Auh15 v Minister for Immigration

[2016] FCCA 1518

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUH15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1518

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the Administrative Appeals Tribunal’s findings were open to it – whether the Administration Appeals Tribunal erred by applying a qualitative assessment to the applicant’s claims of harm he may suffer because of arrest and detention by reason of being a failed asylum seeker – whether the Administration Appeals Tribunal erred in its consideration of complementary protection – whether the Administration Appeals Tribunal erred in applying its findings in consideration of the applicant’s claims under the Convention relating to the Status of Refugees to its consideration of whether the applicant was entitled to complementary protection – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
WZAPN v The Minister for Immigration and Border Protection [2014] FCA 947
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22
SZTEQ v The Minister and Border Protection [2015] FCAFC 39
Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505
SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26
SZUYK v Minister for Immigration and Border Protection [2016] FCA 216
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29

Applicant: AUH15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1361 of 2015

Judgment of: Judge Emmett

Hearing date: 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Sydney

Delivered on: 21 June 2016

REPRESENTATION

The applicant appeared in person with the assistance of a Tamil interpreter. 

Solicitor for the Respondents: Ms Sharon Sangha
(Mills Oakley Lawyers)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 1361 of 2015

AUH15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 17 April 2015 and handed down on 20 April 2015 (“the Tribunal”).

2. The applicant claims to be a citizen of Sri Lanka and of Hindu religion and Tamil ethnicity, who fears harm from the Sri Lankan army and the authorities in Sri Lanka.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the Tribunal’s review and decision.

Background

1. On 23 July 2012, the applicant arrived at Cocos Island as an unauthorised maritime arrival.

2. On 16 January 2013, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 1 October 2013, the Delegate refused the applicant’s application for a protection visa.

4. On 15 October 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

5. On 20 April 2015, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.

6. On 19 May 2015, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

5. Sections 36(2A) and 5 of the Act defines “significant harm.”

6. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

7. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes s.425, which provides that:

   “425  Tribunal must invite Applicant to appear

   (1) The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

8. Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)He was born in Jaffna and he moved to Point Pedro when he married in 1991. From 1995-1996, his family was displaced by the Sri Lankan Civil War and they moved to Vanni.

   b)In 2002, he returned to Point Pedro but was captured and tortured by the Sri Lankan Army (“the SLA”) on suspicion that he was a member of the Liberation Tigers of Tamil Eelam (“the LTTE”).

   c)Subsequently, his wife bribed the SLA for his release and he escaped to Colombo. Shortly after, he went to Qatar on a working visa.

   d)In 2007, he went back to Sri Lanka as his working visa had expired. For the following two years, he did not encounter any problem with the SLA. However, he was scared to stay at his wife’s place.

   e)Around August 2009, the SLA went to his wife’s place to look for him. The SLA warned his wife that if he did not go to their camp, he would be shot.

   f)During this period, he would go to Point Pedro to work. However, he did not stay overnight at Point Pedro because the SLA looked for him at night.

   g)Around November 2011, the SLA went to his wife’s place and told her that he must attend their camp.

   h)In 2011, he obtained a new passport and left Sri Lanka by boat.

   i)He fears for his life in Sri Lanka. He cannot relocate within Sri Lanka due to the size of his family.

The Delegate’s decision

1. On 25 July 2013, the applicant attended an interview with the Delegate.

2. The Delegate accepted the applicant’s claims of harm prior to the end of the Sri Lankan Civil War. However, having regard to country information, the Delegate did not accept that the applicant was targeted by the SLA after the civil war ended.

3. The Delegate noted that the applicant was able to renew his passport in 2011. The Delegate found this to be inconsistent with the applicant’s claim of fearing harm from the Sri Lankan authorities.

4. The Delegate also considered the applicant’s status as a failed asylum seeker and any ramifications he may face upon return to Sri Lanka. The Delegate accepted that the applicant may be detained under the Sri Lankan migration law. However, the Delegate was not satisfied that this amounted to significant harm.

5. Accordingly, on 1 October 2013, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The Tribunal’s review and decision

1. On 15 October 2013, the applicant lodged an application for review of the Delegate’s decision by the Tribunal.

2. In support of the review application, the applicant’s migration agent provided further submissions and a statement made by the applicant on 25 March 2015.  

3. On 21 January 2015, the Tribunal wrote to the applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 31 March 2015 to give oral evidence and present arguments.

4. On 31 March 2015, the applicant attended the Tribunal hearing and gave evidence.

5. The Tribunal explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The Tribunal put to the applicant country information for comment. The Tribunal identified the country information to which it had regard.

6. Although the Tribunal accepted that the applicant was detained in 2002 by the SLA, it was not satisfied that the applicant was of adverse interest to the Sri Lankan government after the end of the Sri Lankan Civil War. In particular, the Tribunal rejected the applicant’s claim that he was hiding from the Sri Lankan authorities by staying at his parents’ house after he returned from Qatar in 2007. In this regard, the Tribunal noted that the applicant’s evidence at the Tribunal hearing was inconsistent with his written claims.

7. The Tribunal also noted that the applicant had returned to Sri Lanka on several occasions while he was working in Qatar. The Tribunal found this to be inconsistent with his claim to fear for his life in Sri Lanka.

8. Cumulatively, the Tribunal found the applicant was not a witness of truth.

9. The Tribunal then considered whether the applicant would face harm by reason of his Tamil ethnicity. The Tribunal found that the applicant had no active involvement with the LTTE and was not satisfied that the applicant would face significant harm in Sri Lanka due to his ethnicity.

10. The Tribunal also considered the applicant’s claim that as a failed asylum seeker, he would suffer significant harm in Sri Lanka. The Tribunal accepted that due to his illegal departure from Sri Lanka, the applicant would be detained once he returned to Sri Lanka under the Sri Lankan Immigrants and Emigrants Act.

11. However, the Tribunal found the Sri Lankan Immigrants and Emigrants Act to be applicable to all Sri Lankans indiscriminately. Although the Tribunal accepted that the applicant may be detained for up to two weeks, the Tribunal rejected that such treatment was due to the applicant’s Tamil ethnicity. Whilst the Tribunal found that the applicant may be remanded in uncomfortable and unsanitary conditions, the Tribunal was not satisfied that these conditions amounted to significant harm.  

12. Having considered the applicant’s claims, the Tribunal found that there was no evidence to support a finding that the applicant would suffer harm for a Convention related reason were he to return to Sri Lanka, that the applicant did not have a well-founded fear of persecution in Sri Lanka and for this reason the applicant was not a person to whom Australia owed protection obligations.

13. The Tribunal also considered whether the applicant met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The Tribunal found that there was no credible evidence before it that the applicant may face significant harm in Sri Lanka. Accordingly, the Tribunal found that there are no substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Sri Lanka, there is a real risk that the applicant would suffer significant harm.

14. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.

The proceeding before this Court

1. The applicant was unrepresented before this Court, although had the assistance of a Tamil interpreter. 

2. On 30 June 2015, the applicant attended a directions hearing before me. The applicant confirmed that he wished to continue with the application for judicial review. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.

3. At the commencement of today’s hearing, the applicant confirmed that he had not filed any documents in accordance with those directions or otherwise and that he has no further documents to present to the Court this morning in support of his application.

4. I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

5. The applicant confirmed that he continued to rely on the grounds of his initiating application filed on 19 May 2015, as follows:

   “1. The Tribunal erred in making a finding based on a false factual premise.

   Particulars

   a. At [8] the Tribunal acknowledged that the applicant claimed that in 2002 that he was arrested, beaten and tortured for 3 days.

   b. At [17] and [18] the Tribunal accepted the applicant's claim that he was detained in 2002 because he was a Tamil and suspected of being a member of the LTTE.

   c. At [73]-[75] the Tribunal accepts that returnees who are suspected of having links to the LTTE are potentially subject to torture and abuse.

   d. At [73] the Tribunal makes an erroneous finding based on a false factual presence.

   2. The Tribunal erred by asking itself the wrong question

   Particulars

   a. The Tribunal found that the applicant would be held for a short period, depending on the availability of a Magistrate.

   b. The threat to liberty as provided by section 91R(2)(a) of the Migration Act 1958 (Cth) is not limited by a time assessment.

   c. The finding is contrary to the decision of the Federal Court of Australia in WZAPN v Minister for Immigration and Border Protection.

   3. The Tribunal erred by considering the wrong issues in applying the complementary protection provisions.

   Particulars

   a. The applicant would only be held in remand for a relatively short period;

   b. Those who convicted have received fines and not prison sentences;

   c. Poor prison conditions in Sri Lanka were due to a lack of resources; and

   d. The Tribunal failed to consider whether the applicant would suffer significant harm while being held in remand as it is an intentional act by Sri Lankan authorities to hold returnees in poor prison conditions to humiliate those who illegally departed and deter others.

   4. The Tribunal erred in applying its findings of law of general application in the refugee convention assessment to the complementary protection provisions.”

6. Each of the grounds was interpreted for the benefit of the applicant and the applicant was invited to say whatever he wished to say in support of each of the grounds and in support of the application generally.

Ground 1

1. Ground 1 asserts that the Tribunal erred in making a finding based on a “false factual premise”.

2. The particulars in support state that the Tribunal accepted the applicant’s claims that he was arrested, beaten and tortured for three days in 2002 because he was Tamil and suspected of being a member of the LTTE, and that returnees who are suspected of having links to the LTTE can be subject to torture and abuse upon return to Sri Lanka.

3. The applicant had nothing further to say in support of Ground 1.

4. In the circumstances, I understood the “false factual premise” to which the applicant referred to be the Tribunal’s ultimate conclusion that the applicant did not meet the criteria for protection in Australia either under s.36(2)(a) of the Act or s.36(2)(aa) of the Act. I understood the applicant’s complaint to be that such a conclusion was inconsistent with the findings referred to above.

5. Ground 1 in particular refers to the Tribunal’s finding that it was not satisfied that being a failed asylum seeker exacerbated the applicant’s profile as anti-government or pro-LTTE, or otherwise put the applicant at risk of harm.

6. The Tribunal’s decision record makes clear that it considered in some detail whether the applicant would be at risk of harm upon return to Sri Lanka. The Tribunal accepted that persons with LTTE associations may be at risk of harm in Sri Lanka. However, the Tribunal comprehensively rejected the applicant’s claim of ever having been perceived to be a LTTE supporter. The Tribunal found that the applicant had fabricated his claim that he was of continuing interest to authorities as a consequence of being perceived as a LTTE supporter in Sri Lanka.

7. The Tribunal found that the applicant’s story changed during the hearing before the Tribunal. The Tribunal found that this occurred in response to concerns expressed by the Tribunal.  The Tribunal found that given the applicant’s visibility in Sri Lanka for a number of years between 2007 and 2012, and given the sophisticated intelligence of authorities, the applicant would not have escaped detection in Sri Lanka if he was perceived to have LTTE associations.

1. The Tribunal noted that the applicant travelled in and out of Sri Lanka in 2002, 2004 and 2007 without any incident. The Tribunal also noted that the applicant travelled to Colombo in 2007, through various checkpoints, without harm. The Tribunal found that if the applicant was of interest to the authorities, he would have been stopped.  Additionally, the Tribunal rejected the applicant’s claim of having been in hiding, in circumstances where his personal information was visible to the authorities by virtue of his travel in and out of Sri Lanka and his applications for a passport, working visa and police clearance. Further, the Tribunal rejected the applicant’s claim of fleeing to Qatar to avoid harm in Sri Lanka. The Tribunal found the applicant went overseas for economic reasons.

2. Cumulatively, the Tribunal considered the applicant’s claims to fear serious harm in Sri Lanka to be fabricated. The Tribunal’s findings were open to it on the material and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

3. In considering whether the applicant was at risk of harm on return to Sri Lanka as an illegal departee or failed asylum seeker, the Tribunal had regard to country information about many thousands of returnees to Sri Lanka since 2009, including from Australia, and noted that relatively few allegations of mistreatment have been verified.

4. As stated above, the Tribunal accepted that the situation may be different for returnees with real or perceived associations with the LTTE. The Tribunal referred to country information which disclosed that in all LTTE-controlled areas, all persons had some involvement with the LTTE during the war. However, the Tribunal rejected the applicant’s claims of being suspected of having LTTE associations.

5. The Tribunal also rejected the applicant’s claims that anyone had looked for him or threatened him in the past in Sri Lanka for the reasons claimed.

6. Further, the Tribunal did not accept that the applicant would be imputed with pro-LTTE or anti-government sentiment because of any past activity or association, or because he is Tamil. 

7. The Tribunal noted that the main focus of the authorities when processing a returnee was to determine whether that person was suspected of being an ongoing threat to the Sri Lankan regime. The Tribunal noted that many Sri Lankan Tamils travelled abroad as economic migrants. As stated above, the Tribunal found that the applicant was such a person.

8. The Tribunal found that the risk of torture or mistreatment for persons other than criminals or persons suspected of having committed serious crimes of terrorism was low. The Tribunal did not accept that the applicant was a criminal or that he was suspected of having committed serious crimes of terrorism, or that he might be perceived as having such a profile. Accordingly, the Tribunal did not accept that the applicant would be subjected to an extended period of pre-trial detention or a custodial sentence upon return to Sri Lanka.

9. The Tribunal noted that it considered the applicant’s extended absence overseas in Australia, his time overseas in Qatar, and the fact that his son was also overseas. The Tribunal also considered the applicant’s migration agent’s submissions in support. However, the Tribunal found that those circumstances did not increase the applicant’s chance of harm in Sri Lanka, or otherwise raise his profile, or that he would be perceived as anti-government or pro-LTTE as a result.

10. The Tribunal accepted that the applicant departed Sri Lanka illegally. The Tribunal also accepted that the applicant would be questioned at the airport to establish his identity and that he would be brought before a magistrate to apply for bail. The Tribunal accepted that the applicant would be charged for departing illegally and would be likely to be subject to a fine.

11. The Tribunal found that any fine that may be imposed upon the applicant would not amount to serious harm.  The Tribunal found that the applicant would be able to pay the fine because his family would support him. Further, the Tribunal noted that the applicant’s brother worked as a painter and that the applicant was in regular contact with both his brother and his family. The Tribunal also noted that the applicant had operated his own welding workshop business for many years and had shown himself to be adaptable and resourceful when being displaced during the war. The Tribunal found that there was no reason why the applicant would not find similar work upon return to Sri Lanka and that, in any event, his family would provide support if needed in terms of a fine or a surety.

12. The Tribunal rejected the applicant’s claim to face a real chance of torture, interrogation or mistreatment on arrival in Sri Lanka, or during the questioning process to establish his identity and apply for bail. The Tribunal did not accept that the applicant had any profile that increased the chance of harm of mistreatment when he was questioned. The Tribunal found that, at most, the applicant may be held in detention for two weeks before being brought before a magistrate.

13. The Tribunal had regard to the generally poor conditions in prisons in Sri Lanka. The Tribunal noted that conditions on remand have been described in media reports as being overcrowded and unsanitary. However, the Tribunal found that being questioned or being subject to reporting to local police upon release did not amount to serious harm and did not accept that the applicant would be targeted in prison. This was because the Tribunal found that the applicant had no profile and was not of interest to the authorities.

14. The Tribunal found that the chance of torture or mistreatment of the applicant upon his return to Sri Lanka to be remote. The Tribunal also found that the Sri Lankan migration laws were laws of general application and that the enforcement of those laws did not constitute persecution. The Tribunal did not accept that the law would be administered in a discriminatory fashion in respect of the applicant and that any unpleasantness that he may experience in jail was not aimed at the applicant for any Convention reason. 

15. The Tribunal also considered whether the applicant would be at real risk of suffering harm which would amount to significant harm for any reason if he was to return to Sri Lanka. Ultimately, the Tribunal did not accept that there are substantial grounds for believing 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(2A) of the Act.

16. The Tribunal found that there was no real risk that the applicant would suffer significant harm as a consequence of any questioning or detention in remand, in terms of s.36(2A) and s.5(1) of the Act. Again, those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

17. In the circumstances, Ground 1 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

18. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the Tribunal asked itself the wrong question. 

2. The particulars in support of Ground 2 appear to rely on WZAPN v The Minister for Immigration and Border Protection [2014] FCA 947 per North J (“WZAPN”).

3. In oral submissions in support of Ground 2, the applicant reiterated his claims of being detained, beaten and tortured if he was to return to Sri Lanka. The applicant also stated that the authorities were looking for him and that they said they would take his son if they could not find him, which was the reason the applicant’s son fled to Malaysia.  The applicant said he would have trouble on return to Sri Lanka. None of those submissions enlightened the complaints made in Ground 2 and do not by themselves identify an error capable of review by this Court. Such submissions are no more than a restatement of the applicant’s claims.  

4. To the extent that Ground 2 appears to rely on WZAPN, the principles espoused by North J in WZAPN are no longer good law. The High Court of Australia in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 agreed with the Full Court of the Federal Court of Australia in SZTEQ v The Minister and Border Protection [2015] FCAFC 39, which held that s.91R(2)(a) of the Act should not be construed as meaning that any deprivation of liberty constitutes serious harm for the purposes of s.91R(1)(b) of the Act. The High Court stated at [45] per French CJ, Kiefel, Bell and Keane JJ that:

   “To resolve the question before the Court, it is enough to say, in light of the collocation of threats to life and liberty in s 91R(2)(a), that the question of whether a risk of the loss of liberty constitutes “serious harm” for the purposes of s 91R(1)(b) requires a qualitative judgment. This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty. Whether the likelihood of detention in any case rises to the level of serious harm instanced by s 91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention.”

5. In the case before this Court, the Tribunal evaluated the nature and gravity of the loss of liberty and considered the consequences that may flow to the applicant upon return to Sri Lanka. The Tribunal then made findings as to what the possible consequences may be. The Tribunal found that those consequences did not amount to serious harm to the applicant. Further, the Tribunal found that Sri Lanka’s migration laws were laws of general application that would not be applied in a discriminatory manner and therefore did not amount to persecution under s.91R of the Act. As stated above, those findings were open to the Tribunal for the reasons it gave.

6. Accordingly, Ground 2 is not made out.

Ground 3

1. Ground 3 asserts that the Tribunal erred in considering the wrong issues in applying the complementary protection provisions. 

2. The particulars in support assert that the Tribunal found that the applicant would only be held in remand for a relatively short period, that those convicted have received fines and not prison sentences, and, that poor prison conditions in Sri Lanka were due to a lack of resources.

3. The particulars also assert that the Tribunal failed to consider whether the applicant would suffer significant harm while being held in remand and that it is an intentional act by Sri Lankan authorities to hold returnees in poor prison conditions to humiliate those who illegally depart and to deter others.

4. In support of Ground 3, the applicant stated that he would be arrested and forced to sign some documents. He said that his family may be told that he had been released but that in fact he would disappear and not see them again.

5. In considering complementary protection, the Tribunal had regard to the relevant statutory provisions. As stated above, its findings in relation to the potential consequences that may be visited upon the applicant on his return were open to it, as were its conclusions as to whether such conduct would amount to serious or significant harm. 

6. As stated above, the Tribunal specifically considered whether the applicant met the complementary protection criterion and concluded that it was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.

7. As stated above, the Tribunal found that the questioning and detention and fine that the applicant may suffer would not amount to significant harm in terms of s.36(2A) of the Act.

8. In so far as Ground 3 also asserted that the harm the applicant would suffer whilst in remand was an intentional act by Sri Lankan authorities to hold returnees in poor prison conditions and to humiliate those who had departed illegally and to deter others, such a complaint is not made out. The Tribunal specifically referred to that claim by the applicant. However, the Tribunal rejected that overcrowding and other problems in prisons are intended to cause extreme humiliation, as contemplated by the definition of “degrading treatment or punishment” in s.5(1) of the Act. Those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave.

9. Accordingly, Ground 3 is not made out.

Ground 4

1. Ground 4 asserts that the Tribunal erred in applying its findings of law and general application in the Refugee Convention assessment to the complementary protection provisions. 

2. In support, the applicant said that the facts that he had put forward were not accepted and referred to various letters of support that he had provided to the Tribunal, which the Tribunal had found were fabricated.

3. In relation to the complaint in Ground 4 that the Tribunal erred in applying its findings of law and general application in the Refugee Convention assessment to the complementary protection provisions, as stated above, the Tribunal’s findings in respect of the application of a law of general application without discrimination to the applicant was open to it on the evidence and material before it and for the reasons it gave.

4. Moreover, it is well established that it is acceptable for a Tribunal to have regard to its prior findings in considering whether an applicant meets the complementary protection criterion (see Minister for Immigration and Citizenship v SZQBR (2013) 210 FCR 505 at [245] – [246] per Lander and Gordon JJ; SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26 at [32] per Robertson, Griffiths and Perry JJ; and SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36] per Farrell J).

5. In relation to the applicant’s complaint that the Tribunal rejected his documentary evidence, the Tribunal referred specifically to the documents provided by the applicant and concluded that they were fabricated and therefore placed no weight upon them.  In making those findings, the Tribunal relied on country information and noted that the wording of the various letters of support was similar. In particular, the Tribunal noted that the applicant did not know the name of the priest who had provided a letter of support. The Tribunal found that the applicant was making up his story as he went along and did not accept that the applicant attended a church or knew a priest there. The Tribunal also noted various typographical errors in the alleged priest’s letter and did not accept it as genuine.

6. The Tribunal had similar difficulties that it expressed in its reasons in relation to the other documents provided by the applicant, leading to its conclusion that none of the documents were genuine.  As stated above, those findings were open to it on the evidence and material before it and for the reasons it gave.  Again, to the extent that the applicant was complaining about those findings, such a complaint is no more than a disagreement with the finding of the Tribunal, and, as stated above, invites merits review, which this Court cannot undertake.

7. Accordingly, Ground 4 is not made out.

8. Otherwise, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims made by the applicant and explored those claims with the applicant at a hearing.  The Tribunal also considered the applicant’s migration agent’s submissions and had regard to all material provided in support. The Tribunal expressed concerns to the applicant about his evidence and noted the applicant’s responses. 

9. The Tribunal referred to independent country information upon which it relied in reaching its findings. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

10. Otherwise, the Tribunal made findings based on the evidence and material before it which were open to it, for the reasons it gave.  The Tribunal reached conclusions based on the findings made by it and to which it applied the correct law. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

11. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this court has no jurisdiction to interfere. The proceeding should therefore be dismissed with costs.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:     24 June 2016