AIF15 v Minister for Immigration
[2017] FCCA 3184
•20 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIF15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 3184 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – whether the Tribunal had regard to an irrelevant consideration or failed to comply with s.425 of the Act or with a Ministerial Direction in a manner constituting jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 36(2B)(c), 91R, 425, 477 |
| Cases cited: AIF15 v Minister for Immigration and Border Protection [2015] FCCA 1574 |
| Applicant: | AIF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 906 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 23 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2017 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 906 of 2015
| AIF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), dated 9 February 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant sought review of the Tribunal decision by application filed in this court on 1 April 2015. He sought an extension of time for making the application under s.477 of the Migration Act 1958 (Cth) (the Act) on the basis that after his application was sent to the Court for filing on 13 March 2015, there had been a delay in assessing his application for a waiver of fees due to financial hardship. He relied on an email from a Dr John Sweeney at the Edmund Rice Centre of 20 March 2015 to the Registry enquiring about the fact that the application had been lodged a week earlier but was still “unprocessed”.
On 5 June 2015 the application was dismissed by Judge Street (see AIF15 v Minister for Immigration and Border Protection [2015] FCCA 1574). The Applicant appealed. Orders were made by consent by Griffiths J on 19 August 2015 granting him leave to appeal, allowing the appeal and remitting the matter to this court, differently constituted, for determination according to law.
After the matter was remitted I made orders for the filing of a Courtbook, other evidence and any amended application. I listed the matter for the hearing of the application for an extension of time and, if granted, for a hearing of the substantive application. The Applicant filed an amended application. He did not file any written submissions or affidavit evidence.
In circumstances where the delay was not long, the Minister had not submitted that the explanation provided was unsatisfactory and having regard to the existence of grounds in the amended application which were articulated in conventional terms and addressed in some detail in the Minister’s submissions, I granted an extension of time. The matter proceeded to a final hearing.
Before turning to consider the grounds in the amended application it is relevant to set out the background to these proceedings.
The Applicant, a citizen of Sri Lanka, arrived in Australia as an irregular maritime arrival in August 2012. In January 2013 he lodged an application for a protection visa with the assistance of a solicitor/migration agent. In support of his application he provided a statutory declaration in which he claimed he would be “harmed and mistreated” if he returned to Sri Lanka because of his Tamil race, imputed political opinion as a supporter of Tamil political groups and his status as a failed Tamil asylum seeker.
The Applicant claimed that he left Sri Lanka because he was scared for his life. He claimed that he had been harassed because he was a Tamil. He claimed that in 1990, during the war, his family had fled from the northern province to another part of Sri Lanka for safety and that after his father returned to their home region to obtain provisions they never saw him again, but were told he had been shot by the army.
His mother then took the family to India. They returned to Sri Lanka in 1992. He claimed that in 1997 (when he was in year 10 at school) he and others were under constant surveillance and that, being concerned that as a young male living in the Northern Province he was at risk from the authorities and being called on to join the LTTE, he again travelled to India. He returned to Sri Lanka in 2001.
The Applicant claimed that in April 2006 his cousin was killed by the Sri Lankan CID. He claimed that while his cousin’s death certificate listed homicide as the cause of death, their suspicions were that he was killed by the CID as they had killed and decapitated hundreds of Tamils in the manner in which his cousin had been killed.
The Applicant also claimed that in 2011 he was approached by a named local candidate of the Tamil National Alliance (the TNA), and was asked to assist during the elections. He claimed that he undertook volunteer work for the candidate including assisting with jobs such as sticking up posters (including posters for the Tamil Eelam Liberation Organisation (TELO) and the Peoples Liberation Organisation of Tamil Eelam (PLOTE)) and assisting voters on how to vote in the polling stations.
The Applicant claimed that in November 2011 while he was working as a rickshaw driver, he was abducted by the CID, detained and interrogated about his political involvement.
