AEN15 v Minister for Immigration
[2016] FCCA 2714
•21 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEN15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2714 |
| Catchwords: MIGRATION – Protection Visa – whether the Tribunal failed to comply with s.425 of the Migration Act 1958 – whether the Tribunal failed to raise with Applicant an issue (not previously raised in the decision record of a delegate of the second Respondent refusing the grant of the visa or by the Applicant) which was dispositive to the Tribunal’s decision – whether the Tribunal failed to consider a claim or integer of claim made by the Applicant – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss. 5(1), 36(2)(a), 36(2)(aa), 91R(1)(c), 425 |
| Cases cited: ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 AJJ15 v Minister For Immigration and Border Protection [2016] FCCA 482 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 |
| Applicant: | AEN15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 512 of 2015 |
| Judgment of: | Judge Jones |
| Hearing date: | 22 March 2016 and 28 July 2016 |
| Date of Last Submission: | 28 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 21 October 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Burt and Mr Wood |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Ms Symons |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The amended application of judicial review filed on 16 February 2016 be dismissed.
The Applicant pay the First Respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 512 of 2015
| AEN15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application for judicial review of a decision of the then Refugee Review Tribunal (“the Tribunal”) dated 20 February 2015 affirming a decision of a delegate of the Minister for Immigration and Border Protection (“the delegate”) dated 17 July 2013, refusing to grant the Applicant a Protection (Class X A) visa (“the visa”).
The Applicant is a Sri Lankan Tamil male, born in the Batticaloa area of Sri Lanka. He claims to fear persecution because of his Tamil race, because of his imputed political opinion of support for the Liberation Tigers of Tamil Eelam (the LTTE), and his membership of particular social groups (his membership of wealthy families in Sri Lanka, as a failed asylum seeker and his status as a person who departed from Sri Lanka illegally). He also claims to fear significant harm on these grounds.
The Applicant’s claim relating to his membership of a wealthy family in Sri Lanka is, in summary, that his father was perceived to be a wealthy businessman, was subject to continual threats of extortion from the TVMP or Karuna groups culminating in threats in 2012 for extortion, including the abduction of the Applicant, if the money was not paid. The Applicant claims that these extortionists forced him to hand over the keys to his motorbike and stole his motorbike. He further claims that, in 2012, he was threatened with guns by unknown persons who were in a van and drove up alongside him whilst he was on a motorbike. He fears that on return to Sri Lanka, he will be abducted, threats and extortion will be made to his father and if these are not met, he will be seriously harmed.
There are two issues for determination:
a)whether the Tribunal failed to comply with its obligation under s.425 of the Migration Act 1958 (“the Act”) because it failed to raise with the Applicant an issue (which had not been raised in the delegate’s decision or by the Applicant) which was dispositive to the Tribunal’s decision that the Applicant did not satisfy the criterion under sub-ss.36(2)(a) or s.36(2)(aa): SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (“SZBEL”). The issue the Applicant asserts falls within the scope of SZBEL, arises from the Applicant’s claims that he will suffer significant harm as a person who departed Sri Lanka illegally. Specifically, the Applicant contends that the Tribunal found that the Applicant’s family would act as a guarantor or provide surety. without raising this issue with Applicant. The Applicant argues that this is clear from the Tribunal’s decision record. The Applicant argues that this issue was dispositive, because this finding led the Tribunal to conclude that the Applicant would only be on remand in Sri Lanka for a short duration. This conclusion, the Applicant argues, was critical to the Tribunal’s ultimate finding that the Applicant would not suffer significant harm whilst in remand; and
b)whether the Tribunal failed to consider the Applicant’s claim or integer of claim that he would suffer sexual violence whilst in custody.
Tribunal decision
The Tribunal made strong findings regarding the Applicant’s credibility. The Tribunal found that the Applicant was not a witness of truth (CB 531 at [84]) and that he had fabricated his claims (CB 518 at [20]).
In light of the grounds of review, it is unnecessary to traverse in detail the Tribunal’s findings with respect to his claims based on his imputed political opinion, his membership of a wealthy family, his Tamil ethnicity and his status as a failed asylum seeker. I am satisfied that the Minister has accurately summarised the Tribunal’s rejection of these claims in its written submissions, extracted below:[1]
(a) having regard to country information, the applicant would not be harmed as a result of his Tamil ethnicity or due to being a Tamil male from the East (CB 533-544 [96]-[100], 534-535 [102]-[105] and 543 [154]. The Tribunal found that the applicant did not have LTTE links and was not perceived as LTTE, and that he had not suffered past harm or threats, and that he therefore did not fall within any of the documented risk profiles (CB 534 [101], 535-536 [106]-[116]). The Tribunal did not accept that the applicant would be harmed due to the perception that his family was wealthy and/or because he was from a business family (CB 536-536 [117]-[123] and 543 [153]);
(b) on return to Sri Lanka the applicant would be questioned at the airport and charged for illegal departure (CB 538 [130]). The Tribunal did not accept that the applicant would be mistreated during questioning at the airport, and found that he would not be harmed by the authorities due to being a returned failed asylum seeker with his particular profile, and that the possible need to report to police after returning home did not amount to serious or significant harm (CB 538-539 [130]-[135] and 544 [155]-[157];
[1] First Respondent's Submissions filed on 8 March 2016 at [17].
The Tribunal commenced its consideration of the Applicant’s claims about illegal departure by referring to DFAT country information relating to the treatment of returnees under the Sri Lankan Immigrant and Emigrants Act (“IEA”). The Tribunal then said (CB 540 at [137]):
… In most cases returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as a guarantor or sometimes they need to wait until a family member comes to collect them. The tribunal does not accept he faces any harm regarding bail conditions as it finds that his family would provide surety if needed as he is (sic) contact with them…
The Tribunal then said that it accepted that, like all illegal departees, the Applicant would face questioning and arrest, and be charged under the IEA upon return to Sri Lanka and that (CB 540 at [138]):
… The tribunal accepts he will be bailed and subject to a fine of 5000 or 50,000 rupees at the most.
