BBU15 v Minister for Immigration
[2018] FCCA 73
•18 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BBU15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 73 |
| Catchwords: MIGRATION – Judicial review – citizen of Sri Lanka – decision of former Refugee Review Tribunal – Protection (Class XA) visa – whether failure to take into account PAM 3 protection visa guidelines – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 474, 476, 499 Immigrants & Emigrants Act 1949 (Sri Lanka) |
| Cases cited: Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24 SZTCV v Minister for Immigration & Anor [2015] FCCA 1677 SZTMD v Minister for Immigration & Border Protection [2015] FCA 150; (2015) 150 ALD 34 SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 |
| Applicant: | BBU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 265 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 18 March 2016 |
| Date of Last Submission: | 18 March 2016 |
| Delivered at: | Perth |
| Delivered on: | 18 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr F Robertson |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr A Gerrard |
| For the Second Respondent: | Submitting appearance save as to costs |
Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application filed 18 June 2015, as amended on 27 October 2015, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 265 of 2015
| BBU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal”) made on 16 May 2015. The Tribunal Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate”) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) affirming the Delegate’s Decision to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is found at Court Book (“CB”) 265-303.
The factual and procedural background is as follows:
a)the applicant is a citizen of Sri Lanka who applied for the Protection Visa on 6 March 2013: CB 27-28 and CB 29-62. The applicant claims to be at risk of serious harm principally because:
i)his family has experienced problems because of the cross-cultural marriage between his Tamil father and Sinhalese mother, including an attack on the family home by Tamils in or around 1992 (the applicant would have been around one year of age at most at the time) as a consequence of which the house was destroyed, a further attack on another family home by Sinhalese in 1995, the destruction of his father’s grocery shop in September 1999 in a majority Sinhalese village, after which the applicant’s father went to live in Italy;
ii)harassment of the applicant, including a teacher asking to see his identity card during an examination in about 2007, and stones being thrown at the applicant during 2009 and 2010 by Sinhalese men: CB 60; and
iii)his former girlfriend's boss is jealous and has threatened over the telephone to kill the applicant on more than ten occasions and two of his former girlfriend’s bosses workers attacked him on one occasion, following which the applicant was so depressed that he took his mother’s medication and needed medical treatment and a stay in hospital: CB 60.
b)on 18 March 2014 the Delegate refused to grant the applicant the Protection Visa application: CB 137;
c)the applicant sought merits review in the Tribunal on 21 March 2014;
d)in support of his Tribunal application, the applicant's migration agent filed written submissions with the Tribunal on 9 February 2015: CB 206-215 (“Applicant’s February 2015 Submissions”), addressing:
i)the applicant's credibility in relation to claims relating to harassment experienced in the workplace as a result of his ethnicity;
ii)inconsistencies in relation to the applicant’s evidence as to an attempted move to Italy;
iii)inconsistencies in relation to the applicant's claims relating to his alleged problems at school;
iv)credibility concerns in respect of an alleged stone throwing incident;
v)an incident where the applicant and his cousin claim to have been threatened by a police officer after being pulled over whilst riding a motorcycle;
vi)persecution owing to being a failed asylum seeker;
vii)persecution owing to the applicant's mixed Tamil and Sinhalese race;
viii)further claims in respect of persecution from his former girlfriend’s boss; and
ix)relocation within Sri Lanka;
e)the applicant appeared before the Tribunal on 13 February 2015: CB 221-224, and 23 February 2015: CB 235-238, and provided an additional submission and documents on 6 March 2015 addressing questions arising during the Tribunal hearings: CB 239-259; and
f)on 16 May 2015 the Tribunal affirmed the Delegate’s Decision to not grant the Protection Visa to the applicant on the basis that the applicant did not meet the criteria for refugee or complementary protection under s.36(2)(a) or (aa) of the Migration Act: CB 261.
