living in my neighbourhood. I could see the family's house from my house. I saw the army leaving the house and after they left I then went to the house and saw that my neighbour and his wife and two children had been shot dead. They did not do anything to anyone else in the neighbourhood that day. I had no idea why they killed my neighbour … 8. The army did find out that I knew something about the murder. I don't know how they found out, but maybe they had people in the crowd in our neighbourhood that day. 9. The army started to cause problems for me one month after the murder. At first they would come to my house late at night and tell me that I had to meet with them at their camp. The persons who would come were from the army and weapons section of the army. I would not agree to go to the camp, but they would give me hostile looks and say "one day you will come to us." Then the visits became more frequent and my wife started to be afraid. 34 Paragraphs 5, 8 and 9 of the Statutory Declaration dated 24 October 2012 might be seen to be inconsistent with the account recorded as given on 20 August 2012 that the SLA saw him on the night and beat at his gate. At the least, there is no error in describing the appellant's account of what happened as "confused" in light of the different accounts he had given. 35 At paragraph [71], the Tribunal said that "initial statement" (the Statutory Declaration) did not refer to "the SLA seeing him as they left the house or beating his gate". That is correct. In making that observation and then stating that "the applicant's account of what happened when he saw the SLA outside his neighbour's house has been somewhat confused", the Tribunal is observing that the Statutory Declaration is different from other versions of the relevant events, such as for example the version in which the appellant did refer to the SLA seeing him and beating his gate. That is also correct. 36 In referring at [71] to the "SLA seeing him as they left the house or beating his gate", the Tribunal is necessarily referring to an account given by the appellant which makes that allegation. I am not satisfied that this was not a reference to the account to that effect given at the interview of 20 August 2012, which may also have been the subject of discussion with the delegate at the interview conducted with her on 3 April 2013: AB13, 142. The appellant has not discharged his onus of establishing that the Tribunal failed to take into account the information recorded at the interview conducted on 20 August 2012: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45]; Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [67], per Gummow J. 37 Further, even if it had been established that the Tribunal had failed to take the evidence into account, it would not have been a failure which constituted jurisdictional error. A Tribunal may commit jurisdictional error if it fails to take into account a relevant, cogent and important piece of evidence: Pokharel v Minister for Immigration and Border Protection [2016] FCAFC 34 at [47]; Minister for Immigration and Citizenship v SZKRT (2013) 212 FCR 99 at [111]-[112], [114], per Robertson J (SZRKT). The critical issue in this context is the importance of the material to the exercise of the Tribunal's function and thus the seriousness of the error: SZKRT at [111]. The specific evidence identified, and asserted not to have been taken into account, does not engage this principle even if the appellant had established that it was not taken into account. The evidence asserted not to have been taken into account was not sufficiently important to engage the principle. There were a number of reasons why the Tribunal concluded that the appellant's account of what occurred on the night was "confused" and should not be accepted. Further, as the primary judge found at [18] and [19] of her reasons, this matter - the discrepancies in the evidence as to the SLA seeing the appellant and beating his gate - was only one of the many matters taken into account by the Tribunal in making its adverse credibility finding. The primary judge's conclusions are not shown to be erroneous. The issue was not critical to the Tribunal's ultimate conclusions as to credibility. Nor was it critical to the Tribunal's ultimate conclusions as to the claims made by the appellant. 38 Ground 1 of the appeal, read with particulars (a) and (b), either together or separately, is not made out.

