BJG15 v Minister for Immigration

[2016] FCCA 3193

FEDERAL CIRCUIT COURT OF AUSTRALIA

BJG15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3193

Catchwords:
MIGRATION – Protection (class XA) visa – whether tribunal made unreasonable findings – whether findings were illogical, made without evidence and therefore unreasonable – whether tribunal misapplied test for “significant harm” – whether tribunal applied the incorrect test relating to the definition of persecution under the former s.91R of the Migration Act, in that it failed to find that a deprivation of the applicant’s liberty could constitute serious harm, contrary to former s.91R(2)(a) of the Migration Acts absent intention of authorities – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.91R, 36(2)(aa), 5(a)

Cases cited:
AJK15 v Minister for Immigration and Border Protection [2016] FCA 1012
BZAFM v Minister for Immigration and Border Protection (2015) 321 ALR 117
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
MZXRS v Minister for Immigration (2009) 106 ALD 305
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Prasad v Minister for Immigration (1985) 6 FCR 155
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
SZTAL v Minister for Immigration and Border Protection  [2016] FCAFC 69
SZTEQ v Minister for Immigration [2015] 229 FCR 497
SZTIB v Minister for Immigration and Border Protection (2015) 321 ALR 81
VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104

Applicant: BJG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 1612 of 2015

Judgment of: Judge Jarrett

Hearing date: 20 September 2016

Date of Last Submission: 20 September 2016

Delivered at: Brisbane

Delivered on: 8 December 2016

REPRESENTATION

Counsel for the Applicant: Mr McBeth

Solicitors for the Applicant: Wimal & Associates

Counsel for the First Respondent: Mr Hill

Solicitors for the First Respondent: Sparke Helmore

The Second Respondent entered a submitting appearance

ORDERS

1. The amended application filed on 6 July, 2016 be dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1612 of 2015

BJG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his amended application filed on 6 July, 2016 the applicant seeks judicial review of a decision of a refugee review tribunal made on 18 June, 2015 which affirmed a decision of a delegate of the first respondent not to grant the applicant a protection (class XA) visa.

2. The first respondent opposes the application.  The second respondent enters a submitting appearance. 

3. Both parties were represented at the hearing before me and both had filed written submissions in preparation for that hearing. 

Background

1. The applicant left Sri Lanka on his own passport in September, 2010.  He went to Thailand and remained there until April, 2011.  He then travelled to Malaysia.  He left Malaysia in March, 2012 and travelled to Indonesia.  He came to Australia as an irregular maritime entrant on 22 July, 2012. 

2. On 8 October, 2012 the first respondent’s department conducted an entry interview with the applicant.  On 21 November, 2012 the applicant, by his representative, lodged an application for a protection visa.  Included with his application for the visa was a statutory declaration in which he set out his claim for protection.

3. On 15 October, 2013 the delegate of the first respondent refused to grant the applicant a visa for which he applied.  The applicant sought review of that decision by a refugee review tribunal.  The tribunal was unable to determine the review in the applicant’s favour on the material before it and accordingly invited the applicant to attend a hearing at which he could give evidence and present arguments in support of his application.  That hearing occurred on 30 March, 2015. 

4. The applicant appeared before the tribunal with the assistance of an interpreter and the benefit of representation.  Prior to the hearing, in November, 2013 the applicant’s representative had sent the tribunal submissions in support of the applicant’s review.  It seems, however, that the tribunal had not received them and the applicant’s representative sent a copy of those written submissions, together with further submissions on matters that arose during the course of the hearing to the tribunal after the hearing was concluded.

5. The tribunal determined to affirm the delegate’s decision on 18 June, 2015.  The tribunal set out its reasons for affirming the delegate’s decision in a decision record.  In that record the tribunal set out the applicant’s claims and the evidence that he advanced in support of them.  It did so accurately. 

6. The tribunal recorded that the applicant had provided a statutory declaration with his visa application in which he claimed that in May, 2009 the Sri Lanka Army occupied his family’s land and placed him and his family in a refugee camp.  His family was subsequently released on 28 March, 2010 but (according to subsequent evidence) the applicant was not in the particular camp with his family at that time and so he was not released.  He managed, however, to escape some 15 days later.  The applicant claimed that he was tortured and interrogated while in the camp on suspicion of involvement with the Liberation Tigers of Tamil Elaam because the LTTE governed the area of the country in which the applicant lived. 

