BXK16 v Minister for Immigration
[2018] FCCA 1727
•29 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXK16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 1727 |
| Catchwords: MIGRATION – Application for judicial review – protection visa – where Tribunal affirms the decision of the delegate not to grant a protection visa – whether the applicant was on notice of the issues before the Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.65, 425 |
| Cases cited: CUP16 v Minister for Immigration & Anor [2017] FCCA 2438 Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 |
| Applicant: | BXK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1555 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 1 March 2018 |
| Date of Last Submission: | 1 March 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Malzoum |
| Solicitors for the Applicant: | Maddocks Lawyers |
| Counsel for the First Respondent: | Mr L. Brown |
| Solicitors for the First Respondents: | Mills Oakley Lawyers |
ORDERS
The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $7,328.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1555 of 2016
| BXK16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa under s.65 of the Migration Act 1958 (“the Act”).
The applicant is a citizen of Sri Lanka and arrived in Australia as an unauthorised maritime arrival in August 2012. He applied for a protection visa in April 2013.
The delegate refused to grant the applicant a protection visa on 30 September 2013. The applicant applied for a review of that decision and appeared before the Tribunal on 13 March 2015 to give evidence and present argument. The applicant had the assistance of a Tamil interpreter and was represented by a registered migration agent. On 28 June 2016 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.
The Tribunal considered the following issues for determination at [3]:
a. Does the applicant have a well-founded fear of persecution in the reasonably foreseeable future if he returns to Sri Lanka.
b. Are there substantial grounds for believing there is a real risk the applicant will suffer significant harm if he is removed to Sri Lanka
The applicant’s claims
The applicant’s claims are summarised at [20]-[21] of the Tribunal’s reason:
20. In summary, the applicant’s claims are his family are originally from Northern province. He was born in an IDP camp in Colombo but later moved to a government run IDP camp in Northwestern province where he grew up with his mother. His father continued to live in Northern province and later remarried. Part of his family land in his father's home village was confiscated by the Sri Lankan navy to build a naval camp. His family received another piece of land in compensation, but it is inadequate due to the size and location of the land In April 2012, he went with a group of people to participate in a protest against the confiscation of their land. His uncle also attended the protest for part of the time and helped to prepare the protest banners the applicant displayed. The protest lasted for about 8 hours and was at an event attended by the then defence secretary. He, together with the other protesters were rounded up by naval/officers. His phone was taken from- him and his details recorded. The naval officers told them the land is no longer theirs and that they would be shot if they returned. He was released, but days later, naval officers came to his relative's home searching for him, the applicant hid and then returned to his mother's home village. Nothing happened again until in June 2012, naval officer again started asked questions about the applicant in his father’s home village. Since the applicant departed Sri Lanka, the Sri Lankan authorities have continued looking for him in his father’s home village…
21. The applicant fears he will be harmed by the Sri Lankan authorities because he participated in the protest. He further fears he will be harmed because he is a Muslim, and if he returns to Sri Lanka, he will do so as someone who is a failed asylum seeker. The Tribunal discussed with him too whether the applicant would be harmed because he departed Sri Lanka illegally…
In a pre-hearing submission, the applicant raised two new claims:
a)That the Sri Lankan authorities had continued to look for the applicant since he left Sri Lanka and that they last looked for him in 2014: see [22] of the Tribunal’s decision; and
b)That the applicant had a real chance of serious harm because he may be imputed to be a Tamil: see [30].
The Tribunal’s finding
Land dispute and protest against the Sri Lankan government
The Tribunal gave the applicant “the benefit of the doubt” that the navy had confiscated his family land and that there were protests in his father’s home village regarding the confiscation of land.
At [24], the Tribunal was “willing to give the applicant the benefit of the doubt the navy had confiscated his family land. It was willing to give the applicant the benefit of the doubt too that there were protests in his father’s home village regarding the navy confiscating land for that camp”.
Although the applicant’s family had been compensated with land, the applicant claimed at [25] they “received inadequate compensation” and that the land was “too small to build a house upon, too far from the village centre and close to an LTTE area, which made it unsafe”. He further said the land “is in a non-Muslim Tamil dominated area, so he would have to follow them, which made it unsafe”. The applicant explained it was unsafe because of “the Sri Lankan civil war” (at [25]).