Ground 1 - particular (d) 39 Ground 1 read with particular (d), claimed that the Tribunal fell into jurisdictional error in failing to consider "well known and thorough studies of violence against Tamils". The written and oral submissions in respect to this particular were directed to violence in detention or in prison. 40 The Tribunal found, at [118], that the appellant would not face a real chance of serious harm if he were to be imprisoned (that being a potential consequence of the appellant's illegal departure from Sri Lanka) for a few days on his return to Sri Lanka. The appellant's appeal ground was that the Tribunal failed to consider "well known and thorough studies of violence against Tamils including returnees, such as material before the Tribunal and cited in submissions". The appellant submitted: The Tribunal also noted that "there are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka's prison system"…, but did not engage with those reports, nor with the reports regarding torture of prisoners including (but not limited to) Tamils with an actual or perceived association with the LTTE. 41 The appellant says that it should be inferred from the finding at [118] that the Tribunal did not have regard to the material before it, the complaint being specifically directed at particular lines in country information which the appellant had put before the Tribunal. Paragraph [118] of the Tribunal's reasons provided: While the above reports refer to harm of Tamils with actual or imputed LTTE association, the tribunal has found that the applicant does not hold such a profile. The evidence before it suggests that poor prison conditions are not applied in a discriminatory manner against Tamils and the tribunal does not accept that the applicant would face a real chance of serious harm as a result of being a Tamil, including a Sri Lankan Tamil, a Tamil male from the North or East of a predominately Tamil region, from any actual/imputed political opinion arising from his profile or any other Convention ground while he is imprisoned on remand for a few days after his return to Sri Lanka. 42 The complaint made by the appellant was that particular sentences contained in the country information he had put before the Tribunal provided a basis for a conclusion that torture of prisoners was not necessarily confined to any particular ethnic, religious of political group and these particular sentences were not considered. The submission was that these isolated sentences provided a basis for a conclusion that there was a "general culture of violence and risk for people in detention". The sentences particularly relied upon before this Court were contained in the pre-hearing submission dated 11 September 2015. Counsel for the appellant, in oral submissions, said that the Tribunal should have asked itself the question: "Is the applicant at risk of serious harm or persecution for reason of membership of a particular social group, namely prisoners or people in detention?" 43 I interpolate that this was not how the argument was framed before the Federal Circuit Court (or the Tribunal); it was not put to the Federal Circuit Court that the Tribunal should have asked itself a question based on the applicant being a member of a particular social group, being prisoners or people in detention (whether or not they were Tamil or failed asylum seekers or anything else). Nor was this argument put in written submissions to this Court. No application was made to rely upon grounds not relied upon before the Federal Circuit Court or to amend Ground 1 particular (d). To the contrary, the case was run before this Court expressly on the basis that all of the grounds before this Court had been argued at first instance and that the "essence of the appeal is that the learned judge … erred in not finding that the Tribunal had fallen into jurisdictional error for the reasons urged in the Grounds before her Honour". Relying upon CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 at [9], the appellant said it was therefore not necessary to canvass the reasons of the Federal Circuit Court in detail. The appellant did not canvass the reasons of the Federal Circuit Court at all and did not seek to identify any error on its part other than a failure to accept what was put to the Federal Circuit Court. The problem with this approach, at least in respect of this case, is that it avoids attention to whether there was any error on the part of the Federal Circuit Court (and this Court is hearing the matter as an appellate Court) and whether the submissions being advanced are in truth raising new grounds. 44 The submission dated 11 September 2015 containing the particular sentences relied upon before this Court opened with the following two paragraphs: We refer to the hearing scheduled for 17 September 2015 for the above-named applicant and wish to provide updated country information in support of [his] application. In summary the Applicant fears persecution at the hands of the security services of the Government of Sri Lanka ('GoSL') and/or affiliated paramilitary organisations owing to his background and past experiences in Sri Lanka. In particular he was questioned and assaulted by Army officers regarding his witnessing of a murder in 2008, which caused him to fear for his life should he remain in Sri Lanka. The Applicant fears returning to Sri Lanka on account that he will be detained indefinitely due to his profile with the Sri Lankan Army [sic]. Upon being detained he will be at risk of physical assault and torture during his interrogation by the security services. 