Tribunal Decision
In the Tribunal Decision the Tribunal:
a)accepted parts of the applicant's evidence, such as his claim of mixed ethnicity, but found significant parts of his claims and evidence to be implausible, inflated or exaggerated, or not supported by country information. The Tribunal also found that the applicant was prone to speculating when he did not have knowledge or evidence to support a specific claim: CB 278 at [60];
b)found in relation to the alleged threat from the applicant’s former girlfriend’s boss, that the alleged harm did not arise for a Convention reason. The Tribunal accepted that nonConvention harm could give rise to a protection obligation if a person was denied state protection for a Convention reason, but found that was not the case here: CB 279 at [63];
c)accepted the applicant's claims that in the 1990s his family house was destroyed, his family was attacked and his father's grocery store was destroyed, but referring to current country information which indicated a dramatic improvement in security since the cessation of the civil war in Sri Lanka, found that the past harm did not indicate that there was a risk of serious harm if the applicant returned to Sri Lanka: CB 279 at [64];
d)based on the country information, found that there was little to suggest mistreatment of people in Sri Lanka for reasons of mixed ethnicity. The Tribunal carefully considered all of the country information on mixed marriages and noted that whilst there were reports of some social isolation this did not rise to the level of serious harm: CB 280 at [68];
e)in relation to the applicant's claims that he would be at risk of harm as a consequence of returning to Sri Lanka as a failed asylum seeker, or as a consequence of his illegal departure from Sri Lanka, the Tribunal accepted that he would be detained for a short period and questioned, in accordance with the provisions of the Immigrants & Emigrants Act 1949 (Sri Lanka) (“I & E Act”); and
f)the Tribunal set out the country information in relation to treatment and detention arising under the I & E Act at length: CB 294-300 at [111] to [127].
It will be necessary in due course to return to the Tribunal Decision’s reasons with respect to whether the applicant would be questioned and detained upon return to Sri Lanka, and to discuss that aspect of the reasoning in more detail: see [13]-[17] below.
The Tribunal Decision also made reference to Ministerial Direction No 56 made under s.499 of the Migration Act requiring the Tribunal to take account of policy guidelines prepared by the Department, and in particular the PAM 3 Refugee and Humanitarian – Refugee Law Guidelines: CB 303 at [142] (that paragraph being set out at [10] below) (“PAM 3 Guidelines”).
Grounds of the Amended Judicial Review Application
On 27 October 2015 the applicant filed an amended Judicial Review Application (“Amended Judicial Review Application”). Only ground 2 of the Amended Judicial Review Application was pressed at hearing. Ground 2 is as follows:
The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s.499(2A) of the Migration Act 1958.
Particulars
The Tribunal failed to take into account the PAM 3 Protection Visas complimentary [sic] protection guidelines when making findings as to whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment
Submissions
Applicant’s submissions
The applicant submits that:
a)this ground could also be described as a failure to take into account a relevant consideration, namely the PAM 3 Guidelines;
b)the Tribunal was obliged, pursuant to s.499(2A) of the Migration Act, to comply with any Ministerial Direction made pursuant to s.499(1) of the Migration Act. Ministerial Direction No.56 required the Tribunal to take into account the PAM 3 Guidelines to the extent they are relevant;
c)the PAM 3 Guidelines provide extensive guidance on the topic of prison conditions in Sri Lanka, and in the Applicant’s February 2015 Submissions the applicant claimed that if he was returned to Sri Lanka he would be detained and tortured;
d)these claims made it crucial for the Tribunal to make a decision on the relevance or otherwise of the PAM 3 Guidelines to discharge its obligation to take into account Ministerial Direction No.56, pursuant to s.499(2A) of the Migration Act;