The Tribunal said at [25]:
…It further noted the applicant had never lived in his father's home village, he had lived with his mother in Northwestern province and if he returned to Sri Lanka, he could resume living with his mother. It therefore appeared to the Tribunal there was no risk of serious harm to the applicant because of the location of the land his family received as compensation. The applicant further commented when living with his mother, he was in fear of Singhalese people. The Tribunal discusses those claims in further detail below regarding the applicant being imputed as a Tamil.
At [28], it was put to the applicant that he was not genuinely of interest to the Sri Lankan authorities noting that no one harmed his uncle who also attended the protest and the authorities were not looking for him at his mother’s home noting that “the applicant’s earlier evidence the Sri Lankan authorities took his name and therefore could easily learn he was registered as living with him mother in Northwestern province.”
After reviewing the evidence, the Tribunal concluded at [29]:
The Tribunal accepted above the Sri Lankan navy confiscated part of the land of the applicant’s family but is not that give rises to a well-founded fear of persecution to the applicant. The Tribunal reaches that finding mindful the applicant’s family may not be satisfied with compensation provided. Despite the Tribunal’s concerns regarding his claims, the Tribunal is willing to accept too that the applicant attended one protest, and that he was questioned about his participation in that protest. However, the Tribunal considers the applicant has then fabricated the claims that the Sri Lankan authorities continued to look for him and he has exaggerated the level of risk of harm to him arising from his attending the protest. The Tribunal accepts as well if he returns to Sri Lanka, there is the possibility the applicant may participate in further protests regarding the level of compensation. The Tribunal is mindful too of the country information regarding instances of intimidation by the Sri Lankan authorities against land owners who complain about their land being occupied. On the evidence before it, the Tribunal is not satisfied however when having regard to the non-exhaustive instances of serious harm in s.91R(2) that such intimidation would amount to serious harm. Moreover, the balance of the country information indicates a compensation process has been put in place by the Sri Lankan authorities – which is inconsistent with the Sri Lankan authorities targeting former landowners for harm. The Tribunal is willing to accept too that the applicant protesting against the confiscation/adequacy of compensation could be seen as having a political opinion opposed to the government. However, the evidence before the Tribunal is that the applicant’s uncle also attended the protest and continued to live in the same area as the protest without any harm and the Tribunal considers if the applicant returned to Sri Lanka, he would have the same experience as his uncle. The country information does not suggest the Sri Lankan authorities harm people for protesting the confiscation of their land. The Tribunal considers there to be only a remote or speculative chance and therefore not a real chance the applicant will be targeted for harm by the Sri Lankan authorities due to his anti-government political opinion, now or in the reasonably foreseeable future, if the applicant returns to Sri Lanka.
Imputed as a Tamil
The applicant’s migration agent raised this claim in the pre-hearing submission. Whilst the applicant was unable to spontaneously raise the claim at the hearing, the Tribunal discussed this claim with him.
The Tribunal considered the applicant’s claim:
30. …The applicant is a Muslim and a Tamil. He identifies however as being a Muslim. He fears nonetheless as a Tamil speaker, he may be imputed by others as being a Tamil. At the hearing, he raised claims too he may be harmed by Tamils because he is a Muslim, which the Tribunal addresses below when assessing claims regarding his religion.
At [34] the Tribunal states:
34. The applicant told the Tribunal neither he nor anyone else in his family were connected to the LTTE. The Tribunal put to the applicant given his personal circumstances, it appeared there was only a speculative chance he would be imputed as a non-Muslim Tamil and that he would be targeted for harm as someone connected to the LTTE. He replied by referring to a non-Muslim Tamil mother and daughter who were citizens of France who returned to Sri Lanka thinking it was now safe, but who were jailed at the airport for being connected to the LTTE. The Tribunal invited him to provide it with a copy of that report, but that was not included with the migration agent’s post hearing submission. He believed as a Muslim, he would be harmed more. The Tribunal noted it was less likely as a Muslim he would be imputed as being connected to the LTTE. The DFAT reports indicated most Muslims sided with the Sri Lankan government against the LTTE. The applicant commented he Sri Lankan government was harming Muslims as they supported Bodu Bala Sena (“BBS”).