The Tribunal concluded that, because it did not accept that the Applicant had a relevant profile (such as actual or perceived support for the LTTE), he would come to adverse attention of authorities, be detained, assaulted or mistreated or otherwise seriously harmed during processing at the airport or for bail (CB 540 at [139]). It said it did not accept that the Applicant would be denied bail because of his Tamil ethnicity or any actual or perceived support for the LTTE or opposition to the current government. The Tribunal then said (CB 540 at [140]):
… The tribunal notes the applicant’s family are wealthy and they are still in contact and there is no reason they could not provide assistance in this regard and the tribunal finds they would provide surety or assistance if required.
The Tribunal then said that it doubted that the Applicant would face being on remand unless he arrived in Sri Lanka on a weekend or holiday. It conceded however (CB 540-541 at [141]-[142]):
…that there is a possibility he will be held for a short period (even if up to 2 weeks) in remand if he arrives on the weekend or holiday and accepts prison conditions can be poor due to overcrowding and unsanitary conditions. … Conditions on remand have been described in media reports as being overcrowded. The Tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and notes the reports of torture and assault. However the tribunal considers it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government profile (such as persons affiliated to the LTTE) who are targeted in this way. The tribunal has already found the applicant does not have such a profile. Further, DFAT assesses the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the IE Act. The tribunal does not accept he faces a real chance of torture or mistreatment on remand.
(footnotes omitted)
In any event, the Tribunal found that the IEA is a law of general application and that (CB 542 at [145]):
…The Tribunal is not satisfied, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).. Any harm the applicant may suffer arising from punishment for an offence under the IEA has no element of persecution for the purpose of s.91R(1)(c) and therefore is not persecution.
(Footnotes omitted)
The Tribunal proceeded to then consider whether the Applicant satisfied the criterion under the complementary protection provisions: s.36(2)(aa) of the Act. For the reasons given, when considering the convention grounds, the Tribunal did not accept that the Applicant faced a real risk of significant harm because his family is perceived to be wealthy, or because he is a Tamil.
As to the Applicant’s claims to fear significant harm because of his illegal departure from Sri Lanka, the Tribunal relevantly said (CB 544 at [155] and [157]-[159]):
155. The Tribunal accepts that, as a returning to Sri Lanka who departed illegally, the applicant may face being questioned at the airport, being arrested on charges of leaving the country illegally, potentially being remanded for relatively short period pending a bail hearing and being fined for offences under the law…
157. …The tribunal does not accept his questioning, bail conditions, being detained for short period while on remand, including poor prison conditions and imposition of a fine of 50,000 rupees constitute significant harm… The tribunal has considered the questioning process upon his return to Sri Lanka and possible contact visit upon his return home. The Tribunal accepts that a suspicion of LTTE links may give rise to harsh treatment or torture either on return or at some later time. However, the Tribunal has not accepted that the applicant would have such a profile… The tribunal does not accept he faces torture or mistreatment or that he is of adverse interest to authorities or will come to such interest on his return.
158. Even if the applicant is detained on remand for up to two weeks and prison conditions are poor, the tribunal does not accept the applicant faces a real risk of significant harm as defined.
159. …The Tribunal does not accept that spending up to a fortnight in such conditions (cramped, uncomfortable and unsanitary) amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia…
Judicial review
The Applicant abandoned the first and second ground of his Amended Application for judicial review filed on 16 February 2016.
Ground Three – Failure to comply with s.425 of the Act
The Applicant’s third ground of judicial review is as follows:
The Second Respondent failed to raise the issue of a surety with the Applicant, thereby breaching s 425 of the Migration Act 1958 (“the Act”).
In oral submissions, Counsel for the Applicant stated that the argument under this ground did not depend on whether the Tribunal’s finding was in relation to the provision of surety or guarantee by the Applicant’s family. I take the reference, therefore, to the word “surety” in the third ground of judicial review, to be followed by the words “or guarantor”.
Counsel for the Applicant noted that there was a line of authority dealing with the particular issues of “surety” and “guarantor” in the context of a Tribunal finding, regarding bail or remand for protection visa Applicants who returned to Sri Lanka as persons who illegally departed Sri Lanka. I will deal with these shortly. Counsel stated, however, that the Applicant’s argument rested upon the broader submission that he was denied procedural fairness in the sense recognised by the High Court in SZBEL.
Counsel for the Applicant argued that the reasoning of the Tribunal, apparent on its decision record, is as follows. Firstly, at [137] of the Tribunal decision record (reproduced at [7] above), the Tribunal expressly finds that the Applicant’s family would provide surety if needed, and the Tribunal implicitly finds that his family would act as a guarantor. This finding is repeated at [140] of the Tribunal decision record, where the Tribunal notes the Applicant’s family are wealthy and are still in contact, and finds that they would provide “surety or assistance if required.” Secondly, the Tribunal finds at [137] of the Tribunal decision record, that the Applicant would not face any harm regarding bail conditions, because his family would provide surety. Thirdly, at [141] of the Tribunal decision record (reproduced at [10] above), the Tribunal accepts that there is a possibility the Applicant will be held on remand but this would be for a “short period.” This finding, it is argued, arises from the Tribunal’s reasoning that his family would provide surety. Counsel for the Applicant argues that this finding is a dispositive issue, because it informs the Tribunal’s finding that the Applicant would not suffer significant harm as a person who departed illegally from Sri Lanka, upon return to Sri Lanka.
