BEJ15 v Minister for Immigration
[2016] FCCA 25
•13 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEJ15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 25 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal properly considered the consequences to the applicant of returning to Sri Lanka – whether Tribunal’s finding as to the nature of the detention in Sri Lanka was in error – whether the Tribunal properly notified the applicant that bail was a live issue – no jurisdictional error identified – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 425(1) |
| Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Minister for Immigration and Border Protection v SZTQS [2015] 1069 SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978 |
| Applicant: | BEJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | BRG 582 of 2015 |
| Judgment of: | Judge Jarrett |
| Hearing date: | 22 October 2015 |
| Date of Last Submission: | 22 October 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 13 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Beehre |
| Solicitors for the Applicant: | Ravi James |
| Counsel for the first respondent: | Mr Mitchell |
| Solicitors for the first Respondent: | Clayton Utz |
The second respondent entered a submitting appearance.
ORDERS
The name of the second respondent be substituted with the name “Administrative Appeals tribunal (formerly known as the Refugee Review tribunal)”;
The amended application filed on 7 September, 2015 be dismissed; and
The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 582 of 2015
| BEJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant seeks judicial review of a decision of a refugee review tribunal given on 21 May, 2015 which affirmed a decision of a delegate of the first respondent to refuse to grant to the applicant a Protection (Class XA) visa.
The first respondent opposes the application. The second respondent enters a submitting appearance.
The applicant has filed an amended application on 7 September, 2015 setting out his grounds of review. Both parties have filed and served written submissions to which I have had regard.
Background
The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival in July, 2012. He applied for a protection visa on 27 November, 2012.
The applicant claimed that he had resided in the Batticaloa District, Eastern Province, Sri Lanka. He claimed to have suffered harm at the hands of a suspected member of the Karuna Group, a criminal association in Sri Lanka, apparently. Specifically, he claimed that in February, 2012 a suspected member of the Karuna Group visited his home and asked him about the whereabouts of his brothers who the visitor believed had reported him (the visitor) to the police. The applicant did not provide the requested details and the person threatened to kill him and held a pistol to the side of his forehead before running away.
This incident followed a history of alleged attempted forcible recruitment of the applicant’s brothers to the Liberation Tigers of Tamil Ealam during the period 1990 to 1994 and demands for money as well as use of family motor vehicles by members of the Karuna Group during the period 2006 to 2008.
The applicant also claimed to fear harm from the Sri Lankan authorities because he is a Tamil.
On 5 September, 2013 the first respondent’s delegate refused to grant the applicant a protection visa. He applied for a review of that decision by a refugee review tribunal on 18 September, 2013.
In support of that application on 23 December, 2013 the applicant’s solicitor lodged a submission in support of the applicant’s claims. The submission detailed inter alia country information as to the alleged ill-treatment of asylum seekers on re-entry to Sri Lanka. The submission referred extensively to the DFAT Country Information Report for Sri Lanka dated 31 July, 2013 which had earlier been referred to by the delegate in their decision.
On 10 February, 2015 the applicant and his solicitor attended a hearing before the tribunal. The applicant was assisted by a Tamil interpreter.
On 18 February, 2015 the applicant’s solicitor lodged a further submission with the tribunal that addressed inter alia whether the applicant would be subjected to serious or significant harm on return to Sri Lanka. Extensive reference was made in that submission to DFAT Country Report – Sri Lanka dated 3 October, 2014
On 21 May, 2015 the tribunal made its decision. The tribunal found that there was no Convention basis to the applicant’s fears stemming from the alleged February, 2012 visit to the applicant by the suspected member of the Karuna Group. Whilst the tribunal accepted that the episode as recounted by the applicant probably occurred, the tribunal found the incident was motivated by revenge and not by reason of the applicant’s membership of a particular social group.
The tribunal found that the Sri Lankan authorities would not deny the applicant state protection for any Convention reason. The tribunal was satisfied that the applicant faced only a remote chance of serious harm because he was a Tamil and did not accept that he would be imputed with any pro-LTTE or anti-government political opinion whether by reason of his ethnicity as a Tamil or otherwise.
The tribunal concluded that the applicant did not satisfy the criteria prescribed by either ss.36(2)(a) or 36(2)(aa) of the Migration Act1958. The decision under review was affirmed.
The applicant did not suggest that either the first respondent’s delegate or the tribunal misunderstood any of his claims. He does not suggest that the tribunal did not address all of his claims.
Grounds of review
By his amended application filed on 7 September, 2015 the applicant set out seven grounds of review. However, at the hearing before me all of those grounds were abandoned save for the first two. I will deal with those seriatim.
Ground one
This ground is expressed in the following way in the amended application:
1. The tribunal committed jurisdictional error in that it failed to comply with s 425(1) of the Act.
Particulars
The Tribunal found that the applicant “may be placed in the remand section of Negombo prison’’ and would remain there “until a bail hearing is available”
The Tribunal said that bail “is routinely given”, but qualified that statement by finding that “a family member is also required to provide surety”
The Tribunal concluded that it is not satisfied that “due to the short term nature of the imprisonment on remand that the applicant will face a real chance of serious harm while held on remand’’
The tribunal also concluded “the evidence before the tribunal too does not suggest the he is without any relative able to provide surety” and “as such there is no real chance that the applicant will face an extended period of imprisonment”: thereby implicitly concluding or assuming that someone would be able and willing to provide the surety required for the applicant’s bail. It was only on that basis that the Tribunal could have concluded that the applicant would be released after a few days on bail.
The “issues arising in relation to the decision under review” therefore included whether the applicant or his family or someone else would be able and willing to provide the surety required for the applicant’s bail so as to cause him to be released from the overcrowded prison.
This ground of review is concerned with the tribunal’s consideration of the applicant’s claim for complementary protection only. It cannot relate to the applicant’s claim for protection pursuant to s.36(2)(a) of the Act because the tribunal determined that the actions that might be taken by the Sri Lankan authorities against the applicant upon his return to Sari Lanka would not be taken for Conventions reasons. Rather, they would be taken as part of a process of implementation and enforcement of a domestic law of general application. Having said that, parts of the tribunal’s reasoning in relation to the applicant’s Convention related claims are relevant to this ground of review.
Relevantly, the applicant claimed that he would suffer significant harm if he was returned to Sri Lanka because he would be charged with a contravention of a Sri Lankan domestic law concerning departure from that country. He claimed he would be arrested upon his arrival and detained until he could be taken before a court and granted bail. He claimed that the conditions that he would have to endure in prison, either on remand or if he was sentenced to an actual term of imprisonment for the offence, would meet the description of significant harm for the purposes of s.36(2)(aa) of the Act.
The tribunal accepted that upon his return to Sri Lanka, the applicant would be arrested because he had departed Sri Lanka illegally. The tribunal accepted country information that suggested that although the applicant would be arrested upon his arrival, such detainees are routinely given bail on their own recognisance, although a family member is also required to provide surety. The tribunal recorded that the information before it suggested that if the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. Sometimes detainees remain on remand for as long as two weeks.
The tribunal accepted that conditions in Sri Lanka’s prisons are poor and that conditions on remand have been described in media reports as being overcrowded. The tribunal considered country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and noted the reports of torture and assault. The tribunal noted a DFAT country report that showed that there were no reports of mistreatment of returnees while on remand. The tribunal noted that there have not been reports that returnees held awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The tribunal was not satisfied that due to the short-term nature of the imprisonment on remand that the applicant would fact a real chance of serious harm while held on remand.
The tribunal considered what sentence the applicant might receive when he was dealt with for his illegal departure from the country. As to that, the tribunal found:
After a bail hearing, the returnees are granted bail with a personal surety and able to return to their home area. … Eventually the returnee will need to return to Court to face the charges. … In practice, Magistrates have been handing out fines of between 5,000 LKR and 50,000 LKR. Only returnees suspected of people smuggling offences have been denied bail or given a prison sentence. The most recently available information is the above process is continuing under the new government.
The tribunal concluded that whilst the applicant would be arrested and charged when he returned to Sri Lanka, he would only be held on remand for a short time until he was granted bail. Further, the tribunal found that there was only a remote chance that the applicant would receive a sentence of imprisonment for the offence of leaving the country illegally and that he was most likely to receive a fine. The tribunal considered that there was nothing to suggest that the applicant would be unable to pay the fine or that payment would cause him hardship.
The applicant’s ground of review focuses upon the implicit finding by the tribunal that there would be a relative of the applicants who would be willing to provide surety for the purposes of him being given bail. There is no express finding by the tribunal to that effect, but it must have accepted that it was so, because it accepted that the applicant would be detained upon arrival and then given bail after a short time on remand.
The applicant argues that he was entitled to be informed of the tribunal’s view that one of the applicant’s relatives would be able and willing to provide the surety required for the applicant’s bail when he was detained upon his return to Sri Lanka. As to that view, the applicant argues:
the tribunal’s view was “adverse” to the applicant and was “not obviously ... open on the known material”;
he was not given “the opportunity of ascertaining” that issue or the opportunity “to be informed of the nature and content of adverse material” in relation to that issue;
the tribunal was obliged to put that view or conclusion to him so that he could respond to it.
There is no doubting the relevant principle:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, affirmed in SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [32].
In SZBEL (above) the High Court went on to say:
33. The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review". The reference to "the issues arising in relation to the decision under review" is important.
34. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.
35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
(footnotes omitted)
On the question of the availability of a surety for the purposes of the applicant’s bail, the delegate said (footnotes omitted, errors in the original):
Referring to the practical application this law, DFAT has reported that, since 2 November 2012, some non-voluntary returnees from Australia have been charged with offences relating to their irregular departure from Sri Lanka but notes that all of these were released on bail. The latest DFAT report states,
‘The Attorney-General’s Department advises that no one to date has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future.’
This demonstrates that for returnees from Australia, prosecution under the I & E Act has meant a fine and prompt release on bail. I do not find that the application of a fine and bail equates with the threshold of significant harm. The Refugee and Humanitarian Policy Advice Manual (PAM), offers guidance on the assessment of significant harm within the framework of lawful sanctions. It states,
‘The assessment of whether particular conduct or conditions amounts to torture, cruel, inhuman or degrading treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to cruel, inhuman or degrading treatment or punishment for one person whereas it may not for another person.
If an applicant claims that they face a disproportionately long period of time in prison, this should be considered as a cumulative factor that may render other conditions cruel, inhuman or degrading. For example, overcrowding in a cell for a person detained overnight may not breach Article 7, although it may do so if a person faces a lengthy prison sentence.’
The practical application of the I & E Act do not demonstrate lengthy prison sentences, as discussed above. The applicant appears to be a healthy young man in his twenties. I therefore find that even if the applicant was held for a short time in a Sri Lankan prison while arranging to be released on bail, that there are no substantiated grounds for believing that this will breach Article 7 in terms of significant harm. I have already discussed that the applicant is unlikely to attract the pointed and discriminate attention of the Sri Lankan authorities on arrival since he appears to lack any additional risk profile. I therefore find the applicant does not have a real risk of being imprisoned and subjected to significant harm even if prosecuted under the I & E Act for illegal departure from Sri Lanka.
Plainly, the prospect of the applicant receiving bail upon his detention when he returned to Sri Lanka was an issue before the first respondent’s delegate. However, there was no discussion or consideration of the conditions upon which bail might be granted. Before the delegate, it was assumed that the applicant would simply be given bail. There is no reference to the need for a surety from another person to secure a grant of bail.
Before the tribunal, however, the question of the applicant being granted bail was not so straightforward. The tribunal had before it information, which it accepted and acted upon, that a detainee would be granted bail with a personal surety. That was not a matter before the delegate. It was an issue that arose on the information acted upon by the tribunal. That there was a person who was willing and able to provide the required surety was an issue about which the tribunal needed to make a finding, given the other finding that it had made that the applicant would not suffer significant harm from, or in the course of, his detention upon remand after his return to Sri Lanka. The tribunal found, implicitly, that there was such a person.
The first respondent suggests that the relevant issue for the purposes of ground 1 of the applicant’s review was whether he would be harmed on return to Sri Lanka by reason of his contravention of a domestic law concerning departure from Sri Lanka. The first respondent points out that the applicant was afforded an opportunity to give evidence and present arguments about that issue and he took that opportunity. A tribunal hearing occurred at which the applicant was represented. He had the assistance of an interpreter. Moreover, for the purposes of the tribunal’s review, the applicant, by his legal advisers, made written submissions to the tribunal about the delegate’s decision. Those submissions expressly dealt with the applicant’s claims of harm on return to Sri Lanka by reason of his contravention of the Sri Lankan domestic law departure laws. However, whilst the applicant availed himself of that opportunity, his submissions did not deal with the availability of a surety, because that was not an issue that arose from the delegate’s reasons for decision.
In my view, however, the first respondent’s submissions frame the relevant issue too broadly. The existence of a person willing and able to provide the necessary surety was an issue arising on the review that did not exist before the first respondent’s delegate. It was an important issue because, without a finding that there was some person willing to provide the necessary surety, the tribunal could not have found that the applicant was likely to get bail following his arrest and detention upon re-entry to Sri Lanka. The finding about the availability of such a person was, I am satisfied, a link in the chain of reasoning that led the tribunal to determine that the applicant would not suffer significant harm if he was detained upon return to Sri Lanka. Moreover, it was not a conclusion that would obviously be open on the known material before the tribunal.
It was, in those circumstances, incumbent upon the tribunal to bring that issue to the attention of the applicant so as to permit him to give evidence and make submissions about that issue. Thus, the critical question for the purposes of this application is whether the tribunal did that.
He argues that he was given no opportunity to respond to, or rebut, the tribunal’s assumption or determination that he had a relative, or some other person, who would be able and willing to act as surety for the purposes of him being granted bail. His argument relies upon a question of fact – what occurred in the course of his review by the tribunal. It is for him to establish the relevant facts upon which his argument proceeds. He must establish that the tribunal did not afford him the opportunity to which I have determined he was entitled.
However, the first respondent argues that there is no evidence that supports the applicant’s assertion. Unlike other cases that have dealt with this issue (such as SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978 and on appeal Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069) there is no transcript of the tribunal hearing before me. The first respondent argues that without a transcript it is not open to me to infer that the applicant was not afforded an opportunity to give evidence and present arguments relating to this particular concerning the availability of a surety to support a grant of bail.
Whilst a transcript would have been extremely helpful to the applicant's case, I do not accept that absent a transcript the Court cannot reach the conclusion that the tribunal did bring the relevant issue to the attention of the applicant as it was obliged to do. The applicant might have provided sworn evidence of what occurred at the tribunal hearing, or the representative that appeared at the hearing might have done so. There is, however, no such evidence before me. I am left to inferences that might be drawn from the tribunal’s reasons for decision.
l accept that it is plain from the tribunal's summary of the hearing that the tribunal discussed the country information that it had as to the likely prosecution, likelihood of bail, time spent on remand and likely fine with the applicant and his representative. In those circumstances, and in the absence of any other evidence bearing upon the matter, I do not think that I can infer from the tribunal's reasons that it did not raise the issue of the availability of a surety with the applicant.
The applicant argues that (footnotes omitted):
12. The tribunal never raised this issue with the applicant expressly. In Somanghi v Minister for Immigration, Local Government and Ethnic Affairs, it was held that the Court may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision maker proposes to take into account.
13. In failing to raise that issue with the applicant, the tribunal committed jurisdictional error in that it failed to comply with section 425(1) of the Act, which provides:
“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."
14. The tribunal failed to give the applicant a sufficient opportunity to give evidence or make submissions about an issue arising in relation to the decision under review. That issue was whether the applicant had a family member who could provide surety for the applicant to ensure his release on bail.
15. Further, the tribunal failed to give the applicant the opportunity to respond to an adverse conclusion that was not obviously open on the known material. That adverse conclusion was that the applicant had a family member who would provide surety for the applicant to ensure his release on bail.
16. The Tribunal had concluded that the applicant would be granted bail and that it was therefore unnecessary for the Tribunal to proceed to consider whether the prospect of a longer stay in prison might have entitled the applicant to complementary protection.
16. In our submission, the Tribunal’s reasons clearly show that the conclusion that the applicant would be granted bail was based on the tribunal’s acceptance that a member of the applicant’s family would be needed to provide surety for the applicant.
17. There was no exploration by the Tribunal with the applicant specifically of the current overall financial position of his family.
19. There was mention that the family was able to avoid difficulties because of his father’s wealth, stemming from his occupation as a gold smith. However, that was during the period of the civil war.
20. Since then, the applicant’s father died in 2010, taking with him his source of income as a gold smith.
21. Money the family had was depleted to relocate his brothers – one to Malaysia, and one to Saudi Arabia. It also cost a substantial amount of money to get the applicant out of the country.
22. There is no evidence his mother or his brothers could pay a surety. It was never put to him, and that is not a conclusion that was open to the tribunal to have made. There was no exploration by the tribunal with the applicant specifically of the overall financial position of his family.
The difficulty with this submission is that there is no evidence, as opposed to assertion by the applicant, of the matters advanced by the applicant to support this ground. There is no evidence that:
a)the tribunal never raised the surety issue with the applicant expressly;
b)the tribunal failed to give the applicant an opportunity to give evidence or make submissions about whether the applicant had a family member who could provide surety for the applicant to ensure his release on bail;
c)the tribunal failed to give the applicant the opportunity to respond to the tribunal's conclusion that the applicant had a family member who would provide surety for the applicant to ensure his release on bail;
d)the Tribunal did not explore with the applicant specifically of the current overall financial position of his family;
e)it was never put to the applicant by the tribunal that there was no evidence his mother or his brothers could pay a surety.
In my view, the applicant does not establish that the tribunal did not conduct the review in accordance with s.425(1) of the Act. There is no evidence that the tribunal did not give the applicant the opportunity to address the issue concerning the ability and willingness of a person to provide surety to support a grant of bail for the applicant in the event that he was detained upon his return to Sri Lanka. I am unwilling on the material before me to infer that the tribunal did not do so.
No jurisdictional error is revealed by this ground of review.
Ground two
This ground is expressed in the following way in the amended application:
2. The tribunal failed to address an issue which arose on the material before it being whether the detention of the applicant on remand in Sri Lanka in the prison conditions prevalent there would be degrading treatment or punishment and cruel or inhuman treatment or punishment.
As to these question, the tribunal said:
58. The Tribunal has had regard to whether the harm the applicant may suffer arising from his committing offences under the IEA amounts to significant harm, in particular, being questioned, his bail conditions, being detained for a short period while on remand and imposition of a fine. The Tribunal has had regard to whether that amounts to significant harm. The Tribunal considers the only relevant forms of significant harm are torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. On the evidence before it, the Tribunal is not satisfied the applicant’s being questioned, bail conditions, detention on remand or fine will involve severe physical or mental pain or suffering, therefore it does not meet the definition of torture in s.5(1). Similarly, his being questioned, the bail conditions, detention while on remand and fine cannot meet limb (a) in the definition in s.5(1) of cruel or inhuman treatment or punishment, nor could his bail conditions, detention while on remand or fine be reasonably regarded in all the circumstances as cruel or inhuman in nature for the purpose of limb (b) of that definition. The Tribunal is not satisfied too that his being questioned, the bail conditions, detention while on remand and fine would cause extreme humiliation which is unreasonable. Moreover, the definitions of ‘cruel or inhuman treatment or punishment’ in s.5(1) requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. Therefore, the Tribunal is not satisfied any harm arising from his being questioned, the bail conditions, being detained while on remand or fined will amount to significant harm.
(footnotes omitted)
The tribunal had earlier discussed the prison conditions in Sri Lanka when it was considering the applicant’s Convention related protection claims. At paragraph 46 it said:
The Tribunal notes the country information that bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. The Tribunal has regard to the decision of the Full Federal Court in SZTEQ that not all detention amount to a threat to a person’s liberty and is an instance of serious harm. The Tribunal accepts that conditions in Sri Lanka’s prisons are poor, they are described so in the DFAT country report. Conditions on remand have been described in media reports as being overcrowded. The Tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and notes the reports of torture and assault. The DFAT country report refers to there being unsubstantiated allegations but is unaware of reports of mistreatment of returnees while on remand. However it considers it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government profile (such as persons affiliated to the LTTE) who are targeted in this way. There have not been reports that returnees held awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The Tribunal considers any period the applicant spends on remand is as result of the application of the IEA laws, which the Tribunal found above are laws of general application and any period on remand would be a consequence of those laws of general application and therefore not persecution. Furthermore the Tribunal is not satisfied that due to the short-term nature of the imprisonment on remand that the applicant would face a real chance of serious harm while held on remand.