45 The 11 September 2015 submission is then divided into four section: "Tamils in Sri Lanka", "The current situation in Sri Lanka: Returned Failed Asylum Seekers", "Complementary Protection" and a "Conclusion". The section "Tamils in Sri Lanka" is approximately two pages long. The focus of it is reports of mistreatment of Tamils. In that section, the following is found: The DFAT Country Report on Sri Lanka, current as at 16 February 2015, provides that there have been credible reports of disappearances and torture carried out by the Sri Lankan security forces against the Tamil population: … Torture In practice, DFAT assesses that there have been credible reports of torture carried out by Sri Lankan security forces, I some cases resulting in death. Reports of torture come from a wide range of actors, including political activists, suspects held on criminal charges and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections. Incidents of torture are not confined to any particular ethnic, religious or political group … 46 The last sentence was one of the principal sentences relied upon by the appellant. A few matters should be noted at this point. First, the submission that this was not taken into account must be rejected. The Tribunal said it took into account the information submitted by the appellant at [99] of its reasons and it referred several times to the DFAT Report and relied upon it in reaching its conclusions (for example at [97]). Secondly, the heading to the two page section of the submission in which this sentence is found and the chapeau to the quote set out above reveal that the appellant's claim was that he feared mistreatment in detention because he was Tamil and, implicitly, that he was more likely than other detainees to be mistreated because he was Tamil. Thirdly, no claim was articulated to the Tribunal by the appellant or his legal representatives that the claim was that he faced a risk of harm or persecution because he was a member of a particular social group, namely prisoners or people in detention (divorced from being Tamil or having some actual or imputed anti-government or pro-LTTE sentiment) or that this claim (if made) was different to the claim he was advancing and not subsumed in it. Fourthly, the argument that the Tribunal had to consider the particular social group of prisoners was not put to the Federal Circuit Court. Fifthly, this argument is not covered by Ground 1 particular (d) which is directed to an asserted failure to take into account "well known and thorough studies of violence against Tamils including returnees". Finally, leave was not sought to amend the notice of appeal. 47 The Tribunal referred extensively to independent country information and other material from paragraphs [87] to [117] and in [120] and engaged in a careful analysis in paragraphs [103] to [121] of the question whether the appellant had a future risk of harm upon his return on the basis of his illegal departure from Sri Lanka. 48 I do not accept that it should be inferred from [118] that the Tribunal did not have regard to the country material put before it by the appellant. Such an inference is directly contrary to the Tribunal's express statement at [99] of its reasons that it did consider that country information. No cogent reason was advanced as to why that statement should not be accepted. For such an inference to be drawn it is necessary to do more than point to material capable of supporting such an inference: SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25]. Here, however, the appellant has not pointed to material capable of supporting the inference, let alone demonstrated that it is appropriate, having regard to all of the evidence and other material before this Court, for such an inference to be drawn. 49 In any event, the Tribunal was not obliged to refer to every single piece of material before it; the fact that the Tribunal does not refer to material before it does not of itself establish a failure to take into account a relevant consideration, less still jurisdictional error: Minister for Immigration and Citizenship v Pemberton [2010] FCA 430 at [35], per Besanko J, citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423 [65] and Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 236 per Carr J (with whom Sheppard and Gummow JJ agreed). 50 The submission that the Tribunal "did not engage" with the material (should the submission that it failed to have regard to it be rejected, as it is) is presumably a reference to the principle that, where a decision-maker is required by statute to consider a claim or other mandatory criterion, the decision-maker must engage in an active intellectual process directed at that claim or criterion: Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [45], per Griffiths, White and Bromwich JJ. As the Full Court noted, where that principle operates: (1) it does not require the decision-maker to refer in the reasons to every piece of evidence and every contention made: Carrascalao at [45]; (2) the reasons should not be scrutinised "minutely and finely with an eye keenly attuned to the perception of error": Carrascalao at [45] quoting Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 159 at [30]; (3) a conclusion that the decision-maker has not engaged in an active intellectual process "will not lightly be made and must be supported by clear evidence, bearing in mind that the judicial review applicants carry the onus of proof": Carrascalao at [48]. 