The next step in the Applicant’s argument is that the Applicant was not put on notice by the Tribunal about this finding. Counsel for the Applicant argued, and this is not disputed by the Minister, that this issue was not raised in the delegate’s decision, nor was it an issue raised by the Applicant himself in his statements or in the submissions made on his behalf by his migration agent. Furthermore, the Applicant was not, prior to the Tribunal hearing, put on notice, by way of correspondence to him or his migration agent, in relation to this issue.
The question therefore arises whether the Applicant was put on notice about this issue during the course of the Tribunal hearing. Counsel for the Applicant concedes that the Applicant confronts an evidentiary challenge through no fault of his own. This is because, and this is not disputed, during the course of the Tribunal hearings, the audio recording of the hearing was corrupted. Both the Minister and Applicant agree that the corruption of the audio recording was such, that no assistance could be derived by the Court listening to the recording of the unclear or corrupted parts of the hearing.
The Applicant read into transcript an affidavit affirmed by Nimalini Ambikaipalan on 15 February 2016 and filed on 16 February 2016. Mrs Ambikaipalan deposes that she is very competent in both the Tamil and English languages, that she is a Legal Practitioner in Australia and accredited as an Immigration Law Specialist by the Law Institute of Victoria. She deposes that she listened to the audio recording of the Tribunal hearing held on 16 December 2014 and 20 February 2015 in relation to this case and transcribed, to the best of her ability, the English component of the hearing. She deposes at [5] to [7] as follows:
5. When a portion of the recording was unclear, I have marked it as ‘inaudible’ or ‘not clear’.
6. When I listened to the recording and the speech was unclear, I replayed it several times to ensure that I understood what was being said.
7. In the first set of CDs, the recording of the Hearing held on 16th December 2014, the second half of the audio was jumbled. I called for another copy and I received another copy of the CD of the Hearing held on 16th December 2014. Unfortunately, the recording in the second set of CDs was also jumbled and I was unable to decipher the contents which I have marked accordingly.
An affidavit was affirmed by the Applicant on 22 April 2016 and filed on 22 April 2016. The affidavit was read into transcript. The Applicant deposes at [6]:
At neither of the Hearings, did the Tribunal Member ask me whether my family would provide any surety or guarantee in order to be released on bail. At neither of the Hearings did the Tribunal Member indicate that, if my family provided a surety or guarantee, I might be released on bail.
Counsel for the Minister informed the Court that she did not intend to cross-examine the Applicant.
The Applicant submitted that, in the circumstances, his direct evidence contained in his affidavit should be accepted by the Court.
The Minister characterises the issue in the First Respondent's Submissions filed on 8 March 2016, as follows at [32]:
In the present case, the ‘issue’ for the purposes of s 425(1) of the Act was the ability of the applicant to get bail, rather than the narrower ‘issue’ that descended to the ability of the applicant’s family to provide (and fund) a surety. Whilst the transcript of the first Tribunal hearing is incomplete, it is apparent that at the very least, during the second hearing the Tribunal identified for the applicant as an issue that in relation to his illegal departure, country information was to the effect that he would be bailed and have to pay a fine (transcript p. 2, lines 21-22).
Counsel for the Minister urged the Court to find that the appropriate characterisation of the issue was whether or not the Applicant would be entitled to bail. It is submitted that the Applicant’s entitlement to bail, informed the Tribunal’s finding that the Applicant would be in remand for a short period of time. It is further submitted that this issue was raised with the Applicant by the Tribunal. This is evident, the Minister argues, from the transcript from the adjourned second hearing of hearing (the relevant parts of which are extracted at [54] below), which reveals that the Tribunal member refers to country information that the Applicant would be bailed.
The Minister further argues that the Applicant’s reliance on paragraph [137] of the Tribunal decision record is misplaced, as the Tribunal’s definitive finding regarding the Applicant’s entitlement to bail is located in [138] of the Tribunal decision record (the relevant part of which is located at [8] above). The Minister submits that the finding in [138] of the Tribunal decision record that the Applicant will be bailed and subject to a fine, corresponds with what the Tribunal put to the Applicant during the second Tribunal hearing. Thus, it is argued, the Tribunal complied with its procedural fairness obligations under the Act. Consequently, this ground should be dismissed as disclosing no jurisdictional error.
In the alternative, the Minister submits, if the Court finds that an issue arising from the Tribunal decision record was a factual conclusion that the Applicant’s family would provide surety or act as guarantor because they had sufficient means and were in sufficient proximity to the Applicant to be able to provide such a guarantee, there was evidence indicating that the Applicant’s parents were people of means who could provide a surety. The evidence that was identified is as follows:
a)in correspondence dated 27 May 2013 from a Member of Parliament, Batticaloa district, it was stated the Applicant’s father is a businessman. The correspondence refers to requests from opposition groups to the father for money (CB 111);
b)the delegate stated in her decision that, “I am therefore satisfied the applicant is a member of the PSG[2] ‘members of wealthy families in Sri Lanka’ (CB 133);
c)in the Applicant’s personal statement, dated 1 December 2014, provided to the Tribunal, the Applicant said, “[d]espite my father having a regular income and being able to improve his material wealth on account of having two daughters and two sons, my father is now a broken man” (CB 278);
d)in a submission made by the Applicant’s migration agent on his behalf, it was said, “[w]e take this opportunity to provide further independent country information supporting [the Applicant’s] claim to be at risk of persecution in Sri Lanka as a result of his status as a wealthy Tamil Businessman” (CB 471) and, “wealthy Tamil businessmen continue to be specifically targeted for abduction” (CB 472);
e)in correspondence dated 19 February 2015, the Applicant’s migration agent referred to, “a translation of an article about the kidnap of a wealthy businessman” and said, “the articles clearly indicate that abductions continue to occur throughout Sri Lanka and that wealthy Tamil businessmen continue to be specifically targeted for abduction” (CB 492);
f)in the Tribunal decision record at [72], the Tribunal states that it does not accept the Applicant’s claim that his father shut down a business because of threats, as it is not consistent with keeping his three other businesses open and expanding their grocery store at the same time; at [102] of the Tribunal decision record, the Tribunal refers to the Applicant’s family owing a number of businesses; at [113] of the Tribunal decision record, the Tribunal uses the following expression, “[e]ven considering he comes from a wealthy family”, and, at [154] of the Tribunal decision record, the Tribunal refers to the Applicant’s family owing a grocery store and building construction businesses.