(footnotes omitted)
The applicant points out that s.5(1) of the Act defines “cruel or inhuman treatment or punishment”, and “degrading treatment or punishment”. Section 36(2A) of the Act provides that a non-citizen such as the applicant will suffer significant harm if they are subject to treatment which falls within the definitions of either of those phrases. The relevant actions must be intentional.
The tribunal was alive to each of those matters and as will be appreciated from paragraph [58] of the tribunal’s decision, the tribunal considered each of them. In particular, the tribunal considered the necessity for the relevant harm to have been inflicted intentionally.
However, the applicant argues that the relevant “intent” is not that of the Sri Lankan government generally but the intention of the persons who may by their acts or omissions inflict suffering upon the applicant.
The applicant submits that it is too broad a proposition to state that poor prison conditions involving inadequate resources and overcrowding do not give rise to significant harm under Australian law. He argues that whether there is significant harm depends on whether or not there is an act or omission by which suffering is intentionally inflicted on the applicant. Clearly the applicant could not be imprisoned except by the actions of others.
As a second limb to this ground, the applicant argues that he may also suffer harm by virtue of the mistreatment he would face during interrogation by the authorities upon his return. He argues that it is not implausible that the authorities will interrogate the applicant upon his return given the illegal nature of his departure, and the fact that the majority of his siblings are overseas. Accordingly, he argues that it is necessary to consider the mistreatment the applicant may suffer in the process of being determined not to be a person of interest.
However, the tribunal considered this matter, in the context of his claim for protection pursuant to s.36(2)(aa) of the Act. The tribunal said (footnotes omitted):
45. Again, the Tribunal is mindful it must give regard not only to the outcome of any interrogation or questioning, but also whether there is a chance of harm during the process the process (sic) involved in attaining that outcome. The Tribunal considers the offences under the IEA are laws of general application. On the face of the wording of the IEA legislation and the information regarding the implementation of the IEA before the Tribunal, the Tribunal is not satisfied the IEA laws are discriminatory in there terms or enforced in a selective or discriminatory way. The laws apply to all Sri Lankan citizens who depart Sri Lanka in breach of the IEA laws. Any harm the applicant may suffer arising from punishment for an offence under the IEA has no element of persecution for the purpose of s.9JR(J)(c) and therefore is not persecution. [18] The Tribunal does not accept that his prosecution for breach of Sri Lankan migration laws amounts to persecution.
The tribunal also referred to this question m paragraph 42 of the reasons, although again in the context of the applicant's s.36(2)(a) claims.
As to the claim for complementary protection, the tribunal considered the harm that might befall the applicant from questioning whilst in detention in paragraph 58 of the tribunal's reasons extracted above.
Finally, the applicant argues that given that the time spent by him while on remand awaiting bail could be significantly longer than the period the tribunal had in mind, “the applicant’s detention while on remand awaiting bail constitutes prison conditions that would constitute degrading treatment or punishment, and cruel or inhuman treatment or punishment. The applicant faces a real risk of serious harm while on held on remand.”
In my view, however, the tribunal addressed itself to the correct question. The tribunal considered the conditions of the prisons in Sri Lanka and the possibility that the applicant would suffer significant harm whilst held on remand.
The tribunal correctly identified that the relevant harm must be intentionally inflicted. The tribunal did not find that any harm that might be occasioned to the applicant by reason of him being detained upon return to Sri Lanka would be intentionally inflicted upon him.
I accept the first respondent’s submission that the Applicant’s submissions in support of this ground descend to the merits of the applicant’s claims for complementary protection.
Conclusion
The applicant’s grounds of review demonstrate no jurisdictional error in the tribunal’s decision. The decision is a privative clause decision and so, cannot be reviewed by this Court.
The application must be dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Jarrett
Date: 13 January 2016
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