BXO16 v Minister for Immigration
[2019] FCCA 2263
•20 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BXO16 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 2263 |
| Catchwords: MIGRATION – Application to review decision of the Administrative Appeals Tribunal – whether failure to consider an integer of a claim or to engage with material in a written submission. |
| Legislation: Migration Act 1958 (Cth), ss.5, 91R, 424A, 424AA, 425 |
| Cases cited: ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 |
| Applicant: | BXO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1933 of 2016 |
| Judgment of: | Judge Barnes |
| Hearing date: | 22 August 2018 |
| Delivered at: | Sydney |
| Delivered on: | 20 August 2019 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
A writ of certiorari issue quashing the decision of the Second Respondent dated 28 June 2016.
A writ of mandamus issue directed to the Second Respondent requiring it to determine the application for review of the decision of a delegate of the First Respondent dated 25 September 2013 according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1933 of 2016
| BXO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 28 June 2016. The Tribunal affirmed a decision of the delegate of the First Respondent dated 25 September 2013 not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka of Tamil ethnicity, arrived in Australia in June 2012. He lodged a protection visa application on 14 December 2012. He claimed that he worked as a fisherman after he left school and that as a Tamil he had no other opportunities for work and that he was denied employment because of his ethnicity. He claimed he had been abused and beaten by Singhalese fisherman and that while he had reported such incidents to the police three times, they did not do anything to help him because they were Singhalese and the police never protected minority Tamils. He claimed that in 2010 he was forced to leave his job as the threats and attacks were clearly not going to stop. He then worked on a prawn farm in poor working conditions. The Applicant claimed to fear significant harm as a Tamil in Sri Lanka, including humiliation, physical assault, degrading treatment and being prevented from earning a livelihood.
The Applicant also claimed that in 2011 his father came home from Mulathivu, an area controlled by the Liberation Tigers of Tamil Eelam (the LTTE) during the war, where he had been working as a fisherman. He claimed that his father had been away from home since 2007 and that the family had not known whether he was alive.
The Applicant claimed that in February 2012 people from the Central Intelligence Department (the CID) came to the family home looking for his father, threatened his mother and, when the Applicant attempted to protect her, beat him up. He claimed that the CID returned to the family home in March 2012, but that again his father was not at home. The Applicant claimed that when he attempted to protect his mother he was assaulted again. He claimed that his mother was threatened that if she did not disclose everything, the Applicant would “disappear”. The Applicant left Sri Lanka in May 2012.
The Applicant claimed to fear that if he returned to Sri Lanka he would be seriously harmed or killed for reason of his race as a Tamil and his imputed political opinion, on the basis he was the son of his father who was a Tamil male who had lived in Mulathivu during the period of LTTE control and had been accused of being a member of the LTTE. The Applicant claimed to fear that the Sri Lankan authorities would falsely accuse him of being a member of the LTTE, that he would be harmed as he had been in the past, and that he would be killed.
In a written submission to the delegate the Applicant’s agent claimed that the Applicant also feared harm as a member of the particular social groups of returnees from a western country/failed asylum seekers, young Tamil males and also as a member of his family unit, in particular, being his father’s son. The submission elaborated on the basis for the Applicant’s claims and provided extracts from country information.
The application was refused by a delegate of the First Respondent on 25 September 2013. The delegate had regard to inconsistencies between the Applicant’s claims and information he had provided in his biodata interview shortly after his arrival in Australia, and between his claims and claims made in his agent’s written submission.
Application to the Tribunal
After the application was refused, the Applicant sought review by the Tribunal. The Applicant’s agent provided detailed pre-hearing written submissions about aspects of his claims, commented on the delegate’s decision and addressed independent country information. The agent claimed that the Applicant had been constantly harassed by the authorities.
The Applicant attended a Tribunal hearing on 27 February 2015. He provided the Tribunal with medical reports said to relate to his father. The Tribunal adjourned the hearing until 19 March 2015. The Applicant attended the adjourned hearing. The only evidence before the court as to what occurred in the Tribunal hearings is the material in the Courtbook and the Tribunal’s reasons for decision.
Post-hearing submission
The Applicant’s agent provided a post-hearing written submission to the Tribunal. While this submission was dated 10 March 2015, it referred to the fact that the Applicant had appeared before the Tribunal on 27 February 2015 and 19 March 2015. The submission addressed recent country information and, as discussed further below, claimed that the Applicant had advised that he had previously been arrested and charged with attempting to leave Sri Lanka shortly after the civil war and addressed the implications of that claim.
The Tribunal decision
In its reasons for decision the Tribunal acknowledged the passage of time since the hearings, but stated that it had listened to the electronic recording of the hearings prior to finalising the decision. It referred to the fact that the Applicant had provided pre-hearing and post-hearing written submissions and stated that it had “had regard” to those submissions, which were said to be “set out relevantly in more detail below”. It acknowledged that the Applicant had provided his father’s medical records.
The Tribunal referred to policy guidelines and relevant DFAT Reports discussed at the hearing and to the fact that in the post-hearing submission the agent had put forward reasons the Tribunal should place “lessor (sic) weight” on the DFAT report. It also referred to a more recent DFAT report issued after the hearing which was said to contain “materially the same” relevant information as the prior reports.
The Tribunal was satisfied that the standard of interpreting at the hearing was reasonable, that the Applicant was able to communicate effectively, that he understood the Tribunal proceedings and that he participated in a meaningful way.
It recorded that it had told the Applicant during the hearings that his credibility was in issue and had discussed with the Applicant “in detail” all his claims. The Tribunal then addressed the Applicant’s claims of past harm.
The Tribunal summarised the Applicant’s claims as claims that his father was a fisherman who sometimes worked in the Northern province of Sri Lanka who went missing in 2008 but returned in 2011. The Applicant did not know what his father did during these years. It recorded the claim that the authorities suspected that the Applicant’s father was connected to the LTTE and that they had come to the family home looking for him more than once in 2012, questioned the Applicant and his mother about his father’s whereabouts and had beaten them both.
The Tribunal recorded that the Applicant also claimed that the Sri Lankan authorities had harmed his mother and father after he came to Australia, that his father had since disappeared and that his mother and sisters were living in hiding. It recorded that he also claimed that he had been harassed by Singhalese fisherman and then by his Singhalese employer at the prawn farm.
The Tribunal referred to a discussion at the hearing of difficulties it had with the Applicant’s evidence about past harm. Insofar as the Applicant told the Tribunal that his father’s medical records related to a recent assault, the Tribunal noted that the records were dated from October 2013 which “was not recent”. It pointed to the fact that the documents referred to a person with the same family name as the Applicant having suffered bleeding from the mouth after falling off a bike (not a large wound to the back of the head as the Applicant claimed his father had suffered) and that there was no information about the father being in a coma for about a week (as the Applicant claimed). The Tribunal did not accept the Applicant’s explanation that if his father had said he was assaulted the hospital would not treat him, in light of the fact that the cause of the injury and also the type of injury described in the records were inconsistent with the Applicant’s claims. The Tribunal also stated that it had raised with the Applicant the fact that the hospital records stated that the patient was seen again for treatment on multiple occasions and that this appeared to be inconsistent with his claim that his father had disappeared after he was discharged from hospital.
The Tribunal acknowledged that the Applicant may not be able to understand the contents of the medical records and that he was recounting things he claimed he was told by his mother, but found his evidence about the circumstances and nature of his father’s injury and the contents of the medical records was too inconsistent for it to be able to give him the benefit of the doubt.
The Tribunal did not accept that the Applicant’s father was assaulted by the Sri Lankan authorities or by any other person. It did not accept that his father had disappeared. It considered that the Applicant had fabricated these claims and that this weighed in favour of the Tribunal finding that he was not a credible witness. The Tribunal was of the view that the provision of these medical records to support fabricated claims further undermined the credibility of the Applicant.
The Tribunal also had regard to inconsistencies in the Applicant’s evidence regarding the number of times the Sri Lankan authorities came to the family home looking for his father. It acknowledged that the Applicant had told it that he had prepared notes of the events regarding when the Sri Lankan authorities visited and that it had commented that it expected the Applicant to recall from his memory the events he claimed had occurred. It stated that it had told the Applicant it would put more weight on oral evidence he gave spontaneously.
The Tribunal recorded that while the Applicant’s evidence was that he could not recall the dates well because they were things his mother had told him, he had also confirmed that he was present at the time he claimed the Sri Lankan authorities came looking for his father. The Tribunal had regard to its concerns about the Applicant’s evidence as to when and how many times the authorities came looking for his father, when he was assaulted by the authorities and whether his mother required medical treatment. It recorded in detail the Applicant’s conflicting evidence in that respect, in particular as to whether there were two or three visits, whether he was beaten on the first visit, how many times he was beaten (and when) and whether his mother required any medical treatment.
The Tribunal also had regard to inconsistencies in the Applicant’s claims about whether anything further happened to his mother and whether their home was demolished after he left Sri Lanka (which it detailed). The Tribunal also took into account difficulties with the Applicant’s evidence that he was not in contact with his mother, having regard to the fact that he had also said that she sent his father’s medical records to him.
The Tribunal observed that while the Applicant claimed that nothing happened to his father between April 2013 and the claimed assault in October 2013 (because his father was in hiding at other peoples’ houses in the village and not working), it had put to him that his home village was not big and that if the Sri Lankan authorities had a genuine interest in locating the Applicant’s father, they would have been able to do so.
The Tribunal concluded that the Applicant had provided inconsistent evidence regarding: the number of times the Sri Lankan authorities came to the house looking for his father; when and how many times the Applicant was beaten; when and whether he or the Sri Lankan authorities went to look for his father; whether his mother required medical treatment; and damage to his family home. It found that the Applicant’s inability to consistently recount events which he personally witnessed caused it to doubt the credibility of his evidence. The Tribunal found that, other than the damage to his home, these were not events where the Applicant was relying on information from his mother. It observed that it had not questioned the Applicant as to the dates these events occurred, but rather about the sequence and number of events. It was not persuaded that the Applicant’s claims that he had difficulty with dates explained the inconsistencies in his evidence. Nor was it persuaded by the Applicant’s explanation that the third occasion on which the authorities visited the family home was a reference to a claim about the return of the authorities soon after they went to look for the Applicant’s father as it did not consider “soon” to be “a month later”. The Tribunal was not persuaded that the Applicant misunderstood its question about his mother going to the hospital alone or that the Sri Lankan authorities would be unable to find the Applicant’s father or mother when they both remained residing within the Applicant’s home village.
The Tribunal considered that the large number of inconsistencies, the material nature of the inconsistencies and the Applicant’s “non-persuasive explanations” greatly undermined his credibility and weighed in favour of a finding that he was not a credible witness.
The Tribunal was willing to accept that the Applicant’s father had previously worked in the Northern province and that he was missing between 2008 and 2011. However it was not willing to accept that the Applicant’s father had any connection to the LTTE or that the authorities had any interest in his father. In reaching that conclusion the Tribunal stated that it had placed weight on cited country information which was said to indicate that the authorities did not consider that every Tamil was connected to the LTTE and also that they employed sophisticated intelligence gathering techniques.
The Tribunal rejected the claims that the authorities ever came to the Applicant’s home looking for his father; that the Applicant or his mother were ever assaulted or threatened by the authorities; that his house was robbed or demolished after he departed Sri Lanka; or that his mother or sisters were in hiding. The Tribunal reiterated that it had rejected the claims that the Applicant’s father was assaulted or that his father had disappeared. It found that the Applicant had manufactured these claims to create a profile upon which to apply for protection.
The Tribunal found that the Applicant had not suffered harm in the past.
The Tribunal then addressed the Applicant’s claims that he would be targeted by the authorities for future harm if he returned to Sri Lanka. In that context, the Tribunal rejected the Applicant’s claims to fear harm as a young Tamil male and because his father formerly lived in the Northern province of Sri Lanka having regard to the fact that it had rejected the claims of past harm and in light of country information about which the Applicant was said to have made no comment.
The Tribunal took into account the fact that the Applicant had told it that he was not in the LTTE and that he was unsure about his father’s involvement with the LTTE, although he claimed that the authorities suspected that his father was connected to the LTTE.
The Tribunal considered the situation for Tamils in Sri Lanka. It accepted, based on country information, that most Tamils experienced some degree of harassment and discrimination, but stated that having considered the Applicant’s “individual circumstances”, it was satisfied that he faced a remote chance, and therefore not a real chance, of serious harm from the Sri Lankan authorities because he was a Tamil.
The Tribunal did not accept that the Applicant had “any profile” which would warrant the Sri Lankan authorities targeting him for harm. It did not accept that he would be imputed with any anti-government or pro-LTTE opinion because of any of the other reasons claimed, including his youth, his race as a Tamil, because his father worked in Northern province, or because he departed Sri Lanka illegally and applied for asylum.
The Tribunal was of the view that there was only a speculative, and therefore not real, chance that the Applicant would suffer serious harm from the Sri Lankan authorities because of his race, any particular social group or political opinion, or for any other Convention reason now or in the reasonably foreseeable future if he returned to Sri Lanka.
The Tribunal considered in detail the Applicant’s claim to fear harm because he had applied for asylum in Australia. It stated that there were two aspects to this claim: first, that the authorities would impute the Applicant with a pro-LTTE/anti-government political opinion because he had applied for asylum and second, that they would seek to punish him because they would assume he was critical of them in his claims for asylum.
The Tribunal observed that the relevant Refugees Convention ground was an implied political opinion of being against the Sri Lankan authorities due to the Applicant’s application for asylum overseas or his membership of the particular social group of returned failed asylum seekers. It found that the Applicant’s claim based on his race as Tamil and an implied political opinion of being pro-LTTE because he was a Tamil and/or because he had applied for asylum overseas were interrelated to this claim. In any event, the Tribunal was of the view that “regardless” of which Convention reason was in question, the issues under consideration were substantially the same.
The Tribunal had regard to country information in relation to the treatment of Tamils and failed asylum seeker returnees to Sri Lanka. In the course of referring to such information it observed that it had discussed with the Applicant reports of some Tamils being questioned, detained and tortured by the authorities on their return to Sri Lanka as failed asylum seekers. However it also referred to information indicating that all Sri Lankan nationals were treated in the same way with regard to entry procedures, that there were relatively few allegations of mistreatment and that, according to DFAT, many allegations of mistreatment had not been substantiated.
The Tribunal did not accept that “all” failed asylum seekers were imputed with anti-government or pro-LTTE political opinion by the authorities, regardless of whether the returnees were Tamils or not. It continued at paragraph 52:
… In making that assessment the Tribunal has had (sic) placed weight on the UNHCR guidelines and the Upper Tribunal guidance decision noted above which indicate that while persons with links to the LTTE may be in need of protection, the Sri Lankan authorities rely on sophisticated intelligence gathering in identifying persons with such links. The Tribunal has had regard too (sic) there being no outstanding charges against the applicant and to the applicant’s low level connections to the LTTE through his father’s having previously worked in an LTTE controlled area of Sri Lanka.
Having regard to the Applicant’s circumstances as a whole, the Tribunal was not satisfied that the Applicant would be imputed with an anti-government or pro-LTTE political opinion “because” he would return to Sri Lanka as a person who applied for asylum overseas, or that his family would be “destroyed”, or that he would he face a lot of problems. The Tribunal stated that it had regard to country information about the return of failed asylum seekers and that it had been “mindful of the questioning process”, and not just the outcome of any questioning. It was not satisfied that such questioning amounted to serious harm within the Migration Act 1958 (Cth) (the Act). It was not satisfied that the Applicant had a real chance of serious harm because of an implied political opinion or membership of any particular social group, however described, arising from his return to Sri Lanka as a person who had applied for asylum in Australia.
The Tribunal then considered the Applicant’s claim he would be harmed “because he departed Sri Lanka illegally”. It accepted that he had departed Sri Lanka in 2012 without his passport and not from an approved port. It recorded that it had discussed with the Applicant that this was an offence under the Sri Lankan Immigration and Emigration Act 2006 (IEA). It referred to a discussion of country information indicating information that failed asylum seekers who departed Sri Lanka illegally were arrested upon return, charged with offences relating to their illegal departure, held on remand until brought before a magistrate, and, after a bail hearing, were granted bail with a personal surety and were able to return to their home area. It recorded that it had put to the Applicant that the period on remand varied between a couple of hours to a couple of days, although there were reports of it being up to two weeks. The Tribunal also recorded that the Sri Lankan authorities would “investigate the background and identity of each returnee which can involve contacting the person’s family and the police in their home area” and that eventually the returnee would have to return to court to face the charges. It found that while the IEA provided that the penalty for illegal departure was a prison sentence and a fine, magistrates could use their discretion and that only returnees suspected of people smuggling offences had been denied bail or given a prison sentence.
The Tribunal stated that it was mindful that it must have regard to whether there was a chance of harm during the process involved in interrogation or questioning.
The Tribunal considered that the offences under the IEA were laws of general application. It was not satisfied that those laws were discriminatory in their terms or enforced in a selective or discriminatory way. It found that any harm the Applicant may suffer from punishment for an offence under the IEA had no element of persecution for the purpose of s.91R(1)(c) of the Act. It did not accept that the Applicant’s prosecution for breach of Sri Lankan migration laws would amount to persecution.
The Tribunal was also of the view that country information did not suggest that people were harmed for reason of their asylum claims.
The Tribunal referred to country information to the effect that bail was routinely given on the accused’s own recognisance, although a family member was also required to provide surety. It had regard to the possibility that a returnee would be held on remand and to the decision of the High Court in Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22; (2015) 254 CLR 610. The Tribunal accepted that conditions in Sri Lankan prisons were poor. It noted country information about the treatment of those held in prison, including reports of torture and assault, but observed that DFAT had indicated that it was unaware of reports of mistreatment of returnees held on remand and that it was prisoners who otherwise had a “profile” of being opposed to the current Sri Lankan government (such as persons affiliated to the LTTE) who were targeted in this way. The Tribunal recorded there had not been reports that returnees awaiting bail hearings had been subjected to torture or other forms of deliberate mistreatment. It considered that any period that the Applicant spent on remand would be as a result of the application of the IEA laws, which were laws of general application and that since remand would be a consequence of those laws it would therefore not constitute persecution. In addition, the Tribunal was not satisfied that the Applicant would face a real chance of serious harm while held on remand for a short period.
The Tribunal found it would not be because the Applicant was a Tamil or a failed asylum seeker, but rather because he had departed Sri Lanka illegally that he would be charged or held on remand or questioned at the airport or further questioned on return to his village. It was not satisfied that any difficulties the Applicant may face as a result of being questioned, charged, or encountering cramped and uncomfortable and unsanitary conditions on remand were “aimed” at him for any Convention reason, but that they were factors which applied generally and not specifically to Tamils or failed asylum seekers or persons with imputed political opinions. It was not satisfied that questioning, arrest, the poor conditions in remand and the application of a penalty for illegal departure amounted to systematic and discriminatory conduct within s.91R(1)(c) of the Act.
Based on the available country information, the Tribunal found that there was only a remote, and not a real, chance that the Applicant would be sentenced to a term of imprisonment for his offences under the IEA. It also considered it highly likely that he would not be fined a substantial amount. It noted that the Sri Lankan Criminal Code made provision for payment by instalments. The Tribunal found that the evidence before it did not suggest that the Applicant would be unable to pay such a fine or that payment of the fine would cause him hardship, or that he was without any relative able to provide surety. It was of the view that he would be able to receive a suspended sentence. The Tribunal considered there was no real chance that the Applicant would face an extended period of imprisonment arising from his illegal departure from Sri Lanka.
The Tribunal concluded that the Applicant did not face a real chance of persecution due to his illegal departure from Sri Lanka.
Having rejected the claims that the Applicant’s mother and sisters were living in hiding and that his father had disappeared, the Tribunal was not satisfied that there was a real chance that the Applicant would suffer serious harm for these reasons.
The Tribunal was willing to accept that the Applicant had experienced harassment and discrimination by Singhalese fisherman and by his employer in the past, but did not consider that this amounted to serious harm. Insofar as the Applicant claimed he would not be able to find work or accommodation because he did not speak Singhalese, the Tribunal noted that he had been able to find work and a place to live in the past. It did not accept that Tamils, who comprised about 20 per cent of the Sri Lankan population, were unable to find work or accommodation. It also noted that the Applicant’s father had been able to move around Sri Lanka to look for work. It was of the view that the Applicant had exaggerated these claims. While the Tribunal accepted that Tamil Sri Lankans experienced harassment and discrimination from Singhalese, having regard to the country information and “considering the applicant’s individual circumstances” it rejected the Applicant’s claim he would be unable to find work or accommodation or that he would have to live in hiding. It was satisfied the Applicant faced a remote chance, and therefore not a real chance, of serious harm from Singhalese Sri Lankans because he was a Tamil.
The Tribunal stated that it had considered the claims of the Applicant “individually and cumulatively” and was not satisfied that he met the Refugees Convention criterion.
The Tribunal considered the complementary protection criterion. It referred to the fact that it had accepted that Tamils in Sri Lanka had historically faced a degree of harassment and discrimination (such as difficulties in accessing employment and disproportionate monitoring by security forces) on account of their ethnicity, both from the authorities and from Singhalese Sri Lankans and that they may continue to do so. However, it was not satisfied that such harassment of or discrimination towards Tamils met any of the definitions of conduct that amount to significant harm within the Act. In particular, while it accepted that such harassment and discrimination may cause some humiliation to the Applicant, it was not satisfied that it would cause extreme humiliation which was unreasonable within the s.5(1) definition of “degrading treatment or punishment”. Therefore it was not satisfied that any harm to the Applicant from harassment or discrimination would amount to significant harm.
Under the heading “Illegal departure”, the Tribunal also stated that it had considered whether the harm the Applicant may suffer arising from committing “offences under the IEA” amounted to significant harm, in particular, being questioned, subjected to bail conditions, detained for a short period while on remand and the imposition of a fine. The Tribunal found that such consequences did not come within the definitions of significant harm. It noted that the definition of “cruel and inhuman treatment or punishment” required that pain or suffering be intentionally inflicted and that the definition of “degrading treatment or punishment” required that the relevant act or omission be intended to cause extreme humiliation. The Tribunal did not accept that the pain or suffering caused by overcrowding and other problems in prisons in Sri Lanka was intentionally inflicted on prisoners or intended to cause extreme humiliation and was not satisfied that any harm arising from the Applicant being questioned, subjected to bail conditions, detained while on remand or fined would amount to significant harm. It was not satisfied that the Applicant had a real risk of significant harm.
The Tribunal affirmed the decision under review.
The Applicant sought review by application to this court filed on 22 July 2016. He did not file an amended application, but filed written submissions which went beyond the matters raised in the application. The First Respondent addressed both the application and the submissions and I have considered the matters raised therein. It is convenient to consider first the grounds in the application.
Ground 1
Ground 1 in the application is as follows:
1. The Tribunal erred failing to assess for complementary protection whether a “period of detention” would amount to “significant harm” (s 36(2A)) or “serious harm” (s 91R(2)) and s 5 of the Migration Act and thereby committed jurisdictional error and/or failed to consider complementary protection for consequences of illegal departure and failed to address whether the detention. The Tribunal engaged in jurisdictional error by failing to ask itself the right questions and misconstruing the provisions when addressing whether Sri Lankan law concerning illegal departure could attract protection under the complementary protection provisions.
Particulars
(i) The Tribunal accepted that the Applicant would be charged for illegal departure. The Tribunal found that the Applicant could be detained upon return to Sri Lanka.
(ii) The Tribunal found that the condition in the prison is likely to be poor. The Tribunal accepted that the Applicant would be held in custody pending determination of bail in poor conditions. The Tribunal failed to assess whether this constituted significant/“serious harm” pursuant to (s 91R(2)(a) – (c)) of the Act.
(iii) Failed to address whether these constituted “serious harm” pursuant to (s 91R(2)(a)(c)) of the Act; (s 36(2A)) or “serious harm” under s 5 of the Migration Act. Short term detention for illegal departure was not considered under Complementary protection nexus (or if so was considered generally). The short term detention constitutes “significant harm” pursuant to (s 36(2A))(a), (d) and (e)) of the Act. The short term detention constitutes “significant harm” pursuant to (s 36(2A))(a), (d) and (e)) of the Act.
(iv) The Tribunal failed to address and/or misconstrued or misapplied the words “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhumane treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act.
(Errors in original)
This ground was not addressed in the Applicant’s submissions. As drafted, it appears to relate only to the Applicant’s claims about the consequences of his (successful) illegal departure from Sri Lanka in 2012 and does not appear to raise any issue about the Tribunal’s failure to consider the claim in the agent’s post-hearing submission about a prior arrest and charge in respect of an earlier unsuccessful attempt to leave Sri Lanka. That issue is considered further below.
As the First Respondent contended, the Tribunal considered the consequences of the Applicant’s illegal departure from Sri Lanka in 2012 in the context of addressing the Refugees Convention and the complementary protection criteria. In particular, it considered whether a period of detention on remand in an overcrowded prison while awaiting bail would amount to significant harm as variously defined in s.5 of the Act.
In considering the Refugees Convention criterion, under the heading “Illegal departure from Sri Lanka” the Tribunal accepted that the Applicant departed Sri Lanka illegally (which he had claimed occurred in May 2012) and that country information indicated that since November 2012 failed asylum seekers who departed illegally had been arrested on return, charged with offences relating to illegal departure under the IEA, held on remand, brought before a magistrate, granted bail and fined.
As set out above, and contrary to the contention in this ground, the Tribunal considered whether questioning, arrest and poor conditions on remand and the application of a penalty for such illegal departure met the Refugees Convention criterion, but was not satisfied that any difficulties the Applicant may face as a result were aimed at him for any Convention reason or amounted to persecution for the purpose of s.91R of the Act. In that context it found that a period spent on remand would be the consequence of a law of general application and therefore not persecution. Further, due to the short-term nature of the imprisonment on remand, it was not satisfied that the Applicant would face a real chance of serious harm. It was also not satisfied that encountering the poor conditions on remand would be aimed at the Applicant for any Convention reason or would amount to systematic and discriminatory conduct as required by s.91R(1)(c) of the Act. Insofar as it is asserted that the Tribunal erred in failing to consider whether a period of detention on remand because of the Applicant’s illegal departure in 2012 constituted serious harm, this ground is not made out.
Further, in considering the complementary protection criterion, the Tribunal stated under the heading “Illegal departure”:
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 that any harm arising from his being questioned, the bail conditions, being detained while on remand or fined will amount to significant harm.
In other words, the Tribunal considered in some detail whether the harm the Applicant may suffer arising from committing offences under the IEA because of his illegal departure in 2012 amounted to significant harm (in particular, being questioned, being subject to bail conditions, being detained for a short period while on remand and the imposition of a fine). Having regard to the various definitions of conduct amounting to significant harm of potential relevance, it found that such consequences did not amount to significant harm.
In particular, contrary to the contention in ground 1, the Tribunal did consider whether a period of detention on remand pending the grant of bail would amount to significant harm. It recognised and considered the fact that conditions in prison were poor, but made findings in light of its view of the evidence as to the extent of any such possible detention while on remand.
Further, insofar as it was contended that the Tribunal had failed to address and/or misconstrued or misapplied the words “intentionally inflected” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”, this has not been established. The Tribunal cited the decisions of the High Court in WZAPN and SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; (2015) 321 ALR 44. The Tribunal proceeded on the basis that it was necessary for there to be an intention to inflict pain or suffering or to cause extreme humiliation for conduct to come within those definitions of conduct amounting to significant harm (see SZSPE v Minister for Immigration and Border Protection [2014] FCA 267).
While the Tribunal decision was made before the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, its reasoning was not inconsistent with the approach of the High Court in this respect (see SZTAL at [26]).
As pleaded, ground 1 is not made out.
Ground 2
Ground 2 in the Application is as follows:
The Tribunal committed jurisdictional error and denied the Applicant procedural fairness in relation to this relevant and determinative issue.
Particulars
The Tribunal fell into error when it failed to put determinative issues to the Applicant.
(Errors in original)
There is a lack of clarity in this ground. It was not addressed in the Applicant’s submissions. The particulars do not identify any issue which ought to have been, but was not, put to the Applicant at the hearing, whether in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 or otherwise. If the reference in the ground to “this” relevant and determinative issue is intended to refer to issues in relation to the consequences of the Applicant’s illegal departure from Sri Lanka in 2012 canvassed in ground 1, there is no evidence that the Tribunal failed to raise dispositive issues in that respect at the hearing. The Tribunal recorded that it discussed the consequences of illegal departure (and country information in that respect) with the Applicant. There is no transcript of either of the Tribunal hearings in evidence.
On the material before the court, it has not been established that the Tribunal failed to afford the Applicant a meaningful invitation to a hearing as required under s.425 of the Act, that it failed to put determinative (or dispositive) issues to him at the hearing or that, whether in relation to the consequences of illegal departure or otherwise, it denied him procedural fairness.
Ground 2 is not made out.
Ground 3
Ground 3 in the Application is as follows:
The Tribunal denied the Applicant procedural fairness and thereby breached s 425 and/or 424AA of the Act when it failed to put determinative issues to the Applicant. The Tribunal committed jurisdictional error. The Tribunal misapprehended the Applicant’s claims.
Particulars
The Tribunal failed to put the Applicant on notice of dispositive/determinative issues – delegate did not make adverse findings about the various incidents claimed by the Applicant; the Tribunal proceeded make adverse findings without giving the Applicant a chance to be heard on issues.
(Errors in original)
This ground was addressed in the Applicant’s written submissions. Insofar as it involves a contention that the Tribunal failed to put dispositive issues to the Applicant at the hearing, as indicated in relation to ground 2, there is no evidentiary basis for such a contention in the absence of a transcript. Whether or not the delegate made adverse findings about particular incidents is not in itself indicative of jurisdictional error. I note that the Tribunal indicated in its reasons for decision that it raised generally with the Applicant the issue of credibility and its concerns in relation to various aspects of his claims. It described aspects of his oral evidence and responses when concerns were raised.
No failure to comply with s.425 of the Act has been established on the evidence before the court.
Further, insofar as this ground is intended to suggest that the Tribunal was under an obligation to put its “provisional reasoning” to the Applicant under s.424A or s.424AA of the Act, that is not the case (see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 1 at [18]).
In written submissions the Applicant contended that the Tribunal failed to comply with ss.424A or 424AA (as considered in SZTGV v Minister for Immigration and Border Protection [2015] FCAFC 3; (2015) 318 ALR 450) in respect of information that he had given orally to the delegate at the departmental interview. It was submitted that such information was taken into account by the Tribunal in determining whether the Applicant was a truthful witness.
There are a number of difficulties with this contention. In the written submissions there is a reference to information provided in relation to “the applicant’s first protection visa application”. However it was confirmed during the hearing that the Applicant had made only one protection visa application, although he did attend two Tribunal hearings. Hence no issue arises as to information provided in support of another visa application.
It is the case that information provided orally by an applicant to the Department is outside the s.424A(3)(ba) exception for information given during the process that led to the decision under review, but the Applicant’s submission does not identify any particular information given orally to the Department, let alone identify the information said to enliven a s.424A(1) obligation. Rather, the submission refers to four aspects of the Tribunal’s findings in relation to the Applicant’s claims of past harm in support of the proposition that the Tribunal’s approach indicated that it had failed to put information it considered to be the reason or part of the reason for affirming the decision under review to the Applicant for comment. The paragraphs cited (paragraph 30, 31, 33 and 36) relate to inconsistencies between the Applicant’s evidence to the Tribunal (whether orally or in writing) and either his written statement or written submissions from his agent, not to his oral evidence to the delegate.
Written information given to the Department (such as the written statement) is within the s.424A(3)(ba) exception. Information the Applicant gave to the Tribunal for the purpose of the application for review, including information given orally to the Tribunal, is within the exception to the s.424A(1) obligation in s.424A(3)(b) of the Act. Hence, even if the information referred to in these paragraphs of the Tribunal decision was to be seen as “information that the tribunal considers would be the reason or part of the reason for affirming the decision under review”, such information would be within the exceptions in s.424A(3) of the Act.
Thus, in paragraph 30 of the decision the Tribunal noted that the Applicant had provided inconsistent evidence regarding when the Sri Lankan authorities returned to look for his father. However the inconsistencies referred to were between the evidence in the Applicant’s written statement accompanying his visa application and his oral evidence to the Tribunal, including his oral evidence to the Tribunal in relation to how often and when the Sri Lankan authorities came to the family home. Paragraph 30 does not refer to evidence the Applicant gave orally to the Department.
Similarly, in paragraph 31 the Tribunal had regard to differences between the Applicant’s initial oral evidence to it about the number of assaults he claimed he had experienced (and when) and whether his mother required medical treatment, and the claims in his written statement in support of his protection visa application. Paragraph 32 also referred to information in the agent’s post-interview written submissions. These paragraphs did not raise any issue about evidence the Applicant gave orally to the delegate.
The next paragraph cited in the Applicant’s written submissions is paragraph 33 of the Tribunal decision, in which the Tribunal was said to have raised concerns that there was a discrepancy in relation to the Applicant’s evidence about attacks on his mother and demolition of the house. Paragraph 33 is as follows:
Attack on his mother after the applicant left Sri Lanka. The applicant told the Tribunal after he left Sri Lanka, his house was demolished, because his mother was not there at the time unknown persons came (impliedly the Sri Lankan authorities returned to look for his father). The Tribunal commented that appeared to be a new claim he had not raised before. The applicant replied he referred to that event during his interview with the visa officer. The Tribunal noted in the post-interview submissions of his migration agent, he made claims regarding his family home. He confirmed that was what he was referring to. He confirmed, after the house was demolished his mother moved to live with his aunt and that nothing else had happened to her afterwards. The Tribunal noted that was inconsistent with the claims set out in the post-interview submissions of his migration agent. He added threats were made to his mother to kidnap the applicant if she did not tell his whereabouts. He said those threats were not made on the date the house was demolished, but after he left Sri Lanka. The Tribunal put to him the post-interview submissions of his migration agent state his home was robbed and his mother was beaten. The submissions did not refer to his house being demolished and the applicant made no reference during the hearing to any robbery or assault on his mother in April 2013.
While there is an initial reference in this paragraph to information the Applicant claimed that he provided to the delegate during the interview, the Tribunal had regard to the fact that the claim in question was made in the agent’s post-interview written submission to the delegate (which would be within the s.424A(3)(ba) exception). Even if the Applicant had also made such a claim in his interview with the delegate, it would have been open to the Tribunal to have regard to the written claim by the agent (if the information therein was part of the reason for affirming the decision under review) without giving particulars of that written information to the Applicant for comment under s.424A or s.424AA of the Act.
In any event, the Applicant’s claim about demolition of his house (whenever made) was not information which in its terms constituted a rejection, denial or undermining of his claims to be owed protection in the sense considered in SZBYR at [17] (also see Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507 at [22]).
Finally, the Applicant referred in written submissions to paragraph 36 of the Tribunal decision. It was pointed out that in this paragraph the Tribunal had found that the Applicant had provided inconsistent evidence about the number of times the Sri Lankan authorities came to his house looking for his father, when and how many times the Applicant was beaten, when and whether he or the Sri Lankan authorities went to look for his father, whether his mother required medical treatment and any damage to his family home. It was submitted that these concerns should have been raised formally under ss.424A or 424AA of the Act.
In paragraph 36, the Tribunal stated its conclusions that the Applicant had provided inconsistent evidence in relation to a number of aspects of his claims. In effect, this paragraph contains a summary of the Tribunal’s earlier consideration of various inconsistencies between the Applicant’s evidence and his written claims.
Read in the context of the earlier detailed consideration of inconsistencies, the Tribunal’s reference in paragraph 36 to its lack of satisfaction with the Applicant’s “explanation” for inconsistencies in his claims clearly refers to explanations he provided orally to it (not to oral explanations to the Department). The Tribunal was not obliged to put such matters to the Applicant under s.424A of the Act (see s.424A(3)(b)).
I also note that the Applicant gave the Tribunal a copy of the delegate’s decision. Hence information in the decision would be subject to the exception in s.424A(3)(b) of the Act. In written submissions the Applicant acknowledged the existence of this exception.
No failure to comply with ss.424A or 425 of the Act has been established in the manner contended for in this ground. As it has not been established that any information enlivened the s.424(1) obligation, no issue of whether information was put to the Applicant at the hearing under s.424AA of the Act arises for consideration.
Other issues in relation to ground 3
The Applicant’s written submission raised a number of issues relevant to the contention in ground 3 that the Tribunal “misapprehended the Applicant’s claims”.
First, it was submitted that the Tribunal had failed to consider an integer of the Applicant’s claims, being a claim to fear harm as a member of the particular social group of Tamil fishermen and hence that the Tribunal had failed to consider whether Tamil fishermen would face economic hardship or economic persecution.
The Tribunal accepted that the Applicant had worked as a Tamil fisherman. Apart from considering in some detail his claims to fear harm as a Tamil, it also considered the claims he made relevant to his identity as a Tamil fisherman, in particular, that he was denied work in the past, harassed by Singhalese fishermen, underpaid and beaten by his Singhalese employer at the prawn farm and that he feared future harassment and discrimination as a Tamil (albeit not specifically as a Tamil fisherman). The Tribunal was willing to accept that the Applicant had experienced harassment and discrimination as claimed, but did not consider that this amounted to serious harm constituting persecution or significant harm. Further, having regard in particular to country information and the Applicant’s individual circumstances, the Tribunal rejected his claim that he would not be able to find work or accommodation or that he would have to live in hiding.
In the context of considering the complementary protection criterion, the Tribunal further considered the Applicant’s claims of harassment and discrimination against Tamils by the authorities and Singhalese Sri Lankans. It accepted that Tamils may continue to face such problems, including difficulties in accessing employment and disproportionate monitoring by the security forces, but was not satisfied that any such harm arising to the Applicant would amount to significant harm. As the First Respondent submitted, the complementary protection findings must also be seen in light of the Tribunal’s earlier findings rejecting the claim that the Applicant would be unable to find work or accommodation or that he would have to live in hiding. These findings were made generally and were not related to a Convention nexus.