[2] Defined by the delegate as Perceived Social Group.
Counsel for the Minister further noted that there was clear evidence that the Applicant was in contact with his father: the father wrote a statement in support of the Applicant’s application (CB 313 to 316), and at [33] of the Tribunal decision record, the Tribunal records that the Applicant stated that he could obtain another statement from his father.
Counsel for the Minister further submitted that, irrespective of how the issue was characterised, the ultimate dispositive issue to its finding in relation to the criterion in s.36(2)(a) of the Act, was that any harm the Applicant might suffer was not persecution within the meaning of s.91R(1)(c) of the Act (at [145] of the Tribunal decision record).
Similarly, it is submitted that the Tribunal found that being in remand (for up to two weeks) would not amount to “significant harm” within the meaning of sub-ss.36(2A) and 5(1) of the Act ([158] and [159] of the Tribunal decision record, which are extracted at [13] above). These findings, it is argued, were the dispositive issues with respect to the Tribunal’s ultimate conclusion that it was not satisfied that the Applicant met the criterion in s.36(2)(aa) of the Act.
The Applicant argues, in response to the Minister’s arguments regarding the Applicant’s family’s capacity to fund any requirement of surety, that the question is not whether the family could provide monetary surety or a contingent liability as a guarantor, but whether the family would do so.
In any event, the Applicant argued that there was ample evidence before the Tribunal that the Applicant’s family might not be willing or able to provide either a surety, a sum of money, or take on a contingent liability. It is noted that the Applicant’s case was that his family was perceived to be wealthy, but in fact was not:
a)the Applicant stated in his declaration that (CB 47 at [9]):
Despite the appearance to outsiders of our family operating several businesses, these family businesses are in fact quite small and struggling and their losses often exceed their profits.
b)the Applicant stated in his declaration that (CB 48 at [19]) that he feared being kidnapped and killed if his father was unable to raise enough money for his ransom;
c)the Applicant said that his father, who was facing extortion attempts, had told certain men that he had no spare money as they had just recently built a new house (CB 269);
d)the Applicant said, in response to an extortion threat, that his father had explained that he had taken several private loans to establish his business, the loans were attracting interest, and he had no spare money (CB 270); and
e)the Applicant declared that his father was a broken man. He had been forced to pay money in the past. His father had scraped and saved for a dowry for his sister, and, in effect, there was no spare money (CB 276).
The Applicant submits that, whilst the Tribunal made adverse findings in relation to various aspects of the Applicant’s story about what had happened to him in the past, it did not make a finding that the Applicant’s family was wealthy, nor that it had a capacity to pay any surety.
Consideration
In SZBEL, the High Court stated as follows (at [35]):
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision‑maker identified as determinative against the applicant.
The following statement reflects the settled principle regarding the requirements of procedural fairness (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 and affirmed in SZBEL at [32]):
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
It is appropriate to commence by firstly dealing with the authorities which were referred to and relied on by the Applicant and the First Respondent.
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”) was an appeal from a decision of the Federal Circuit Court of Australia.[3] The Applicant was a Sri Lankan who had departed Sri Lanka illegally. The crux of the findings, and the matter on appeal, was in relation to the Tribunal’s findings that the Applicant was not at risk of significant harm as a failed asylum seeker upon return to Sri Lanka within the meaning of the complementary provisions of the Act. The error alleged at first instance was the failure of the Tribunal to comply with s.425 of the Act. At first instance, Her Honour stated that the Tribunal made this finding because it found that the Applicant “would be detained only for a few days while waiting to be brought before a court to apply for bail, which is routinely given. Implicit in that finding is that because bail is routinely given, it will be given to the applicant. However, the RRT made the clear finding that the applicant's ability to be granted bail was dependent on a family member being able to provide surety. As stated above, that was an issue that the RRT was obliged to raise with the applicant and its failure to do so is a denial of procedural fairness and a breach of s.425(1) of the Act” (SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978 at [66]).
[3] SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978.
On appeal, the Minister argued that the trial Judge’s findings were not open to it on the evidence, and further, that the Judge erred in identifying, for the purposes of s.425(1) of the Act, that an issue arising in relation to the decision under review was whether SZTQS’s family would be able to provide surety for him in order for him to obtain bail.
As to the ground of appeal that her Honour’s findings were not open to her, Griffiths J set out the trial Judge’s summary of the Tribunal’s reasoning (at [43]) and found that (at [44] to [45]):
44. These matters provide an adequate basis for the primary judge’s finding at [50] of her reasons for judgment to the effect that the Tribunal’s reasons “clearly show that the conclusion that the applicant would be granted bail was based on the RRT’s acceptance that a member of the applicant’s family would be needed to provide surety for the applicant”. Thus, applying SZBEL, her Honour found that the Tribunal had fallen into jurisdictional error by failing to identify this issue and invite SZTQS’s comments.
45. It is necessarily implicit in the primary judge’s conclusion in [45] of her Honour’s reasons for judgment that a “crucial plank” in the Tribunal’s reasoning was its earlier finding that a member of SZTQS’s family would provide surety for him and that he would be bailed and, accordingly, not be detained for long. I am not satisfied that the Minister has established appellable error. Having regard to the terms of the Tribunal’s reasons for decision in [46] and [51], I consider that no error has been demonstrated in the primary judge’s conclusion that the Tribunal made a finding that a member of SZTQS’s family would provide surety for him and that, accordingly, he would only be detained for a short period.