7. The applicant claimed that after he escaped the camp he travelled by bus to his home area but was captured by the CID and arrested because he was new to the area.  He was interrogated about his family and where he had come from.  He set out in his statutory declaration that he went into hiding until he fled to Thailand.  He claimed that he was arrested a second time by Tamil paramilitaries working for the CID (the Karuna group).  He says that he was taken to their camp and tortured.  He claims that he was arrested a third time by the CID at a playground and was again interrogated and tortured.  He claimed that similar things happened to his friends and one was killed by the Sri Lankan Army.  The applicant claimed in a statutory declaration that since leaving Sri Lanka the CID and the Sri Lankan Army had come to his family home asking about him on three occasions.  He claimed that his brother was shot dead in January, 1994. 

8. At the hearing before the tribunal, the tribunal asked the applicant questions about him leaving Sri Lanka on his own passport.  The tribunal accepted that the applicant and his family were held in a refugee camp between approximately May, 2009 and March, 2010.  The tribunal also accepted that Tamils in northern Sri Lanka continue to face ongoing harassment and discrimination by the Sri Lankan security forces and by members of the Sinhalese community living there which included ongoing monitoring by the CID and army.  Sometimes people were required to report regularly to the authorities.  However the tribunal brought to the applicant’s attention that it did not consider that the harassment and discrimination he claimed amounted to serious or significant harm.  The tribunal raised with the applicant that it appeared that it was only Tamils who were maintaining an active ongoing support for the LTTE and Tamil independence or opposition to the Sri Lankan government who were of interest to the Sri Lankan security forces.  The applicant was given the opportunity to comment on that proposition. 

9. The tribunal accepted the applicant’s claims about what had happened to him up until the end of the civil war.  However the tribunal told the applicant that it considered the information that it had before it indicated that the attitude of the Sri Lankan government and security forces to young Tamil men in northern Sri Lanka appeared to have changed since around the time of the end of the civil war “to a degree that meant that the risk of the applicant suffering harm of the sought he suffered before the end of the civil war may no longer be real”.  The applicant was given an opportunity to comment on that suggestion. 

10. The tribunal asked the applicant if he had been living in a refugee camp with his family “rather than being held separately in a rehabilitation camp for former members of the LTTE”.  The response from the applicant indicated that he had been held in a refugee camp with his family (subject to his evidence about moving around between camps himself) and on that basis, the tribunal wondered why the applicant ought to be considered that he was suspected of being a member of the LTTE at the time given that he was not placed into a rehabilitation camp.  Contrary to the submissions made on behalf of the applicant before me, the tribunal did not use the terms IDP camp, rehabilitation camp and refugee camp interchangeably.  Paragraph [25] of the tribunals reasons indicate that the tribunal drew a distinction between refugee or IDP camps on the one hand and rehabilitation camps on the other.  The distinction was drawn to the attention of the applicant and he was given the opportunity to comment on the tribunal’s concerns about the nature of the camp in which the applicant was held.  The tribunal explored the applicant’s claims that he was able to move between five different camps so as to hide from the authorities within the camps.  The tribunal also explored with the applicant his claims about what happened to him after he left the camps.   I will return to those matters later in these reasons.

11. The tribunal explored with the applicant whether he engaged in any pro-Tamil or anti-government activities since he left Sri Lanka.  The applicant said that he had not.  The tribunal also questioned the applicant about whether he or his family had any LTTE connections.  The applicant was given the opportunity to talk about those matters to the tribunal.  The tribunal raised concerns that it had about inconsistences that appeared to arise on the applicant’s claims when one compared his statutory declaration and earlier claims with the evidence that he had given to the tribunal.  The applicant was given the opportunity to comment on those inconsistencies.  Some of them form part of the grounds of review in this application and so I will address those separately later in these reasons. 

12. The tribunal made a number of findings in the applicant’s favour, in particular, the tribunal found:

    I accept that the applicant is Tamil and that, other than when he and his family lived in an   IDP camp 2009 and 2010, he lived and worked in Mullaitivu in the Northern Province in an area that was under LTTE control before the end of the civil war. As I advised the applicant at the hearing, having considered the documents at [13 e], I accept that the applicant and his family were held in a refugee camp between May 2009 and March 2010. I also accept the applicant’s claims that he was beaten and tortured while being held for questioning during the time he was living in the IDP camp. These claims are consistent with the country information about the heightened tensions and targeting of local Tamil populations in former LTTE controlled areas at the end of the civil war. I also accept that the applicant had a brother who was killed in an aerial bombing in 1994.

13. However, the tribunal found “the credibility of the claims made by the applicant about what happened to him after leaving the refugee camp to be poor, largely because of significant inconsistencies and some implausibilities in those claims.”