51 Assuming the principle applies in this circumstance, the appellant has not made out that the Tribunal failed to engage with the country information he put before the Tribunal. As is made evident from its reasons at paragraphs [87] to [94], the Tribunal engaged in an active intellectual process in respect of the question whether there was a future risk of harm on the basis of being Tamil or as a result of having an actual or imputed pro-LTTE political opinion. Its reasons referred to and made plain that it actively considered the country information. 52 As is made evident from its reasons at paragraphs [95] to [102], the Tribunal engaged in an active intellectual process in respect of the question whether there was a future risk of harm on the basis of the appellant's being a failed asylum seeker or having sought asylum in a Western country. At [97], the Tribunal set out a section from the DFAT Country Report Sri Lanka dated 16 February 2015 (DFAT Report) (footnotes omitted): DFAT has advised that it is aware of a small number of torture/mistreatment allegations by returnees by that verification of such allegations is complicated by the fact that many such allegations have been made anonymously, often to third parties. DFAT further noted that: … there have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, UK and other European countries, but relatively few allegations of torture or mistreatment … Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. 53 At [99], the Tribunal made clear that it considered all the country information before it and set out the conclusions it reached in respect of it (emphasis added): The tribunal's assessment of the country information before it, including that contained in submissions from the applicant's representative, is that it does not indicate that all returnees/failed asylum seekers, or all Tamil returnees are at risk or that it is the act of fleeing and seeking asylum abroad that may put an individual at risk. Nor does the country information indicate that all persons or all Tamils who leave Sri Lanka illegally are imputed with LTTE associations or sympathies. Rather, it appears that individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers (from a western country) may be of adverse interest to the authorities. In light of its findings regarding the applicant's past circumstances in Sri Lanka the tribunal does not accept that he has a profile of interest and therefore does not accept that the applicant will be of interest to the Sri Lankan authorities upon return. 54 At [101], the Tribunal said (emphasis added): Given its above findings, including in relation to the applicant's specific claims regarding his adverse profile and general claims as a Tamil, the tribunal does not accept that there is a real chance that the applicant will face indefinite detention, physical assault or torture due to authorities attempting to extract information from him. 55 The Tribunal engaged with the material which the appellant had put before it and dealt with the claims the appellant had made. 56 As is made evident from its reasons at paragraphs [103] to [121], the Tribunal engaged in an active intellectual process in respect of the question whether there was a future risk of harm on the basis of the appellant's illegal departure from Sri Lanka. These reasons are appropriately read with its earlier reasons and findings. The Tribunal referred to and actively considered various pieces of country information. As noted above, it had expressly referred at [99] to the material said not be engaged with and referred extensively to independent country information and other material from paragraphs [87] to [120]. 57 The Tribunal actively engaged with the material submitted by the appellant. The appellant points to no "clear evidence" (Carrascalao at [48]) from which the opposite conclusion could appropriately be drawn. The real complaint advanced by the appellant is that it would have preferred the Tribunal to have reached a different ultimate conclusion and for it to have preferred the country information submitted by him rather than the country information in fact preferred. That is an invitation for merits review which was not the role of the Federal Circuit Court and is not the role of this Court. 58 For the reasons given above, I do not accept that the Tribunal failed to consider the material referred to or that it failed to "engage" with the material. 