APK15 v Minister for Immigration
[2016] FCCA 2190
•16 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| APK15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2190 |
| Catchwords: MIGRATION – Review of International Treaties Obligation Assessment – protection obligations – applicant leaving Sri Lanka as a young child – whether the Assessor considered the wrong issue or failed to consider an integer of the applicant’s claims considered. |
| Legislation: Migration Act 1958 (Cth), s.46A |
| Cases cited: Applicant WAEE v Minister for Immigration [2003] FCAFC 184 Applicants V722 of 2000 vMinister for Immigration [2002] FCA 1059 BIT15 v Minister for Immigration & Anor [2016] FCCA 1995 Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Dranichnikov v Minister for Immigration [2003] HCA 26; 197 ALR 389 Minister for Immigration v SZQPA [2012] FCA 1025 Minister for Immigration v SZUXN [2016] FCA 516 |
| Applicant: | APK15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | R COREY IN HIS CAPACITY AS THE INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR |
| File Number: | MLG 903 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 24 August 2016 |
| Delivered at: | Sydney |
| Delivered on: | 16 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Court declares that the assessment of the International Treaties Obligations Assessor made on 2 April 2015 was not made in accordance with law.
The first respondent is restrained, by himself, his departmental officers, delegates or agents, from relying upon the assessment of the International Treaties Obligations Assessor.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLG 903 of 2015
| APK15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| R COREY IN HIS CAPACITY AS THE INTERNATIONAL TREATIES OBLIGATIONS ASSESSOR |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant left Sri Lanka at the tender age of three with his family and, to this point, has not returned there. The issues in this case centre upon the question of whether the second respondent (the Assessor) took proper account of the circumstances of that departure in dealing with the likely circumstances on return. The decision in issue is an International Treaties Obligation Assessment (ITO Assessment) made by the Assessor on 2 April 2015. The Assessor concluded for the purposes of the ITO Assessment that Australia does not have non-refoulement obligations to the applicant.
The following statement of background facts is derived from the submissions of the parties:
a)on 29 May 2011, after the Minister’s Department conducted a Refugee Status Assessment, the applicant was found not to be a refugee[1];
b)on 17 December 2011, an Independent Merits Reviewer (Reviewer) also concluded that the applicant was not a refugee[2]. The applicant sought judicial review of the Reviewer’s recommendation, and was unsuccessful at first instance and on appeal[3];
c)following the enactment of the complementary protection regime, the applicant’s complementary protection claims were assessed. Following such assessment, the applicant was informed that his case was not to be referred to the Minister[4];
d)in March 2013, the applicant made a request to the Minister that he “lift the bar” under s.46A(2) of the Migration Act 1958 (Cth) (Migration Act) so as to permit the applicant to make a visa application[5]. This request has not yet been considered;
e)on 20 May 2014, the applicant attempted to make an application for a protection visa. On 5 August 2014, the applicant was informed that his protection visa application was invalid[6];
f)on 30 September 2014, the Minister’s Department wrote to the applicant informing him that the Minister’s Department no longer intended to rely upon a previous assessment and that a new assessment would be conducted. The new assessment was not limited to complementary protection. The applicant was also notified that he had 14 days to provide any further information in relation to his claims[7];
g)on 13 November 2014, the applicant’s representative provided a submission to the Minister’s Department[8]. Further information was later provided[9];
h)on 6 March 2015, the applicant attended an ITO Assessment interview;
i)on 2 April 2015, the Assessor found that Australia does not have non‑refoulement obligations with respect to the applicant[10]. It is this determination that is the subject of the current application for judicial review.
[1] Court Book (CB) 75-94
[2] CB 94-111
[3] CB 146-164; 255-268
[4] CB 144-145
[5] CB 165-256
[6] CB 347
[7] CB 353-355
[8] CB 357-364
[9] CB 365-389
[10] CB 393-422
The applicant’s claims before the Assessor
The applicant claimed that his father was a member of the Liberation Tigers of Tamil Eelam (LTTE) and that he will face harm on his return to Sri Lanka due to his father's LTTE connections. The applicant also claimed that as he had no family in Sri Lanka he would be unable to post bail and would be held in Negombo gaol for months awaiting trial for his illegal departure during which time he will be harmed.