14. Thereafter, the tribunal set out four inconsistencies which, according to the tribunal’s reasons, it gave “significant weight”.

15. The tribunal found it implausible that the applicant had escaped the IDP camp and he was located, arrested and detained by the CID either on the day of his escape from the camp or a few days later and he was not returned to the camp that he had left without permission.  Whilst the tribunal accepted that the applicant was required to report regularly to the CID office in his local area the tribunal considered that consistent with the country information before it about the ongoing monitoring of the local Tamil population in former LTTE controlled areas after the end of the civil war.  The tribunal considered that if the applicant had been identified as having left the IDP camp without permission he would have been returned to the IDP camp by the CID.

16. The tribunal did not accept the applicant’s claims that he had assisted the LTTE by helping with preparations for Celebration Day activities by cutting firewood for the LTTE.  He did not accept that he had to pay bribes to leave Sri Lanka when he left for Thailand on his own passport.  The tribunal also found “it is less likely that the applicant was suspected of being a member of the LTTE given that he was held in an IDP camp at the end of the civil war rather than being detained in a rehabilitation camp for LTTE cadre.”  

17. The tribunal then discussed its consideration of various documents given to it by the applicant and his advisors and indicated that those documents did not attract significant weight.

18. The tribunal did not accept the following about the applicant’s claims:

    (a) The applicant escaped from the IDP camp without permission from the Sri Lankan authorities.

    (b) The applicant was arrested, detained or otherwise seriously harmed by the CID, Tamil paramilitaries or anyone else since he left the IDP camp.

    (c) Sri Lankan government or security forces, or Tamil paramilitaries, have come to the applicant’s home looking for the applicant, either before or after he left Sri Lanka.

    (d) The applicant went into hiding at any time before he left Sri Lanka.

    (e) The applicant was required to pay bribes or otherwise take steps to avoid the normal departure processes when he left Sri Lanka.

    (f) The applicant has breached, or is suspected of breaching, Sri Lankan departure laws.

    (g) The applicant or his family have ever provided any support for or assistance to the LTTE or have otherwise ever been connected with the LTTE.

    (h) The applicant or his family are suspected by the Sri Lankan security forces or Tamil paramilitaries of supporting the LTTE or being opposed to the current Sri Lankan government.

19. Based upon its findings, the tribunal did not consider that the applicant had a well-founded fear of persecution for a Convention reason.  It assessed the applicant’s claims individually and cumulatively and on the basis of his race, imputed political opinion and membership of particular social groups, namely “failed asylum seekers” and “young Tamil males from northern Sri Lanka”.  I will refer to the particular findings made by the tribunal about these matters later in these reasons as and when they become relevant to the applicant’s grounds of review.

20. The tribunal also considered the applicant’s claims to complimentary protection but found that there was no real chance that the applicant would suffer significant harm if he was returned to Sri Lanka.  One of the applicant’s grounds of review deals with the way in which the tribunal dealt with the applicant’s claims to complimentary protection and I will deal with those claims and the way in which the tribunal dealt with them later in these reasons.

The grounds of review

1. The applicant’s grounds of review are contained within his amended application filed on 6 July, 2015.  At the hearing before me the applicant formally abandoned ground 1.  The first ground pressed by him in this application is ground 2 set out in the amended application.  That ground is in the following terms:

   The Tribunal fell into jurisdictional error in making a finding that was so unreasonable that no reasonable decision maker could have made it.

2. The applicant submits that the principal basis for the tribunal not accepting his claims of detention and mistreatment in the post-March 2010 period “was the four supposed inconsistences identified at [58] of the tribunal’s decision record”. 

3. However, that was not the principal basis for the tribunal not accepting the applicant’s claims.  The tribunal made it clear at [57] of its reasons that it rejected the credibility of the claims made by the applicant about what happened to him after leaving the refugee camp not simply because of significant inconsistencies in his claims, but also by reason of “some implausibilities in those claims”.  Whilst the tribunal identifies at [58] of its reasons four significant inconsistencies in the applicant’s claims and evidence, it is clear from the tribunal’s reasons that they were not the only inconsistencies that concerned the tribunal.  The inconsistences in the applicant’s claims about his support for the LTTE and the payment of bribes to permit him to leave Sri Lanka to Thailand were also matters of importance for the tribunal, but not mentioned in [58] of the tribunal’s reasons. 

4. In [58] of the tribunal’s reasons it identified four inconsistencies in the applicant’s claims that it thought were significant.