59 As to the submission that the Tribunal ought to have asked itself the question of whether there was a risk of serious harm or persecution by reason of membership of a particular social group of prisoners or people in detention and to supplement what I have said at [46] above: (1) No attempt was made by the appellant to identify whether there was a particular social group as identified in the oral submission put for the first time to this Court. (2) This was not a claim which was articulated to the Tribunal as a claim separate to that of being a Tamil prisoner or a detained returned asylum seeker or which arose "squarely" on the material before the Tribunal. If the claim arose squarely on the material before the Tribunal, it might be expected to have been put squarely to the Tribunal and the Federal Circuit Court or identified somewhere in the notice of appeal to this Court, Ground 1(d) of which centred on "well-known and thorough studies of violence against Tamils including returnees" (emphasis added) and not on prisoners generally. The appellant was represented before the delegate, the Tribunal, the Federal Circuit Court and this Court. (3) There were claims made by the appellant that he might be mistreated because of his Tamil ethnicity, as a returned asylum seeker and because of his connection with the four key events identified by the delegate and the Tribunal. The written submissions of 11 September 2015 contain the occasional reference to mistreatment in the prison system generally. The Tribunal dealt with that point at a similar level of generality in its reasons. It cannot be criticised now for dealing with it at that level given the complete lack of prominence with which the claim might be found in the material submitted to the Tribunal. (4) The written submission of 11 September 2015 was predominantly directed to there being a risk of being tortured or mistreated in detention or in a Sri Lankan prison due to the appellant being a Tamil (under the heading "Tamils in Sri Lanka") and as a failed asylum seeker (under the heading "The current situation in Sri Lanka: Returned Failed Asylum Seekers"). The Tribunal's rejection at [101] of risks of harm arising from the appellant's "general claims as a Tamil" and the rejection of his claim as a failed asylum seeker subsumed the claim now sought to be advanced. The appellant's claim, if anything, was that the additional characteristics of being Tamil and a returned failed asylum seeker made him more likely to be mistreated in detention or as a prisoner than would otherwise be the case. The claim of there being a risk of harm as a consequence of being a prisoner (with no particular attributes other than being a prisoner) was subsumed in the claim of being a prisoner with the claimed attributes. (5) In any event, the Tribunal considered that, if the appellant were convicted of an offence under the Sri Lankan Immigrants and Emigrants Act on his return, the penalty most likely to be imposed would be a fine of between 5,000 and 50,000 rupees, which the Tribunal did not accept constituted "significant harm as defined in the Act": at [113]. The Tribunal considered the risk that the appellant would be imprisoned (after any initial detention), rather than fined, was remote: at [113]. 60 Ground 1 read with particular (d) is not made out.

Ground 1 - particular (e) 61 Ground 1 read with particular (e) is a complaint that the Tribunal, although it found that family members were present in Sri Lanka to guarantee bail and that they would be able to do so, failed to consider whether a family member would be willing to act as guarantor and, assuming a family member would not be willing, the implications for the length of time the appellant might stay in prison and the risk of him suffering serious harm. 62 At [105], the Tribunal stated: … In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with a requirement for a family member to act as guarantor. There is no payment required for bail. Sometimes returnees then need to wait until a family member comes to court to collect them … 63 At [110] and [111], the Tribunal stated: 110. The tribunal places weight on the DFAT advice above and is satisfied that the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act before appearing before a court hearing regarding bail. The applicant's wife, siblings and uncle are present in Sri Lanka to guarantee his bail and the tribunal finds on the evidence before it that they will be able to do so. 111. The tribunal further finds that the applicant will not be denied bail given that he has not been involved in people smuggling nor has he previously been convicted of any offences in Sri Lanka. Accordingly, having regard to the evidence before it the tribunal finds that the applicant will be granted personal bail and will only be on remand for a short period of a few days maximum. 