As to the ground of appeal that the Judge erred in identifying, for the purposes of s.425(1) of the Act, that an issue arising in relation to the decision under review was whether SZTQS’s family would be able to provide surety for him in order that he may obtain bail, Griffiths J found (at [58]):
As the primary judge found, the Tribunal made a factual conclusion, which was a necessary link in the Tribunal’s chain of reasoning in rejecting SZTQS’s claim, without any notice to SZTQS that the conclusion might be made or that the factual question was in issue. That factual conclusion was to the effect 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.
In SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175, in the course of dismissing one ground of appeal relying on SZTQS ( Robertson and Kerr JJ, with whom Logan J agreed), made it clear that whether a Tribunal breaches s.425 of the Act will depend on the particular circumstances of each case. The Court said (at [76] to [80]):
76. In our opinion, however, SZTQS does not stand for a high-level proposition that every reference to a family member being required to provide surety involves a breach of s 425(1) of the Act.
77. SZTQS is but an application, on particular facts, of a feature of the review jurisdiction exercised by the Tribunal under the Act, described in SZBEL. It is not necessary to consider whether or not SZTQS was correctly decided. Rather, the pertinent feature highlighted by SZBEL is that, in each instance, the Tribunal exercises a review jurisdiction in respect of a particular decision in respect of which the Minister (or a delegate) will have given particular reasons. In our opinion, SZTQS was, of necessity, fact specific.
78. In SZTQS, part of the background circumstances was that SZTQS had, before he left Sri Lanka, been taken to the police station and, two days later, to the local courthouse where his mother paid bail money for his release. By reason, in part, of those events and by reason of his ethnicity as a Tamil, SZTQS feared that he would be arrested again. SZTQS had also given a statutory declaration that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally and without permission.
79. However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.
80. We also note that in SZTQS it appears to have been assumed by the Federal Circuit Court that providing surety involved the payment of money. This may have been because of the earlier history that SZTQS’ mother had paid bail money for his release from a cell in a police station: see [78] above. In our opinion, no such assumption should be made in the present appeal.
In SZTPL v Minister for Immigration and Border Protection [2016] FCCA 361 (“SZTPL”), the Applicant, whose ethnicity was Tamil, departed Sri Lanka illegally and claimed to fear harm from the authorities on return to Sri Lanka. His grounds of judicial review were not particularised and on their face raised no jurisdictional error. However, the Minister, as a model litigant, raised as a matter for the Court’s consideration; namely, whether the Tribunal fell into the same error as found by the Court in SZTQS (SZTPL at [35]). The Tribunal in that case found that the Applicant had left Sri Lanka illegally and that “while he may be briefly arrested, charged and held on remand, until brought before a magistrate and likely released on his own recognizance with a family member as guarantor” (SZTPL at [25]). A partial transcript of the Tribunal hearing was before the Court (SZTPL at [46]). The Tribunal member, having referred to country information in relation to persons who departed Sri Lanka illegally, relevantly said to the Applicant, “so that means they are bailed but there is no money involved” and “the only people who are not allowed to be bailed are people who have other criminal charges which are outstanding.”
A question arose, from the Minister’s submission, as to the distinction between the provision of a “surety” and the giving of a “guarantee”. Judge Nicholls observed that the provision of a surety is generally understood to relate to one person agreeing to be answerable for another’s obligation, whereas the giving of a guarantee may or may not involve contingent obligation in relation to a debt or default of another (SZTPL at [56]-[57]). Irrespective of such difference, his Honour said that, in the current case, the Tribunal made clear on the evidence (the partial transcript) “that the giving of the guarantee in Sri Lanka did not involve the payment of money by a family member” (SZTPL at [58]).
Judge Nicholls’ reasoning can be fairly summarised as follows:
a)the Tribunal found the Applicant would not suffer serious or significant harm, in part, because he would be held only briefly on remand and would be likely released “on his own recognizance with a family member as guarantor” (SZTPL at [59]);
b)read fairly, the words “with a family member as guarantor” can only be seen as an integral part of the Tribunal’s finding that the Applicant is likely to be released on his own recognisance (SZTPL at [66]);
c)the Applicant’s family’s ability to provide a guarantee (albeit without the payment of money) was a relevant matter (SZTPL at [68]);
d)the Applicant’s evidence that he was in contact with his wife “says nothing about whether she, or indeed any other family member, would be able, willing, or even acceptable to the authorities, to provide the guarantee” (SZTPL at [69]); and
e)the issue of the family members giving of a guarantee was not raised by the Tribunal with the Applicant at the hearing, in circumstances where it was not a live issue in the delegate’s decision record (SZTPL at [70]).
Accordingly, his Honour found that the Tribunal breached its procedural fairness obligations pursuant to s.425(1) of the Act (SZTPL at [71]).
In ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 (“ACC15”), the Applicant claimed to fear harm as a person who left Sri Lanka illegally. In this decision, Gilmour J distinguished the facts of that case from those in SZTQS. His Honour did not accept that it was critical to the Tribunal’s finding that the appellant could apply for bail and that bail was routinely given, or that a family member was required to provide surety (ACC15 at [27]). Although the relevant parts of the Tribunal decision record were not extracted, it is apparent that, in that case, the Tribunal found that if the Applicant were detained, it would only be for a few hours in duration and the appellant would immediately be given bail (ACC15 at [14]).
I observe here, that each of the decisions dealt with above clearly turn on the facts. It is trite to observe that whether a Tribunal fails to comply with its obligations under s.425 of the Act, must depend on the particular factual circumstances in question.
Turning to the Tribunal decision record, so far as it concerns the Applicant’s claims to fear harm as a person departing Sri Lanka illegally.
I reject the Minister’s argument that the issue, evident from the Tribunal decision record, was the Applicant’s entitlement to bail. This characterisation is too general and not supported by the Tribunal’s reasoning.
The Tribunal’s findings of fact and reasoning can be summarised as follows. The Tribunal found that:
a)the Applicant would not face any harm regarding bail conditions as it found that “his family would provide surety if needed as he is (sic) contact with them” (Tribunal decision record at [137]);
b)the Applicant will be bailed and subject to a fine of 5000 or 50,000 rupees at the most (Tribunal decision record at [138]);
c)the Applicant’s family are wealthy and they are still in contact with him and there is no reason they could not provide assistance and they would provide surety or assistance if required (Tribunal decision record at [140]);
d)there is a possibility the Applicant will be held on remand for a short period (even of up to 2 weeks) if he arrives on a weekend, and prison conditions can be poor due to overcrowding and unsanitary conditions (Tribunal decision record at [141]);
e)the Applicant does not have a profile such that he would be targeted and subject to torture or mistreatment either when he was processed at the airport or in remand (Tribunal decision record at [139] and [142]); and
f)spending up to a fortnight on remand does not amount to significant harm (Tribunal decision record at [158]).
(my emphasis)
On a fair reading of the Tribunal decision record, I am satisfied that:
a)the Tribunal’s factual conclusion was that the Applicant’s family would provide surety for bail. I am satisfied that the Tribunal contemplated this surety would involve a contingent obligation for the payment of money. The Tribunal reasons that such surety would be provided, because the Tribunal noted that the Applicant’s family are wealthy and that they are still in contact. The Tribunal’s statement that the Applicant “will be bailed” (Tribunal decision record at [138]) can only be understood in the context of its earlier finding that the Applicant’s family would provide surety, and its later statement that the family would provide surety (or any assistance) because they are wealthy and in contact with the Applicant (Tribunal decision record at [140]); and
b)this finding was a necessary link in its finding that the Applicant would only be detained or in remand for short period of time and that, in the absence of a relevant profile, this would not amount to significant harm.
The next question that arises is whether the Applicant was on notice that his family’s capacity and/or willingness to provide surety were in issue. In the delegate’s decision record, consideration is given to the impact on persons who have left Sri Lanka illegally under the IEA. No reference is made to the question of detention or remand (other than those returnees who are perceived to have engaged in any government-opposed activities) (CB 165 to 166). There is certainly no reference to the question of bail or the provision of surety and/or guarantee. As noted earlier (see [20] above), this issue was not raised by the Applicant. Consequently, I am satisfied that prior to the Tribunal hearing, the Applicant was not on notice that the provision of surety or a guarantee by his family, for the purpose of being bailed on his return to Sri Lanka as a person who departed illegally, was an issue.
Having regard to the only transcript available of the two hearings before the Tribunal, I am satisfied that at the Tribunal hearing held on 16 December 2014, there was an exchange between the Tribunal member and the Applicant, about what might happen when the Applicant returned to Sri Lanka or as a person who departed from Sri Lanka illegall. This is because, at the commencement of the resumed hearing on 20 February 2015, the following exchange occurs:
Member: You may recall last time, I talked about when you return to Sri Lanka, you may be charged for your illegal departure.
Member: And the country information in that regard is that you will be bailed and have to pay a fine of up to Rs.50,000
Member: So there is some case law that says… uhm the fact that you might just on remand even for a weekend is amounts to serious harm.
Member: Because there is some information that if you arrive over the weekend, you might not be able to see a Magistrate till Monday, so you might be on remand.
Member: Now, country information also is that, hmm in that process, you are treated the same as everyone else, no one is treated any differently.
Member: And it might be that the laws in relation to illegal departure are what we call laws of general application and they apply to everone.
Member: So, as a result, the Tribunal might find that any harm you suffer in respect of prosecution under illegal departure laws doesn’t amount to persecution.
Member: And that there is no discriminatory or systematic conduct in respect of that prosecution of illegal departure.
Member: So you might not meet the definition of serious harm under the Migration Act
Member: in respect of (not clear) 1C
Member: The other thing about illegal departure is that if you look at in terms of whether or not it amounts to significant harm,
Member: it may not meet that particular definition under the Migration Act.
Member: Particularly, if you have just been in remand for a short time.
Member: The other concern might be also, the definition of significant harm requires that there is an intent or it might be that there is not deliberate mistreatment because of poor prison conditions.
Member: So I want to make sure that you are aware of those things, they are a bit technical in terms of definition so I just wanted to make sure you are aware of those and if you have any comments.
Member: Did you want to say anything about that?
Applicant: yes,
The Applicant’s response to that lengthy commentary and propositions by the Tribunal member was to state that the country information which the member had referred to contained a lot of mistakes. After the Tribunal member clarified that the reference was referring to recent country information, the questioning moved onto other harm the Applicant feared.
In an affidavit filed by the Applicant on 22 April 2016, he deposes that the Tribunal member did not ask him (at either hearing) whether his family would provide any surety or guarantee in order to be released on bail. The Applicant was not cross-examined.