   (a) During the interview, the applicant stated that police helped him escape from the camp by giving him a pass, confirmed by three people and which he had to sign, but at the hearing before me he stated that someone who came to the camp for work gave the applicant his pass which the applicant then used to escape.

   (b) In the statutory declaration, the applicant stated that he was arrested by the CID at a restaurant on the day he left the camp. At the hearing before me, he stated that he was able to return home with his father after leaving the camp and was arrested by the CID at home several days later. Later in the hearing, the applicant claimed that people had questioned him during a break in the bus trip he took with his father returning home on the day he left the camp. I give this explanation little weight as it is also significantly inconsistent with a claimed that he was arrested and detained during a break on his journey home on the day he left the camp.

   (c) In his statutory declaration, the applicant claimed that the second time he was arrested and detained after he left the IDP camp he was taken by Tamil paramilitaries to a Tamil paramilitary. At the hearing before me he stated that the second time he was arrested he was questioned at a CID office by CID officers. I do not accept the applicant’s explanation that when he refers to the CID he was also referring to Tamil paramilitaries such as members of the Karuna group. While I accept that there may be Tamil CID officers, I do not accept that they would identify themselves as anything other than members of the CID. I also do not accept that the applicant would confuse a CID office with a Tamil paramilitary camp.

   (d) In his statutory declaration, the applicant claimed that the third time he was arrested he was at a playground. At the hearing before me, he stated that he was in the street when he was arrested.

5. The applicant does not cavil with the first two matters set out above.  The applicant argues, however, that the third matter does not in fact reveal an inconsistency at all.  He argues that the inconsistency related to the interchangeable description of the captors in the second incident of arrest and detention as Tamil paramilitaries and CID. 

6. The applicant points out that in the entry interview with the delegate the applicant did in fact use both terms together.  In response to question 6(a) on his entry interview form: “Were you ever arrested or detained by the police or security or intelligence organisations?”  The applicant answered “yes, CID and paramilitary groups.”  However, rather than using those terms interchangeably, the applicant’s answer to that question indicates that he was using the terms individually and cumulatively.  Moreover, his answers in the course of the tribunal hearing did not indicate that the applicant saw the two groups as one although he did suggest that from time to time members of paramilitary groups (such as the Karuna) were present within the CID. 

1. At paragraph 15 of the applicant’s written submissions I am invited to draw an inference that an indistinct answer in the transcript is, or is likely to be a reference, by the applicant to the Tamil paramilitary “perhaps “Karuna”.”  I decline to speculate in the way in which the applicant invites me to do.  It is not at all clear from the transcript that the answer that the applicant now suggests was the answer that he gave to the tribunal. 

2. Further, the applicant points out that by a response made by his representative on 2 October, 2013 that “he had referred to the Karuna group (or Tamil Paramilitary group) in his statement and he explains that while he knew these people at CID, they were clearly Tamil’s speaking Tamil, and therefore must have been involved with the Karuna group.  For this reason our client refers to these people as the CID and Tamil paramilitary alternatively.”

3. However, at [38] of the tribunal’s reasons the tribunal records that it raised what the tribunal considered to be an inconsistency in the applicant’s claims about his second arrest with him.  The tribunal noted that in the statutory declaration the applicant provided with his visa application he said that the first arrest happened when he was taken by the CID at a restaurant on the day of his release; that the second time he was taken by Tamil paramilitaries to a Tamil paramilitary camp and that the third time he was arrested at a playground.  The tribunal told the applicant that those inconsistences might lead it to doubt the truth about what he was saying.  The applicant told the tribunal that “when he referred to the CID he also meant Tamil paramilitaries because they all worked together.  He said that there was usually a community person who belonged to the Tamil faction.”  The tribunal advised the applicant that he accepted that there were Tamils working with the CID but noted that he was referring to particular Tamil paramilitaries. 

4. The tribunal expressly considered the applicant’s claims about the interchangeable use by him of the terms CID and Tamil paramilitaries.  The tribunal made a finding about that in [58(c)] of its reasons.  The tribunal said that: “I do not accept the applicant’s explanation that when he refers to the CID he was also referring to Tamil paramilitaries such as members of the Karuna group. While I accept that there may be Tamil CID officers, I do not accept that they would identify themselves as anything other than members of the CID. I also do not accept that the applicant would confuse a CID office with a Tamil paramilitary camp.”

5. In my view, the tribunal’s determination about the applicant’s use of the terms “CID” and “Tamil paramilitary” was not so unreasonable that no reasonable decision maker could have made it.  Having made a determination that it did not accept that the applicant used the terms interchangeably, the tribunal was entitled to reach the conclusion that the applicant’s evidence about his second arrest and who had carried it out and where he had been taken was inconsistent.  I am not satisfied that that decision was so unreasonable that no reasonable decision maker could have made it. 

6. Moreover, it is apparent from the tribunal’s decision record that it raised its concerns about the applicant’s evidence concerning his second arrest with him.  Paragraph [38] of the tribunal’s reasons records that the tribunal raised both the inconsistences concerning his second arrest with him and the tribunal’s concern about the use of the words CID and references to particular Tamil paramilitaries.

7. The applicant also contends that the tribunal’s reference to the inconsistency in [58(d)] of its reasons was an error because there was no inconsistency.  The first respondent concedes that the tribunal was in error in that respect.  I will proceed on the basis that that paragraph reveals an error on the part of the tribunal. 

8. The applicant argues that the tribunal ought to have made reasonable enquiries of the applicant so as to clarify the inconsistences about which it was concerned.  The applicant relies on the decision of Wilcox J in Prasad v Minister for Immigration (1985) 6 FCR 155 at [33] to make the argument that the tribunal ought to have made enquiries of the applicant in an attempt to obtain further information that would clarify and deal with the inconsistencies that were troubling the tribunal and that a failure to do that might properly be described as an exercise of a decision making power that was so unreasonable that no reasonable person would have so exercised it.

9. However, I reject the applicant’s submissions in this regard.  The tribunal discharged its obligation to the applicant by putting to the applicant for his comment the matters that troubled the tribunal.  As the first respondent points out, each of the inconsistencies that concerned the tribunal were put to the applicant by it in the course of the tribunal’s hearing.  There was only one matter not raised by the tribunal with the applicant and that concerned the conflict in his evidence at the departmental interview and his evidence to the tribunal about how he escaped from the camp in March, 2010.  It is not the case that having put the inconsistencies to the applicant for his comment, the tribunal needed to continue to prompt the applicant until he provided a satisfactory explanation for the inconsistencies.  The tribunal’s only obligation was to raise the matters with the applicant for his consideration and comment. 

10. Moreover, as the first respondent points out, any duty to enquire applies to information as such rather than mere opinion, assessments or evaluations by third parties: MZXRS v Minister for Immigration (2009) 106 ALD 305 at [27]. It is trite that the tribunal’s assessment of evidence and inconsistencies in the evidence is not “information” for the purposes of the test in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39: see also SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18]. The tribunal is not required to give the applicant a running commentary upon what it thinks about the evidence that is given: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [47].

11. The case before the tribunal was markedly different to Prasad (above).  Whilst in Prasad there was evidence before the Court deciding the judicial review application about what facts might have been revealed by further enquiry by the relevant tribunal, in the matter before me, there is no such evidence.  There was no evidence as to what the applicant would have said in response to any further questioning from the tribunal had the tribunal asked him further questions about the matters that troubled it.  As the first respondent points out, when the tribunal did engage in that exercise concerning the inconsistences with the applicant’s first arrest, it led to the applicant giving a further inconsistent account of that arrest.

12. The error identified in the tribunal’s reasons at [58(d)] was an error of fact on behalf of the tribunal.  It was not an error of jurisdictional fact.  It did not lead to the tribunal asking itself the wrong question or depriving itself of jurisdiction to understand and decide the applicant’s review.  The tribunal properly considered all of the applicant’s claims made before it notwithstanding that error of fact by the tribunal.  Further, as the first respondent points out, the erroneous fact set out in the tribunal’s reasons at [58(d)] was only one matter relied upon by the tribunal.  There were a number of other inconsistencies set out in [58] of the tribunal’s reasons and elsewhere as well as the implausibilities to which the tribunal referred (esp. at [60] and [61]) and about which the applicant takes no issue.

13. Ground 2 of the amended application for review reveals no jurisdictional error.

Ground 3

1. Ground 3 of the amended application for review is in the following terms:

   The Tribunal fell into jurisdictional error in making a finding that was so unreasonable that no reasonable decision maker could have made it, namely distinguishing between university students and women on the one hand, and the applicant on the other, in finding that the applicant would not be imputed to be a supporter of the LTTE at [71] of the Tribunal’s reasons, despite accepting the veracity of the country information there referred to.

2. This ground of review asserts that the tribunal misunderstood and misapplied the country information that he had before it.  At [71] of the tribunal’s decision, it said:

   71. Further, I find that, while the country information before me shows that individuals who are suspected of continuing to actively support or otherwise be involved with the LTTE continue to face a real chance of suffering serious harm in Sri Lanka (see the LTTE report referred to in Appendix 1), a Tamil man will not be imputed to be a supporter or to be involved with the LTTE, or to be opposed to the current Sri Lankan government, solely on account of their ethnicity as a Tamil or as a young Tamil man from northern Sri Lanka. In reaching this finding, I have considered in particular the recent country information set out in the representative’s last submissions (see T1, folios 95 – 98) about the recent targeting of Tamils but find these reports to be of Tamils with profiles different to the applicant’s, such as Tamil university students, attendees at Human Rights festivals and Tamil women. I find that individuals with profiles of this sort are likely to be imputed with a pro-LTTE or anti-Sri Lankan government political opinion, or (as in the case of Tamil women) to be identified as particularly vulnerable, to a degree that is not the case for the applicant.

3. The essence of the applicant’s submissions on this point are captured in the following paragraphs of the applicants submissions:

   29. The distinction between university students on the one hand and the applicant on the other, in finding that university students were likely to be imputed with pro-LTTE political opinion but the applicant was not, could not possibly arise from the material that the Tribunal cites in support of this finding. The relevant country information was included to demonstrate that serious harm may be suffered by Tamils, even if there was no perceived association with the LTTE (hence the heading at CB 235). The Tribunal Member purported to rely on that country information for the opposite conclusion: that university students are likely to be imputed with pro-LTTE political opinion.

   30. As that conclusion could not possibly arise from the material on which the Tribunal purportedly relied, the Tribunal's finding on that point was unreasonable.   In turn, the Tribunal's finding at [72]-[73] that the applicant does not face a real chance of suffering serious harm if returned to Sri Lanka, based on the foregoing conclusion, is also unreasonable and therefore affected by jurisdictional error.

4. Paragraphs [72] and [73] of the tribunal’s reasons are as follows:

   72. Accordingly, I find that, in light of the country information before me, it is only Tamils who otherwise have a history of actively supporting or being involved with the LTTE or opposing the current Sri Lankan government, or are currently actively opposed to the current Sri Lankan government, and its policies in relation to the treatment of Tamils in particular, or are imputed to be so, who face a risk of harm at the hands of the Sri Lankan government and security forces that can be said to be more than remote.

   73.    In light of the above, and my assessment set out below as to the applicant’s lack of an actual or imputed political profile in Sri Lanka and the circumstances the applicant is likely to face as a returnee, I do not accept that the applicant faces a real chance of suffering serious harm at the hands of the Sri Lankan government and security forces if he returns to Sri Lanka solely on account of his ethnicity as a Tamil or of his membership of the particular social group young Tamil males from northern Sri Lanka.

5. The findings made by the tribunal in paragraphs [72] and [73] of its reasons were not based solely upon the tribunals findings in paragraph [71].  In paragraphs [69] and [70] of the tribunal’s reasons for decision the tribunal discusses country information from a range of sources that deals with the circumstances of Tamils in Sri Lanka, including in northern Sri Lanka.  In particular the tribunal paid attention to the “position” of the UNHCR that protection should no longer be presumed as being needed for Sri Lankans of Tamil ethnicity originating from the north of the country and that the potential risk profiles in Sri Lanka focus on suspected LTTE links, involvement in the media and civil society, gender, youth and sexuality rather than on Tamil ethnicity generally.  In paragraph [70] of its reasons the tribunal found that Tamils, including Tamils in northern Sri Lanka, do not face a real chance of suffering serious harm solely on account of their ethnicity.

6. Whilst it is the case that the material to which the tribunal referred in paragraph [71] (pages 235-237 of the court book) deals with ill-treatment of Tamils (not overtly based on a perceived association with LTTE), the finding about which the applicant complains in paragraph [71] of the tribunal’s reasons is not a finding which arises from the tribunal’s consideration of that material alone.  Paragraphs [69]-[73] of the tribunal’s reasons need to be read together.  When read together, it is apparent that the conclusions reached by the tribunal were reached by it after a consideration of the country information, including that referred to it by the applicant’s advisors.  Read as a whole it is tolerably clear that the finding in the last sentence in paragraph [71] of the tribunals reasons was a finding derived by it having regard to the material referred to by it in paragraphs [69], [70] and [71] of the tribunal’s reasons for decision. 

7. It is trite that the assessment of country information placed before it is a matter entirely for the tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], [13]; VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [26], [32]. Here the tribunal carried out an assessment of the country information that had been provided to it by the applicant’s representatives. That assessment revealed that the reports of harm contained within that country information related to Sri Lankans who had a particular “profile” or character. As the first respondent points out, the applicant’s representatives own submissions (by which the material was placed before the tribunal) referred to:

   a)marginalisation and sexual violence against women in North and East Sri Lanka;

   b)reports about undergraduates being attacked at various universities;

   c)reports of attacks on Sri Lankan opposition leaders; and

   d)attacks on Tamils heading to human rights festivals.

8. The tribunal concluded that the applicant did not fall within any of those categories or “profiles” and assessed the applicant’s claims on that basis.  The gravamen of this aspect of the applicant’s claims before the tribunal was that by reason of his Tamil ethnicity and his northern Sri Lanka origins, there was a real chance of him suffering serious harm.  The tribunal clearly and distinctly considered that claim and for the reasons it gave rejected it.  Having regard to paragraphs [69]-[73] of the tribunal’s reasons as a whole, even if it is the case that the tribunal misinterpreted the particular information to which the applicant now points and drew incorrect conclusions from it, those errors of fact do not otherwise lead to the conclusion that the findings made by the tribunal in paragraphs [69], [70], [72] or [73] were unreasonable in the sense that would lead to relief in this Court.

Ground 4   

1. Ground four of the amended application for review provides:

   The tribunal applied the incorrect test relating to the definition of persecution under the former section 91R of the Migration Act, in that it failed to find that a deprivation of the applicant’s liberty could constitute serious harm, contrary to former section 91R(2)(a) of the Migration Act.

2. Although it is not immediately apparent from this ground of review, the applicant contends that the tribunal applied an incorrect test of persecution under s.91R of the Migration Act (as it stood at the time of the applicant’s visa application) and significant harm for the purposes of s.36(2)(aa) of the Act.

3. The starting point for the applicants argument is paragraphs [80] and [81] of the tribunal’s reasons for decision.  They are in the following terms:

   80. As I advised the applicant at the hearing, in light of the country information before me (see the DFAT report at [5.24] – [5.26]) I accept that the applicant may be detained for questioning by Sri Lankan immigration authorities, including the CID, at the airport on his return to Sri Lanka because he will be identified as an individual being returned to Sri Lanka from Australia as a failed asylum seeker.

   81. The relevant case law referred to in Appendix 1 below establishes that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention for the reason that enforcement of such a law does not ordinarily constitute discrimination. I find that the deprivation of applicant’s liberty for the purposes of questioning will be the result of the operation of a law of general application that is not on its face discriminatory. I also find that the country information before me does not indicate that the laws governing the deprivation of liberty of individuals for questioning on their return to Sri Lanka is applied discriminatorily. As a result, I am not satisfied that the deprivation of liberty of the applicant for questioning on his return will involve systematic and discriminatory conduct under s.91R(1)(c) of the Act and so am not satisfied it will be persecution for a Convention reason.

4. The applicant argues that the tribunal gave no reasons for its finding that the relevant Sri Lankan law was a law of general application.  The applicant argues that the finding that the “deprivation of the applicant’s liberty for the purposes of questioning will be the result of the operation of the law of general application that is not on its face discriminatory” is “merely a bare assertion” and therefore, presumably not based on any evidence.

5. However as paragraph [80] reveals, the tribunal had regard to country information before it and in particular a DFAT report that dealt with the detention of people returning to Sri Lanka by immigration authorities, including the CID, at the airport.  The first respondent argues that the reference in paragraph [81] of the tribunal’s reasons to “country information” that did not indicate that the laws governing the deprivation of liberty of individuals for questioning on their return to Sri Lanka was applied discriminatorily formed the basis for the tribunal’s conclusion that the applicant’s deprivation upon return. If it occurred, would be the result of the law of general application.  I accept that submission.  In my view, that construction of the tribunal’s reasons is plainly open. 

6. Moreover, as the first respondent points out, the delegate referred to a 2013 DFAT country information report for Sri Lanka which provided that there was no difference in the way that the Sri Lankan Immigrants and Emigrants Act 1949 was applied between ethnicities or religious groups in Sri Lanka and that the law was applied for the valid state objective of border control in Sri Lanka.  The information also revealed that the penalties imposed for contraventions of that Act were not disproportionately applied.  The delegate’s determination about that was also before the tribunal.  The tribunal also considered a DFAT country information report for Sri Lanka dated 16 February, 2015: see paragraph [125] of the tribunal’s reasons.