64 A fair reading of the Tribunal's decision is that it concluded that members of the appellant's family would be not only able, but also willing, to act as guarantor. That finding is implicit in the findings in paragraphs [110] and [111] of its reasons, particularly when it is noted that no payment was required for bail. The criticism that the Tribunal's reasons refer to family members being "able" to guarantee and not expressly referring to them also being "willing" to guarantee is to read the reasons over-zealously and not holistically: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 65 No assistance is provided to the appellant by the decision in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069. In that case, the Federal Circuit Court appears to have assumed that providing surety involved the payment of money. That assumption cannot be made here as it is contrary to the express findings at [105]; see also: SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404. In SZTQS, the Tribunal had made a factual conclusion - that the applicant would only be detained for a short period because a member of his family would provide surety and he would be granted bail - which was a necessary link in the Tribunal's chain of reasoning in rejecting the applicant's claim, without any notice to him that the conclusion might be made or that the factual question was in issue: SZTQS at [58]. The availability of a guarantor was a "necessary link" in the Tribunal's reasoning in that case as to the brevity of the period the applicant in that case would spend in prison and its conclusion that the applicant would not suffer persecution or significant harm during his remand. The case was determined by reference to considerations of procedural fairness and unreasonableness. There is no issue here that the appellant was afforded procedural fairness on the issue and it is not suggested that the Tribunal's decision was illogical or legally unreasonable. 66 Further, the appellant put detailed country information before the Tribunal and could have made submissions with respect to bail. He did not. The appellant did not make a submission to the Tribunal, or give evidence to the effect, that - even if available - none of his family members were in fact willing to guarantee. 67 During oral submissions, Counsel for the appellant submitted that there was also a question for the Tribunal about whether a family member would be able to come "expeditiously to act as guarantor" because, although no evidence of current addresses had been given, it might be inferred that the appellant's available family were from Batticaloa in the Eastern Province of Sri Lanka given that was where the appellant was from. This was not an issue raised before the Tribunal, nor before the Federal Circuit Court. Nor was it contained in the notice of appeal or written submissions in the Court. No application was made to amend the notice of appeal. 68 Ground 1 read with particular (e) is not made out.

Ground 1 - particular (f) 69 Particular (f) asserts that the Tribunal "failed to consider the appellant's submissions that there was a risk of harm to returnees after they were initially released and returned to their own homes". This was said to be a "risk posed by the monitoring he would face after his return to his home". The appellant said the submission was "briefly put" but that it was a "critical omission" to fail to deal with it, because - if accepted - it would have required a finding that the appellant was entitled to protection. 70 The appellant identified the submission which was not considered as being contained in the following extracts from written submission provided to the Tribunal by letter dated 11 September 2015: …Accordingly, on return to Sri Lanka, as a person who departed Sri Lanka illegally, the applicant will be questioned at the airport while criminal and security checks are undertaken. The CID and the authorities in his home area will be notified of his return. However, it is when he returns to his home region that must be considered that the applicant would face a real chance of serious harm at the hands of the authorities [sic]. The UNHCR Eligibility Guidelines (2012) indicates that: UNHCR post-return monitoring data indicates that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further "registration". 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police or military. In these circumstances, it is likely that the applicant would be visited by the police, CID or Army soon after his return home… We submit that it is highly likely that upon return to Sri Lanka the Applicant will be detained and charged under Section 45C of the Immigrants and Emigrants Act. He may be later on convicted and sentenced to an imprisonment term of one to five years (as stipulated by the relevant Act). The Applicant faces an increased risk of indefinite detention on account of his previous dealings with the Army during which time he will be interrogated by the authorities. During this period of indefinite detention the Applicant will be at serious risk of physical assault and torture as the authorities attempt to extract information from him. Even if he were to escape a prolonged period of incarceration as a result of receiving a suspended sentence for conviction of an offence around his illegal departure he believes that he would continue to remain vulnerable to other forms of significant harm after returning to his home village where the local authorities will further question him regarding his background. 71 A number of matters should be noted. First, the import of the submission was that the appellant, if he avoided or was released from prison, would be "visited" and further questioned after returning to his home village. There was no assertion that there was a well-founded fear of harm in connection with the conduct of such interviews or visits; the highest the submission was put was: "he believes he would continue to remain vulnerable to other forms of significant harm after returning to his home village where the local authorities will further question him regarding his background". No specific form of harm was identified. The extract from the UNHCR Eligibility Guidelines (2012) extracted by the appellant in his submission (set out above), did not suggest any harm connected with these visits. 