While the Applicant did claim that he had worked as a fisherman, there is no evidence that he claimed to fear harm as a member of a particular social group of Tamil fishermen, as distinct from claiming to fear harm as a Tamil, including from Singhalese fishermen. In any event, having considered, but rejected, the basis for such claimed fears, it was not necessary for the Tribunal to consider whether “Tamil fisherman” constituted a particular social group. No jurisdictional error is established on this basis.
The Applicant also contended that he had mentioned in his claim (his written statement) that he belonged to the Hindu faith, which was a minority religion and that the Tribunal had “failed to ask relevant questions” to assess whether he would face harm on the basis of his religious belief, notwithstanding that in a written submission his agent had mentioned that the Sri Lankan government was supporting the erection of Buddhist statues in Hindu areas. The Applicant submitted that this was evidence that he had made, at least implicitly, a claim on the basis of his religion.
There is no evidence or suggestion that the Applicant made an express claim to fear harm on the basis of his religion. In the first written submission to the Tribunal, the Applicant’s agent did refer to the fact that the Sri Lankan government was supporting the erection of Buddhist statues in Hindu areas but, as the First Respondent submitted, the agent made that submission in the context of supporting the Applicant’s claim that he feared harm as a Tamil. I am not satisfied that this reference, or any of the other material before the court, is such as to raise clearly or squarely a claim that the Applicant feared harm on the basis of his religion in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs(No 2) [2004] FCAFC 263; (2004) 144 FCR 1.
Further, insofar as the Applicant’s written submission contended that the Tribunal was under an obligation to ask “relevant questions” to assess whether he would face harm on the basis of his religious belief, it is for an applicant to put before the Tribunal the basis on which he or she claims to fear harm and not for the Tribunal to search for a potential Refugees Convention claim. Jurisdictional error is not established on this basis.
The Applicant’s written submission also asserted that while in the submission to the delegate his representative had provided evidence of increased criminal activities and extortion, the Tribunal had failed to assess or to ask relevant questions to assess such a claim.
However, as the First Respondent submitted, while the agent’s submission to the Department noted material on extortion, it did not identify any “substantial, clearly articulated argument relying on established facts” that the Tribunal had failed to address in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24]. Rather, the reference to increased criminal activities and extortion in the agent’s submission was relied on in support of the contention that the Applicant feared harm as a young Tamil male. In that context, reference was made to evidence of enforced and involuntary disappearances, some of which appeared to be politically motivated, but which were also said to be increasingly connected with extortion and other criminal activities, sometimes involving government actors. This passing reference is not such as to raise squarely or clearly a claim that the Applicant himself feared the consequences of criminal activities or extortion. The Tribunal was not under an obligation to identify potential claims.
More pertinently, the contention in ground 3 that the Tribunal misapprehended the Applicant’s claims was elaborated on as follows in the Applicant’s written submission to the court:
The Tribunal considered what would happen to the applicant who left illegally and formed the view that he would be detained for a short period only and the Magistrate would use his discretionary power to release him on bail. However, the Tribunal failed to take into consideration of a critical fact or over looked the fact which is critical in evaluating whether the Magistrate would exercise his discretion in releasing him on bail. In the applicant's representative's submission (see Court Book page 275) the applicant's representative submitted that the applicant's case would be further strengthened by the applicant's previous failed attempt to escape Sri Lanka shortly after end of the civil war. The applicant submits that the Tribunal over looked the evidence because in his case, there is a likelihood that the Magistrate would not even release him on bail as he would be considered as a repeat offender and in such a situation, he would be imprisoned not for short period but for a longer time. The Tribunal formed the view that since he would be detained for a short period and therefore, he would not face significant harm. If the Tribunal had considered the critical factual information and failed to overlook the critical claim and evidence, it wouldn’t have formed the view that he would not be detained only for a short period. In such a situation, it would have formed a view that the applicant would face longer term in imprisonment which would satisfy the element of significant harm.
(Errors in original, emphasis added)
It is apparent that the reference in the second-last sentence to “and failed to overlook the critical claim and evidence” is intended to mean “and had not failed to overlook the critical claim and evidence”.
In his written submission, the Applicant variously contended that the Tribunal had failed to consider information and materials; failed to consider or to adequately or actively consider an aspect of his claims; failed to engage in an active intellectual process with this information (see DZADQ v Minister for Immigration and Border Protection [2014] FCA 754); failed to ask relevant questions; or failed to engage in “constructive inquisitorial inquiry”. The Applicant cited various authorities, including Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and Dranichnikov, and went on to contend that the Tribunal failed to make an inquiry of the nature described in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 and/or acted unreasonably.
The Applicant submitted that the Tribunal had clear knowledge of the claim made in his agent’s post-hearing submission about his previous failed attempt to escape Sri Lanka shortly after the end of the civil war. This was said to be a critical fact or matter relevant to whether he would be detained for only a short period or released on bail for the offence of departing Sri Lanka illegally. It was submitted that there was a likelihood that he would be viewed as a repeat offender and hence not released on bail and face a term of imprisonment. The Applicant submitted that the Tribunal failed to engage in an active intellectual process or to make inquiries about this evidence or claim (see DZADQ) and that it had failed to consider this claim. It was also submitted that even if this was not seen an express claim, such a claim emerged clearly on the material before the Tribunal in the sense considered in NABE (No 2).
In essence, the Applicant’s contention is that the Tribunal should have considered whether it accepted this claim and, if so, should have addressed the relevance of the asserted prior offence to the Applicant’s claims to fear harm on return to Sri Lanka (including as a failed asylum seeker who departed illegally in 2012).
The agent’s post-hearing submission to the Tribunal raised the issue in question at several points. First, in the context of addressing country information in relation to the situation in Sri Lanka (which was said to suggest that Tamils continued to be persecuted for their connections with the LTTE), the submission stated (Courtbook p 275 – 276):
We submit beyond the DFAT Country Report, there remains a large myriad of irrefutable country information strong suggesting that Tamils continue to be persecuted for their connections with the LTTE. The Applicant will be suspected of affiliations with the LTTE during a period where the government is staunch in attempting to suppress those trying to revive the movement, and the penalty for such an accused is likely to be severe. The case against the Applicant would be further strengthened by the Applicant’s previous failed attempt to escape Sri Lanka shortly after the end of the civil war and during a period that media had reported that escapees were former LTTE cadres fearing the authorities.
(Emphasis added)
In other words, the suggested relevance of the claim or evidence (however characterised) was not limited to the impact on the treatment of the Applicant as a person who departed Sri Lanka illegally. It was suggested that this was relevant to the Applicant’s claim to fear harm on the basis of an imputed pro-LTTE political opinion.
Next, in referring to the treatment of returning asylum seekers, after referring to further country information, the submission contended (Courtbook p 279):
In the United Kingdom Upper Tribunal’s decision of GJ & Others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319 (IAC) (5 July 2013), the Tribunal found (at paragraph 356(4)) that if a person were to be detained by the Sri Lankan secret services, that they faced a real risk of being ill-treated and harmed which would require international protection. Given the Applicant’s past altercations with the authorities, we submit that there is a real risk that if he were to return, that he would firstly be investigated by the authorities as to his motivation for leaving the country illegally and seeking protection in Australia. In the absence of his passport, further checks are likely to take place into his background and this will reveal the previous convictions against the Applicant. We submit that the Applicant is likely to undergo further questioning, not applicable to other returnees, and subsequently faces the real risk of being seriously harmed by the authorities.