The Assessor did not accept the applicant's claims in relation to his father's membership of the LTTE or, that the applicant's uncle was killed because of his connection with the applicant's father, or that the applicant might be targeted by the Sri Lankan authorities and mistreated because of his father's support for the LTTE or the death of his uncle. The Assessor, however, did accept that the applicant's father had provided supplies to the LTTE and had been detained, questioned and released by the Sri Lankan Army before leaving Sri Lanka. The Assessor did not accept the applicant will be imputed with any political opinion as a supporter of the LTTE.
The Assessor accepted that the applicant was an ethnic Tamil who had lived in India between 1990 and 2010 and who would be considered to be a failed asylum seeker upon his return to Sri Lanka. The Assessor considered country information and found that Tamil ethnicity alone did not give rise to a real risk of harm.
The Assessor did not accept that the applicant had a significant profile in the eyes of the Sri Lankan authorities. The Assessor concluded that while the applicant may be identified as a failed asylum seeker on return to Sri Lanka due to his return on a temporary travel document, given his history, he would be screened as “safe” and if remanded for questioning on return would not be subject to any arbitrary detention or serious harm for reasons of his political opinion.
The Assessor also found that the applicant would not be held criminally responsible for his illegal departure from Sri Lanka as he was three years old at the time of departure. The Assessor found that the age of legal criminal responsibility in Sri Lanka is eight years of age and that there was no country information which supported the claim that the Sri Lankan authorities press criminal charges against children under the age of eight or prosecuted returning Tamils for departing the country illegally when they were under the age of eight.
The Assessor concluded that the applicant does not have a real chance of being persecuted for a Convention reason and therefore his fear of persecution is not well-founded. The Assessor also found no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there would be a real risk the applicant would suffer significant harm.
The judicial review application
These proceedings were commenced by application filed on 27 April 2015 which seeks declaratory and injunctive relief in relation to the ITO Assessment. There are two grounds in that application on which the applicant continues to rely:
1. The Assessor erred by considering the wrong issue.
PARTICULARS
a. According to Sri Lanka’s Penal Code the age of criminal responsibility is 8 years of age;
b. The Assessor found no country information on whether failed asylum seekers who illegally departed Sri Lanka under 8 years of age were prosecuted upon return; and
c. The Sri Lankan authorities will only consider that the applicant is returning without a valid passport and therefore illegally departed Sri Lanka and will not be concerned about his age at departure.
2. The Assessor erred by failing to consider claims it accepted during the refugee assessment under the complementary protection provisions.
PARTICULARS
a. At page 25 the Assessor accepted that the claimant may be subject to discrimination not amounting to persecution on the basis of his race on return to Sri Lanka; and
b. At page 19 that the applicant departed Sri Lanka with his family at the age of 3 and the implications of enforcement of provisions under the Sri Lankan Immigrants & Emigrants Act with no family in Sri Lanka to act as assurance if detained.
In addition to the book of relevant documents filed on 16 February 2016 I have before me as evidence the affidavit of Isabella Muscatello made on 8 March 2016, to which is annexed a transcript of the ITO Assessment interview that took place on 6 March 2015. Both the applicant and the Minister prepared helpful written submissions.
Consideration
Applicant’s contentions
The applicant submits the Assessor’s decision is affected by jurisdictional error for the following reasons:
a)the wrong issue was considered and the Assessor did not ask himself the right question; and
b)the Assessor failed to consider all of the applicant’s claims, which he had accepted during the refugee assessment, under the complementary protection provisions.