The Minister argues that it is apparent from the transcript of the adjourned second hearing (which is extracted at [54] above) and the Tribunal decision record, that the Tribunal did put the Applicant on notice about this issue. With respect to the Tribunal decision record, the Minister identifies the following extract (CB 540 at [137]):
The tribunal referred to the DFAT information about the treatment of returnees, being questioned at the airport to establish identity, charged under the Immigrants and Emigrants Act (IEA) for illegal departure at the airport and brought before a court to apply for bail. Authorities investigate and establish the identity and criminal record of each returnee, which can involve contacting the person’s family and the police in their home area. In most cases returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor or sometimes they need to wait until a family member comes to collect them…
Counsel for the Minister submitted that the introductory words of that paragraph suggests that the Tribunal did put something to the Applicant, in the context of DFAT information about the treatment he would likely experience upon his return to Sri Lanka, and being charged under the Immigrants and Emigrants Act. Reliance was placed on the decision of Judge Jarret in BEJ15 v Minister for Immigration and Border Protection [2016] FCCA 25 (“BE1J5”) where his Honour said (in the absence of a transcript of the Tribunal hearing or other evidence such as an affidavit by the Applicant) (BE1J5 at [37]):
l accept that it is plain from the tribunal's summary of the hearing that the tribunal discussed the country information that it had as to the likely prosecution, likelihood of bail, time spent on remand and likely fine with the applicant and his representative. In those circumstances, and in the absence of any other evidence bearing upon the matter, I do not think that I can infer from the tribunal's reasons that it did not raise the issue of the availability of a surety with the applicant.
In this matter, there is evidence in the form of an affidavit from the Applicant stating that the Tribunal member did not ask him whether his family could or would provide surety or guarantee. Furthermore, in this matter, the Tribunal, having referred to country information (see the extract in [7] above]) made a finding of fact (CB540 at [137]) that:
…The tribunal does not accept he faces any harm regarding bail condition as it finds that his family would provide surety if needed as he is (sic) contact with them…
(my emphasis)
I am satisfied that it is this finding which informed the Tribunal’s factual conclusion that the Applicant’s duration in remand would be short. I am also satisfied that this issue was not raised by the Tribunal member at the hearing.
It is evident from the extracts of the transcript at the resumed second Tribunal hearing that the Tribunal member:
a)referred to the question of the Applicant being charged for his illegal departure on return to Sri Lanka having being canvassed at the first hearing; and
b)referred directly to country information that the Applicant “will be bailed and have to pay a fine”.
I am not able to infer from the Tribunal decision record or transcript of the Tribunal hearing that the Tribunal raised with the Applicant, whether his family would provide surety or any assistance were he placed in remand. I am satisfied, having regard to:
a)the positive finding of fact by the Tribunal that the Applicant’s family would provide surety if needed;
b)the direct evidence of the Applicant that the Tribunal did not ask him about the basis for this finding, namely, whether his family would provide the surety; and
c)the absence of any reference in transcript which contradicts the Applicant’s direct evidence,
that the Tribunal did not raise with the Applicant the issue of the preparedness of his family to provide surety or any assistance were he placed in remand, and thereby that it might conclude he would be in remand only for a short period of time.
Having found that the issue of the preparedness of his family to provide surety or any assistance were he placed in remand was not raised by the Tribunal with the Applicant, the next question to be determined is whether this issue was dispositive to the Tribunal’s conclusions.
It can be readily accepted that this issue was not dispositive to the Tribunal’s conclusion that the Applicant did not satisfy s.36(2)(aa) of the Act, because the Tribunal found that the IEA was a law of general application and consequently any harm suffered would not amount to persecution (see [11] above).
The real question is whether the issue was dispositive to the Tribunal’s finding that the Applicant did not satisfy the criterion in s.36(2)(aa) of the Act.
The Tribunal made two findings. The first was that it found that spending up to a fortnight in remand in such conditions (cramped, uncomfortable and unsanitary) did not amount to “significant harm” as defined in sub-s.36(2A) of the Act. Secondly, the Tribunal found that any harm suffered by the Applicant in remand was not treatment that is intentional.
In order to satisfy s.36(2)(aa) of the Act, an applicant must establish that there are “substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”. Section 36(2A) of the Act provides that a non-citizen will suffer “significant harm” if, relevantly:
…
(c) the non-citizen will be subjected to torture; or
(d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non-citizen will be subjected to degrading treatment or punishment.
I accept the Applicant’s submission that the Tribunal’s finding that the Applicant would not suffer significant harm within the meaning of s.36(2A) of the Act follows from its factual conclusion that the Applicant would be in remand for a short duration, because his family would provide surety or any assistance. Consequently, the issue the Tribunal failed to raise with the Applicant was dispositive to this finding.
However, each of the instances of significant harm under s.36(2A) of the Act are further defined in s.5 of the Act. Each of these definitions requires an act or omission which is “intentionally inflicted”. For example, “cruel or inhuman treatment or punishment” is relevantly defined as meaning an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
….
The Tribunal found that, in addition to its finding that the conditions in remand did not constitute “significant harm” within the meaning of the Act, any treatment the Applicant was subject to would not be intentionally inflicted. I am satisfied that this second finding was not connected to its finding that the Applicant would be in remand for a short period of time. In other words, the Tribunal’s finding that any of the conditions he might experience in remand would not be intentionally inflicted was separate to, and not dependent upon, its finding about the short duration the Applicant would be in remand.
Consequently, I find that the Tribunal’s factual conclusion that the Applicant’s family would provide surety or any assistance were the Applicant in remand, and thereby that his stay in remand would be of short duration, was not dispositive to its ultimate finding that there was not a real risk the Applicant would suffer significant harm within the meaning of the Act.
Accordingly, I find that the Applicant’s third ground of judicial review does not give rise to jurisdictional error.
Ground Four – Failure to deal with a claim
The Applicant’s fourth ground of judicial review is as follows:
The Second Respondent erred by failing to consider the submissions and claims by the Applicant in the submission dated 31 March 2014. In particular, that the Second Respondent failed to consider the submissions and country information that indicated Tamil people were at risk of sexual violence in custody.