(Emphasis added)
The agent’s submission related claims about past “convictions” to the likelihood of serious or significant harm to the Applicant as a returned failed asylum seeker who left Sri Lanka illegally in 2012. I note that the submission refers to “previous convictions”. This is not explained further in the submission. However even if the reference to a “conviction” in the highlighted part of the submission is not seen as being in relation to the claim that the Applicant had made a previous failed attempt to leave Sri Lanka, the country information cited in this part of the submission includes information which suggested that the Sri Lankan authorities at the airport had access to database records going back a number of years (Courtbook p 280). The Tribunal did refer to this information in its reasons but did not address any aspect of the claim about the consequences of an earlier attempted departure from Sri Lanka.
Relevant to the claim set out at [102] above, the agent also submitted (Courtbook p 279) that even if on return to Sri Lanka the Applicant was released from custody by authorities at the airport, he faced a serious risk of being harmed when he returned to his home area for the reasons given. The submission went on to refer to information about the risk to returned Tamils with “perceived” LTTE links or associations.
Importantly, the submission concluded by asserting that country information which may appear to indicate that there was a brighter future for Sri Lanka under the new government hid the true reality of the situation for Tamils in Sri Lanka. It clarified the claim made earlier in the submission as described at [102] above, as follows (Courtbook p 286):
… The Applicant instructs that it is important that his personal circumstances be considered seriously. He instructs that if the Sirisena government really wanted to make a different (sic), returning Tamils would not continue to face harassment at the airport as they have endured in recent times. The Applicant advises that he has been previously arrested and charged with attempting to leave the country illegally shortly after the war. It will be clear to the authorities upon his forced return to Sri Lanka that the Applicant has previously attempted to escape. Given the timing of his first attempt together with his ethnicity, the Applicant is likely to be subjected to serious harm and will not be released as per the usual procedures for returning failed Tamil asylum seekers.
(Emphasis added)
In this way the submission sought to distinguish the Applicant from other returned failed Tamil asylum seekers.
The Tribunal made no express reference in its reasons to any of these claims in relation to a claimed previous attempt to leave Sri Lanka illegally.
The First Respondent pointed out that insofar as the Applicant’s submissions suggested that the Tribunal overlooked the concluding aspect of his agent’s submission when considering whether the Applicant would be granted bail when charged with illegal departure, the agent’s earlier submission in this respect (at Courtbook p 275) had been put in the context of the Applicant being suspected of LTTE affiliations, but the Tribunal had rejected such assertion.
The First Respondent also submitted that there was no basis to suggest that the Applicant’s submission was overlooked by the Tribunal, especially as it had stated in paragraph 7 of its reasons that it “had regard to those submissions”. Reliance was placed on ApplicantWAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [46].
As pleaded in ground 3, the Applicant’s claim is that the Tribunal misapprehended his claims. This would appear to involve a contention that the Tribunal failed to consider the claim about an unsuccessful attempt to depart Sri Lanka illegally shortly after the war and incorrectly proceeded on the basis that his interaction with the Sri Lankan authorities commenced in 2012.
The written submission to the court can also be seen as raising a claim that the Tribunal erred in finding that there was nothing in the Applicant’s “individual circumstances” or “profile” that would warrant the Sri Lankan authorities targeting him for harm or that would expose him to an increased risk of harm on return to Sri Lanka, without taking into account the claim about his interaction with the Sri Lankan authorities after he made a failed attempt to escape Sri Lanka shortly after the end of the civil war (as variously described in the agent’s submission).
As stated in Htun at [42], the Tribunal’s “statutorily required task is to examine and deal with the claims for asylum make by the applicant” (also see Minister for Immigration and Border Protection vMZYTS [2013] FCAFC 114; (2013) 230 FCR 431 at [35] – [36]). Further, a failure to deal with an item of evidence can give rise to a jurisdictional error, depending on the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error (Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [29]).
Reliance was also placed on Dranichnikov. Apart from a failure to consider an integer of an applicant’s claims, misapprehension of facts alleged by an applicant can give rise to a jurisdictional error, where by misconceiving the alleged facts the Tribunal then asks itself the wrong question (see Dranichnikov at [27] per Gummow and Callinan JJ and at [88] per Kirby J).
In effect, the Applicant’s written submission asserts that whether described as overlooking a claim or failing to take into account or misapprehending a critical fact, the Tribunal did not give conscious consideration to the matters raised in the submission and that this was tantamount to a failure to consider a part of the Applicant’s claim and hence a constructive failure to exercise jurisdiction.
It is necessary for the Tribunal to engage actively with relevant issues and submissions (see Lafu v Minister for Immigration and Citizenship [2009] FCAFC 140 at [48] – [49] and MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99; (2012) 128 ALD 520 at [19] – [20] and [38]), although a finding that the Tribunal has not engaged in the requisite active intellectual process in conducting a statutory review will not be lightly made and must be supported by clear evidence. Caution is to be exercised in finding a failure by the Tribunal to give proper, genuine and realistic consideration to evidence advanced to support a protection visa application, lest an inquiry as to jurisdictional error descends into merits review (see Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [30]).
Further, in determining whether the Tribunal has failed to properly apprehend, examine and determine a claim (or to consider or engage with evidence or a submission), careful regard is to be had to the reasons for decision, while bearing in mind that the reasons are not to be construed with an eye too keenly attuned to the perception of error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others [1996] HCA 6; (1996) 185 CLR 259 at 271 – 272).
The Tribunal is required to provide reasons. Such reasons will generally be taken to be “a statement of those matters adverted to, considered and taken into account; and if something is not mentioned, it may be inferred that it has not been adverted to, considered or taken into account” (see NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [16] and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323).
On the other hand, it is well-established that it is not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons.As stated in Applicant WAEE at [46]:
… It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason…
However, relevantly, and as stated in ApplicantWAEE at [47]:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
Further, as the Full Court of the Federal Court stated in SZSRS at [34]:
… where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
In this case the Tribunal did not expressly deal with the agent’s submission about the Applicant’s earlier attempted escape from Sri Lanka and its consequences. I am not persuaded that the Tribunal’s general reference to having had regard to the agent’s submissions establishes that this aspect of the submissions was not overlooked, in circumstances where the Tribunal also stated in that introductory remark that such submissions were “set out relevantly in more detail below”. There was no subsequent reference to the aspects of the submission extracted at [102], [104] and [107] above, or to any such claims. Nor am I satisfied that the Tribunal’s general references to having had regard to the Applicant’s individual circumstances or to “all the evidence and the applicant’s circumstances as a whole” are to be taken to include these specific matters. These matters are of such potential significance that they cannot be sensibly understood as matters considered but not mentioned because they were not material in the sense considered in SZSRS. I also note that in finding that it did not accept that the Applicant would be imputed with an anti-government or pro-LTTE political opinion, the Tribunal had regard to what it described as “there being no outstanding charges against the applicant” and to the Applicant having (only) “low level connections to the LTTE” through his father’s past work in an LTTE controlled area (paragraph 52). These findings support the inference that the Tribunal did not take into account the claims and submission in that respect by the agent.
Whether characterised as a claim, evidence or submission, as explained further below, I am satisfied that these extracts from the agent’s submission were material to the Applicant’s claim to fear harm and were not subsumed in findings of greater generality.
In considering the consequences for the Applicant as a returned Tamil failed asylum seeker who departed Sri Lanka illegally, the Tribunal did not address the claims in the agent’s submission that the Applicant would not be released in accordance with the usual procedures for returning Tamil failed asylum seekers, having regard to his claimed past interaction with the authorities after an attempt to depart Sri Lanka illegally.
Further, while the Tribunal rejected any claimed imputed pro-LTTE political opinion based on the Applicant’s relationship to his father and incidents in Sri Lanka from 2012 on, it did not consider whether such an imputed opinion arose based on the Applicant’s claimed attempted departure from Sri Lanka after the civil war or whether there was any increased risk as a result (as the agent had submitted). The Tribunal did not consciously engage with the claims or submissions made in this respect or make any findings concerning these claims. It proceeded on the basis that there were no outstanding charges against the Applicant and nothing in the Applicant’s claimed individual circumstances to distinguish him from any other returning failed asylum seeker who departed Sri Lanka illegally.