And at [36]:
…while the Tribunal accepts the harassment and discrimination that Tamils may face in Sri Lanka does give rise to some harm as indicated in the country information, the Tribunal is not satisfied when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91R(2) that harm amounts to serious harm. The Tribunal accepts based on the country information that most Tamils experience some degree of harassment and discrimination. Having considered the applicant’s individual circumstances, the Tribunal is satisfied the applicant faces a remote chance and therefore not a real chance of serious harm because he is Tamil.
Having considered the applicant’s claim, the Tribunal concluded at [38]:
38. On the basis of the country information discussed above, it does not accept the applicant has any profile which would warrant the Sri Lankan authorities to target him for harm. It rejects that the Sri Lankan authorities have been looking for him since he departed Sri Lanka. The Tribunal does not accept he will be imputed with any anti-government or pro-LTTE opinion because of any of the other reasons he was claimed he will be imputed with such a political opinion. The Tribunal considers there is only a speculative and therefore not a real chance he will suffer serious harm by the Sri Lankan authorities, because of his race, any particular social group or political opinion or any other Convention reason, now or in the reasonably foreseeable future if he returns to Sri Lanka.
Muslim
The Tribunal discussed with the applicant any chance he would face persecution due to his being a Muslim, despite this not being raised as a claim by the applicant.
The applicant raised “he had seen a video of clashes between Muslims and Buddhists in his father’s home village”: see [42]. The Tribunal invited the applicant to submit that video but it was not submitted in the post-hearing submission.
The applicant further claimed “non-Muslim Tamils or the Sri Lankan authorities may harm him because he is a Tamil Muslim.”
There was no other detail in support of this claim and therefore the Tribunal considered the claim:
43. …vague and therefore on the evidence before it the Tribunal is not satisfied there is a real chance the applicant will face serious harm from non-Muslim Tamils or the Sri Lankan authorities because he is a Tamil Muslim, now or in the reasonably foreseeable future if he returns to Sri Lanka.
Failed asylum seeker
At [45], the Tribunal summarised the applicant’s claim that he would be harmed because he applied for asylum in Australia; that he will be imputed as “pro-LTTE/anti-government political opinion because he applied for asylum and that the Sri Lankan authorities will seek to punish him because they will assume the applicant was critical of them in his claims for asylum”.
At [48] the Tribunal considered:
48. The applicant referred again to the Tamil mother and daughter who returned to Sri Lanka from France and noted as citizens of France they were harmed, so it would be worse for him. The Tribunal commented the focus would be whether the Sri Lankan authorities considered a person was connected to the LTTE< not whether the person had citizenship of a second country. He confirmed he was not aware of any warrants against him. Elsewhere he claimed the Sri Lankan authorities would harm him because they would assume he said bad things about them as part of his claims for asylum. He said that was because it happened to other people, it may happen to him as well.
The Tribunal concluded at [50]:
50. After assessing all the evidence and the applicant's circumstances as a whole, including that there are no pending charges against him, the Tribunal finds that the applicant will not be imputed with an anti-government or pro L TTE political opinion because he will return to Sri Lanka as a person who applied for asylum overseas. In reaching that finding, the Tribunal has given regard to the country information on the return of failed asylum seekers to Sri Lanka and has been mindful of the questioning process and not just the outcome of any questioning the applicant may face from the Sri Lankan authorities as a returnee and is not satisfied that questioning when having regard to s.91R(1)(b) and to the non-exhaustive instances of serious harm set out in s.91 R(2) that harm amounts to serious harm. The Tribunal is not satisfied the applicant has a real chance of serious harm because of an implied political opinion or membership of any particular social group however described arising from the applicant returning to Sri Lanka as a person who applied for asylum in Australia if the applicant returns to Sri Lanka, now or in the reasonably foreseeable future.
Illegal departure
This claim was not raised directly by the applicant however on the information before the Tribunal, the applicant did depart Sri Lanka illegally.
At [56] of the decision, the Tribunal states:
56. The Tribunal considers it not because the applicant is a Tamil or a failed asylum seeker, but rather because the applicant departed Sri Lanka illegally that he will be charged or held or remand or questioned at the airport or further questioned upon return to his home village. The Tribunal is not satisfied that any difficulties the applicant may face as a result of questioning, being charged, encountering cramped and uncomfortable and unsanitary conditions on remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors which apply generally and not specifically to Tamils or failed asylum seekers or persons with imputed political opinions. The Tribunal is not satisfied, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).