The first alleged error is the type of error identified by the High Court in Craig v South Australia[11] (Craig) at [14] where the Court stated:
If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
[11] [1995] HCA 58; (1995) 184 CLR 163
The second alleged error is of the type identified in Dranichnikov v Minister for Immigration[12] (Dranichnikov), where Gummow and Callinan JJ said:
The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution.
[12] [2003] HCA 26; 197 ALR 389 at [25], [88]-[89]
At [88]-[89] Kirby J said:
Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.
The applicant has established a constructive failure on the part of the Tribunal to exercise its jurisdiction and power in reviewing the decision of the delegate. Prima facie, he is therefore entitled to the issue of the constitutional writs that he seeks and the associated relief of certiorari to make such writs effective.
In Dranichnikov the High Court said that errors of this type entitle the court to exercise the discretion to grant the relief sought.
In Htun v Minister for Immigration[13] (Htun) the Federal Court observed at [42] that “to make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon”.
[13] [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244
A decision maker is required in practical terms to actually fix his mind upon, and give specific consideration to, the applicant’s claims[14].
[14] MZXIV v Minister for Immigration & Anor (No 2)[14] (MZXIV (No 2)) at [44]-[45]
The errors said to have been made by the Assessor are to be found at CB 416, 417 and 418.
The first error
The applicant submits that the Assessor considered whether the Sri Lankan authorities would hold the applicant criminally responsible upon his return to Sri Lanka because he had departed Sri Lanka illegally with his parents at the age of three. At CB 418 the Assessor made the following findings:
I find that the claimant will not be held criminally responsible for his illegal departure from Sri Lanka at the age of three, as the age of legal criminal responsibility in Sri Lanka is eight years of age. No country information was located which supports the claim that the Sri Lankan authorities press criminal charges against children under the age of eight, or prosecute returning Tamils for departing the country illegally when they were under the age of eight.
However, the claim that the applicant put to the Assessor for consideration was that he would be detained for departing Sri Lanka illegally and put in prison and tortured. The applicant asserts that the Assessor did not consider this substantial and clearly articulated claim and made no findings in respect of it.
The Assessor found at CB 408 that the applicant had departed illegally. The applicant told the Assessor that he would be arrested and put in prison upon his return to Sri Lanka because of his illegal departure. At CB 408 the Assessor recorded that the applicant told him that he had “seen on TV that people who return are arrested and tortured”, because they departed Sri Lanka illegally when they were young and returned when they were grown up.
The applicant submits that the Assessor did not deal with this claim but dealt with a different issue, which was that the applicant would not be prosecuted at all because he departed Sri Lanka when he was three, and so would not be held criminally responsible. This was not the issue for determination. The question the Assessor ought to have asked was whether the applicant would be arrested and charged and detained for offending the emigration and immigration laws. The country information suggests that he would be. The next question the Assessor ought to have asked was whether the applicant would be remanded in custody and imprisoned for those offenses, and then, whether there would be a real chance of serious harm at that stage as claimed by the applicant.
This claim is said not to have been identified or considered by the Assessor.
The applicant contends that the Assessor considered the wrong issue and therefore, asked himself the wrong question. This amounts to a jurisdictional error which vitiates the whole of the decision which ought to be set aside[15].
[15] Craig
The second error
The applicant submits that the Assessor failed to consider a component integer of his claim.
An important part of the applicant’s claims was that he had left Sri Lanka illegally at the age of three when his family took him to Tamil Nadu State in India to escape the civil war in Sri Lanka. He had lived in Tamil Nadu with his family from 1990 to 2010 when he left to come to Australia. His family had remained in India. At CB 410 the Assessor accepted that the applicant would be a “Tamil refugee returnee from India on return to Sri Lanka”, and that he “had departed from Sri Lanka illegally”.
At CB 408 and 409, during questioning by the Assessor, the applicant stated that he did not have any family members in Sri Lanka. He stated that this would put him at risk of serious harm as a failed asylum seeker because he did not have anyone to pay money for his release after he would be detained for illegally departing Sri Lanka. At CB 410 and page 418 the Assessor found that the applicant “will be considered a failed asylum seeker on return to Sri Lanka”.
