Ground 1
34 By the first ground of appeal the applicant claims that the primary judge erred in finding that the Tribunal did consider the applicant's claim that he "was harassed by the Karuna group even after he stopped his construction business and started a food stall in front of his house".
35 The applicant submits that an important part of his claim was that, despite ceasing his construction work, the harassment which he had been experiencing continued. The applicant claimed that this harassment was a result of his having procured construction contracts in the past in preference to members and supporters of the paramilitaries and for failing to obey their past orders. The applicant submits that the clear inference is that the paramilitaries' resentment continued. He submits that was important in the context of his case, not only because of the continuation of the harassment after his contract work ceased, but also because of the possible nature of the harassment and because the cumulative effect of events causing harm were required to be considered in the context of whether a person had a well founded fear of persecution relying on Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at [48] per Finklestein J.
36 The applicant submits that one would expect a finding about whether the applicant suffered continued harassment after he ceased his construction business but that does not appear in the Tribunal's decision. The only passages at which the Tribunal makes findings in relation to this issue are at [54] and [58]. In neither of these passages does the Tribunal deal with the claim of continued harassment by the paramilitary groups after the applicant ceased his construction business.
37 The applicant relies on Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (Htun) where a Full Court found that on a "fair and straightforward reading" of the tribunal's reasons it did not deal with a particular claim made by the applicant in his application for review and supported by the objective evidence: at [41] per Allsop J (as he then was) with whom Spender J agreed. The applicant notes that the Court found that this was not merely one aspect of evidence not being touched or a failure to find a relevant fact but that the Tribunal "failed to address and deal with how the claim was put to it, at least in part" and that the requirement to review the decision under s 414 of the Act requires the "the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of the jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration": at [42].
38 The applicant submits that "consideration" requires the relevant person to have regard to what is said, to bring his or her mind to bear upon the facts stated in the claims or representations made and the arguments or opinions put forward and to appreciate who was making them: Tickner v Chapman (1995) 57 FCR 451 at 495 per Kiefel J.
39 Finally, the applicant relies on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 (Applicant WAEE) where a Full Court of this Court said at [45]:
… If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.
40 And at [47] where the Court said:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
41 The applicant submits that the Tribunal in his case failed to address the ground of continued harassment after he stopped his construction business and that the finding at [54] of the Tribunal's decision record where the Tribunal did not accept as true that the applicant suffered serious or significant harm from members of the paramilitary groups for the reasons that he claims does not come near addressing that particular claim. The applicant contends that his view is supported by the Tribunal's findings at [42] of the decision record.
42 At [70] of her judgment, the primary judge referred to [54] of the Tribunal's decision record. In that part of its decision the Tribunal accepted that the "applicant was harassed by members of the paramilitary group/s at times because of his construction work contracts which he ceased to do in early 2010". The primary judge found that, seen in light of the Tribunal's earlier description of the applicant's claims, that finding involved an acceptance by the Tribunal of the applicant's claims about occasional harassment after 2010. I agree.
43 As the primary judge found, while the finding that the Tribunal did not accept as true that the applicant suffered serious or significant harm from members of the paramilitary groups as he claims for the reasons that he claims or that there is a real risk that the applicant will suffer serious or significant harm from members of those groups as he claims for the reasons that he claims if he returns to his country is general, that finding could only relate to the earlier description of the applicant's claims. That earlier description included reference to his claims that he continued to be harassed both after he reduced his construction work in 2010 and after he stopped his construction work.
44 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 a majority of the Court (Brennan CJ, Toohey, McHugh and Gummow JJ) observed that the reasons of an administrative decision maker are "meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". The Court recognised that the reasons of an administrative decision maker under review ought not be construed "minutely and finely" with an eye keenly attuned to the perception of error.
45 Adopting that approach to the review of the reasons of the Tribunal, in my view, there is no error in the approach of the primary judge. As the primary judge found at [70] of her judgment, read fairly the findings by the Tribunal acknowledged the claim about continuing harassment by the Karuna group after the applicant stopped his construction business. That inference is supported by the Tribunal's earlier reference to the claims made by the applicant including the claim of continued harassment after the applicant stopped his construction business at [27] of the decision record. While the applicant draws support for his position from [42] of the decision record where the Tribunal summarises the applicant's claims and refers to the applicant being harassed "at other times" by members of the paramilitary groups "even after he reduced his construction work in 2010" that summary cannot be taken in isolation and must be read in the context of the Tribunal's more fulsome description of the applicant's claims.
46 In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [38] a Full Court of this Court found that the task that was to be undertaken by the tribunal in that matter could "not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant". In my view the Tribunal engaged in such a task here and considered the submissions, evidence and material advanced by the applicant. It did, as required by the Court in Tickner, bring its mind to bear on what was said, on the claims made and the arguments put forward.
47 At [46] in Applicant WAEE the Court said that it is not necessary for a tribunal to refer to:
… every piece of evidence and every contention made by an applicant in its reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact ... and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well founded fear of persecution for a Convention reason.
(citations omitted)
In addition as noted by the Court in Applicant WAEE at [47] an inference that a tribunal has failed to consider an issue is not readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. That is what occurred here.
48 The Tribunal identified the issue and, while its findings are expressed generally, it did, as the primary judge recognised, take into account the applicant's evidence and claims about what had happened to him in Sri Lanka including in the period after he stopped his contract work. In my view ground 1 is without merit.