As indicated, the agent’s submission to the Tribunal raised this issue in several contexts. The first occasion on which this claim was mentioned was in the context of a submission that Tamils continued to be persecuted for their connections with the LTTE, that the Applicant would be suspected of affiliation with the LTTE and that the case against him in this respect (that is, the case that he would be suspected of LTTE affiliations) would be further strengthened by his previous failed attempt to escape Sri Lanka shortly after the end of the civil war, during a period in which the media had reported that escapees were former LTTE cadres fearing the authorities. The Tribunal did not consider whether it accepted that the Applicant had made a failed attempt to escape Sri Lanka during a period when the media reported that escapees were former LTTE cadres, let alone the claims about arrest and charges, in considering the risk of future harm to the Applicant as a Tamil or on the basis that he would be suspected of LTTE affiliations.
While the Tribunal referred generally to “other” reasons the Applicant claimed he would be imputed with a pro-LTTE political opinion, at no point did it refer to this particular aspect of his claims in considering his profile (but rather referred to the fact that he was young and a Tamil whose father worked in the Northern province). Insofar as the Tribunal did refer (at paragraph 47) to the fact that the Applicant had departed Sri Lanka illegally and applied for asylum, this was clearly a reference to his successful departure in 2012, not to his claimed earlier attempted departure after the civil war.
In any event, even if the Tribunal’s reference to the Applicant departing Sri Lanka illegally us to be seen as incorporating the Applicant’s failed attempt to depart Sri Lanka illegally shortly after the end of the civil war in Sri Lanka, the Tribunal did not engage with the nature or consequences of that claim as articulated in the agent’s written submission. In addressing the treatment of returning failed asylum seekers, the Tribunal did not engage with the agent’s submission that, in the absence of his passport, further checks were likely to take place about the Applicant’s background, such that he was likely to undergo further questioning which did not apply to other returnees and hence face a real risk of being seriously harmed by the authorities.
The agent contended (at Courtbook p 286) that the treatment of the Applicant on return to Sri Lanka and the punishment he may face for illegal departure would differ from the usual procedure and punishment for returning failed Tamil asylum seekers (including those who departed illegally) because of the claimed previous arrest and charges. Even if some aspects of the claims in the submissions were subsumed in findings of greater generality, that would not be the case in relation to this aspect of the submission.
The Tribunal failed to consider or to actively engage with this material in considering the Applicant’s claim he would be targeted on return to Sri Lanka or that he would face a real chance or real risk of future harm by the Sri Lankan authorities (in addition to the “usual” consequences for those who departed Sri Lanka illegally). The Tribunal’s failure to accept that the Applicant had any profile which would warrant the Sri Lankan authorities targeting him for harm, including on the basis of any anti-government or pro-LTTE opinion, was reached on the basis of country information cited, some of which referred to additional consequences for some returnees in particular circumstances. The Tribunal did not address this aspect of the particular claimed circumstances of the Applicant.
In the context of the Applicant’s claims to fear harm, including for reason of a perception of an LTTE affiliation and as a returned Tamil failed asylum seeker who departed Sri Lanka illegally in 2012, the question of whether he had previously come to the attention of the Sri Lankan authorities on the basis of an attempt to depart Sri Lanka illegally shortly after the civil war was of potential significance. It legitimately bore on the question of whether the Applicant may be perceived as affiliated with the LTTE or subjected to greater consequences than would occur to other returning Tamils, returning failed asylum seekers, or returnees who had departed Sri Lanka illegally. Hence it was plainly relevant to the Tribunal’s assessment of whether the Applicant’s claimed fear of serious or significant harm was made out. It was presented to the Tribunal by the Applicant’s agent on this basis. If the Tribunal had engaged with this evidence actively and accepted it, it could legitimately have weighed against the Tribunal’s findings in various respects. It would have been for the Tribunal to decide whether to accept or reject such claim or claims and to determine the weight to be afforded to such material, but there is nothing in the Tribunal’s reasons to indicate that it engaged in such a process of reasoning.
Insofar as counsel for the Minister appeared to suggest in oral submissions that this claim was inconsistent with other aspects of the Applicant’s claims, that would be a matter for the Tribunal. As Charlesworth J pointed out in BDJ15 v Minister for Immigration and Border Protection [2017] FCA 1281 at [60]:
… it is not for the Minister to say that [an incident] was of little or no relevance: assessments of relevance and weight form an essential part of the Tribunal’s statutory task …
The Tribunal failed to engage with and determine the Applicant’s claims concerning the relevance of his claimed unsuccessful attempt to leave Sri Lanka after the war and subsequent arrest and charges. This is not a case in which such a claim was implicitly dealt with at a greater level of generality or was such that it was unnecessary for the Tribunal to deal with or determine it because of the significance of other findings in the sense considered in Applicant WAEE at [47].
It was necessary for the Tribunal to consider this evidence (or claim, or submission, however described) and to engage in a process of reasoning in that respect. In my view, it cannot be said that the outcome of the Tribunal’s review could not have been different if it had consciously engaged with and dealt with this aspect of the Applicant’s claims or evidence as presented in the agent’s written submission.
Whether this material is described as a claim, an integer of a claim or evidence, as a matter of substance it bore critically on the issues before the Tribunal. The Tribunal’s failure to engage with this material is such that it constructively failed to carry out its statutory task. This amounts to a jurisdictional error. Accordingly, the matter should be remitted to the Tribunal for re-determination according to law.
Other Issues
For the sake of completeness, I note that the Applicant also raised in oral submissions a concern that he was not given an opportunity by the Tribunal member to look at notes he had prepared in relation to dates of past events he had been told about by his mother. The only evidence before the court of what occurred in the Tribunal hearings is the Tribunal’s account in its reasons. The Tribunal recorded an exchange with the Applicant in relation to his wish to rely on things his mother had written down and dates that were recorded. However the Tribunal stated that it had not questioned the Applicant as to the dates on which the claimed events occurred, but rather the sequence and number of events. In that context it was not persuaded that the Applicant’s claim that he had difficulty with dates explained the inconsistencies in his evidence. The Tribunal did not have regard to inconsistencies in relation to dates in considering whether the Applicant had provided inconsistent evidence.
I am not satisfied that the Tribunal’s account of what occurred when the Applicant sought to rely on written notes is such as to establish either actual or apprehended bias, insofar as this was intended to be contended by the Applicant, or that he was not given a meaningful opportunity to participate in the hearing under s.425 of the Act.
The Applicant complained that he was not satisfied with the questions posed to him by the Tribunal, that he was asked unnecessary or complicated questions, that the Tribunal did not pay attention to what he said and that he was not given sufficient time to explain his position. In the absence of a transcript, these contentions are not made out.
Similarly, insofar as the Applicant appeared to claim that there was an issue about whether his lawyer or agent (who was interstate when the Tribunal hearings were conducted) was on the telephone throughout the hearings, there is no transcript of the Tribunal hearings in evidence. I note that no such issue was raised in the post-hearing submission to the Tribunal. If the Applicant’s claim concerns the conduct of his agent, there is nothing in what he said to raise even an arguable contention of fraud on the Tribunal in the sense considered in SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; (2007) 232 CLR 189.
The Applicant also sought to raise with the court more recent events in Sri Lanka. As I told him, if his claim is that circumstances have changed in Sri Lanka such as to give rise to a real chance or risk of serious or significant harm, this is a matter he may raise with the Minister for Immigration. The asserted recent events do not, in themselves, establish jurisdictional error on the part of the Tribunal.
However as jurisdictional error has been established on the basis referred to above, the matter should be remitted to the Tribunal for reconsideration according to law.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 20 August 2019
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