The Tribunal considered the applicant may face a jail term for his illegal departure (at [57]) but that this was “remote” and “therefore not a real chance the applicant will be sentenced to a term of imprisonment for his offence under the IEA”. The Tribunal found it was likely the applicant would have to pay a fine, but that such fine will not cause hardship.
A real risk of significant harm
At [63], the Tribunal considered whether there was a real risk of significant harm to the applicant resulting from any discrimination. The Tribunal accepted there was a possibility the applicant may be imputed to be a non-Muslim Tamil, saying:
63. The Tribunal has had regard to whether that harassment and discrimination amounts to significant harm. The Tribunal considers the only relevant terms 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 harassment of or discrimination towards Tamils involves severe physical mental pain or suffering… The Tribunal accepts the harassment and discrimination may cause some humiliation to the applicant, but is not satisfied that the harassment and discrimination would cause extreme humiliation which is unreasonable. Therefore, the Tribunal is not satisfied any harm arising from the harassment or discrimination or will amount to significant harm.
At [64], the Tribunal considered whether the applicant would suffer significant harm arising from his illegal departure.
The Tribunal did not consider that “being questioned, bail conditions, detention on remand or fine will involve severe physical or mental pain or suffering” (at [64]). Further, it was not satisfied that such treatment would cause “extreme humiliation which is unreasonable”.
In conclusion, the Tribunal was not satisfied that the applicant “is a person in respect of whom Australia has protection obligations under the Refugees Convention”: see [67].
The Applicant’s Ground of Application
The applicant filed an amended application on 11 October 2017 which contained one ground, as follows:
1. The Administrative Appeals Tribunal (Tribunal) failed to comply with s.425(1) of the Migration Act 1985 (Cth).
Particulars
a) The Tribunal found that returnees who have left Sri Lanka illegally, such as the applicant, are charged with an offence pursuant to the 'Immigration and Emigration Act of 2006 ' (sic) and that returnees are remanded in custody pending a bail hearing (Tribunal at [52]). The Tribunal also found that:
i) after a bail hearing, returnees are granted bail but that a personal surety is required (Tribunal at [52] and [55]); and
ii) upon returning to Court to face the charges, returnees are given a fine by the Magistrate (Tribunal at [52]).
b) The Tribunal found that the applicant:
i) has a relative capable of providing a personal surety for the purposes of being granted bail; and
ii) would be able to pay any fine imposed by a Magistrate
(Tribunal at [57]).
c) The finding at paragraph (b) was a crucial link in the Tribunal determining that the applicant would be granted bail and that he would not face an extended period of imprisonment in Sri Lanka (be it on remand pending bail or by virtue of the sentence imposed by the Magistrate) and would therefore not suffer significant harm (Tribunal at [58]-[59]).
d) The finding at paragraph (b) was an issue arising in relation to the decision under review and was not raised with the applicant by the Tribunal during the hearing and had not been an issue before the delegate.
The relevant passages from the decision for this ground appear in [52], [55] and [57]:
52. … Since November 2012, all failed asylum seekers returned to Sri Lanka from Australia who had departed Sri Lanka illegally had been arrested upon return to the airport in Colombo. The returnees were then charged with offences relating to illegal departure under the IEA and held on remand until brought before a Magistrate. After a bail hearing, the returnees are granted bail with a personal surety and able to return to their home area. The period on remand varies between a couple of hours to, a couple of days, depending on how soon a bail hearing can be held, but there are reports of it taking up to two weeks. The Sri Lankan authorities will investigate the background and identity of each returnee, which can involve contacting the person's family and the police in their home area. Eventually the returnee will need to return to Court to face the charges. Although the IEA states the penalty for illegal departure is a prison sentence from 1 to 5 years and a fine of 50,000 LKR to 200,000 LKR, the Magistrates are able to use their own discretion in determining the· amount of the fine. In practice, Magistrates have been handing out fines 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.