e)the Tribunal made no express or implied reference to the PAM 3 Guidelines in reaching the decision;
f)in SZUQZ v Minister for Immigration & Anor [2015] FCCA 155 (“SZUQZ”), where the Tribunal was silent about the relevance of the PAM 3 Guidelines the Court found at [53]-[54] per Judge Driver that:
i)consideration of the PAM 3 Guidelines is mandatory once the Tribunal determines they are relevant to a particular case: SZUQZ at [53] per Judge Driver (citing Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”));
ii)the relevance of the PAM 3 Guidelines is for the Tribunal to determine: SZUQZ at [54] per Judge Driver (citing SZTMD v Minister for Immigration & Border Protection [2015] FCA 150; (2015) 150 ALD 34 (“SZTMD”)); and
iii)factual findings made by the Tribunal related to the PAM 3 Guidelines may require some engagement with the question of their relevance to complete the review: SZUQZ at [54] per Judge Driver;
g)SZUQZ was followed by this Court in SZUWX v Minister for Immigration & Anor [2015] FCCA 2151 at [21] per Judge Driver with respect to the fact that the PAM 3 Guidelines needed to be followed to the extent that they were relevant;
h)this case is identical to SZUQZ where the factual findings of the Tribunal had relevantly engaged the operation of Ministerial Direction No.56 and required the Tribunal to make a positive finding as to whether the PAM 3 Guidelines were relevant to the decision under review and if they were, to then consider them when undertaking the review, and in failing to do so the Tribunal fell into jurisdictional error; and
i)the Tribunal was silent on the issue of whether the PAM 3 Guidelines were relevant, and this is not a case where the Tribunal included words to the effect that it had considered the PAM 3 Guidelines or expressly referred to the PAM 3 Guidelines in the body of the reasons which would support a conclusion that it had made a determination by reference to, or including a consideration of, the PAM 3 Guidelines.
Minister’s submissions
The Minister submits that the Amended Judicial Review Application should be dismissed on the following bases:
a)that no inference that the Tribunal failed to assess whether the PAM 3 Guidelines were relevant can properly be drawn from the Tribunal Decision, because:
i)the Tribunal expressly referred to its obligations under Ministerial Direction 56 and the PAM 3 Guidelines at [142] in the Tribunal Decision: CB 303.
ii)it should not lightly be inferred the Tribunal had not read the PAM 3 Guidelines and failed to discharge those obligations: SZTCU v Minister for Immigration & Anor [2014] FCCA 1600 at [39] per Judge Cameron (“SZTCU”); and
iii)the Tribunal is an expert body, constantly required to apply the PAM 3 Guidelines, and it is not open to suggest that the Tribunal should have provided more detailed application of the PAM 3 Guidelines to avoid an inference that it failed to take into consideration guidelines which it is required to consider and apply every day: ADO15 v Minister for Immigration & Anor [2016] FCCA 88 at [52]-[54] per Judge Smith (“ADO15”);
b)the purpose of the PAM 3 Guidelines is to assist decisionmakers “on the law relevant to the assessment of whether Australia owes protection obligations to applicants ... to the extent that they are relevant to the decision under consideration:" PAM 3 Guidelines cll.1-2:
i)the "relevance" referred to in cl.2 is not objective relevance to be determined as a jurisdictional fact by a court on review and must be understood as operating only where the Tribunal is of the opinion that the PAM 3 Guidelines are relevant: SZTMD at [20] per Perram J;
ii)the PAM 3 Guidelines discuss the fact that detention is not itself a breach of Article 7 of the International Covenant on Civil and Political Rights (New York, 1966) [1980] ATS 23 (“ICCPR”), but that particularly harsh conditions of detention may constitute a violation of Article 7 of the ICCPR;
iii)the Tribunal gave detailed consideration to the applicant's complementary protection claims as regards his illegal departure: CB 285-287 at [84]-[93], and it can be implied from the Tribunal’s reasons that the Tribunal had read, understood and thus took into account the PAM 3 Guidelines: CB 282-283 at [76] and CB 283-303 at [79]-[142]; and
