ASV16 v Minister for Immigration

[2017] FCCA 3076

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASV16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3076

Catchwords:
MIGRATION – Application for judicial review – protection visa – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2)

Cases cited:

SZTAL v Minister for Immigration and Border Protection;
SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: ASV16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 657 of 2016

Judgment of: Judge Riethmuller

Hearing date: 9 October 2017

Date of Last Submission: 9 October 2017

Delivered at: Melbourne

Delivered on: 21 December 2017

REPRESENTATION

The Applicant appeared In Person

Advocate for the First Respondent: Mr Cunynghame

Solicitors for the First Respondent: Sparke Helmore

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 657 of 2016

ASV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 March 2016, confirming a decision of a delegate to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of Sri Lanka, who arrived in Australia on

   
   

   30 July 2012 as an irregular maritime arrival.  On 18 December 2012, the applicant applied for a protection visa.  The applicant’s claims were set out in a detailed statutory declaration accompanying his protection visa application (see court book pp.109 to 113), listing a number of different bases upon which he claimed to fear harm, including:

   a)His Tamil ethnicity.

   b)His Hindu faith.

   c)The alleged involvement of his stepbrother with the LTTE (who was killed in May 2009).

   d)A claymore mine explosion close to where he was working as a mechanic.

   e)The arrest of colleagues prior to his departure to Australia.

   f)The possibility of being named to the criminal investigation department or Eelam People’s Democratic Party, or the Sri Lankan army and, ultimately, being killed on suspicion of past involvement with the LTTE.

3. The applicant attended an interview with the delegate on 16 December 2013, and followed up with written submissions by his representative on 23 September 2013. The delegate refused his application in July 2014.

4. In the Tribunal proceedings, the applicant applied on 31 July 2014, through his representative, who also made written submissions on his behalf on 25 February 2016. 

5. On 1 March 2016, the applicant appeared before the Tribunal, gave evidence and presented arguments, with the assistance of an interpreter and his representative.  At that interview, the applicant added new claims that the authorities had been making inquiries about him in the months that followed the claymore mine explosion, and significantly that he had also been kidnapped by members of the Karuna Group, where he was blindfolded and beaten: see [43] to [45] of the decision.

6. A central difficulty confronting the applicant’s claim was the finding by the Tribunal, that they had “significant concerns” with respect to the applicant’s credibility. This issue was discussed with the applicant at the hearing: see decision at [31].

7. The Tribunal carefully considered the evidence relating to the allegation, that a claymore mine had exploded near the applicant’s workplace in April or May 2012, researching reports of incidents in Sri Lanka in that period. The Tribunal noted that there were a number of difficulties, with respect to the applicant’s allegations in this regard, such as:

   a)There being no reference to such an incident in any of the country information.

   b)The claim that an elder intervened to persuade the army not to arrest the applicant and three other men who worked at the workplace, which appeared unrealistic if the army were pursuing those thought to be involved in a bomb incident.

   c)Inconsistencies in the version of events, as to whether or not there was a shooting, which the applicant explained as being an interpreting error.

   d)The applicant raised for the first time, at the hearing, that authorities had made inquiries with respect to him, in the three months after the incident and after he had come to Australia, saying that he “did not think to raise it” at an earlier time.

8. The Tribunal’s discussion to the lack of reference to this incident in the country information was based upon country information that provides detailed reporting of incidents.  The Tribunal said:

   33. The Tribunal identified a significant issue with this claim. There is no information that this bombing incident occurring. The Tribunal conducted extensive research into events in Sri Lanka in early/mid-2012. There are no reported incidents whereby SLA troops were killed in any incident, bombing or otherwise. Reputable non-government sources, such as Amnesty International, Human Rights Watch, International Crisis Group make no reference to any such event occurring, though they prepared reports on events of the time. Pro Tamil sources such as Tamilnet [FN: TamilNet is an independent and not-for-profit newswire service that provides up to date news with Tamil perspective on issues concerning Tamil people in the island of Sri Lanka. whose reporting of issues facing has the Tamil community in Sri Lanka has been community based, makes no reference to such incidents. The South Asia Terrorism Portal (SATP), a reputable source of events has provided a timeline of Sri Lanka 2012, detailing political, police and military events of 2012. The Tribunal noted at the hearing that it did include detailed reports of events in Sri Lanka, for example:

   A group of four persons was arrested showing and viewing a video film containing scenes of the past LTTE victories in the warfront and its training programmes in an attempt to promote LTTE organisation. They were taken into custody during a raid on a house at Mohontuwarama in Eechalanpattu area in Trincomalee District [FN: 17 April 2012 “Sri Lanka Timeline – Year 2012”, South Asian Terrorism Portal, 01 January 2012, CIS24558]

   And

   A school boy was injured due to a blast believed to have occurred from antipersonnel mine on the Chalai-Chundikulam lagoon in Mulathivu [FN: 2 June 2012 Ibid]

   And

   A 15 year old boy was killed in a bomb blast in the Nainathivu islands of Jaffna District. According to MCNS, the bomb is called 'Arul bomb', which was manufactured by the LTTE [FN: 4 June 2012 Ibid]

   And

   Security Forces on clearing operations discovered a massive cache of weapons and ammunition, including some anti-aircraft missiles, belonging to the LTTE in Kilinochchi District [FN: 4 July 2012 Ibid]

   34. As this SATP timeline shows, minor and major incidents that occurred in Sri Lanka in 2012 are detailed, including an arrest of 4 men around the time of the claimed bombing, for showing a film of LTTE victories, or actual instances of mines causing harm, or actions of security forces. The Tribunal expects that the report of a mine causing casualties to SLA personnel would be reported upon in such a list, when more minor incidents, such as boys being harmed in bomb incidents, or people being arrested for showing films, have made the reports. The absence of information about this incident is significant.

   35. There is a further absence of country information arising from this claimed event. Had a bomb of this nature exploded in the Trincomalee region of Sri Lanka at this time, a region with a reasonably significant military population having been a region with significant LTTE influences only three years previously, the Tribunal considers that reports of SLA responses to such an incident would be significant. Given that the applicant has claimed that the SLA acted with a culture of impunity, the Tribunal would expect, in retaliation for a bombing that claimed the lives of SLA personnel, that reports of SLA and security forces causing significant disruption to Tamil communities in the region would be reported, that the authorities would not allow such an incident to occur without significant recrimination against the local population, as the applicant has depicted the local authorities. However there are no such reports of any such activity. The Tribunal would expect such information to be available from reputable or pro-Tamil sources. It is not. The Tribunal also noted that the applicant's representative in her submission provided no reference to any such incident.

9. The Tribunal also had regard to the applicant raising for the first time, at the hearing, an incident where he said he was kidnapped, blindfolded and beaten in 2007, which he had not mentioned before: see decision [45] to [47].

10. With respect to his claims that there were inquiries about him after he had left, the Tribunal said:

    49. The applicant has claimed that the authorities have been asking his wife about him since he left.  The applicant claimed that the most recent time was about a month ago.  He then claimed that it may have been more times, though his family did not tell him because they did not want to worry him.  He had not told his agent of this enquiry.  He believed that there had been more enquiries.  The applicant stated that there was an annual review of family cards, and he would not have been there, so this would have raised suspicion.  The Tribunal noted at the hearing that recent country information indicated that there was a freedom of movement permitted for all Sri Lankans, which would limit the effectiveness of such family cards.

    50. The Tribunal found the applicant’s evidence on this claim to be very vague and limited.  The applicant had said that his family did not tell him about visits to the family to ask questions about him, yet believed that these visits had occurred.  However he was told of a visit by the authorities a month ago, though there was no difference in the personal circumstances of the applicant or why they would tell him now, as opposed to the previous occasions.

11. With respect to the applicant’s stepbrother, who was said to be a member of the LTTE, who was killed, the Tribunal said:

    52. The Tribunal has considered the applicant's claim regarding his association with his step­ brother Lingeswaran, whom he claimed was a LTTE member. Lingeswaran was the son of his step-father from a previous marriage, and five years older than the applicant.  He stated his brother was killed in the Mullivaikal battle close to the end of the war. The Sri Lankan authorities provided a death certificate for him, as provided to the Department.

    53 The applicant claimed that the authorities came and asked his mother and step-father about his brother quite regularly, though this stopped in 2009 after he was killed. The authorities never questioned the applicant about his step-brother, and they did not ask about the applicant.

    54. The applicant claimed that he was not LTTE, though he had used his mechanic skills occasionally to repair vehicles owned by LTTE operatives, as requested by his brother. The applicant provided a document to the Tribunal about his completing a mechanics course in October 2007 [FN: AAT Folio 67].

    54. The Tribunal noted that the applicant had a passport issued in October 2006. The applicant confirmed he had no difficulty obtaining this document. The applicant confirmed that he left Sri Lanka on this passport in February 2010 for work in Qatar, returning two months later because his mother was ill. The applicant had no difficulty leaving or returning to Sri Lanka. The Tribunal noted at the hearing that this was because he had no issues with the authorities, they were not interested in him. The applicant agreed, he stated that they only became interested in him later.

    55. The Tribunal noted that the authorities had not shown any interest in the applicant when his brother was in the LTTE, or at the time of his passing, or any time after that. They had asked questions of the applicant's parents, but not about the applicant. The Tribunal noted that the authorities were well aware of his step-brother's activities, as they had come to the home to ask about him, and knew that he had died, having issued the death certificate. The Tribunal questioned the claim that the authorities would have an interest in the applicant now, so long after the end of the civil war and the activities of his step-brother. The applicant insisted he would have a problem, that they would come to know about his relationship with his brother and make enquiries about him.

    56. The Tribunal has considered this claim that the applicant would be harmed because of his relationship with his brother, an LTTE member, and the added new information that the applicant did some mechanical work for LTTE members -as requested by his brother. The Tribunal does not accept that this would be a reason the applicant would be harmed. The Tribunal notes that the authorities have shown no interest in the applicant in the past, including when they have come to the family home to ask questions of his brother, after his brother's death, and when the applicant has travelled in and out of Sri Lanka. They did not seek the applicant in the years prior to his departure from Sri Lanka. The Tribunal considers that the authorities, in coming to the family home, knew of the various relationships that existed, including the applicant and his step-brother, and yet this did not cause them to have any interest in the applicant, as a brother or as a mechanic.  The applicant was not questioned arising out his relationship or activities. The Tribunal considers that the absence of past interest in this instance is a fairly reasonable indicator as to future interest by the authorities in the applicant. The Tribunal further notes that the passage of time, now 2016, and 7 years after the death of his brother and end of the civil war, provides further reason as to why the authorities would have no interest in the applicant, his relationship to his brother and activities during the war.  The Tribunal does not consider that the applicant's relation to a brother, who was involved with the LTTE, or the limited mechanical assistance he provided, would be a reason for the authorities to harm the applicant.

12. The Tribunal went on to reject the applicant’s other claims before ultimately refusing the applicant’s application.

13. The applicant relies upon three grounds for review.  In the applicant’s written submissions, he also wrote a number of matters that effectively sought merits review. Merits review is not open on judicial review proceedings.

Ground One

1. The first ground of the applicant’s application is framed as follows:

   1. The decision of the Administrative Appeals Tribunal (Refugee Division) is affected by jurisdictional error.

   Particulars

   (a) The Tribunal did not consider properly the distinct integer of the Applicant’s claim that his step brother was a member of the LTTE and consider that in the light of his illegal departure from Sri Lanka and also him being a returned asylum seeker.  This fact was not disputed by the tribunal yet the tribunal has not taken into account the very profile it cites on a number of occasions, re persons with the profiles of being suspected of having certain links with the LTTE.

   (b) The tribunal has erred by dismissing the applicant’s claim of a claymore mine being exploded in April/May 2012 in the absence of country information regarding this claimed incident.  It is not for the applicant to provide corroboration for all of his claims.

2. It is clear that the Tribunal did consider, as a distinct integer, the applicant’s claim that his stepbrother was a member of the LTTE.  As set out above, the Tribunal deals with this issue extensively at [52] to [57].  The applicant seeks to develop this argument on the basis that the claims, with respect to his stepbrother, should have been considered in light of his illegal departure from Sri Lanka, and that he would return as a failed asylum-seeker.  Thus, it was argued, the applicant fell within a category of persons who were at risk as returnees due to their suspected or imputed links to the LTTE.

3. I note that the Tribunal did consider all of the claims cumulatively, saying at [114] and [115]:

   114. In these circumstances, the Tribunal finds the applicant, does not have a real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his other circumstances. Further, the Tribunal also finds that the applicant does not face a real risk of significant harm due to his illegal departure, taken alone or in combination with his other circumstances.

   115. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not have a real chance of serious harm in Sri Lanka arising from his Tamil background, his Hindu religion, his LTTE step­ brother, his being a young male Tamil from the east of Sri Lanka, and imputed political opinions opposing the government or supporting the LTTE,  or as a failed asylum seekers or returnee from a Western country or persons who left Sri Lanka illegally.

4. The Tribunal specifically considered the applicant’s profile at [65] to [66], saying:

   65. The country information shows that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles and responsibilities that they may have had in the LTTE, or relationship to someone with such a role or responsibility, or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm. The UNHCR does state that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka, through their past or present activities.

   66. The Tribunal does not accept that this applies in the circumstances of the applicant. That the applicant haq a brother in the LTTE during the civil war was known to the authorities, both at the time, and after the war. The Tribunal does not consider that the limited mechanical assistance provided by the applicant would be known by the authorities, or would concern them now if it became known. The applicant was never stopped, questioned or harmed because of these activities during or after the war. The submission and country information detail the concern for people who have or are presumed to have had such a connection. The Tribunal has not accepted that the applicant has had, or the authorities suspect he has had, such a connection to the LTTE as specified in the UNHCR and GJ and Others list, or more generally.

5. The Tribunal went on to consider his individual circumstances, in light of the country information, saying:

   92. The Tribunal accepts on the basis of the country information provided that the applicant will be questioned by Sri Lankan authorities (including airport immigration officials or CID) at the airport on his return, to establish his identity and entry rights and due to the context of his illegal departure and return. However, having regard to his accepted circumstances, the Tribunal does not accept the applicant faces any real chance of being detained for questioning or otherwise targeted for harm - at the airport or in his home area - due to his identification as a failed asylum seeker, or any adverse real or imputed political opinion, or because of his illegal departure, from Sri Lanka, individually or cumulatively.

   93. Having regard to the applicant's circumstances, the Tribunal does not accept the applicant will be of adverse interest to the authorities on return to his home area, including because of his stepbrother. The Tribunal does not accept that the authorities would wait a period of time before seeking to harm him as the Tribunal does not accept that there is any reason for the authorities to want to harm him.

1. In light of the detailed considerations, set out in the body of the decision, it is clear that the Tribunal had regard to the extent to which the applicant may have an adverse profile as a result of the conduct of his stepbrother, in the particular context of returning to Sri Lanka, having departed illegally.  These paragraphs provide considerable detail to support the findings at [114] to [115].

2. In substance, this ground that seeks to undertake a merits review of the conclusions drawn by the Tribunal, rather than identifying an integer that was not dealt with by the Tribunal.  For this reason, ground 1(a) cannot succeed.

3. Ground 1(b) alleges that the Tribunal rejected the applicant’s claim, with respect to the claymore mine allegations, on the basis that the applicant’s testimony was not corroborated.  This is a somewhat remarkable ground in the circumstances of this case.  The Tribunal carefully set out their understanding of the law, noting that an applicant is not required to provide corroborative evidence, saying:

   38. The Tribunal has considered this claim of the applicant very carefully, as it is the most significant claim of interaction with the authorities that the applicant has made, and the reason he says he left Sri Lanka. The Tribunal notes the court's guidance that applicants can't be expected to provide corroborative evidence of all their claims, given the nature of persecution. The applicant's agent's submission also states that a visa applicant is not expected to corroborate their claims for protection.

4. The reality of this case was that the absence of information about the event, in the detailed country evidence, was itself circumstantial evidence that told against the event having occurred.  The Tribunal went on to explain this in some detail, saying:

   39. However, this is not an instance where the Tribunal expected personal information about this event. This is not an issue of corroboration. This is an example of a complete absence of independent country information about an incident that occurred that should be available. The Tribunal considers that had this incident occurred there would be country information about this event available through internet or other sources. The Tribunal does not accept that there would be no reporting of an incident of this nature. The bombing of a SLA truck in around April 2012 in a former LTTE area, the death of SLA personnel, and subsequent enquiries by the authorities in the local Tamil community into such an event would be information that would be reported upon widely. The Tribunal considers that a record of such an event would exist, it is not something that could be hidden or not disclosed by the authorities over a period of time. As demonstrated, detailed information about incidents in Sri Lanka are available, including bomb blasts and LTTE related events, including arrests. The Tribunal considers that had this incident occurred, there would be information about it. There is none. The absence of country information regarding this claimed incident causes the Tribunal to conclude that this is because this event did not occur. The Tribunal finds that there was no claymore mine explosion in the Trincomalee region sometime in April/May 2012. The Tribunal finds that no SLA army truck was damaged by an explosion, and that no SLA army personnel were killed or injured in any such event

5. When one has regard to the country information, detailed by the Tribunal (set out above), it is clear that the Tribunal was not approaching this case as one where the applicant had to provide some form of corroboration, but rather on the basis that the country information amounted to circumstantial evidence that the alleged incident did not occur. 

6. Ultimately, the Tribunal concluded that the incident did not occur.  Such a conclusion was open to the Tribunal based upon the country information.  This ground, whilst alleging an error of law on the part of the Tribunal with respect to corroboration is, in substance, a complaint that the Tribunal preferred the country information over the evidence of the applicant.  In the particular circumstances, it was open to the Tribunal to prefer the country information over the evidence of the applicant.  Thus, this amounts to an argument seeking merits review by the applicant and, therefore, this ground cannot succeed.

Ground Two

1. The applicant frames ground 2 as follows:

   2. The Tribunal failed to accord the applicant procedural fairness as required by s.425(1) of the Act.

   Particulars

   (a) The Tribunal’s conclusion or assumption that the Applicant or his family or someone else would be able and willing to provide the guarantee required for the Applicant’s bail was ‘adverse’ to the Applicant and was ‘not open on the known material’ and was based on what DFAT stated in its December 2015 report on Sri Lanka.  The tribunal states it asked the applicant about bail, but it does elaborate.  It did not ask the applicant if he had previously ever been on bail or had he ever breached bail.  The tribunal asked him if his family would help with bail conditions and he stated they would help him.  A bail condition could be the provision of a surety and it could be a sum the applicant’s family could not raise.  The tribunal’s only conclusion is that the applicant has the financial capacity to pay for a fine.

   (b) The Tribunal did not give the Applicant ‘the opportunity of ascertaining’ that issue or the opportunity ‘to be informed of the nature and content of adverse material’ in relation to that issue:

   (c) The issue of whether a family member would act as a guarantor for the Applicant was a ‘crucial link’ in the Tribunal’s chain of reasoning, which the Tribunal had to identify to the Applicant in order to comply with s.425.

2. The first part of ground two is the claim that the Tribunal’s conclusion that the applicant or his family or someone beyond his family circle would be able and willing to provide a guarantee for his bail, was made in the absence of any evidence.  No transcript of the Tribunal hearing was provided in these proceedings.  The Tribunal summarises the evidence and findings at [101], saying:

   101. The Tribunal asked the applicant about bail, and the possibility of paying a fine if convicted of an emigration offence.  The Tribunal noted that punishment, if convicted, could be up to 5 years imprisonment and up to a 200,000 rupee fine but country information from DFAT indicates that there is discretion and that the most likely outcome is that the applicant would pay a fine, rather than imprisonment. The Tribunal noted that the information indicates that fines that have been handed out are between 5000 - 50 000 rupees for people departing or attempting to depart Sri Lanka irregularly on boats. The Tribunal noted that this may lead it to conclude that the fine the applicant would have to pay would be similar or not much higher. The Tribunal asked if the applicant was in a position to pay the fine and any amount for bail that may be required. After some discussion on this point, the applicant stated his family would make arrangements to assist him to pay a fine. The Tribunal also asked the applicant if his family would help him with bail conditions that may be required. The applicant stated that they would help him.  The Tribunal considers that the applicant has the financial capacity to pay for a fine that may be imposed.

3. Whilst it was argued that the Tribunal simply assumed a capacity to pay the fine, a fair reading of [101] shows that the Tribunal acted upon evidence that the applicant gave at the hearing.  In the absence of a transcript of the hearing, it is not appropriate to assume that the Tribunal’s findings in [101] are without any evidentiary basis.

4. In the circumstances, I am not persuaded that the Tribunal has made a jurisdictional error in this regard.  Rather, on a fair reading of paragraph [101], the finding appears to have been open to the Tribunal.

Ground 3

1. The applicant frames ground three in the following terms:

   3. The Tribunal has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm, especially the investigation upon return to Sri Lanka and the state of the prison conditions in Sri Lanka, as described in reports quoted by the tribunal.

2. The applicant’s written submissions in this regard are as follows:

   j. The tribunal has not properly considered the alternative criterion in s.36(2)(aa), in fact at paragraph 118 of its decision, it has not considered it at all, as it spends two lines dismissing complementary protection. There was an obligation upon the tribunal to consider. that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm. In considering whether there is a real risk of the applicant experiencing treatment involving "significant harm" for the purposes of s.36(2)(aa), the decision maker has stated previously that he will not be detained, despite some country information  stating it could range from a very short time to several days.  It is submitted that a person charged under the IAEA may in some instances be detained for several days and the tribunal then should have considered if it could be satisfied that any pain or suffering caused by poor prison conditions which take in severe overcrowding and poor and unsanitary conditions, should the applicant be remanded in custody, would be intentionally inflicted on the applicant, as required by the definition of cruel or inhuman treatment or punishment. In other words it should have evaluated the nature and gravity of that loss of liberty.

3. The Tribunals concluding paragraphs, which deal with section 36(2)(aa) of the Migration Act 1958 are as follows:

   116. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm upon being removed from Australia to Sri Lanka.

   117. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   118. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

4. The applicant is correct in argument when he says that the Tribunal dealt with the complementary protection provisions in only a few lines. However, this is a case where all of the bases upon which the applicant claimed to fear harm were bases upon which the applicant’s claims were considered in the context of s.36(2)(a). The Tribunal found that, on any of the bases raised by the applicant, he was not in fear of significant harm.

5. In this case there were no additional facts or circumstances that would have resulted in the possibility of a different outcome under s.36(2)(aa) to the outcome reached under s.36(2)(a). For these reasons, I do not accept that the Tribunal has erred in dealing with the s.36(2)(aa) matters in a few brief lines at the end of the decision, given that it had already dealt with all of the relevant claims in detail in the context of s.36(2)(a).

6. The applicant also raises claims with respect to the nature of the detention he might suffer, should he return to Sri Lanka as a person who had departed illegally.  The law in this issue has recently been clarified by the High Court, in SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 highlighting the importance of subjective intention of those placing a person in a jail or detention conditions.

7. The Tribunal appropriately dealt with this issue, saying:

   110. The Tribunal has considered the prospect that the applicant will be detained for a short period before being brought before the Magistrate. Even accepting that country information indicates examples of overcrowding and generally poor conditions in prisons in Sri Lanka (FN: US Department of State 2013, Country Reports on Human Rights 2013 – Sri Lanka, 27 February

   
   

   2014, the Tribunal finds the chances remote the applicant will be targeted and harmed for any reason advanced in the context of a very brief stay in remand pending bail. The Tribunal does not accept that the applicant will be personally targeted for harm in the prison, by the authorities generally, prison guards or by other inmates. The Tribunal does not accept that the applicant would be targeted in this way. The Tribunal considers that the applicant will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities, prison guards or inmates during a brief period of remand, the Tribunal finds it speculative and the chances remote that he will face serious or significant  harm in this context.

   111. The Tribunal has considered these conditions with respect to the complementary protection provisions of the Act. The Tribunal notes the guidelines of the relevant Departmental PAM3 in this respect, including the discussion of prison conditions.  While the applicant may be placed in overcrowded and poor conditions for a short period of time, the Tribunal does not accept that the authorities are intentionally seeking to harm the applicant by placing him in these conditions for the short period he would be detained.

   112. Given the short term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, the Tribunal finds that the risk he will be subject to torture or any other form of significant harm is remote. Furthermore based on the country information, the Tribunal finds that any treatment the applicant may face upon return to Sri Lanka (including a fine and detention and poor prison conditions) would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population generally and not the applicant personally under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.

   113. The Tribunal also does not accept that the applicant will be singled out or intentionally harmed by the authorities, prison guards or other inmates in these circumstances while waiting for his bail. The Tribunal does not accept that there is any intention on behalf of the authorities to significantly harm the applicant, as defined in the Migration Act, while being detained. The Tribunal finds that there is no intention on the part of the authorities to inflict pain, suffering or humiliation on the applicant. The Tribunal also does not consider that the applicant's detention in these conditions for a short period of time constitutes significant harm. The Tribunal finds that the applicant does not face a real risk of significant harm while detained on remand.

   114. In these circumstances, the Tribunal finds the applicant, does not have a real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his other circumstances. Further, the Tribunal also finds that the applicant does not face a real risk of significant harm due to his illegal departure, taken alone or in combination with his other circumstances.

8. Again, this ground effectively amounts to an attempt to engage in merits review by the applicant, of the outcome determined by the Tribunal.  This is not a basis for judicial review.

9. I therefore conclude that the applicant has not made out a ground for judicial review, and the application must therefore be dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  21 December 2017