…
55. The Tribuna1 notes the country information that bail is routinely given on the accused's own recognisance although a personal surety is required. …
…
57. … The Tribunal considers it highly likely the applicant will be fined not more than LKR200,000 (AUD1 ,850) and more likely to be LKR50,000 (AUD460). The Code of Criminal Procedure provides for allowing time for payment and for the payment of fines by instalments. The evidence before the Tribunal does not suggest the applicant will be unable to pay that fine or that payment of the fine will cause him hardship. The evidence before the Tribunal too does not suggest he is without any relative able to provide surety. Therefore, the applicant will be able to receive a suspended sentence. As such, the Tribunal considers there is no real chance the applicant will face an extended period of imprisonment arising from his illegal departure from Sri Lanka.
As a result of these findings the Tribunal determined that the applicant was not at real risk of serious harm. The Tribunal did not determine whether the applicant would meet the criteria for a protection visa if he were unable to obtain a surety in order to obtain bail or were unable to pay the fine.
The applicant argues that as there was “no evidence given by the applicant regarding the capacity of his mother or father to provide a personal surety nor of his ability to pay any fine that is to be imposed by a Magistrate”(Applicant’s outline para 25). There is considerable looseness in the use of the expression “surety” as it is unclear whether, in the relevant law of the country, this is merely a personal undertaking to ensure the applicant meets his bail conditions, providing a secured or unsecured monetary surety, or the lodgement of a sum of money with authorities by way of surety. The applicant’s argument proceeds on the basis that the surety would require a sum of money and that there was no finding that his parents had sufficient funds, nor would provide them.
The transcript of the hearing before the Tribunal is in evidence and shows that the member put to the applicant the circumstances likely to flow on his return as a person who had departed illegally: see [51]-[52] of the Tribunal’s reasons. At the end of the summary of likely events (charge, bail and fine) the member asked the applicant “Do you have any comments?’ and the applicant responded “No.”. These issues were not new ones, as they were canvased by the delegate in the delegate’s decision (see the quote set out below).
The difference in definition of surety can be seen if one considers the reasoning in CUP16 v Minister for Immigration & Anor [2017] FCCA 2438 where it was said:
48. Contrary to the applicant’s submission, the IAA made no presumptions about bail at all. Critically, it made no finding that the family of the applicant would be required to do anything in respect of bail. Rather, its findings were based upon country information which stated, unequivocally, that bail was granted on personal surety. The information also stated that a family member may be required to act as guarantor. The IAA did not make a finding about that, but if it had, it would have been open to it. This is because the applicant said that he had family in Sri Lanka and made no claim that they would be unable to guarantee his return to Court in the event that he were charged for illegally departing Sri Lanka.
In Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069, on facts similar to this case the applicant’s mother had previously had to pay $200,000 rupees to obtain bail for SZTQS (following which he left the country). At the very least it demonstrates that the question of whether a surety must deposit funds is a real and not academic issue. In that matter similar findings to those in this case (without specifically raising the issue at the hearing) were not open to the Tribunal (even in light of other evidence of significant financial support that SZTQS’s parents had provided in the past).
In SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 the Full Court distinguished SZQTS, saying:
80. We also note that in SZTQS it appears to have been assumed by the Federal Circuit Court that providing surety involved the payment of money. This may have been because of the earlier history that SZTQS’ mother had paid bail money for his release from a cell in a police station: see [78] above. In our opinion, no such assumption should be made in the present appeal.
81. While the passage complained of in [61] of the Tribunal’s reasons was country information which was not required to be drawn to the attention of the appellant by reason of s 424A(3)(a), that is, it was information not specifically about the appellant or another person and was just about a class of persons of which the appellant or other person was a member, we need not rely upon that provision as a basis for our conclusion in respect of this ground. In the specific facts of this case, the Minister’s delegate, whose decision adverse to the appellant had been the subject of review by the Tribunal, had extensively set out the country information, which the Tribunal summarised at [61], and the delegate’s findings, including that country information, had been responded to by extensive written submissions to the Tribunal on the appellant’s behalf. Whatever the effect of s 424A(3)(a) might be in other circumstances, in this instance we discern no breach of the rules of procedural fairness because the appellant was informed of, and had the opportunity to respond to, that material.
The relevant findings were set out in SZTAP by the Full Court, as follows:
34. In this context, relevant to ground 3, the Tribunal said, at [61]-[62]:
I do accept however that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the Immigration and Emigration Act are, regardless of ethnicity, arrested at the airport and brought before a court to apply for bail. This will plainly apply to the [appellant] as he left Sri Lanka without his passport. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. The evidence indicates that if the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo for a few days until a bail hearing is available. Conditions in remand have been described as dirty, cramped and uncomfortable, although there have been no reports that individuals awaiting bail hearings have been intentionally ill-treated. According to a local lawyer, when the cases come to court they might be fined between Rs. 50,000 and Rs. 100,000. However in the absence of these cases being finalised under the new tightened procedures there is insufficient evidence that the penalty will be applied in a discriminatory way towards the [appellant] for any of the Convention reasons.
Having considered the currently available information I am not satisfied that the treatment afforded returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, can reasonably be seen as constituting ‘serious harm’ to the [appellant], and systematic and discriminatory conduct. It follows that, on the basis of the current available evidence, I am not satisfied there is a real chance that the applicant would suffer Convention-related persecution for his illegal departure if he were to return to Sri Lanka (Citations omitted).
Bromwich J considered similar issues in BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 saying:
63. When the Tribunal member at the hearing referred to the country information indicating that the appellant might be held in prison briefly, but when he went to court he would get bail, that answer to his claims of a fear of harm, either within the Convention or the complementary protection regime, was squarely raised. He was on notice that the Tribunal was considering that this was an answer to his fears. He had ample opportunity in which to put to the Tribunal a submission that he would not be able to get bail because he did not have any family member who could be a guarantor. That was never suggested, in all probability because it was not so. The Tribunal was under no obligation to make the appellant’s case for him.
64. I therefore conclude that ground one also fails.
In ACC15 v Minister for Immigration and Border Protection [2016] FCA 97, Gilmour J also considered similar issues, saying:
24. In considering the question of what will happen to the appellant as an illegal returnee to Sri Lanka, the Tribunal found as a fact that: “if he was taken before a magistrate, I am satisfied he would be immediately given bail”. In doing so, the Tribunal referred in the decision to country information which stated that returnees have been granted bail with the requirement that a family member act as guarantor. The Tribunal’s finding is at [71] and there is a similar finding noting the release on personal recognisance at [51].
25. Although not relied on by the appellant, this raises an arguable claim that the Tribunal made an error of the sort identified by Griffiths J in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (“SZTQS”). The decision in SZTQS has now been the subject of consideration by the Full Court of this Court in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 (“SZTAP”) which concluded that SZTQS does not stand for the high level proposition that in every case a family member being required to provide surety involves a breach of s 425 of the Act (at [76]) and that SZTQS was merely an example, specific to its facts, of the Tribunal’s review jurisdiction; the decision is necessarily fact specific (at [77]).
26. The facts of this case are distinguishable from those in SZTQS. In the present case the matter of bail was not an issue, either generally or in particular, as to the need for a family member to be a guarantor. There was no suggestion that the family member would be required to actually pay money before bail was granted. In SZTQS there was evidence that on a prior occasion the appellant’s mother had paid bail money for his release.
27. As in SZTAP at [79], on the facts of this case, I do not accept that it was critical to the Tribunal’s finding that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as an determinative factor in the mind of the Tribunal.
28. Moreover, as the plurality said at [80] in SZTAP, in the Federal Circuit Court, it appeared to have been assumed that providing surety involved the payment of money. That is not generally the case, unless the bailed person breaches the conditions of bail, and it is not the case here.
In ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 Charlesworth J found that the circumstances were sufficiently similar to those in SZTQS to warrant relief, saying:
52. There is no reference in the reasons of the Tribunal to any fact, matter or circumstance upon which it relied in support of its assumption that the appellant personally had a relative who could and would provide surety for his bail. The Tribunal has, in my opinion, impermissibly reasoned that the general country information concerning the availability of bail in the event of a relative providing surety supported a specific factual finding, personal to the appellant, that surety could and would be given by a relative in his particular case. Whilst it was open to the Tribunal to conclude, on the country information before it, that bail would likely be given upon the provision of surety, that same material was not capable of supporting its finding that the appellant himself would likely be granted bail. There is, in that regard, an error in the Tribunal’s reasoning in that the finding was not logically supported, and not capable of being supported, by the material before the Tribunal. Expressed another way, it was not reasonably open to the Tribunal to find that a relative of the appellant would provide surety for his bail.
In the present case, the meaning of the terms used by the Tribunal can be ascertained from the country information that was specifically quoted in the delegate’s decision. The delegate said (at CB p.130):
DFAT has reported that those found for offences committed under the I&E Act activities will be arrested by the Sri Lankan Police Service Criminal Investigations Department (CID) 115, where they can be kept up to 24 hours under Sri Lanka's relevant legislation. After this initial period they then appear before a magistrate where the Magistrate's Court determines whether 'the person is to be released on bail, to appear before the court at a later date, or is remanded into custody’. DFAT considers,
'We understand the current process for bail is that all persons are granted bail based on personal recognisance (on their own responsibility), with the requirement for a family member to stand as a guarantor. There is no payment required for bail. However, we note that the court may decide not to grant bail if the returnee is found to be a facilitator/organiser of people smuggling, or the court may grant specific bail conditions if the person is a repeat offender'.
…
Although I accept that, in the worst case scenario of a Sri Lankan not holding any profile upon return he could be incarcerated for breaking law(s) under the I&E Act, there is no information before me which indicates that the incarceration would be for an unreasonable amount of time.
Although the issues with respect to illegal departure were raised with the applicant, the delegate decided the case on the basis that any period of incarceration would not be for an unreasonable period. This differs from the reasoning of the Tribunal which proceeded on the basis that the period of incarceration would only be until bail was obtained as the Tribunal found that the applicant was likely to get bail with a parent as a surety and to be able to pay the likely fine.
Looking at the material as a whole it appears that the evidence from DFAT, as recounted in the delegate’s decision shows that surety was not understood to be a surety that required the payment of money. Thus, it appears that the Tribunal was not required to consider whether the family could pay a surety, simply whether they would agree to be a surety. In this case the Tribunal did make findings with respect to the applicant’s relationship with his mother, saying (at [25]):
25. … [the Tribunal] further noted the applicant had never lived in his father's home village, he had lived with his mother in Northwestern province and if he returned to Sri Lanka, he could resume living with his mother.
This finding of a relationship with his mother where she was content for him to live with her, in the absence of other evidence, provides a basis for concluding that his mother would provide a surety that did not involve a payment of money.
On the case as a whole it appears clear that the applicant had support from his parents and there is no material to suggest that this support would not continue. The material shows that the surety being considered in this case was not one involving the payment of money. For the reasons explained in SZTAP this ground cannot succeed in the present application.
The second aspect of this ground concerns the finding that the applicant would be able to pay the fine likely to be imposed on his return to Sri Lanka.
This issue was canvassed with the applicant at the hearing (T51-T52), including a specific description of the likely fine, to which the applicant made no comment. Importantly the applicant did not allege that he would be unable to pay the fine, which is a relatively modest amount by Australian standards.
In [57] of it reasons the Tribunal proceeded on the basis of an assumption that the applicant would be able to pay the fine, and concluded that there was no evidence to the contrary. The likely fine was found to be around $460, but with a possibility it could be as high as $1,850. Importantly, the Tribunal noted that the relevant Code allows for granting time to pay and payment by instalments.
The applicant’s advisors had specifically addressed the DFAT information about fines commencing at p.33 of their written submissions (see CB p.205) made only a couple of weeks before the hearing. The submission was particularly detailed running for some 13 pages of single spaced submissions, none of which suggested that the applicant would be unable to pay the likely fine.
On the evidence before the Tribunal as to the likely amount of the fine, the potential of obtaining time to pay or an instalment order, provides a basis for inferring that the applicant would be able to pay the fine on terms sufficient to avoid incarceration. The absence of any written submissions identifying any problem in paying the fine, and the absence of any comment in the hearing by the applicant, shows that there was no evidence to the contrary.
In the circumstances I am not persuaded that the applicant has established a ground for judicial review.
Conclusion
As the applicant has not established a ground for review I therefore dismiss the application.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Associate:
Date: 29 June 2018
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