iv)because the PAM 3 Guidelines indicate that the length of detention is a centrally important factor the only proper inference to be drawn is that the Tribunal, having found that the applicant would be detained for only a brief period of time, did not consider the other parts of the PAM 3 Guidelines to be relevant: SZTMD at [15] per Perram J; SZTCU at [42] per Judge Cameron; SZTCV v Minister for Immigration & Anor [2015] FCCA 1677 at [73]-[74] and [94]-[95] per Judge Lloyd-Jones (from which an appeal by the applicant was dismissed in SZTCV v Minister for Immigration & Border Protection [2015] FCA 1309), and for that reason, (that is, the reference to the short period of detention) SZUQZ at [33] and [52] per Judge Driver and ARS15 v Minister for Immigration & Anor [2015] FCCA 2135 at [10] per Judge Street (“ARS15”) are distinguishable;
c)the reasons of the Tribunal are not to be read with an eye in search of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 271-272 per Brennan CJ, Toohey, McHugh and Cummow JJ and 294-295 per Kirby J, and excessive weight is not to be given to slight and inconsequential variations in the expression of reasoning, in materially similar cases: AUE15 v Minister for Immigration & Anor [2015] FCCA 2452 at [3]-[6] per Judge Street; ALA15 v Minister for Immigration & Anor (No 2) [2015] FCCA 2048 at [23]-[24] per Judge Street;
d)in AAH15 v Minister for Immigration & Border Protection [2016] FCA 104 at [83] per Katzmann J (“AAH15”) the Federal Court had regard to the Tribunal's conclusion that it was not satisfied that there was evidence of mistreatment of persons in the position in which the appellant was likely to find himself on his return to Sri Lanka; and
e)in AJX15 v Minister for Immigration & Border Protection [2016] FCA 109 at [3], [9]-[11] and [16] per Rares J, the Federal Court found that a similar proposed ground of appeal had “no real prospect of success” and refused to grant an extension of time to appeal: see also AUF15 v Minister for Immigration & Border Protection [2016] FCA 115 at [14] per Markovic J, and ADO15 at [52]-[54] per Judge Smith.
Consideration
The Tribunal Decision may only be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. Such an error will only constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the appropriate statute: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 at [82] per McHugh, Gummow and Hayne JJ (“Yusuf”); Craig v South Australia (1995) 184 CLR 163; (1995) 82 A Crim R 359; (1995) 69 ALJR 873; (1995) 131 ALR 595; (1995) 39 ALD 193; CLR at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
The issue before the Court is, in the context of the Tribunal Decision read as a whole, what inference should be drawn from the reference by the Tribunal to the PAM 3 Guidelines at CB 303 at [142] in the Tribunal Decision, which reads as follows:
Section 499 Ministerial Direction
142. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The PAM 3 Guidelines at CB 303 at [142] appears in the Tribunal Decision in “Attachment B: Relevant Law.” What must be asked is, without express reference to the PAM 3 Guidelines in those parts of the Tribunal Decision entitled “Consideration of Claims and Evidence” at CB 276-287 at [51]-[96] and “Decision” at CB 287 at [97], did the Tribunal actively engage and consider the PAM 3 Guidelines as far as they were relevant. Put differently, the issue is whether the reference to the PAM 3 Guidelines at CB 303 at [142] of the Tribunal’s Decision is merely “reciting the requirement that that factor be taken into account”: Lafu at [54] per Lindgren, Rares and Foster JJ.
A consideration of the reasoning in Tribunal Decision as a whole, and an evaluation as to whether the omission of any further specific reference to the PAM 3 Guidelines can be understood, or rationalised, as being because the Tribunal did deal with the matters the subject of the PAM 3 Guidelines albeit without specifically referring to the PAM 3 Guidelines, or because the matters or evidence which was required to be considered was not material to the Tribunal’s reasons, is required to be undertaken: Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33]-[34] per Katzmann, Griffiths and Wigney JJ (“SZSRS”); Minister for Immigration & Citizenship v MZYZA [2013] FCA 572 at [48] per Tracey J.