The Assessor considered the claim of the applicant of being a failed asylum seeker who is a young Tamil male who had departed Sri Lanka illegally[16]. He found the following at CB 418:
I accept it is possible that on return to Sri Lanka the claimant may be identified as a failed asylum seeker due to his return on a temporary travel document, and that he is likely to be questioned to confirm his identity. If he is remanded for questioning due to returning on a temporary travel document, I do not find that the claimant has a profile of interest and would therefore not be subject to arbitrary detention or serious harm for reasons of his political opinion, imputed or otherwise. He will be one of those who are screened but are ‘safe’ in the words of an adjunct professor of political science at Temple University, Philadelphia, in his comments on Sri Lankan asylum seekers to the Immigration and Refugee Board of Canada in 2011.
[16] at CB 416, 417 and 418
The applicant submits that there is no assessment by the Assessor of the part of the applicant’s claims that relate to the fact that he has no family in Sri Lanka and has not lived there since he was three years of age. At CB 416 the Assessor dealt with the question of the effect of s.45(1)(a) of the Sri Lankan Immigrants and Emigrants Act (Immigrants and Emigrants Act), which governs irregular departures and arrivals. He noted that punishments include fines and prison sentences. He did not, however, consider what would happen to the applicant should he return and be detained in circumstances where he has no family member to act as surety or to pay the fine and gain his early release. The Assessor did not deal with the inevitable consequence that the applicant might remain in prison for a protracted length of time given he has no family members or social network in Sri Lanka as he has been out of the country since he was three years of age, and what might happen to him if he remains in prison for a protracted period of time as a young Tamil male.
The applicant contends that the Assessor has therefore failed to deal with an important aspect of the applicant’s claim and he has therefore constructively failed to exercise jurisdiction. This amounts to a jurisdictional error such that the whole of the decision is vitiated and ought to be set aside[17].
Minister’s contentions
[17] Dranichnikov; Htun; MZXIV (No.2); BIT15 v Minister for Immigration & Anor [2016] FCCA 1995
The first alleged legal error
The Minister concedes that it is true that the applicant had claimed that he would be arrested and detained upon returning to Sri Lanka because he had departed the country illegally when he was aged three[18]. However, the Minister submits that, contrary to the applicant’s contention[19], the applicant did not claim that he would be tortured as a result of his illegal departure from Sri Lanka. Rather, the applicant claimed that he would be imprisoned and tortured as a result of his status as a failed asylum seeker[20]. The claim that the applicant faced a risk of harm by virtue of his status as a failed asylum seeker was considered and rejected by the Assessor, who found that the applicant did not face a real chance (or real risk) of serious harm (or significant harm) as a result of his status as a failed asylum seeker[21].
[18] Transcript, lines 730-780
[19] see [13] of the applicant’s written submissions
[20] see Transcript, lines 599-605, 609-610
[21] CB 418
The Minister further submits that, in any event, the Assessor made a number of findings that were inconsistent with, and were in fact contrary to, any suggestion that the applicant faced a risk of harm as a result of having departed Sri Lanka illegally when he was aged three.
The Assessor referred, with approval, to country information that suggested that a returnee who holds an emergency travel document “would not face particular difficulties in entering Sri Lanka”[22]. The Assessor also referred to country information which suggested that most returnees were released “almost immediately” and that sentences of imprisonment are not sought for those who have breached the relevant statute provided that such persons are not involved in organising or facilitating people smuggling[23].
