NAHI v Minister for Immigration & Multicultural & Indigenous Affairs

The Applicant further claims that the police came to look for him within two weeks of his departure from Sri Lanka in 1993. He claims that the police arrested all the other Tamils working for the corporation and tortured and killed them. Nevertheless he claims that he was able to travel in and out of Sri Lanka in 1995, 1997 and 1999 because he says that the problems which occurred in Batticaloa would not have been known in Colombo and because on each occasion his second eldest brother, who holds a good position in the Department of Health in Batticaloa, came to the airport in Colombo to meet him. The Applicant claims that on the last occasion on which he visited Colombo, in 1999, he was actually arrested twice but on neither occasion did the police make the connection with the criminal investigation into the theft of goods from the site which he controlled while working for the State Development and Construction Corporation between 1984 and 1993.

The Applicant claims that a Muslim police officer who came from the Batticaloa district made the connection between him and his eldest brother who was detained in Batticaloa in 1984. He suggests that this officer told him he should leave the country before the officers found out about his eldest brother. As I indicated to the Applicant in the course of the hearing before me, I find it difficult to reconcile the suggestion that he would have had problems as a result of his connection with his eldest brother with his evidence that his second eldest brother holds a good position in a Sri Lankan Government Department in Batticaloa. As I put it to the Applicant, this family connection would not appear to have held his brother back. The Applicant also claimed that his second eldest brother had had problems with the LTTE because the LTTE regarded him as having betrayed them as a result of the other workers at the site having been arrested. He said that his brother was unable to leave Batticaloa but, as I put to him, if the LTTE had suspected him they would have suspected him in 1993, when he supposedly fled the country. As I noted, the Applicant's evidence is that his brother came to Colombo to help him in 1995, 1997 and 1999. The Applicant said that his brother had been able to come to Colombo for official matters.' 5 The Tribunal did not believe that a person who genuinely feared persecution as the applicant claimed would have returned to Sri Lanka in 1995, 1997 or 1999. In particular, the Tribunal noted that when the applicant returned in 1999 he and his family already held visas allowing them to travel to Australia and the USA. The Tribunal concluded: 'H]aving regard to the view I have formed of the Applicant's credibility, I do not accept that the LTTE stole goods such as cement and generators from the site under the Applicant's control between 1984 and 1993. I do not accept that the Applicant was ever the subject of a criminal investigation, either as a result of these claimed thefts or because the LTTE compelled him to sign blank pieces of paper which the LTTE used to have goods such as cement and generators delivered to them. I do not accept that the Applicant was abducted by the LTTE towards the end of 1992 and compelled to sign blank pieces of paper. I do not accept that the Applicant would not have been arrested if his involvement in these thefts from the corporation had come to light, as he says, nor that he would have been allowed to leave the country in these circumstances. Equally, I do not accept that the Applicant would have travelled in and out of Sri Lanka on no less than three occasions after this, in 1995, 1997 and 1999, if the threat of a criminal investigation had been hanging over him as he claims.

Having regard to the view I have formed of the Applicant's credibility, I do not accept his account of his two arrests in Colombo in February and March 1999. For reasons given above I do not accept that the Applicant would have been of any greater interest to the police by reason of his relationship with his eldest brother, who he says was wrongfully arrested and imprisoned for three years in 1984, than his second eldest brother, who he says at all material times held a good position in the Department of Health in Batticaloa. Moreover, although the Applicant claims that he was told to leave the country by the Muslim police officer who he claims to have bribed to obtain his release in February 1999, he remained in Sri Lanka with his wife and child until April 1999. I consider that the Applicant's entire account of the problems he claims to have experienced in Sri Lanka is a fabrication. I do not accept that the Applicant was ever arrested by the authorities in Sri Lanka nor that he has ever been of any interest to the Sri Lankan authorities. I likewise do not accept that he has ever been of interest to the LTTE. I do not accept that he ever assisted the LTTE nor that the LTTE believes that he betrayed the LTTE.' 6 The Tribunal nevertheless considered whether the applicant would be likely to suffer persecution on return to Sri Lanka because he is a Tamil from the Eastern Province of Sri Lanka. In this regard the Tribunal considered independent country evidence as well as the fact that the applicant and his second eldest brother had both held responsible positions in that area. It concluded there was not a real chance that any of the applicants would be persecuted and therefore it could not be satisfied that Australia owed protection obligations to the applicants. The Tribunal therefore confirmed the decision not to grant them protection visas. 7 In his application to this Court for a review of the Tribunal's decision the applicant invokes the jurisdiction conferred by s 39B(1) of the Judiciary Act. In support of his application the applicant, who represented himself, provided some four pages of written submissions. These submissions show some appreciation of the fact that the applicant must show jurisdictional error on the part of the Tribunal if he is to obtain the relief he seeks. This much was established in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. 8 While there may be some doubt about the boundaries of jurisdictional error as referred to by the High Court, the difficulty confronting the applicant is that he has not, either in his written submissions or before me today, identified anything in the Tribunal's reasons that would support his submissions. He alleges that there was procedural unfairness and hints at bias on the part of the Tribunal. His objections however seem to be with the Tribunal's conclusions as to the merits of his claim. He submitted before me today that the Tribunal was wrong in concluding that there was no reasonably foreseeable chance of future persecution if the applicants were to be returned to Sri Lanka because, as he said, one cannot predict the future. 9 His other submissions were in similar vein and amounted to an invitation to the Court to engage in merits review. As I explained to the applicant at some length this is not within the jurisdiction of the Court. Conscious that the applicant is not legally represented, I have read the Tribunal's reasons with some care. In my opinion the Tribunal explained clearly and fully why it did not believe the applicant and, as the extracts from its reasons quoted above show, it identified the inconsistencies and contradictions that led it to that view. 10 I can find nothing in the Tribunal's reasons that would support a claim of jurisdictional error and for this reason the application must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Counsel for the Applicant: The Applicant appeared in person.