In relation to harm for reasons of returning to Sri Lanka as a failed asylum seeker or by reason of illegal departure from Sri Lanka the Tribunal Decision dealt with these matters at CB 282-284 at [76]-[79] relevantly as follows:
76. …The Tribunal accepts country information indicates the applicant is likely to be detained for a short period and questioned about his departure and circumstances and about whether he has a criminal record or charges, however, it does not find on the evidence in the country information that he will face a real chance of serious harm for one or more of the Convention grounds during this detention and questioning. It considers if there was more than a remote chance of the mistreatment of failed asylum seekers upon return, or thereafter, to Sri Lanka, there would be more widespread and confirmed reporting of this. Further, as put to the applicant at the hearing, the circumstances of those who he claims he knows and who have been mistreated are not known, and nor is the source of the information.
77. At the hearing the Tribunal explained that as he departed Sri Lanka by boat it is likely that upon return to Sri Lanka he would be questioned, detained, held in Negombo prison for a short period, then granted bail, and ultimately fined pursuant to the Immigrants and Emigrants Act for the illegal departure from Sri Lanka. … The applicant claimed he is not wanted for criminal or other reasons and the Tribunal considers he will therefore be treated like other returnees and in accordance with the country information relevant to the treatment of returnees to Sri Lanka.
78. The applicant also claimed that the CID would, upon his return to Sri Lanka, check his asset situation and would see that he is not an economic migrant because he has a house in Sri Lanka. The applicant went on to say that the authorities know that his father and brothers send 3 lakhs rupees to Sri Lanka each month and this is enough to live on in Sri Lanka and they will therefore not believe that he came to Australia for financial reasons. The Tribunal is not satisfied the CID would make that level of inquiry upon the applicant’s return, but even if it did, it is not satisfied that the CID would exclude the applicant from being an economic migrant merely on the basis that he owns one house in Sri Lanka.
79. The Tribunal considered country information on the laws governing the departure from Sri Lanka and finds this is governed by the Immigrants and Emigrants Act. The Tribunal finds DFAT information indicates those departing illegally may be prosecuted and face a fine or imprisonment. However, country information also indicates such applicants are generally fined. Having regard to the country information, the Tribunal finds the applicant will be detained for a brief time during the questioning at the Airport in Colombo and it is not satisfied he will face a real chance of serious harm while being questioned in the course of the implementation of the Immigrants and Emigrants Act. Further, the Tribunal finds the country information before it indicates all returnees are screened in a similar way upon return to Sri Lanka, and that the Immigrants and Emigrants Act is a law of general application which is not implemented in a discriminatory manner. The Tribunal also considered the applicant’s claim in this respect that as he left Sri Lanka illegally, he will be imputed with an anti-government or pro-Tamil political opinion. Having regard to all of the country information before it and to the relevant country information cited in this decision record, the Tribunal is not satisfied that the applicant will be imputed with any anti-government or pro-Tamil or pro-LTTE political opinion as a result of his illegal departure which would result in a real chance of serious harm.