The Applicant claimed that as a Tamil his life was under daily threat from the army. He also claimed generally that while the war had ended in 2009, the situation for Tamils had barely improved, that they were treated as second class citizens and denied many freedoms and basic rights and were harassed by the authorities and the Sinhalese population, but were afraid to complain or exercise their rights for fear of punishment.
The Applicant also claimed that if he returned to Sri Lanka as a failed asylum seeker he feared he would be severely punished, arrested, tortured and then killed.
The Applicant claimed to fear the Sri Lankan authorities including the military, the army and the police. As indicated, he claimed to fear he would be harmed and mistreated for reasons of his race as a Tamil, his imputed political opinion that because he assisted the TELO and PLOTE he was therefore associated with the LTTE and his membership of the particular social group of failed Tamil asylum seekers.
The application was refused and the Applicant sought review by the Tribunal.
The Applicant’s representative provided the Tribunal with two pre-hearing submissions describing the events the Applicant claimed had occurred and stating that he feared persecution on the basis of his race, his real or imputed political opinion as a TNA and LTTE supporter and his membership of the particular social group of failed Tamil asylum seekers. It was also claimed that he met the complementary protection criterion on the basis that any interaction with Sri Lanka’s interrogation processes and prison system would result in him experiencing significant harm.
The Applicant attended a Tribunal hearing. The only evidence before the Court of what occurred in the hearing is the Tribunal’s account in its reasons for decision. In addition, after the hearing the Applicant’s representative provided further written submissions addressing certain aspects of the Applicant’s claims, issues raised at the hearing and country information. Documents were provided to the Tribunal including a copy of the death certificate for the Applicant’s father (and a translation) and a newspaper article about the death of the Applicant’s cousin.
Tribunal Decision
In its reasons for decision the Tribunal recorded that in his irregular maritime arrival entry interview the Applicant had stated that he left Sri Lanka as he feared for his life, that he had claimed that one of his cousins had been killed by unidentified men after receiving phone calls demanding money and also that in 1990 his father was shot and killed by the army.
The Tribunal summarised the Applicant’s claims in the statement accompanying his protection visa application and the additional claims he made at the departmental interview, including that since 2003 he had worked as a volunteer for the Tamil National Alliance (the TNA), that members of the EPDP and PLOTE had also asked him for assistance, but that between 2010 and 2011 he only assisted a TNA candidate. It recorded that he also claimed that on one occasion in 2005 he had been stopped by the SLA in Colombo, questioned and tortured and that in November 2011 he was kidnapped, detained and tortured by the CID.
The Tribunal referred to the representative’s submissions. It described aspects of the Applicant’s evidence at the Tribunal hearing.
The Tribunal accepted that the Applicant was from the Northern Province of Sri Lanka, that his father disappeared in about 1990 and was presumed dead and that the family had been told that he had been shot by the SLA. It accepted the Applicant’s claims about where he had lived in Sri Lanka and India before coming to Australia. The Tribunal also accepted that in about 2005 the Applicant and friends had travelled to Colombo to attend a wedding and were stopped by police, beaten and then sent to their home area with a warning never to return.
The Tribunal accepted that the Applicant’s cousin had disappeared in April 2006 and that his body was found several days later. It accepted that the Applicant and his family suspected that the kidnapping and murder was carried out by the CID, although there was no evidence of this. The Tribunal did not accept that the death was necessarily caused by the CID, although it accepted this was a possibility. The Tribunal observed that it was also possible that any one of a number of paramilitary or other groups may have been responsible or that it may have been just randomised violence. In these circumstances, the Tribunal found that the cousin’s death was caused by a person or persons unknown for reasons unknown. It stated that while it accepted that the death took place in the manner graphically described by the Applicant in the course of the hearing, it did not find that the death was carried out by the CID.
The Tribunal had regard to the fact that when the Applicant was asked about other harassment, threats or acts of violence affecting him or his family from 2003 until early 2011, apart from an incident involving a neighbour’s adult son, his evidence was that he was never questioned by the CID or other Sri Lankan authorities about his activities and that he suffered no harassment, threats or other acts of violence in this period. The Tribunal found that no such events or activities affecting the Applicant or his family took place in that time, except for his detention in 2005 and his cousin’s death in 2006.
The Tribunal had regard to supporting documentation. It accepted that the Applicant had provided support to a named member of the TNA who contested local council elections in 2011 as claimed and that this support, including the provision of transport and distribution of campaign material, continued until the Applicant left Sri Lanka.
The Tribunal considered the Applicant’s claims that he was interrogated, detained and tortured by the CID in November 2011. It had regard to a difference between his account of this incident in his written statement and in his oral evidence to the delegate, in that in his written statement he had failed to mention any claim of torture. The Tribunal did not accept the Applicant’s explanation for that omission that he had been afraid that his claims against the Sri Lankan authorities would be made known to them if he told the Australian government, but that he changed his position when the delegate told him he had to speak honestly and openly and because he had taken an oath. The Tribunal did not accept that at the time of preparing the written statement (when the Applicant had the benefit of legal advice) it was rational for him not to have told his agent/solicitor what he now claimed had occurred or to have excluded this from his statement, in circumstances where his representative was preparing a statement designed to most persuasively support his application for protection.
The Tribunal accepted that the Applicant was detained by the Sri Lankan authorities (most probably the CID) in November 2011 for about an hour and a half and that they shouted and screamed at him. It did not accept that the Applicant was tortured in the manner described in his oral evidence. The Tribunal did accept that it was this incident which prompted the Applicant to leave Sri Lanka, although it took him some 7 months to do so.
The Tribunal summarised its findings. It accepted that the Applicant had relevantly experienced harm on two occasions (in 2005 and 2011), and that his cousin disappeared and was killed in 2006. It found that there was no other harassment, threats or other acts of violence affecting the Applicant or his family from the time he returned to Sri Lanka in 2003 to the time he left in July 2012.
The Tribunal recorded that the Applicant claimed that he feared serious harm for reasons of his race (Tamil), his political opinion as a TNA or LTTE supporter and as a member of a particular social group of failed Tamil asylum seekers.
It acknowledged that in accordance with Ministerial Direction No.56 it was required to take into account any country information assessment prepared by DFAT to the extent relevant. The Tribunal had regard to the 2014 DFAT Report in relation to a substantial reduction in the risk of harm for Tamils from the north of Sri Lanka. It accepted that until the end of the civil war in 2009 Sri Lankan Tamils had suffered disproportionately at the hands of the authorities in the northern and eastern areas, but found that since the end of the civil war the risk to Sri Lankan Tamils had substantially reduced.
The Tribunal also had regard to the fact that the Applicant was last detained by the CID briefly in 2011, and that this was the only occasion on which this occurred (apart from the police detention and beating in 2005). It was not satisfied that there was anything about the Applicant’s profile which suggested that, as a Tamil, he now faced a real chance of serious harm if he returned to Sri Lanka. It found that this conclusion was supported by cited country information.
Insofar as the Applicant claimed to fear harm by reason of his activities supporting the TNA (and thereby being imputed with support for the LTTE), the Tribunal had regard to the fact that the TNA was formed as an amalgamation of moderate Tamil parties as well as a number of former rebel groups, that it had participated in elections since 2001 and that while the TNA originally supported self-determination in an autonomous state for Tamils, it had dropped the demand for an independent state in 2010.
The Tribunal also had regard to UNHCR Guidelines and country information indicating that Tamil ethnicity of itself did not establish a need for protection and that something more was needed (such as actual or imputed links to the LTTE), the absence of information to suggest that a Tamil with links to the TNA would be at risk of harm, and the absence of any claim that the Applicant fell within any of the groups identified in country information as persons at real risk of persecution or serious harm on return to Sri Lanka.