[22] CB 416
[23] CB 416-417
The Assessor also made the following finding[24]:
I find that the [applicant] will not be held criminally responsible for his illegal departure from Sri Lanka at the age of three, as the age of legal criminal responsibility in Sri Lanka is eight years of age. No country information was located which supports the claim that the Sri Lankan authorities press criminal charges against children under the age of eight, or prosecute returning Tamils for departing the country illegally when they were under the age of eight. (emphasis added)
[24] CB 418
This finding is said to be of critical importance. The Minister submits that, in making this finding, the Assessor concluded that the applicant will not be prosecuted at all for having departed Sri Lanka illegally (i.e. in contravention of the Immigrants and Emigrants Act). It followed, therefore, that any claim the applicant had made concerning the possibility of torture following prosecution necessarily fell away as a result. The answer to the claim that the applicant would suffer harm as a result of his departure from Sri Lanka at the age of three in breach of the Immigrants and Emigrants Act was subsumed in the clear finding of greater generality and the rejection of the factual premise on which the claim rested[25].
[25] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [46]-[47]
The Minister contends that, contrary to what the applicant contends, the Assessor properly considered the applicant’s claim that he faced a real chance (or a real risk) of suffering serious harm (or significant harm) for having departed Sri Lanka illegally when he was three.
The second alleged legal error
In his second ground, the applicant alleges that the Assessor failed to consider what would happen to the applicant should he return to Sri Lanka and be detained for having breached the Immigrants and Emigrants Act in circumstances where he has no family member to act as surety or to pay a fine and gain early release.
As noted above, the Assessor referred with approval to country information that suggested that the Sri Lankan authorities do not press criminal charges against persons who departed Sri Lanka unlawfully when under the age of eight. The Minister submits that, in light of such finding, for the reasons outlined above, it was unnecessary for the Assessor to consider whether the applicant would be in a position to have someone facilitate his release from detention. The Assessor’s findings are said to be to the effect that the applicant would not be detained at all.
Resolution
I do not accept the Minister’s submission that the Assessor’s report should be read as finding that the applicant would not be detained at all. In my opinion, the second ground (and probably also the first ground, although it is not strictly necessary to decide) is established in that the Assessor fell into error in considering whether the applicant would be prosecuted for breaching the Sri Lankan Immigrants and Emigrants Act because he considered the likely outcome rather than the process that would lead to that outcome. The difficulty in the Assessor’s analysis is similar (but by no means identical) to the difficulty I adverted to in SZUXN v Minister for Immigration & Anor[26]. In that case at [69]-[80] and [89]-[90] I said[27]:
[26] [2015] FCCA 1268
[27] My decision was overturned on appeal for other reasons in Minister for Immigration v SZUXN [2016] FCA 516 but the Federal Court on appeal did not consider this issue which, in the context of SZUXN was not material
Consideration of the laws of general application in Sri Lanka
During the hearing, I asked the parties whether the Tribunal turned its mind to the applicant’s illegal departure from Sri Lanka as a child and how this affected its consideration of Sri Lanka’s laws relating to illegal departure.
The Minister submits as follows. At [191] of its decision[28], the Tribunal considered the applicant’s claims that he faced serious harm in Sri Lanka for departing Sri Lanka illegally as a child, he would be imprisoned for between one and five years and faced a substantial fine. The Tribunal noted that the applicant accepted at the hearing that he would not be prosecuted for his illegal departure as a child[29].
[28] CB 328
[29] CB 299 at [104]; CB 328 at [191]
The Tribunal also raised with the applicant at the hearing and found that it had been unable to locate any credible information that indicated children who accompanied their parents in an illegal departure from Sri Lanka were prosecuted or that there was any prospect of that occurring[30]. On that basis, the Tribunal did not accept that the applicant faced prosecution, imprisonment or a fine because he illegally departed Sri Lanka for India as a child.
[30] CB 304 at [125]; CB 328-329 at [191]
When considering the applicant’s claim that he would be returning to Sri Lanka as someone who entered Australia without a valid Sri Lankan passport, the Tribunal made the following key findings[31]:
[31] at CB 329 at [192]
The Tribunal is satisfied that the applicant travelled to India with his family as a child, departed India unlawfully for Australia by boat and without a passport and that the Sri Lankan authorities will have knowledge of this on his return to Sri Lanka. The Tribunal accepts that the applicant would be treated in the same manner as a person who had departed Sri Lanka directly by boat and travelled to Australia because he will be returning as a person without a passport and having entered Australia by boat. (emphasis added).
Put simply, the Tribunal clearly acknowledged and accepted the distinguishing features of the applicant’s departure from Sri Lanka, but found that his treatment on his return to Sri Lanka was the same as other returnees who had entered Australia by boat and returned to Sri Lanka without a passport. That was a finding of fact said to be open to the Tribunal on the available materials.
The Tribunal proceeded to find[32] that the laws in relation to illegal departure were of general application and that all returnees were treated the same, regardless of race or ethnicity. Whether something amounts to a law of general application is a finding of fact for the decision-maker, based on the evidence[33].
Having considered the relevant country information, the Tribunal was not satisfied that the laws regarding unlawful departure were applied or enforced in a discriminatory way as they applied to all returnees who departed illegally or return without proper documentation[34].
Further, the Tribunal was not satisfied that the treatment faced by returnees amounted to serious harm or would give rise to a real chance of serious harm in the reasonably foreseeable future[35].
When read as a whole, [191]-[195] of the Tribunal’s decision record clearly indicates that the Tribunal considered:
a)the applicant’s claim that he would face serious harm for having departed Sri Lanka as a child[36];
b)the applicant’s claim that he would be returning to Sri Lanka after departing India unlawfully by boat and without a passport and as someone who entered Australia without a valid Sri Lankan passport[37]; and
c)the application of Sri Lanka’s laws regarding unlawful departure to returnees[38].
[32] at CB 330 at [194]
[33] Applicants in V722 of 2000 vMinister for Immigration [2002] FCA 1059 at [32]; SZRDWv Minister for Immigration [2012] FCA 1262 at [62]; (2012) 134 ALD 290; DZACW v Minister for Immigration & Anor [2013] FMCA 46 at [24]
[34] CB 330 at [195]
[35] CB 330 at [195]
[36] [191]
[37] [192]
[38] [194]-[195]
Sri Lanka’s laws regarding illegal departure (the Immigrants and Emigrants Act 1945 (Immigrants and Emigrants Act)) were found by the Tribunal to be laws of “general application” that would not be applied in a discriminatory way for a Convention reason. The Tribunal found that the laws applied to “all returnees who departed illegally or returned without proper documentation”[39].
It is clear that this finding applied to the applicant, who departed Sri Lanka illegally as a child and would be returning without a valid Sri Lankan passport.
The Minister contends that, having found that Sri Lanka’s laws were of “general application”, any harm that the applicant might suffer as a result of such application is not “persecution for one or more [Convention] reasons” and the applicant cannot satisfy the threshold requirement in s.91R(1)(c) of the Migration Act[40]. Accordingly, the Tribunal was correct in finding that the applicant did not satisfy the criterion set out in s.36(2)(a) of the Migration Act.
[39] CB 330 at [195]
[40] SZTFS v Minister for Immigration & Anor [2015] FCCA 100 at [31], citing SZTBW v Minister for Immigration [2014] FCA 1277 per Perry J at [20]
…
As to the irregular departure issue which I raised at the hearing before me, it suffices to say that the Tribunal’s decision appears to be either internally inconsistent or inconsistent with other Tribunal decisions. The Tribunal properly and reasonably found at [104][41] and [191][42] that the applicant would not be prosecuted for his illegal departure from Sri Lanka as a child of four years of age in the company of his parents. Nevertheless, at [192][43] the Tribunal accepted that the applicant would be treated in the same manner on return to Sri Lanka as a person who had departed Sri Lanka directly by boat and travelled to Australia because he would be returning as a person without a passport and having entered Australia by boat. The reasoning on that issue in other cases before the Tribunal has focused on illegal departure from Sri Lanka as involving a breach of the Immigrants and Emigrants Act. If the Tribunal was in this case reasoning that the applicant would be subjected to the Sri Lankan criminal law of general application on return because of his illegal departure, that was directly inconsistent with the finding that he would not be prosecuted because he left as a child. If, on the other hand, the Tribunal was reasoning that the law of general application applied not by reference to illegal departure from Sri Lanka but, rather, on return to Sri Lanka from Australia without a passport (but presumably with some form of travel documentation supplied by Australia) then the reasoning would be inconsistent with the reasoning in other Tribunal decisions dealing with the same issue.