In Attachment A to Tribunal Decision the Tribunal set out independent country information including penalties for illegal departure and the treatment of returnees at CB 294-300 at [111]-[127]. In that regard it is relevant to note that the Tribunal:
a)observed that it was an offence to depart Sri Lanka from any place other than an approved port of departure and to depart without valid travel documents under the I & E Act: CB 294 at [111];
b)set out the screening process engaged in in relation to returnees and observed that it would be common for a person to be held at their local police station until all necessary checks had been made: CB 294 at [112];
c)noted that illegal returnees (other than people smugglers or persons involved in the facilitation of people smuggling) were ordinarily fined for the illegal departure: CB 294 at [113];
d)citing a 2014 Department of Foreign Affairs and Trade Report (“DFAT”), observed that a person arrested on return because of their previous illegal departure from Sri Lanka might remain in police custody at the CID Airport Office for up to 24 hours, and if a magistrate were not available before that time, for example because of a weekend or a public holiday, the person would be held at the nearby Negombo Prison: CB 295 at [116] and CB 298-299 at [124] (the latter citing a 2015 DFAT Report);
e)a 2012 ABC news report was cited indicating that most asylum seekers deported from Australia were arrested upon arrival but most were released on bail soon after, and that the report did not identify any serious or significant harm faced by returnees from Australia including those who had breached laws regarding illegal departure: CB 298 at [123];
f)the DFAT 2015 Country Report for Sri Lanka reiterates much of the above information, and notes that returnees are treated according to standard procedures regardless of ethnicity or religion and that DFAT assessed that detainees are not subject to mistreatment during their processing at the airport upon their return, but again noted that they may be held in the nearby Negombo Prison if a magistrate was not available: CB 298-299 at [124]; and
g)cited an Immigration and Refugee Board of Canada report which indicates that there are standard checks for returnees, and that final criminal checks for returnees may take 24 to 48 hours to complete depending on the day of the week that a person arrives at Colombo, and that following the admission process deported Sri Lankan nationals returning to Sri Lanka are free to enter the country: CB 300 at [127].
The Tribunal dealt with the applicant’s fear of detainment and torture upon return to Sri Lanka, and actively engaged with the applicant’s claims when it addressed his evidence he had friends who had been harmed by observing that had such occurrences been widespread, there would be reports of such occurrences, and that it had put to the applicant what the circumstances of those who he claims he knew to have been mistreated were, in relation to which the applicant did not know of their particular circumstances and was not sure of the source of the information: CB 283 at [76].
The Tribunal accepted that if returned to Sri Lanka the applicant would likely be questioned, detained, held in Negombo Prison and fined: CB 283 at [77], and on the basis of the applicant’s evidence that he had no criminal record, found he would be treated like other returnees and such harm would not amount to a real chance of serious harm: CB 283 at [77] and [79].
In assessing the applicant’s complementary protection claims the Tribunal specifically dealt with whether the applicant would experience significant harm for reasons of returning as a failed asylum seeker or an illegal departee at CB 286 at [92] where it said that:
92. The Tribunal considered whether there is a real risk that the applicant would experience significant harm for reasons of returning as a failed asylum seeker, for reasons of departing Sri Lanka illegally, for reasons of the claimed and past attacks on his family home and attacks on the family business. … For reasons similar to those as set out earlier in this decision, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant returning to Sri Lanka there is a real risk that the applicant will suffer significant harm for these or any other grounds put forward, or which arise from the facts in respect of complementary protection.
It is accepted that it may be inferred the Tribunal has failed to consider particular evidence or information if it does not mention it in its reasons: Yusuf at [69] per McHugh, Gummow and Hayne JJ. The fact that evidence or information is not expressly referred to in the Tribunal Decision does not however mean the Tribunal did not consider the evidence or information at all, or failed to actively engage in a consideration of the evidence or information: Yusuf at [69] per McHugh, Gummow and Hayne JJ; SZSRS at [34] per Katzmann, Griffiths and Wigney JJ. Where a Tribunal makes findings on a particular matter it may be understood that in respect of the nature of the applicant’s claims and the findings and evidence that have been made in the reasons already, omission of evidence can be reasonably understood or inferred on the basis it was not material to the Tribunal’s reasoning, or its relevance was immaterial to the findings: Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 at [52] per Kenny, Griffiths and Mortimer JJ; SZSRS at [34] per Katzmann, Griffiths and Wigney JJ.
In AAH15 the PAM 3 Guidelines were referred to in an attachment to the decision of the Tribunal, as in the present case, and the Federal Court stated there was “great difficulty” in accepting that there is any sound basis to argue that the Tribunal failed to give consideration to certain matters arising from the PAM 3 Guidelines: AAH15 at [83] per Katzmann J.