72 Secondly, the appellant did not give evidence to the Tribunal that he subjectively feared that he would be harmed when he returned to his village, nor did he give evidence of what might constitute the serious harm he feared. Nor did the appellant make a submission to the Tribunal that he would experience some particular form of harm when he returned to his home. Rather, the only place the claim can be found is in the extract of the submissions identified above. This was a submission based on the country information there referred to, which itself did not identify a specific risk of harm which might come from the visits. 73 Thirdly, it is relevant to note the way in which the case was conducted and the way in which, and particularity with which, this issue might be seen to have been raised. The claims made by the appellant were identified by the delegate at [8] as follows: The applicant's detailed written claims are on Department of Immigration and Citizenship (department) file CLF2012/211367 from folio 2-5. The applicant attended a Protection visa (PV) interview on 3 April 2013. The applicant claims in 2008 his neighbour was shot and killed in his home along with his wife and two children. The applicant claims that he saw army officers leaving the neighbour's house after the shooting. The applicant claims that the day after the murder the SLA stated that the LTTE was responsible, however the applicant told people from his and surrounding villages that it was, in fact, the army. The applicant claims that the army found out he had been telling people about what he saw and started to cause problems for him, coming to his house at night and asking him to come to their camp as well as coming to his jewellery shop. The applicant claims that in 2010 the army attacked his shop during the night, breaking the door and taking half of his stock. The applicant claims he knew it was the army because an army cap was left in the shop which was later taken by other people in the village. The applicant claims that he lodged a complaint regarding the robbery with the police, however the police advised him not to pursue it because his life would be in danger if the army found out. The applicant claims the army then came to his house and threatened his wife. The applicant claims on 15 March 2012 the army asked him to go to the camp and he agreed. He claims they kept him for ten hours and beat him. The applicant claims that after this incident he lived with his uncle and was too afraid to stay at his home. The applicant claims that his uncle arranged for him to leave Sri Lanka for Australia, he departed on 1 June 2012. The applicant claims that he fears he will be mistreated, tortured or killed if he returns to Sri Lanka by the Sri Lankan Amy (SLA) and the Karuna group because he is a witness to a murder carried out by army officers and has spoken about it. The applicant has further claimed that if returned he will be harmed because he would be a Failed Asylum Seeker and because he is a Tamil. The applicant also claims that the state authorities will not protect him and that there is nowhere in Sri Lanka where he could live safely. 74 The claim of a "risk of harm to returnees after they were initially released and returned to their own homes" (Ground 1 particular (f)) was not clearly identified in that account of the appellant's claims. The appellant was represented before the Tribunal and might be expected to have articulated the claim or fear with some particularity if there was a "critical omission" which the delegate had missed. The appellant might be expected to have addressed it by specific evidence before the Tribunal. He did not address it by any evidence or submit that a claim he made, or a risk of harm that he feared, was missing from the delegate's identification of the claims or fears. "The fact that the appellant was represented has some significance to the way the Tribunal could have been expected to conduct the proceeding and the way it would have read and approached submissions": MZZQY v Minister for Immigration and Border Protection [2015] FCA 883 at [27], per Beach J, referring to MZZUT v Minister for Immigration and Border Protection [2015] FCA 141 at [18], per Middleton J. 75 Of course, proceedings before the Tribunal are not adversarial and the issues are not defined by pleadings; however, the Tribunal's reasons must be read and understood on the basis of the application made to it and the way the matter was put: S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [1], per Gleeson CJ. Each case must depend on its own circumstances. Here, it is relevant that the applicant was represented because it might be expected that the claim would have been addressed squarely, with evidence, if it was a claim which had not been dealt with in the delegate's decision and was seen to be important and not subsumed in some other, more general, claim. It has been observed that the issue of whether an unarticulated claim arises "squarely" on the material may be more likely to arise in cases where the applicant is unrepresented: Kasupene v Minister for Immigration & Citizenship [2008] FCA 1609; (2008) 49 AAR 77 at [21], per Flick J; AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 at [67], per Barker J. 76 In any event, the Tribunal appears to have dealt with the claim at a similar level of generality and specificity with which the claim can be found in the written submission sent to the Tribunal: at [87] to [94], [99] and [122] to [125]. In particular: (1) At [90], the Tribunal noted it asked the appellant what he feared upon his return. It was not suggested that the appellant gave evidence in response to these questions that he had a fear either because of, or in connection with, visits or monitoring after his return to his home. The Tribunal did not accept that he would be of interest to the authorities on his return by reason of his witnessing the 2008 murder and did not accept that enquiries would be restarted or that he would be tortured. This was in the section of its reasons dealing with future risk of harm on the basis of being Tamil or having or being imputed with a particular political opinion. (2) At [99], the Tribunal stated it did "not accept that he has a profile of interest and therefore does not accept that the applicant will be of interest to the Sri Lankan authorities upon return". (3) At [123], where the Tribunal set out its overall findings on the applicant's real chance of serious harm and real risk of significant harm, the Tribunal recorded that it was not satisfied that there were substantial grounds for believing that there was a real risk that the applicant would face significant harm, inter alia, as a failed Tamil asylum returnee or because of his illegal departure from Sri Lanka or for any other reason. 77 Ground 1, read with particular (f), is not made out.

Ground 2 - particular (b) 78 Ground 2 asserts that the Federal Circuit Court erred in not finding that the Tribunal fell into jurisdictional error by acting irrationally, illogically or unreasonably. The appellant relied solely upon particular (b). Specifically, the appellant asserted that, in concluding at [100], that it was not satisfied on the evidence before it that there was a real chance or risk that the applicant would be subjected to serious or significant harm, "the Tribunal was unreasonable given the volume of material before it relating to torture in Sri Lanka" and given the reference in the DFAT Report to defects in Australia's ability to monitor, or practice in monitoring, the safety of people returned to Sri Lanka. 79 The weight that the Tribunal accords items of country information, when assessing the country information, is a matter for the Tribunal as part of its fact-finding exercise: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. The Tribunal referred extensively to the DFAT Report, expressly noting at [18] that it was required to have regard to the report. The weight which the Tribunal gives to evidence is not a question of the "volume" of it as the appellant submits, albeit that might be relevant; the weight to be accorded to particular evidence is a matter for the Tribunal and it would be acting within jurisdiction, for example, by considering the source, independence, persuasiveness and cogency of the material. 80 A decision may be vitiated on the ground of jurisdictional error if it is based on illogical or irrational findings of fact or reasoning. However, such a conclusion is not lightly drawn and it is not enough for the question of fact to be one on which reasonable minds might come to different conclusions; emphatic disagreement with a conclusion does not amount to a lack of reason or logic in the relevant sense: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99 at [148]; Haritos v Commissioner of Taxation (2015) 233 FCR 315 at [213]. The applicant's real complaint here is that it would have preferred the Tribunal to reach different conclusions. It has not pointed to anything illogical or irrational in its submissions concerning this proposed ground of appeal. It was not suggested that the material before the Tribunal was not capable of supporting any particular conclusion that the Tribunal in fact reached. No written or oral submission was directed to an identification of why the Tribunal could not have reached the conclusion it did without acting illogically. 81 In oral submissions on Ground 2 particular (b), the appellant argued that the Tribunal had "not dealt with the more general question of whether [the appellant] would be at risk simply by virtue of being under the hand of the authorities, either in detention or at a later time". This submission was to the same effect as that made orally in respect of Ground 1 particular (d). It does not appear to have been advanced before the Federal Circuit Court and does not engage Ground 2 particular (b). No application was made to amend the notice of appeal. For the reasons expressed in relation to Ground 1 particular (d), the Tribunal dealt with the claims which had been articulated and those which were squarely before it. 82 This ground of appeal is not made out.

conclusion 83 The appeal is dismissed with costs. I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley.