BBR15 v Minister for Immigration and Border Protection
[2017] FCA 1196
•15 August 2017
FEDERAL COURT OF AUSTRALIA
BBR15 v Minister for Immigration and Border Protection
[2017] FCA 1196
Appeal from: BBR15 v Minister for Immigration and Border Protection [2017] FCCA 209 File number: NSD 272 of 2017 Judge: RARES J Date of judgment: 15 August 2017 Legislation: Migration Act 1958 (Cth) Div 4 Pt 7, ss 5, 36, 91R, 499 Cases cited: BBR15 v Minister for Immigration and Border Protection [2017] FCCA 209
Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556
Date of hearing: 15 August 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 58 Counsel for the Appellant: The Appellant appeared in person Council for the First Respondent: Mr T Reilly Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a Submitting Notice ORDERS
NSD 272 of 2017 BETWEEN: BBR15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
15 AUGUST 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court refusing the appellant’s application for constitutional writ relief against the decision of the then Refugee Review Tribunal given on 18 May 2015 to affirm the Minister’s delegate’s decision not to grant the appellant a protection visa: BBR15 v Minister for Immigration and Border Protection [2017] FCCA 209.
Background
The appellant was represented by a solicitor before her Honour, but has appeared for himself today before me. He filed a detailed outline of submissions to which I will come. The appellant is a Tamil citizen of Sri Lanka who arrived in Australia as an unauthorised maritime arrival in July 2012.
In December 2012 he applied for a protection visa and was assisted by a solicitor migration agent throughout the process before the delegate and the Tribunal.
In summary, he claimed that he, his wife, son and two daughters resided in the wife’s family home in a village in Trincomalee. He claimed that other members of his family resided nearby, but that one of his brothers had been killed by the Sri Lankan army in 1990 while his family were moving to Jaffna as a result of being displaced from their home. He claimed that he owned farming land in a village located in the vicinity of Trincomalee but that his wife’s family home was located next to a Sri Lankan army camp. He said that until June 2005, that camp had been occupied by the Liberation Tigers of Tamil Eelam (LTTE).
He claimed that during the civil war many villagers, including him, had been rounded up after the army drove the LTTE out of the camp. He claimed the army had questioned him in relation to his involvement with the LTTE and that he had denied having any such involvement.
He claimed that in the early evening of 15 February 2012, three army officers had attacked his wife after she left their house to visit her sister, that she had been pushed to the ground and that the officers had forcibly tried to take a gold chain that she was wearing around her neck. When he heard her calling for help and saw that she was on the road struggling with the officers, he tried to protect his wife and, in the course of which, he had been beaten and suffered an injury to his leg. He claimed that the officers had stolen his wife’s necklace and warned the couple that if the incident were reported to the police, they would be shot. He claimed that two days after that incident he travelled to his farm and, before arriving there, had to register at the army camp. He claimed that, while he was at the farm, his wife called him to tell him that army officers had been to their house asking for him and had warned his wife that he would be killed if an official complaint was made about the 15 February 2012 incident.
He claimed that his wife and children moved them from their village to stay with his sister and remained there for several months before returning to their village, but not to their house. Rather, he claimed they moved about five or six houses away from the family home while he remained living on his farm until he departed from Sri Lanka. He claimed that he did so because he was scared that the army would find him were he to return to his village.
The appellant claimed that during that period, of about four months before his departure, he visited his sister and wife and children at their homes, although he was too scared to stay there. He claimed that while he was residing at the farm, prior to leaving Sri Lanka, officers of the army visited his wife on two occasions asking for him and that following his arrival in Australia his wife had told him that army officers had come to the house on 26 November 2012, being the birthday of the LTTE’s founder, asking about him.
The appellant claimed that he had decided to leave Sri Lanka because the army was after him and he believed that they would kill or harm him because he had fought them and had sought to prevent him taking official action against his wife’s attackers.
He also claimed to fear harm from Sri Lankan authorities by reason of his Tamil ethnicity. He claimed that the Sri Lankan authorities believed all Tamils supported the LTTE and he could not live peacefully in his country. He claimed he would be arrested at the airport on return to Sri Lanka and handed over to the army, when, he believed, he would suffer torture and degrading treatment.
On that basis, the appellant claimed that he had a well-founded fear of persecution for reasons of imputed political opinion as a perceived supporter of the LTTE, his membership of a particular social group, being Tamil males who resided in former LTTE-controlled areas, and, that he would be ill-treated on his return as a failed asylum seeker.
The delegate’s decision
On 31 July 2013, the delegate decided to refuse to grant the appellant a protection visa. The delegate questioned the appellant about his claims during their interview. She found that, despite some inconsistencies and omissions, his account had remained substantively consistent throughout the assessment process. She accepted that he had a genuine subjective fear of Sri Lankan authorities as a result of having lived in the east and north of the country throughout the civil war, and that he had been affected by traumatic events, including the killing of his brother by the army. Overall, the delegate found the appellant to be credible and she accepted a number of aspects of his account that I have described above, including that of the incident on 15 February 2012.
However, the delegate did not accept that the army subsequently had searched for the appellant in connection with the 15 February 2012 incident, or for any other reason, prior to his departure for Australia. She did not find credible that the army would have been unable to locate him over a period of approximately four months, during which time he continued to reside in Trincomalee on his farm, located about 24 kilometres from his home village, and while he regularly visited his sister’s house, located about 16 kilometres from his village, and his wife and children in his home village. Given those visits to his sister and wife, the delegate did not accept his statement that he was in hiding on his farm during the four month period. She also found that at no time in the four months preceding his departure for Australia did the appellant experience any difficulties during the registration process at the army camp required when he was travelling between his village and the area near his farm, despite him travelling to visit his wife and children on a number of occasions. The lack of any action taken by the army during that period caused the delegate to find that the appellant’s claims that the army was searching for him were lacking in credibility.
The delegate also accepted that the army had questioned the appellant’s wife in regard to his whereabouts twice before his departure for Australia, but she did not accept that that indicated that they were seeking to apprehend or seriously harm him. She also found that the questioning of Tamils in his village on the day celebrating the founder of the LTTE’s birthday was part of general questioning of the Tamil population in relation to that event, and not specific questioning with respect to the appellant.
The delegate did not find the appellant’s asserted reasons for the army’s interest in him to be credible. In light of country information that there was general impunity enjoyed by Sri Lankan security forces in relation to human rights abuses, the delegate rejected his claim that, because he had fought with them in seeking to protect his wife in February 2012, the army wanted to harm him and to prevent him making an official complaint. The delegate did not accept that the army would be genuinely concerned about the appellant making a complaint to the police or other government body in connection with the incident involving his wife. She relied on country information to support that finding. She also did not accept that the army suspected the appellant of being a supporter of the LTTE. That was because it had not taken any action against him in the period between 2002, when he moved to his house, and his departure for Australia in June 2012. While she accepted that the appellant had been questioned by the army on a number of occasions, including in June 2005, she relied on country information that suggested that Tamil males, particularly in the north and east of the country, were frequently questioned by Sri Lankan authorities in connection with suspected involvement with the LTTE, both during the 26 year civil war and following the defeat of the LTTE in May 2009. The delegate did not accept that, given the lack of any ongoing interest by the Sri Lankan authorities beyond general questioning, the army suspected the appellant of being involved with the LTTE.
After considering country information, the delegate was not satisfied that Australia owed protection obligations to the appellant under the Refugees Convention. She found that he was not entitled to the grant of a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth). For the substantially similar reasons, she also rejected his claim that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Sri Lanka, there was a real risk that the appellant would suffer significant harm. She found that Australia did not owe him any complementary protection obligations under s 36(2)(aa) of the Act.
The proceedings in the Tribunal
Assisted by his solicitor migration agent, the appellant applied to the Tribunal for review of the delegate’s decision. The appellant appeared before the Tribunal and gave evidence to it. A transcript of his oral evidence to the Tribunal was in evidence before her Honour. During the course of the Tribunal’s questions, it raised with the appellant, on a number of occasions, concerns that it had about inconsistencies in his evidence and, at an early stage, his use of notes when giving his evidence. Among other matters, the Tribunal raised directly with the appellant an inconsistency between his account, in his entry interview, where he told the Department that the soldiers had struggled with his wife and removed her clothes, and his oral evidence to the Tribunal that he did not see the soldiers take his wife’s clothes off. The Tribunal told the appellant that that was important because the evidence he was giving to it was inconsistent with his earlier account and was a reason for the Tribunal to doubt the credibility of his evidence, which would be part of the reason for it to affirm the delegate’s decision to refuse to grant him the visa. The Tribunal asked the appellant whether he understood that information and why it was important, and the appellant answered that “I have given contradictory” [sic]. Subsequently, on a number of occasions, the Tribunal raised other perceptions of there being inconsistency between the appellant’s oral evidence and his earlier statements that it said gave rise to its doubting his credibility.
The Tribunal’s decision record
The Tribunal summarised the appellant’s claims. It noted that the Department of Foreign Affairs and Trade (DFAT) had prepared two country assessments expressly for protection status determination purposes that were relevant to Sri Lanka. It said that Ministerial Direction No. 56, made under s 499 of the Act, required the Tribunal to take those into account, being, a DFAT country report on Sri Lanka and a DFAT thematic report concerning people with links to the LTTE. The Tribunal noted that since the date of the hearing before it on 4 December 2014, DFAT had issued a new country report on 15 February 2015. The Tribunal stated that it considered that the relevant information in the new country report was materially the same as in the prior country report that it had discussed with the appellant during the hearing.
The Tribunal concluded that it was implausible that the appellant would leave his wife and children alone in his home village were his account of the attack, to which his wife was allegedly subjected, credible. It also found implausible that the army would target only the appellant for harm, as a warning not to make a complaint about the assault on his wife, when his wife was the victim and thus capable of making her own complaint. The Tribunal was not persuaded by the appellant’s explanation that his wife was too scared to make a complaint. The Tribunal noted a new claim that in June 2014 soldiers and members of the Karuna group had interrogated his wife at their home asking about him.
The Tribunal found that, having regard to its difficulties with his evidence, he had fabricated his claims regarding the assault on his wife and the searches by the army and the Karuna group for him. It found that he had made those claims with a view to “creating a back story” to enhance his chances for protection in Australia. The Tribunal rejected as not being credible that the appellant’s wife had been assaulted in any way by soldiers from the neighbouring camp in February 2012 and, therefore, it rejected his claims that any soldiers had been looking for him subsequently. It rejected, as fabricated, his account that the army and the Karuna group had come looking for him in June 2014.
The Tribunal found that in living in proximity to an army camp, there was a real chance that the appellant might experience discrimination and harassment of the type he claimed to have experienced in November 2012, but it did not consider that that discrimination or harassment amounted to persecution. Rather, it found that any harassment that had occurred in November 2012 was an example of harassment and discrimination experienced by Tamils that did not amount to serious or significant harm.
It found that, were he to return to Sri Lanka, there would only be a remote or speculative, and not real, chance that the appellant would suffer serious harm from the army or the Karuna group at the time of its decision or in the reasonably foreseeable future merely because he lived nearby to an army camp.
The Tribunal then turned to consider the appellant’s claim of fearing that he would be harmed because he was a Tamil. It noted that it had discussed with him country information regarding the situation with Tamils, including the United Nations High Commissioner for Refugees (UNHCR) 2012 Eligibility Guidelines for assessing the protection needs of asylum seekers from Sri Lanka and a 2013 guidance decision of the United Kingdom’s Upper Tribunal, both of which indicated that Tamils were not in need of protection unless they had other characteristics, such as links to the LTTE. The Tribunal noted that the UNHCR had identified as at risk a Tamil who had actual or imputed relevant links to the LTTE.
The Tribunal accepted independent evidence that indicated that, at least up to the end of the civil war, Sri Lankan citizens of Tamil ethnicity had suffered disproportionately at the hands of Sri Lankan authorities and that this risk was more prevalent in previously LTTE dominated northern and eastern areas, which was consistent with the appellant’s claims of general persecution of Tamils. However, it then accepted DFAT’s assessment that since the end of the civil war the situation for Tamils had changed significantly. It also accepted the appellant’s evidence that it was harder for Tamils to find employment and that he had suffered harassment from soldiers from the neighbouring camp. But, it rejected, as exaggerated, the appellant’s claim that no Tamils could work for the Sri Lankan Government.
Thus the Tribunal found, on the basis of country information, consistent with the appellant’s claim, that harassment and discrimination that Tamils generally might face in Sri Lanka did give rise to some harm. However, based on country information that most Tamils experienced some degree of harassment and discrimination, the Tribunal, having considered the appellant’s circumstances, was satisfied that he faced a remote chance, and therefore not a real chance, of serious harm because he was a Tamil.
It did not accept, on the basis of country information, that the appellant would be imputed with any anti-government or pro-LTTE opinion because he was a Tamil, or because he lived or worked in a Tamil area. It found that, given his personal circumstances, there was only a speculative, and not a real, chance that he would be questioned, detained, arrested, assaulted, abducted or killed or would suffer any form of serious harm by Sri Lankan authorities, because of, either individually or cumulatively, his race as a Tamil or membership of any particular social group or political opinion related to the LTTE or any other Convention reason, then or in the reasonably foreseeable future, were he to return to Sri Lanka.
The Tribunal then discussed the appellant’s claim that he would be harmed as a failed asylum seeker. It accepted that were he to return to Sri Lanka, he would do so as a failed asylum seeker. But, it rejected his claims that the Sri Lankan authorities would impute him with a pro-LTTE or anti-government political opinion merely because he had applied for asylum, and that they would then seek to punish him because of an assumption that he had been critical of the Sri Lankan authorities in those claims for asylum and or because he was a Tamil. The Tribunal considered country information and did not accept that all failed asylum seekers were imputed with an anti-government or pro-LTTE political opinion by Sri Lankan authorities, including those who were Tamil.
The Tribunal was not satisfied that the appellant would be imputed with a political opinion because he had left illegally or applied for asylum in a Western country or that he would be singled out or treated differently because he was a member of a particular social group of failed asylum seekers or any other particular social group. In making that assessment, the Tribunal placed weight on the UNHCR Guidelines and the 2013 Upper Tribunal guidance decision that indicated that, while persons with links to the LTTE may be in need of protection, the authorities in Sri Lanka relied on sophisticated intelligence gathering to identify persons with such links. It found that after assessing all of the evidence and the appellant’s circumstances as a whole, he would not be imputed with an anti-government or pro-LTTE political opinion if he returned to Sri Lanka as a failed asylum seeker. The Tribunal was not satisfied that there was a real chance of the appellant suffering serious harm because of an imputed political opinion or membership of any particular social group however described, or as a failed asylum seeker, were he to be returned to Sri Lanka then or in the reasonably foreseeable future.
The Tribunal also rejected the appellant’s claim that he would be harmed because he had departed Sri Lanka illegally. It considered the provisions of the Sri Lankan Immigration and Emigration Act that dealt with illegal departure. The Tribunal relied on DFAT country information that since November 2012, all failed asylum seekers, who had departed illegally from Sri Lanka, when returned to Sri Lanka from Australia, had been arrested upon return to the airport in Colombo and charged with offences relating to illegal departure under the Immigration and Emigration Act. It found that subsequently they were held on remand until being brought before a magistrate. The Tribunal found that, based on the country information, after a bail hearing, returnees were granted bail with a personal surety and able to return to their home area. It found that the period in which they were held on remand varied between a couple of hours and a couple of days, depending on how soon a bail hearing could be held, although there were some reports of that process taking up to two weeks. It found that Sri Lankan authorities would investigate the background and identity of each returnee and that this could involve contacting the person’s family and police in their home area. It found that eventually the returnee would return to Court to face the charges and that, although the Immigration and Emigration Act provided for a penalty of a prison sentence of one to five years and a fine for illegal departure, magistrates usually were able to use their own discretion in determining the amount of a fine. It found that, in practice, magistrates had been sentencing persons to fines of between 5,000 LKR and 50,000 LKR. It found that only returnees suspected of people smuggling offences had been denied bail or given a prison sentence.
The Tribunal considered the appellant’s claim that he had heard of two or three men from the Northern Province, who had returned to Sri Lanka from Australia as failed asylum seekers, who had been held by the army and their whereabouts were unknown. The Tribunal gave the appellant additional time, after the hearing, to provide further evidence on that topic. It noted that in response to that invitation, the appellant had provided only generalised country information, but without any reference to his particular claim.
The Tribunal found that while there was a chance of harm during the process involved in interrogating and questioning illegal returnees, offences under the Immigration and Emigration Act were laws of a general application that were applied in a non-discriminatory way to all citizens of Sri Lanka who had departed that country illegally. It found that any harm that the appellant may suffer arising from punishment for an offence under the Immigration and Emigration Act had no element of, and did not amount to, persecution for the purposes of s 91R(1)(c) of the Migration Act. The Tribunal found that while individuals held in Sri Lanka in prison had been the subject of, what DFAT country information referred to as unsubstantiated allegations of, reports of torture and assault, DFAT was unaware of mistreatment of the returnees while they were on remand. The Tribunal found that only prisoners who otherwise had a profile of being opposed to the current Sri Lankan government, such as persons affiliated to the LTTE, were targeted in that way and that there had not been reports of returnees awaiting bail hearings having been subjected to torture or other forms of deliberate mistreatment. The Tribunal found that the period that the appellant would spend on remand would be as a result of the application of the Sri Lankan laws of general application and that any period of remand would be a consequence of those laws being applied to him, which would not amount to persecution.
Nor was it satisfied that the short-term nature of any such imprisonment would amount to the appellant facing a real chance of serious harm while on remand. It found that he would not be held on remand because he was a Tamil or failed asylum seeker, but rather simply because he had departed Sri Lanka illegally. It was not satisfied that any questioning, arrest, poor conditions on remand or the imposition of any penalty for illegal departure would amount to systematic and discriminatory conduct within the meaning of s 91R(1)(c) of the Migration Act. The Tribunal considered that, based on the available country information, there was only a remote and not a real chance that the appellant would be sentenced to a term of imprisonment for his offences under the Immigration and Emigration Act and that it was highly likely that he would be fined not more than 200,000 LKR, and, more likely, 50,000 LKR. It found that Sri Lankan law provided a procedure for persons to have time to pay fines by instalments and that the evidence before it did not suggest that the appellant would be unable to pay a fine, that its payment would cause him hardship or that he was without any relative able to provide him with a surety when he returned and sought bail.
The Tribunal found that the appellant did not have a well-founded fear of persecution due to his illegal departure from Sri Lanka. That was because, it found, the Sri Lankan laws lacked any discriminatory intent or application and there was no real chance the appellant would face a term of imprisonment for the offence of illegal departure.
Having considered his claims individually and collectively, the Tribunal found that, in the past, the appellant had faced no serious harm in Sri Lanka and it was not satisfied that he faced a real chance of serious harm by the Sri Lankan army, Karuna group or any other claimed persecutors for reasons of his race, living in a former LTTE-controlled area, being a failed asylum seeker, political opinion, membership of a particular social group or unlawful departure from Sri Lanka. Therefore, the Tribunal concluded that he did not have a well‑founded fear of persecution for any Refugees Convention reason or combination of reasons, then or in the reasonably foreseeable future, were he to return to Sri Lanka. It therefore found that the appellant did not satisfy the requirements of s 36(2)(a).
The Tribunal then turned to the complementary protection ground. It accepted that harassment and discrimination towards Tamils might cause some humiliation to the appellant but it was not satisfied that any harassment and discrimination would cause extreme humiliation that was unreasonable, within the meaning of the definitions of torture or cruel or inhuman treatment or punishment, so as to amount to significant harm for the purposes of s 36(2A) of the Migration Act. It was not satisfied that the appellant being questioned on his return, his bail conditions, detention on remand or any fine would involve severe physical or mental pain or suffering. Therefore, it found that the significant harm he claimed to fear did not meet the definition of torture in s 5(1) of the Act. Similarly, it found that his being questioned, the bail conditions, detention while on remand and any fine could not meet the definition of cruel or inhuman treatment or punishment in s 5(1) of the Act, being an act or omission, first, by which severe pain or suffering, whether physical or mental, was intentionally inflicted on the appellant or, secondly, amounting to pain or suffering, whether physical or mental, that was intentionally inflected on him that, in all the circumstances, could reasonably be regarded as cruel or inhuman in nature. The Tribunal was not satisfied that the appellant’s being questioned, his bail conditions, detention while on remand or any fine would cause him extreme humiliation that was unreasonable.
Having made those distinct findings, the Tribunal added that, moreover, the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Migration Act, also, respectively, required that, first, the pain or suffering be intentionally inflicted on a person, or, secondly, the relevant act or omission be intended to cause extreme humiliation. The Tribunal did not accept that, on the evidence before it, the pain or suffering that would be caused by the overcrowding or other problems in Sri Lankan prisons were inflicted intentionally on prisoners or that those conditions were intended to cause extreme humiliation so as to meet the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Migration Act. Therefore, the Tribunal was not satisfied that any harm arising from the appellant being questioned, his bail conditions, being detained while on remand or any fine would amount to significant harm for the purposes of s 36(2)(aa) and (2A) of the Act. It also found that, by reason of its rejection of the appellant’s claims for protection, he did not face a real risk of suffering significant harm in the form of arbitrary deprivation of life, the death penalty being applied, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment, within the meaning of s 36(2)(aa), were he to return to Sri Lanka then or in the reasonably foreseeable future. Accordingly, the Tribunal affirmed the delegate’s decision.
The proceedings before the trial judge
Before the trial judge, the appellant’s then solicitor relied on an amended application. That contained six grounds. Those grounds were in substance the same as the written submissions on which the appellant’s solicitor simply relied without further addressing her Honour. The appellant’s solicitor also told her Honour that he had read the Minister’s written submissions and had no reply submissions to put in relation to them. In those circumstances, her Honour was left in the position, effectively, of having only written arguments of the parties with which to deal. She found that the Minister’s written argument should be accepted for the reasons they articulated.
In the appeal, the appellant argued grounds 1 and 5 in the amended application that were before her Honour, with which I will deal below. I have also had regard to the other arguments which he put to her Honour, through his then solicitor, lest there be a ground for perceiving, since he now represents himself, that the Tribunal’s decision was affected by any other arguable jurisdictional error.
Ground 2 below alleged that the Tribunal had committed jurisdictional error by failing sufficiently to identify, describe or consider Refugees Convention reasons on which the appellant had relied, namely, that the Tribunal had failed to consider his history and circumstances. In my opinion, that ground was, as the trial judge found, without any substance. The Tribunal considered each of the matters in the appellant’s history in more detail than I have set out above, including his having lived in a refugee camp in India from 1999 to 2002, his brother’s death, his having lived in an area that had been held by the LTTE and came to be in close proximity to its headquarters or a camp.
Ground 3 asserted that the Tribunal had failed to apply the “real chance” test. As I have noted, the Tribunal’s reasons demonstrated the contrary. It did apply that test.
Ground 4 asserted that the Tribunal had fallen into error by taking irrelevant considerations into account in reaching its findings on the appellant’s credibility. The particulars relied on the Tribunal’s criticism of the appellant’s credibility when it referred to his use of written notes during the course of the hearing and lack of medical reports to support his claim that he had memory problems. The appellant’s solicitor’s amended application and written submissions did not elaborate those matters. In my opinion, her Honour correctly dismissed ground 4 as being without substance. It was open to the Tribunal to take into account the way in which the appellant presented his evidence to it and the lack of any medical evidence to support his claim that he had suffered memory loss.
Ground 6 asserted that the Tribunal had failed to consider, under the complementary protection ground, the appellant’s claim that he would be detained on his return to Sri Lanka by reason of his illegal departure. As I have noted, it is clear that the Tribunal dealt with that claim and gave detailed reasons why it rejected it.
Her Honour noted that the Tribunal had reviewed the appellant’s claims and had made findings that were open to it about inconsistencies in his evidence and claims. She said, correctly, that credibility findings were a matter par excellence for the Tribunal, as McHugh J had held in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 at 423 [67]. She found that the Tribunal’s decision record made it clear that it had reached its conclusions based on its findings and that it had applied the law correctly. The trial judge concluded that, accordingly, the Tribunal’s decision was not affected by jurisdictional error and dismissed the application with costs.
This appeal
In his notice of appeal, the appellant simply asserted that her Honour had committed “legal error” in dismissing the proceeding below, because she had not considered all grounds raised and failed to afford him natural justice. Clearly, that ground was without substance.
In his outline of submissions on the appeal, the appellant argued that the Tribunal had committed jurisdictional error because, first, (which was also ground 1 of the amended application before the trial judge) it had departed from the delegate’s positive finding as to his credibility generally without giving him sufficient warning that the Tribunal considered his credibility to be an issue and, secondly, (which was ground 5 below) it had considered what it described as a new country report issued by DFAT on 15 February 2015, whereas, the appellant asserted, the report had been published on 16 February 2015 and that accordingly, he contended, it was unclear whether the Tribunal had considered a new report by DFAT at all.
The appellant also sought to argue a new ground, namely that the Tribunal’s reasoning had been affected by a jurisdictional error of the kind raised in the appeal to the High Court from the decision of the Full Court of this Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556. That appeal was heard on 5 April 2017 and the High Court reserved its judgment. The appellant argued that the Tribunal had accepted that, were he returned to Sri Lanka, overcrowding in prison would cause him pain or suffering and it should have been, but was not, satisfied that that would be intentionally inflicted so as to amount to significant harm. He argued that the Tribunal’s reasoning was analogous to the reasoning the subject of the appeal in SZTAL before the High Court, and that I should reserve my decision in his appeal until the High Court had given its decision.
Consideration
As to ground 1: The delegate accepted certain parts of the appellant’s account of the incident involving his wife. Nonetheless, she had, and expressed, concerns about his credibility in relation to the substance of his claims. During the course of the appellant giving his evidence to the Tribunal, it raised expressly with him its own concerns about inconsistencies between his oral evidence and his earlier claims concerning the alleged assault of his wife in February 2012.
In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 165-166 [44]-[48], Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ held that procedural fairness required an administrative decision maker, such as the Tribunal, to give a person, in the appellant’s position, a sufficient opportunity to give evidence or make submissions about what was, or turned out to be, any determinative issue in relation to the decision under review. They said that there may well be cases where either the delegate’s decision or the Tribunal’s statements or questions during a hearing sufficiently indicated to an applicant for review that everything he or she said in support of the application was in issue and that such an indication could be given in many ways. They noted that it was not necessary, and often would be inappropriate, for the Tribunal to put to an applicant for review, in so many words, that he or she was lying, or that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account given of certain events. They said that, because the proceedings before the Tribunal were not adversarial, it was not in, and should not adopt, the position of a contradictor. But, their Honours added, that where:
there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. (emphasis in original)
In my opinion, as I have explained above, the Tribunal fulfilled that obligation not just once, but on a number of occasions during the course of the hearing in a way that afforded the appellant procedural fairness in accordance with the requirements of Div 4 of Pt 7 of the Migration Act and SZBEL 228 CLR 152. I reject ground 1.
