SQDB v Minister for Immigration & Multicultural & Indigenous Affairs

7 It said: 'However, and importantly, the Tribunal also finds that these events occurred some 20 years ago and since then the first Applicant and his family have visited Sri Lanka on four subsequent occasions - albeit briefly - in 1990, 1991, 1992 and 1993 and is not satisfied that he would have done this and exposed his family to such a risk if he had a well-founded fear of serious harm amounting to persecution for a Convention reason. Accordingly, the Tribunal is not satisfied that the first Applicant and his family have a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis if they return to Sri Lanka, either now or in the foreseeable future.'

8 It is not suggested that the Tribunal misunderstood the male applicant's claims or did not deal with them. Nor is it suggested that the Tribunal misdirected itself as a matter of law in considering his claims. There is only one respect in which, it is submitted, the Tribunal's consideration of the male applicant's claims involved jurisdictional error on its part. It is contended that the Tribunal committed a jurisdictional error by taking into account an irrelevant consideration in determining not to accept the male applicant's claim to be a refugee.

9 The irrelevant consideration was identified in submissions as being the fact that the applicant made four short return visits to Sri Lanka in the years 1990 to 1993. The Tribunal referred to that material and placed some weight upon it. The contention is that the fact that the applicant visited Sri Lanka briefly between 1990 and 1993 is an irrelevant consideration in determining whether the male applicant's present fear of persecution is well-founded and that therefore the Tribunal made a jurisdictional error. 10 I do not think that, even if it were arguable that the Tribunal ought not to have had regard to that piece of evidence, it would demonstrate jurisdictional error on the part of the Tribunal. Jurisdictional error is sometimes evidenced by the administrative decision-maker failing to have regard to a relevant consideration or having regard to an irrelevant consideration in the process of decision-making. That does not mean that jurisdictional error is committed whenever an administrative decision-maker does not have regard to a piece of evidence which might be regarded as relevant to its determination or, on the other hand, has regard to a piece of evidence which might be regarded as irrelevant to its decision.

11 It is plain from the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 that, for the purposes of identifying jurisdictional error, the determination of relevance or irrelevance is by reference to the statutory provisions under consideration. It is not simply a matter of looking to the evidence to see whether the Tribunal has expressly referred to all pieces of arguably relevant evidence in its reasons or has, in its reasons, referred expressly to a piece of evidence which is arguably irrelevant. It is by reference to the statute under consideration that identification of relevant and irrelevant considerations for the purposes of demonstrating jurisdictional error are to be ascertained. 12 I am not persuaded that any provision of the Act makes the information referred to in the submission irrelevant. In my judgment, the argument at best is that a piece of evidence was taken into account by the Tribunal when it is arguably not of much or any weight. But the weight to be given to evidence by the Tribunal is a matter for the Tribunal. I accordingly reject the contention that the Tribunal committed jurisdictional error. 13 In any event, in my view, the material to which the Tribunal referred was not irrelevant to its consideration of the male applicant's claims. In addition to the passage from its reasons quoted above, the Tribunal continued: 'However, the first Applicant claims that during his last visits in June 1993 he was stopped at a checkpoint on the way to the airport and was asked whether he had LTTE connections and, after an "exhaustive interrogation" and a body search, he and his family were finally allowed to go. While accepting that this was an unpleasant and heavy handed incident by the security forces, and that they most likely amongst others may have received particular scrutiny because they were ethnically Tamil, the Tribunal is not satisfied that that [sic] a time of tension and high security (given the fighting that then had been going on for some 8 years and, for example, as the second Applicant had pointed out, that the Indian Prime Minister Rajiv Gandhi had been killed by a suicide bomber in May 1991 in Tamil Nadu only two years before), the Tribunal has not been able to satisfy itself that the treatment they received was serious harm amounting to persecution for a Convention reason. For example, the first Applicant does not claim that he or his family were beaten, arrested, detained, robbed or prevent [sic] from proceeding on their way after being questioned and searched). Moreover, and more widely, the first Applicant does not claim that he had any difficulty in obtaining a Sri Lankan passport or that at any time he has had any difficulty in entering or leaving Sri Lanka (such as being interrogated, harassed, accused of being associated with the LTTE or any other organization, or having to pay a bribe because of any such reason, Convention related or otherwise at the primary line." The Tribunal thereafter proceeded to reaffirm its views by reference to independent country information and other information. 14 As can be seen, the Tribunal accepted the male applicant's claims about having made visits to Sri Lanka between 1990 and 1993. It accepted in particular his experience during his last visit in June 1993. In my judgment it was not irrelevant evidence to the Tribunal determining whether the male applicant has a well-founded fear of persecution if he and his family were to return to Sri Lanka at the time of its determination to have regard to what the applicant had done in those years. 15 It is true that they are remote in time by some years from the date at which the Tribunal was addressing the male applicant's claims. For that reason different persons may have placed different weight upon that information, but simply at an evidentiary level I do not think that it means that information was irrelevant. It was not inappropriate for the Tribunal to have regard to those visits and to infer, as it did, that notwithstanding the applicant's claims as to the purpose for those visits, he would not have undertaken them had he then had a well-founded fear of persecution for a convention reason at the time. 16 It is a logical step to take, and therefore something which might rationally have been expressed as the Tribunal expressed it, to conclude that if the male applicant did not have those fears at that time in the light of his family's past experiences, then his approach may inform its judgment as to whether he presently had a well-founded fear of persecution if he were to return to Sri Lanka. As the evidence demonstrated, the applicant himself had not returned to Sri Lanka after 1993 for a considerable period of time. If anything, independent country information indicated that the risk to persons such as the applicant due to his Tamil ethnicity have significantly diminished between 1993 and the time of the Tribunal's decision. 17 Accordingly, it was in my judgment open to the Tribunal to use that evidence as relevant evidence. It took the step of saying that if there was not a significant risk of persecution in 1993, there was unlikely to be a significant risk of persecution at the time of its decision, particularly having regard to the changed circumstances in Sri Lanka since 1993. 18 For those reasons, in my judgment, neither as a matter of law nor as a matter of reasoning has it been demonstrated that the Tribunal had regard to an irrelevant consideration in determining whether the male applicant had at the time of the Tribunal's decision a well-founded fear of persecution for a Convention reason. No other reason for attacking the Tribunal's decision was identified by counsel on behalf of the applicants. In those circumstances the application must be dismissed. I so order. 19 I order that the applicants pay to the respondent the costs of the application. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.