In view of my conclusions concerning the Tribunal’s adverse credibility findings, it is unnecessary to make a finding on whether this aspect of the Tribunal’s reasoning discloses jurisdictional error. It is sufficient to say that the issue of the application of the criminal law of Sri Lanka to the applicant should he return there merits further consideration by the Tribunal.
[41] CB 299
[42] CB 328
[43] CB 329
In the present case the Assessor found[44] that the applicant would not be held criminally responsible for his illegal departure from Sri Lanka at the age of three, as the age of legal criminal responsibility in Sri Lanka is eight years of age. He said that no country information was located which supports the claim that Sri Lankan authorities press criminal charges against children under the age of eight or prosecute returning Tamils for departing the country illegally when they were under the age of eight.
[44] at CB 418
However, two paragraphs before that paragraph, the Assessor stated[45]:
I accept it is possible that on return to Sri Lanka the claimant may be identified as a failed asylum seeker due to his return on a temporary travel document, and that he is likely to be questioned to confirm his identity. If he is remanded for questioning due to returning on a temporary travel document, I do not find that the claimant has a profile of interest and would therefore not be subject to arbitrary detention or serious harm for reasons of his political opinion, imputed or otherwise. He will be one of those who are screened but are ‘safe’ in the words of an adjunct professor of political science at Temple University, Philadelphia, in his comments on Sri Lankan asylum seekers to the Immigration and Refugee Board of Canada in 2011.[46]
[45] CB 418
[46] ‘LKA103815.E: Immigrants and Refugee Board of Canada, Sri Lanka: Information on the treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; repercussions upon return for not having proper government authorisation to leave the country such as a passport’, Canadian Immigration and Refugee Board, 22 August 2011, p 4-5.
The difficulty with the Assessor’s analysis is that he did not connect the outcome to the process of detention. In particular, he did not consider whether the applicant would be detained at Colombo Airport, whether he would be detained on remand at Negombo Prison, whether he would be charged with breaching the Immigrants and Emigrants Act (in circumstances where there would be no record of his departure from the country at any time), whether he would be held on remand pending an appearance before a magistrate and, if so, how long that detention would be, given that the applicant has no relatives in Sri Lanka who could post surety for him if required. While the applicant may well not be held criminally responsible for his illegal departure because of his age, that is suggestive of the ultimate outcome of a process that could take some time. The applicant’s fear concerns what might happen to him in the meantime. This error is similar to the error that I identified in SZQPA v Minister for Immigration & Anor[47] (SZQPA).
[47] [2012] FMCA 123. Affirmed on appeal: Minister for Immigration v SZQPA [2012] FCA 1025
Unlike in SZQPA, the concern here is not that the applicant might be harmed because he was suspected of being a security risk but, rather, that the period that the applicant might have to spend in detention pending his ultimate acquittal of any criminal charge might constitute serious or significant harm because of the conditions of detention and the Assessor’s implicit acceptance that, because the applicant would not ultimately be subject to any criminal penalty, any detention would not be justified. In essence, the question that the Assessor failed to consider was whether the applicant, as an innocent man, would nevertheless be detained and, if so, whether the fact, duration and conditions of that detention would enliven Australia’s protection obligations to him. The Assessor’s failure goes to jurisdiction because it amounted to overlooking an integer of the applicant’s claims.
Conclusion
The applicant has succeeded in establishing that the assessment of the Assessor is affected by jurisdictional error. I will grant relief in the form a declaration. I will also grant an injunction, consistently with relief granted in relation to other administrative assessments.
I will hear the parties as to costs.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 September 2016
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