As to ground 2 (ground 5 below): Ground 2 assumed that there was some error in the Tribunal’s use of a date for the February 2015 DFAT country report. There is no evidence in the material before me that the report is, as the appellant’s submissions allege, dated 16, rather than 15, February 2015, as the Tribunal recorded in the footnote to par 13 of its reasons. The appellant asserted that the alleged error of one day in its dating of that report was determinative of the question whether the Tribunal in fact had considered the DFAT report.
In my opinion, the Tribunal was referring to a February 2015 report issued by DFAT that provided country information on Sri Lanka. There is no suggestion that DFAT issued more than one country report on Sri Lanka in February 2015. If, as the appellant alleged, there were an error of one day in the Tribunal’s recording of the date of that report, that error had no consequence. The appellant did not identify any respect in which he asserted that any February 2015 DFAT report, in any way, gave rise to a material difference with an earlier DFAT country report, being a difference that the Tribunal should have, but did not, identified that had any relevance to, or effect on, the disposition of his application for review. In my opinion, this ground has no substance.
During the course of the hearing, the Tribunal raised with the appellant aspects of country information, including in DFAT reports. The appellant’s solicitor migration agent assisted him at the Tribunal hearing. The solicitor migration agent did not raise any matters with the Tribunal or further examine the appellant about those matters. After the hearing the appellant’s solicitor migration agent provided it with further submissions and country information in accordance with leave that the Tribunal had granted. I am not satisfied that there is any basis on which the alleged error in the dating of the February 2015 DFAT country report, if there were one, had any relevance to, or effect on, the obligations of the Tribunal to accord the appellant a hearing under Div 4 of Pt 7 of the Act and to make a decision in accordance with the Act.
As to the new ground based on SZTAL: The Tribunal rejected the appellant’s claim that Australia owed him complementary protection obligations under s 36(2)(aa) on two bases, namely that, first, the treatment to which he was likely to be subjected upon return to Sri Lanka, under the Immigration and Emigration Act, did not amount to significant harm within the meaning of s 36(2A), and, secondly, the Tribunal had concluded independently, and before considering any attribution of an intention to any Sri Lankan authority, that the conditions that the appellant was likely to face were he returned to Sri Lanka, themselves, were the same as those which any other person would face and that regardless of any intention of the Sri Lankan authorities, those conditions, of themselves, would amount not to cruel or inhuman treatment or punishment within the defined meanings of those expressions in the Act.
The Tribunal then found, in addition, or in the alternative, that the subject matter of the High Court’s reserved judgment in SZTAL, namely, any impugned intention of the authorities, was also not present.
Thus, the Tribunal gave two alternate grounds why it was not satisfied that there was a real chance that the appellant might suffer significant harm were he returned to Sri Lanka, the first of which in no way depended upon the result of the High Court’s currently reserved judgment. And, I am not satisfied that any jurisdictional error has been established that it was not, or may not have been, open to the Tribunal to arrive at that finding.
For these reasons, I am not satisfied that the Tribunal committed a jurisdictional error on the basis asserted in the proposed ground 3. I am not prepared to stay, or reserve, judgment in this appeal pending the delivery of the High Court’s reasons in SZTAL.
In the event that some aspect of the High Court’s decision, when delivered, renders what I have found to be erroneous, the appellant will have his own remedies in any event in respect of that. No doubt the Minister would have regard to any finding of the High Court in SZTAL that had such a general impact on litigation of this kind.
Conclusion
For these reasons, I am of opinion that the appeal must be dismissed with costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 5 October 2017
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