In SZTMD, as in SZUQZ, the circumstances in relation to the consideration of the PAM 3 Guidelines were identical to this case. In SZTMD at [19] per Perram J the Federal Court observed that:
19 The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.
Earlier in SZTMD at [15] per Perram J the Federal Court had said that:
Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
Both SZTMD and AAH15 stand in contra-distinction to SZUQZ in a factual context which is on all fours insofar as there is a failure to mention the PAM 3 Guidelines, other than to indicate that they are to be taken into account: CB 303 at [142] in the Tribunal Decision. In the circumstances, the Court as presently constituted is of the view that the rationale adopted by the Federal Court in AAH15 and SZTMD is preferable, and ought to be followed, and in any event must be followed as binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ.
In ADO15 this Court observed as follows at [52]-[54] per Judge Smith:
52. The first point to note is that cl.2 of the Direction only requires the Tribunal to “take account of” the relevant guideline. It does not require the Tribunal to follow the guideline slavishly as though it were a statement of law. In this case, the Tribunal stated, at [6] that it was required to take the guideline into account. In light of that, it is clear that the Tribunal was at least cognisant of its obligation under s.499 of the Act. Thus, in my view, in order to succeed the applicant must show from the balance of the Tribunal’s reasons that, in spite of this cognizance, the Tribunal failed to have any regard to the guidelines.
53. The second point to note is that the particular paragraph in the guidelines relied upon by the applicant (the second paragraph quoted at [51] above) is very general in nature and application. The Direction does not say when it would be appropriate to make certain inferences, or when certain inferences must be drawn. Indeed, if it did it would probably be beyond the power in s.499(1) of the Act.
54. There is nothing in the Tribunal’s reasons to suggest that it did not “take account” of any part of PAM3. The ground is hopeless and I refuse leave to rely on it.
As in ADO15 the reference to the PAM 3 Guidelines at CB 303 at [142] indicates that the Tribunal was well aware of the requirement to take the PAM 3 Guidelines into account. For the reasons which follow immediately hereunder it cannot be said in this case that in spite of its cognisance of the PAM 3 Guidelines the Tribunal failed to have regard to them.
The Tribunal expressly adopted its reasoning with respect to the applicant’s refugee protection claims in relation to whether, for complementary protection purposes, there was a real risk that the applicant would experience significant harm for reasons of returning as a failed asylum seeker or as an illegal departee: CB 286 at [92]. The refugee protection claim reasoning is thus to be imported into the Tribunal’s assessment of the complementary protection claims of the applicant. In that regard, in the Court’s view it can plainly be inferred from the Tribunal Decision that the Tribunal read, understood and took into account the PAM 3 Guidelines, particularly insofar as it focussed upon the likely short period of detention: CB 283 at [76] and [79]. The focus on the short period of detention allows an inference that the Tribunal was applying duration-based reasoning as a centrally important factor in assessing prison conditions against Article 7 of the ICCPR as indicated in the PAM 3 Guidelines. The necessary implication to be drawn from this inference is that having found the applicant would be detained for only a short period, the Tribunal did not consider the other parts of the PAM 3 Guidelines relevant, as opposed to failing to consider them: SZTMD at [15] per Perram J. SZUQZ and ARS15 are therefore distinguishable in these circumstances, the Court being of the view that in this case the Tribunal’s reasons indicate that it read, understood and took into account the PAM 3 Guidelines.
For all of the above reasons, the Court is bound to follow the Federal Court’s judgment in AAH15 and SZTMD, and applying those judgments, and the rationale in ADO15, the Court is of the view that the Tribunal was aware of the requirement to, and did take into account, the PAM 3 Guidelines.
With respect to the applicant’s sole ground of review the Court does not find any jurisdictional error in the Tribunal’s consideration of the PAM 3 Guidelines in the applicant’s case and, in particular, finds that there was no failure to relevantly take account of the PAM 3 Guidelines.
Conclusions and orders
No jurisdictional error having been found in the Tribunal Decision it follows that the Amended Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Date: 18 January 2018
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