The Tribunal considered whether there was a real chance the Applicant would be harmed because of links to the TNA. It had regard to the fact that he was not a member of the TNA and his only involvement had consisted of occasional jobs 4 years earlier, such as driving supporters in his rickshaw. The Tribunal did not accept that the Applicant had a fear of persecution upon return to Sri Lanka for reason of his imputed support for the TNA. It was of the view that even if it accepted that the Applicant subjectively held such fear, there was no country information supporting a fear of persecution based on support for the TNA unless the person was a high-profile activist or supporter (which the Applicant did not claim to be). Accordingly the Tribunal found that the Applicant did not have a well-founded fear of serious harm for this reason.
The Tribunal found that available country information did not suggest that the Applicant had a well-founded fear of persecution for reason of his Tamil ethnicity or because he would be perceived to be a supporter of the TNA/LTTE and concluded that he did not have a well-founded fear of persecution for these reasons.
The Tribunal considered the Applicant’s claimed fear of serious harm by reason of being a failed asylum seeker. It had regard to country information, in particular a recent DFAT report which considered the treatment of returnees to Sri Lanka. It found:
48. Independent reports and information suggests that the applicant will be questioned at the airport, detained and investigated by Sri Lankan authorities. The applicant is unlikely to be detained for more than a few days while those investigations are carried out. The DFAT Country Report suggests that the most likely penalty for leaving Sri Lanka illegally will be a fine (unless the applicant was involved in organizing people smuggling) and that he will not be given a custodial sentence. The objects of the Sri Lankan Immigrants and Emigrants Act include regulating the departure from Sri Lanka of Sri Lankan citizens. Therefore being charged under that Act and being detained is the result of the non-discriminatory enforcement of a law of general application.
49. I am not satisfied that any problem the applicant may face as a result of being questioned, detained or charged is directed at him for a Convention reason, but are incidents which may be experienced by anyone returning to Sri Lanka. Nor am I satisfied that being questioned, detained or charged amounts to systematic and discriminatory conduct as required by s.91R(1)(c).
The Tribunal stated that it had considered the Applicant’s claimed fears of serious harm amounting to persecution both individually and cumulatively. It was not satisfied that he had a real chance of serious harm for any of the reasons claimed or arising on the evidence individually or cumulatively.
The Tribunal then stated that it had considered the complementary protection criterion in light of its earlier findings. It went on to consider whether the Applicant met the criterion having regard to the matters it had accepted as follows:
52. As discussed above, I find that the applicant may be detained for a few days when he returns to Sri Lanka, will be investigated by the authorities and charged with offence (sic) under the Immigration and Emigration Act of Sri Lanka, but that the most likely penalty is a fine, unless he was considered to be an organiser of illegal migration of people from Sri Lanka. I do not accept that these matters singularly or cumulatively constitute significant harm. DFAT has advised 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, and that the risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people-smuggling or terrorism offences. There is no suggestion that the applicant falls into this class of person. Again I note that the objects of the Sri Lankan Immigrants and Emigrants Act include regulating the departure from Sri Lanka of Sri Lankan citizens. Therefore being charged under that Act and being detained is the result of the non-discriminatory enforcement of a law of general application.
53. Having considered the applicant’s circumstances and having regard to the October 2014 DFAT country information, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
The Tribunal affirmed the delegate’s decision. The Applicant sought review in this court. He now relies on an amended application containing 3 grounds.
Whether the Tribunal had regard to an irrelevant consideration
The first ground in the amended application is that the Tribunal “erred by making and irrelevant consideration (sic)”. The particulars to this ground are:
a. At [52] the Tribunal applied the refugee status finding that the Sri Lankan Immigrants and Emigrants Act is a non-discriminatory law of general application in the complementary protection assessment.
This ground is to the effect that the Tribunal erred in having regard to the fact that the Sri Lankan Immigrants and Emigrants Act (the I&E Act) was a non-discriminatory law of general application in considering whether he met the complementary protection criterion. The Applicant made no submissions in relation to this ground, despite being given the opportunity to file written submissions and to make oral submissions.
The First Respondent submitted that the Tribunal had applied the correct legal test in determining whether the Applicant satisfied the complementary protection criterion under s.36(2)(aa) of the Act, setting out the relevant law earlier in its decision and properly considering whether there was a real risk the Applicant would suffer significant harm if returned to Sri Lanka.
As the First Respondent submitted, the Tribunal’s finding in the context of considering the complementary criterion that the I&E Act was a law of general application was not such as to constitute having regard to an irrelevant consideration in the sense considered in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 at [40] per Mason J. This was not a factor that the Tribunal was forbidden from taking into account. It properly informed the Tribunal’s conclusion that the Applicant would not suffer significant harm under the Act.
The Tribunal referred to the I&E Act in the context of considering the likely consequences for the Applicant if he returned to Sri Lanka as an illegal departee and returned failed asylum seeker. It had already accepted (in considering the Refugees Convention criterion) that the Applicant would be likely to be questioned and investigated and detained for no more than a few days. It had found that the object of the I&E Act included regulating the departure from Sri Lanka of Sri Lankan citizens and “[t]herefore” that being charged under that Act and detained was the result of the non-discriminatory enforcement of a law of general application. In that context the Tribunal also had regard to country information that all Sri Lankan returnees were treated according to such standard procedures, regardless of ethnicity and religion. It was not only not satisfied that any problem the Applicant may face as a result of such procedures was directed at him for a Convention reason, but also found that such consequences were “incidents which may be experienced by anyone returning to Sri Lanka”. It was not satisfied that being questioned, detained or charged amounted to systematic and discriminatory conduct within s.91R(1)(c) of the Act.
Whether or not it was necessary for the Tribunal to engage, in terms, with whether the I&E Act was appropriate and adapted to achieve a legitimate object of Sri Lanka (see Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 258 and Applicant S v Minister for Immigration and Multicultural Affairs (2003) 217 CLR 387; [2004] HCA 25 at [43]-[44]), it had regard to the fact that the objects of the I&E Act included regulating the departure of Sri Lankan citizens from Sri Lanka.
The Tribunal considered the complementary protection criterion in light of these earlier findings and what it accepted may occur to the Applicant on return to Sri Lanka. As set out above, it did not accept that the likely consequences of being an illegal departee from Sri Lanka constituted significant harm under the Act. Relevant to the definitions of conduct constituting significant harm under the Act, the Tribunal had regard to DFAT advice that the risk of torture or mistreatment of returnees, including those suspected of offences under the I&E Act, was low. While the Tribunal acknowledged that such risk was greater for those suspected of committing crimes including people smuggling or terrorism offences, it found that there was no suggestion the Applicant fell into this class of persons. Having made these findings it again had regard to the fact that the object of the I&E Act was to regulate the departure from Sri Lanka of Sri Lankan citizens and found that being charged under that Act and being detained was the result of the non-discriminatory enforcement of a law of general application, before reaching the conclusion, having regard to the Applicant’s circumstances and the October 2014 DFAT Report, that it was not satisfied there were substantial grounds to believe there was a real risk he would be subjected to any of the kinds of treatment amounting to significant harm.
For the Tribunal to take such an approach is consistent with the view taken by Rares J in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 at [11]-[14] in relation to the effect of s.36(2B)(c) of the Act (and see BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150; [2016] FCA 680 at [10] and [30]) on the basis that a penalty that applies generally to the population of a country for breaching the law cannot amount to significant harm within s.36(2)(aa) and s.36(2A) of the Act. It is not indicative of having regard to an irrelevant consideration such as to amount to jurisdictional error.
In the context of the decision as a whole, the fact that in considering the complementary protection criterion the Tribunal did not expressly consider separately the various possible consequences for a returnee (including a returned Tamil failed asylum seeker who had departed Sri Lanka illegally) referred to in the country information it had cited with approval in considering the Refugees Convention criterion and whether each such consequence amounted to significant harm is not such as to establish jurisdictional error. It was open to the Tribunal to refer to and have regard to its earlier discussion of country information and its findings about what would happen to the Applicant if he returned to Sri Lanka and to find, based upon those findings about the Applicant’s circumstances and country information, that any experience or mistreatment the Applicant may suffer (including pursuant to a law of general application) was not such as to amount to significant harm under the Act.
The Tribunal not only had regard to the fact the I&E Act was a law of general application and to its objects but also to the low risk of torture and mistreatment for the great majority of returnees and to the Applicant’s profile. It clearly did not accept the Applicant’s claim that “any” interaction with Sri Lanka’s interrogation processes and prison system would result in the Applicant experiencing significant harm within the Act and has not been shown to have erred in proceeding on this basis (and now see Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610; [2015] HCA 22).
A fair reading of the Tribunal’s consideration of the Refugees Convention criterion in the context of the decision as a whole reveals that it considered the impact of the procedures to which the Applicant would be subject upon returning to Sri Lanka. It was open to the Tribunal to rely on its earlier findings of fact in relation to the Refugees Convention criterion to form a conclusion in relation to the complementary protection criterion (see SZSHF v Minister for Immigration and Border Protection [2014] FCA 237 and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774). It has not been established that the Tribunal considered an irrelevant matter or misunderstood its obligations in relation to consideration of the complementary protection criterion in the manner contended for by the Applicant.
Ground 1 is not made out.
Whether the Tribunal failed to comply with s.425 of the Migration Act
Ground 2 is as follows:
The Tribunal erred by not providing me with the opportunity for a fair hearing as required by s425 of the Act.
Particulars
a. I appeared at the Tribunal to give evidence on 15 December 2014;
b. The Tribunal relied on information in footnote 2 that was accessed on 15 February 2015; and
c. I did not have an opportunity to consider and comment on this information that was central to my claim and did not get a fair hearing.
The Applicant’s complaint appears to reflect the fact that the Tribunal hearing was on 15 December 2014, but in its reasons for decision the Tribunal referred to information described in footnote 2 to its reasons as accessed on “5 February 2015” (not “15” February 2015 as stated in the particulars). 5 February 2015 was after the hearing. The Applicant’s concern is that he did not have a subsequent opportunity to consider and comment on this information. It was said to be central to his claim. On this basis he claimed that he did not get a fair hearing before the Tribunal.
The article in question is described by the Tribunal as a Wikipedia article about the TNA. It was referred to by the Tribunal at footnote “2” in paragraph 40 of its reasons as follows:
The applicant is also worried about facing harm by reason of his activities supporting the TNA, and thereby being imputed with support of the LTTE. I note that the TNA was formed as an amalgamation of moderate Tamil parties as well as (sic) number of former rebel groups. It has participated in elections since 2001. The alliance originally supported self-determination in an autonomous state for Tamils, but dropped the demand for an independent state in 2010, accepting regional self-rule as an alternative.2
2[ – accessed 5 February 2015].
The Wikipedia article itself is not in evidence before the Court. However it is apparent from the Tribunal’s reasons for decision that the information in question was general country information relating to the TNA and that the aspect relied on by the Tribunal aligned with the Applicant’s own testimony about the TNA, including that it had become a political party that at one time had sought an independent state. There is nothing to indicate that this information was adverse to the Applicant’s claims.
The Tribunal understood that the Applicant had advanced claims in relation to the TNA in his statutory declaration and written submissions and in his oral evidence to the Tribunal. The Tribunal considered these claims. The Tribunal was not considering the nature of TNA, as such, but rather whether people faced a real risk of harm by association with the TNA. The Applicant was aware of this issue and made submissions in that respect.
It has not been established that this evidence was central to the Applicant’s claims or otherwise a dispositive issue such that it had to be put to the Applicant in a Tribunal hearing (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). I note that such country information is also within the s.424A(3)(a) exception to the obligation under s.424A(1) of the Act.
I also note that the Tribunal accepted that the Applicant did provide assistance to the TNA as claimed, but found that as he was not a member and given his limited involvement four years earlier, he had no fear of persecution for reason of his imputed support of the TNA. Relevantly it did not rely on the Wikipedia article about the nature of the TNA cited at footnote 2 of its reasons in reaching this conclusion, but rather had regard to the absence of country information in finding at paragraph 44:
Even if I accepted that he subjectively held this fear, there is no country information which supports a fear of persecution based on support of the TNA, unless the person is a high profile activist or supporter, which the applicant does not claim to be. Accordingly I find that the applicant does not have a well-founded fear of serious harm for this reason.
Insofar as this ground may be seen to raise a more general contention about the extent to which the Tribunal raised issues with the Applicant at the hearing about his assistance to the TNA and claims of fearing harm as a TNA supporter, there is no evidentiary basis for any such claim in the absence of a transcript of the hearing.
This ground is not made out.
Whether the Tribunal failed to comply with a Ministerial Direction
Ground 3 is:
The Tribunal failed to comply with Ministerial Direction number 56 in contravention of s499(2A) of the Act.
Particulars
a. The Tribunal failed to take into account the PAM3 Protection Visa Complementary Protection Guidelines when it made a finding on whether the treatment that I would face on being detained in Sri Lankan (sic) was degrading treatment or punishment.
The particulars to this ground do not identify any specific aspect of the PAM3 complementary protection policy guidelines which should have been taken into account.
The Tribunal acknowledged its obligations to consider the guidelines both generally (early in its decision when describing the applicable law) and specifically. It referred to the requirement in Ministerial Direction No.56 to take into account policy guidelines in PAM3 and also any country information assessment prepared by DFAT. It expressly considered the DFAT country report for Sri Lanka. As the First Respondent submitted, where a Tribunal has expressly acknowledged its obligations under a Ministerial Direction “it should not lightly be inferred that the Tribunal failed to discharge its obligations” (see SZTCU v Minister for Immigration and Border Protection [2014] FCCA 1600 at [39] per Judge Cameron). There is no basis for any inference that the Tribunal failed to discharge its obligations in that respect.
I also note that, as stated by Perram J in SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34; [2015] FCA 150 at [20], an applicant who raises an issue of the nature pleaded in this ground ought to point to some aspect of PAM3 (or of a DFAT country information assessment) that was relevant and should have been taken into account. That has not occurred in this case. The obligation to consider the guidelines arises only insofar as relevant to the claims made by the Applicant. It is for the Tribunal to form an opinion in that respect. It has not been established that the Tribunal failed to take into account any particular relevant aspect of the PAM3 guidelines in a manner constituting jurisdictional error (see AZK15 v Minister for Immigration and Border Protection [2015] FCA 1444 at [42]-[44] per Jagot J and see SZTMD at [20] per Perram J).
In any event, the Tribunal engaged with the definition of significant harm relevant to the Applicant’s protection claims, insofar as necessary in light of its findings about his circumstances. It had regard to evidence that the risk of torture or mistreatment for the great majority of returnees including those suspected of offences under the I&E Act was low. It was not satisfied that investigation, being charged with an offence under the I&E Act and possible detention for a few days and the likely imposition of a fine singularly or cumulatively constituted significant harm. In light of the decision of the High Court in WZAPN the Tribunal did not fall into error in failing to proceed on the basis that any detention on remand amounted to serious or significant harm (as the Applicant’s adviser had submitted to it). As indicated, it was also open to the Tribunal to have regard to its finding that the I&E Act was a law of general application (see SZSPT and also note paragraph (b) in the s.5 definition of degrading treatment or punishment).
This ground is not made out.
Other Issues
The Applicant raised a number of issues in oral submissions. First he submitted that his father had been shot dead and his cousin had faced a problem (and that he had provided the Tribunal with his father’s death certificate) but that the Tribunal had not considered this information.
It has not been established that the Tribunal failed to have regard to information in relation to the death of the Applicant’s father and/or the claims about his cousin in a manner constituting jurisdictional error. The Tribunal recorded the Applicant’s claims in that respect. It accepted that his father was presumed dead and that the family had been told he had been shot by the SLA in 1990. It proceeded on this basis. In these circumstances it was not necessary for the Tribunal to refer expressly to the father’s death certificate (cf Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS (2014) 309 ALR 67; [2014] FCAFC 16).
The Tribunal also accepted that the Applicant’s cousin had disappeared and that his body had been found several days later in April 2006. It accepted that the cousin’s death had occurred in the manner graphically described by the Applicant (which was consistent with the news report submitted to the Tribunal). Given its acceptance of the manner of the cousin’s death, it was not necessary for the Tribunal to refer to this news report. The Tribunal also considered the claim that the family suspected the cousin’s killing was carried out by the CID (which was not a matter referred to in the press report). On the evidence before it and for the reasons it gave, which were reasonably open to it on the material before it, the Tribunal did not accept that this was necessarily the case. The Tribunal accepted that the Applicant’s cousin had disappeared and was killed in 2006, although it found that the cousin’s death was caused by a person or persons unknown for reasons unknown. Relevantly, apart from this death and the two incidents of harm experienced by the Applicant in 2005 and 2011, the Tribunal considered the Applicant’s claim to fear harm on the basis that there was no other harassment, threat or act of violence affecting him or his family from 2003 to 2012. No jurisdictional error is established in the Tribunal’s consideration of the information about the cousin’s death.
The Applicant also tendered a copy of a letter addressed “To whom it may concern” dated 29 April 2015 from Sumana Kodi, who is described as an “accredited mental health social worker”. This letter referred to the Applicant reporting feeling distressed and depressed about his interview with immigration authorities on 30 April 2015. This cannot be a reference to the Tribunal hearing, which was on 15 December 2014. The Tribunal decision was dated 9 February 2015. As at 29 April 2015 the Applicant had commenced judicial review proceedings. The social worker stated that the Applicant had been referred to her by his general practitioner for urgent mental health assessment and counselling. The letter recorded the Applicant’s claimed fears of returning to Sri Lanka and stated that he was “observed to be feeling severely depressed, tearful, and anxious”. The social worker recorded that the Applicant reported that he “experiences difficulties to express his issues coherently to the Immigration authorities due to his severe anxiety and admitted to forgetting the important information to be provided to the Immigration authorities”. The social worker observed that “[p]oor concentration, impaired cognitive functioning that includes his memory could be related to his ongoing mental health issues related to torture and trauma”.
The Applicant submitted that this certificate provided an explanation for why he forgot or mistook years and months. If the Applicant intended to rely on this document in relation to his fitness to participate in the Tribunal hearing, it does not establish that his mental condition was such that he was not afforded a meaningful opportunity to participate in a hearing as required under s.425 of the Act. The letter is from a social worker, not a medical practitioner. It post-dates and does not refer to the Tribunal hearing on 15 December 2014. The general suggestion that the Applicant claimed that he experienced difficulties in expressing issues coherently due to severe anxiety and that he forgot important information is not such as to establish that he was unfit to participate in the Tribunal hearing (see SZMSF v Minister for Immigration and Citizenship [2010] FCA 585 per Flick J and NAMJ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 56; [2003] FCA 983 per Branson J).
If the Applicant now seeks to provide an explanation for deficiencies in his evidence to the Tribunal, this does not establish jurisdictional error on the part of the Tribunal. There is nothing in the material before the Court to indicate that the Tribunal failed in any way to comply with s.425 of the Act.
The Applicant also told the court that he disagreed with the Tribunal’s approach to his claims of past harm and its credibility findings. While credibility findings are not immune from review (see CQG15 v Minister for Immigration and Border Protection (2016) 70 AAR 413; [2016] FCAFC 146 at [10]) it has not been established that there was a failure to afford procedural fairness, legal unreasonableness, that the Tribunal reached a finding without any legal or probative basis or that there was some other jurisdictional error. To the extent that the Applicant disagrees with the Tribunal’s conclusions he seeks impermissible merits review.
As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 20 December 2017
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