In AJJ15 v Minister For Immigration and Border Protection [2016] FCCA 482, Judge Smith helpfully summarised (in my respectful opinion) the principles relevant to the Applicant’s fourth ground of judicial review. His Honour said (at [25] to [27]):
25. The Tribunal’s duty is to “review” the decision of the delegate: s.414(1); Minister for Immigration & Citizenship v SZIAI [2009] HCA 39; (2009) 83 ALJR 1123 at [25]. That means that, like the delegate before it, the Tribunal must determine whether it is satisfied that a review applicant satisfies the criteria for the grant of a protection visa: s.65(1). Those criteria involve the assessment of the possibility of events occurring when a visa applicant returns to his/her own or her own country of nationality or residence. Those are factual matters which vary according to the evidence before the Tribunal, both that given by or on behalf of a review applicant as well as other information about the circumstances pertaining in the relevant country. Thus, it has been said that the Tribunal cannot discharge its statutory review task without ‘a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the on-going circumstances on the ground’: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [38].
26. Similarly, it has often been said that for the Tribunal to fail to respond to a substantial, clearly articulated argument relying upon established facts is to deny an applicant procedural fairness and to constructively fail to exercise its jurisdiction: Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [25]. The Tribunal may, of course, “fail to respond” to a claim or argument in a number of ways. It may simply overlook the claim or argument or misunderstand it or its relevance to the issues on the review: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [63].
27. On the other hand, a failure by the Tribunal to consider a particular argument or claim may not amount to jurisdictional error where the failure was not material to its decision. In other words, in order to find jurisdictional error it is necessary to find not only an error of understanding or approach, but also a discernible effect on the exercise of power which points to a conclusion that the decision was made without authority because there had been a jurisdictional error: Minister for Immigration & Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562 at [60] (Buchanan J). There might be no jurisdictional error, for example, where other findings made by the Tribunal were unaffected by the error and were dispositive of the application for review. In my opinion, that is what occurred in this case.
To this summary, I would add the following. The Tribunal must address, cumulatively, all of the essential elements of the claim or claims raised by the material or evidence: Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [7]. The Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263 (“NABE”) at [61]. The articulated claim must arise sufficiently from the material, as to require a reasonably competent Tribunal in the circumstances to appreciate its existence: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]. An unarticulated claim that is raised on the evidence will not depend for its exposure on constructive or creative activity by the Tribunal: NABE at [58].
The formation of the state of satisfaction required for the purposes of ss.36(2)(a) and 36(2)(aa) of the Act involves two steps, which were explained in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”) at [34] (Kenny, Griffiths and Mortimer JJ) as:
…first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
The Tribunal may fall into error if it fails to correctly understand the basis, or the bases, upon which an Applicant claims a well-founded fear of persecution. The jurisdictional error, in such a case, is the failure of the Tribunal to perform the statutory task imposed on it by the relevant provisions of the Act: MZYTS at [31].
The Applicant’s submission is that his claim that Tamil people were at risk of sexual violence in custody arose from the submissions made on his behalf, including country information. The Applicant relies on the following:
a)In the submission made by his migration agent on 16 September 2013, under the heading, “Response to Delegate’s Decision”, the statement that:
According to the Human Rights Watch, ‘there appears to be no category of Tamil who, once taken into custody, is immune from rape and other sexual violence’(CB 182);
(emphasis in original)
b)In ‘Appendix B - Violence and Discrimination against Tamils in Sri Lanka” of the submission made by his migration agent on 16 September 2013, a quote from a Human Rights Watch report dated February 2013. This report is apparently based on interviews of detained suspects, describes the denial of due process rights and says, “being held incommunicado facilitated their mistreatment, including rape” (CB 209);
c)In ‘Appendix B - Violence and Discrimination against Tamils in Sri Lanka’ of the submission made by his migration agent on 16 September 2013, the statement that (CB 211):
…the UNHCR have observed that ‘generally members of the minority Tamil and, to a lesser extent, Muslim communities are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances’, with these groups also facing greater risks of ‘sexual and gender-based violence and violations of housing, land and property rights’
d)In ‘Appendix B - Violence and Discrimination against Tamils in Sri Lanka’ of the submission made by his migration agent on 16 September 2013, the statement that:
Tamil detainees, when perceived to support the LTTE, have proven uniquely vulnerable to abuses in detention. As Human Rights Watch have documented, ‘Sri Lankan security forces have been using rape and other forms of sexual violence to torture suspected members or supporters of the Liberation Tigers of Tamil Eelam’… (CB 222); and
This Human Rights Watch report observes that the use of sexual violence ‘was not just the local occurrence for the action of rogue security forces personnel’, but instead ‘a practice that was known or should have been known by senior officials’. The victims of sexual assault generally remained silent about their experiences, ‘fearing social stigmatisation and reprisals from perpetrators if they reported the crime’ as well is suffering from ‘institutional barriers imposed by the Sri Lankan government to block effective reporting and investigation of rape cases’ (CB 223).
In context, the reference to sexual violence in custody, at CB 222 and CB 223 in the submission made by the Applicant’s migration agent on his behalf, is clearly linked to a particular profile; namely, a Tamil suspected of supporting or being a member of the LTTE. On a fair reading, the reference to sexual violence in the extract at CB 211 is not, in my view, connected to arbitrary detention. This is evident from the use of the phrase “these groups also facing greater risks of” followed by references to risks such as violations of housing and property rights. This cannot possibly have any connection to detention. This then leaves one statement made by the Applicant’s migration agent (at CB 182), in the context of lengthy submissions incorporating detailed references to a range of country information. In those circumstances, I am not satisfied that a claim that the Applicant feared that as a Tamil he would suffer sexual violence in custody arose squarely from the material before the Tribunal.
Accordingly, I find that the Applicant’s fourth ground of judicial review does not give rise to jurisdictional error.
Conclusion
For the reasons set out in this judgment, Orders will be issued dismissing the Applicant’s application for judicial review and requiring the Applicant to pay the First Respondent’s costs.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 21 October 2016
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