1. I accept the first respondent’s submission that there was material before the tribunal that supported its conclusion that the relevant Sri Lankan law was one of general application.  The tribunal was entitled to rely on the information from DFAT before it as to how the Sri Lankan law was implemented.  In my view, those findings by the tribunal ought not be disturbed. 

2. Moreover, the findings made by the tribunal in this respect do not reveal jurisdictional error.

3. The applicant also argues that the tribunal was in error because it did not undertake a qualitative assessment of the detention to which the applicant would be submitted if he returned to Sri Lanka.  It is right to say that the tribunal failed to engage in such an assessment.  However, the tribunal was not obliged to do so.  The applicant points to the decision of the Full Court of the Federal Court of Australia in SZTEQ v Minister for Immigration (2015) 229 FCR 497 at paragraph [157] for the proposition that the tribunal was obliged to carry out such a qualitative assessment. However, as the first respondent points out, there is nothing in SZTEQ (or indeed SZTIB v Minister for Immigration and Border Protection (2015) 321 ALR 81 or BZAFM v Minister for Immigration and Border Protection (2015) 321 ALR 117) that obliges the tribunal to make a qualitative assessment of the detention to which a returnee might be subjected. In SZTEQ at [46], SZTIB at [44] and BZAFM at [41] the Full Court said:

   In our opinion, on its proper construction, s 91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of “serious harm” so as to constitute persecution, if the detention or imprisonment is for a Convention reason and the other aspects of s 91R are satisfied.

   (emphasis added) 

4. Here, the tribunal determined that the detention or imprisonment was not for a Convention reason and in those circumstances, no occasion arose for a qualitative assessment of the detention to which the applicant claimed he would be subjected if he was returned to Sri Lanka.

5. The second aspect of this ground agitated by the applicant was to the effect that the tribunal’s consideration of the applicant’s complimentary protection claim was affected by jurisdictional error because the tribunal “imparted an element of intent into the test for cruel, inhuman or degrading treatment or punishment – essentially requiring that the Sri Lankan authorities intend to cause such suffering” before the tribunal could be satisfied that any deprivation of the applicant’s liberty on his return to Sri Lanka could meet those descriptions. 

6. At paragraph [93] of the tribunal’s reasons for decision the tribunal recorded:

   93. As set out above, I accept that the applicant as a Tamil failed asylum seeker may be subjected to a process of questioning by the Sri Lankan authorities immediately on his return to Sri Lanka. However, I do not accept that, in light of the available country information, that that process of questioning amounts to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment or any other form of significant harm. I find that, even if the Sri Lankan authorities seek information from the applicant about the process by which he departed Sri Lanka, the risk to the applicant of being questioned in a way that amounts to significant harm is less than real. Accordingly, I am not satisfied that as a necessary and foreseeable consequence of the applicant’s return to Sri Lanka there is a real risk he would suffer significant harm at the hands of the Sri Lankan authorities immediately on his return to Sri Lanka as part of a process of questioning to which he may be subject or in any other way.

7. As the first respondent submits the conclusions expressed in that paragraph are a sufficient and independent basis upon which the applicant’s claim for complimentary protection could be, and were, rejected. 

8. In paragraph [94] of the tribunal’s reasons the tribunal said:

   94. Further, I do not accept that in being deprived of his liberty while being questioned the Sri Lankan authorities intend to cause the applicant to suffer cruel, inhuman or degrading treatment or punishment or severe pain and suffering. As a result, I am not satisfied the applicant faces a real risk of suffering significant harm as defined in the Act because he is deprived of his liberty while being questioned on this return to Sri Lanka.

9. Again, as the first respondent points out, the tribunal’s reasoning in paragraph [94] is in addition to the tribunal’s conclusions in paragraph [93] – hence the use of the word “further” at the commencement of that paragraph. The statutory definitions of the cruel or inhuman treatment or punishment or degrading treatment or punishment contained in s.5(a) of the Migration Act each expressly require “actual subjective intention by the actor to bring about the victims pain and suffering or humiliation”: AJK15 v Minister for Immigration and Border Protection [2016] FCA 1012 at [21]; SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 at [39], [68].

10. The tribunal was not in error to reason the way it did in paragraph [94] of the reasons for decision.  In any event, its reasons in paragraph [93] provided a sufficient and independent basis for the rejection of the applicant’s claims.

11. Ground four of the amended application for review does not reveal jurisdictional error.

Conclusion

1. In my view, the applicant has not demonstrated that the tribunal’s decision is affected by jurisdictional error.  The amended application must be dismissed with costs.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 8 December, 2016.

Date: 8 December, 2016