BZAEK v Minister for Immigration

[2014] FCCA 2975

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAEK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2975

Catchwords:
MIGRATION – Protection (class XA) visa – application for merits review – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.35(2)(aa), 36(2A), 91R(1)(b), 91R(2)(a)

Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10
NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: BZAEK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 515 of 2013

Judgment of: Judge Jarrett

Hearing date: 28 November 2014

Date of Last Submission: 28 November 2014

Delivered at: Brisbane

Delivered on:  23 December 2014

REPRESENTATION

The Applicant appeared in person

Solicitor for the First Respondent: Ms Kelly

Solicitors for the First Respondent: Clayton Utz

The second respondent entered a submitting appearance

ORDERS

1. The reamended application filed on 21 October, 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $7246.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 515 of 2013

BZAEK

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By his application filed on 21 June, 2013, the applicant seeks judicial review of a decision of a refugee review tribunal which affirmed a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa.

2. The applicant filed an amended application on 19 August, 2013.  When the application came before me for hearing, the applicant sought to rely upon a “reamended application” which he had filed on 21 October, 2014.

3. The first respondent opposes the application for judicial review, and opposes the applicant having leave to rely upon his “reamended application”.

4. The second respondent has filed a submitting appearance.

5. Without recounting the procedural history of this application, it is relevant to record that I have the benefit of one written submission prepared by counsel and filed on behalf of the applicant and three separate written submissions filed on behalf of the first respondent.  The written submission filed on behalf of the applicant deals with the grounds of review set out in the amended application filed on 22 August, 2013.  It does not deal with the grounds set out in the “reamended application”.  Those grounds were the subject of oral submission from the applicant.

Background

1. The applicant is a Tamil male from Sri Lanka.  It seems uncontroversial that he has lived in India since 1990 after his family fled Sri Lanka.  The applicant was educated and worked in India.  He claimed that he had lived in a refugee camp in India for the whole time that he was in that country.  He had a “refugee card”.

2. In April, 2012 the applicant left India for Australia.   He applied to the first respondent’s department for a protection visa on 6 August, 2012.  A delegate of the first respondent refused to grant the visa on 25 October, 2012 and the applicant applied to a refugee review tribunal for review of that decision.

3. The applicant claimed to be a person in respect of whom Australia has protection obligations because he had a well-founded fear of persecution for the following reasons:

   a)he is a young Tamil male from Sri Lanka, and he does not know how to live in Sri Lanka because he has lived in India for 22 years;

   b)the applicant’s father told the applicant that before the applicant’s family moved to India in 1990, he had been arrested by the army and tortured and accused of being a member of the Liberation Tigers of Tamil Eelam;

   c)the applicant’s father told the applicant that his brother (the applicant’s paternal uncle) was detained, tortured and killed by the army because he was suspected of being a member of the LTTE;

   d)he had another uncle (being his sister’s husband’s mother’s brother) and cousin who were suspected of links to the LTTE and killed in 2008 or 2009;

   e)on return to Sri Lanka he would be perceived to be a member of the LTTE because of his presence in India, as LTTE members were sometimes trained in India; and

   f)he feared that he would be killed because he is a young Tamil male from Vavuniya and there is a perception by the Sri Lankan government than only Sinhalese people can live in the country.

4. The applicant also feared harm because he came to Australia to seek protection and as a Tamil man from an area where the LTTE is active, the Sri Lankan authorities may suspect him or accuse him of being a member or supporter of the LTTE.

5. The tribunal conducted three hearings at which the applicant attended together with a migration agent. 

6. The second hearing was convened by the tribunal because it wanted to explore the applicant’s claims about the members of his family whom had been killed in Sri Lanka, as well as his family who continued to live in Sri Lanka.  The tribunal also explored the applicant’s attempts to enlist the support of the UNHCR to re-enter Sri Lanka.

7. A third hearing was convened by the tribunal after the tribunal was given information that tended to suggest that some of the applicant’s claims were inaccurate.  Although, the tribunal had received information indicating that the applicant’s refugee card was genuine, the information also indicated that the applicant had left the refugee camp in India 4 to 5 years earlier than the applicant had claimed.  This raised issues for the tribunal about the applicant’s claims generally and specifically whether he had remained in India after his departure from the refugee camp or whether he had returned to Sri Lanka or travelled to a third country.  However, following that hearing, the tribunal received further information from the same source that suggested that the applicant had indeed lived in the refugee camp in India up to the point of his departure from that country in May, 2012.    

8. The applicant’s migration agent made at least two written submissions on the applicant’s behalf which included submissions of independent information upon which the applicant wished to rely that concerned the treatment of returnees to Sri Lanka.

The tribunal’s decision

1. As to the applicant’s claim of a well-founded fear of serious harm or persecution based upon his filial connections, the tribunal found that the applicant’s father may have been detained over 20 years ago by the Sri Lankan army, and may have endured torture, but that he was eventually released.  The tribunal also accepted that the applicant’s uncle and cousin on his mother’s side of the family were killed in Sri Lanka.  However, the tribunal declined to find that those deaths were connected to the uncle and cousin returning from India.  The tribunal thought that the fact that the uncle and cousin were killed at separate times several years after they returned from India told against an association of their deaths with their having spent time in India. The tribunal found that the uncle died at or around the climax of the Sri Lankan civil war and that the nephew died several months later but still within six months of the end of the civil war. 

2. The tribunal was not satisfied that his connections with those people would impact on the applicant if he was to return to Sri Lanka. The tribunal gave several reasons for that conclusion:

   a)the applicant’s father was detained over 20 years ago during a period of the civil war, which had now ended;

   b)the applicant’s paternal uncle was killed during the same period;

   c)the applicant’s uncle and cousin from his mother’s side of his family were killed at the climax of, or close to the climax of the civil war;

   d)none of the three members of the applicant’s extended family who have been killed share a name with the applicant;

   e)the tribunal was not satisfied that the same tensions that were present during the civil war would be present in the Sri Lankan community now; and

   f)young Tamil men would not face the same risks as they did during the civil war period.

3. In light of those matters, the tribunal was not satisfied that:

   a)the applicant would have a real chance of serious harm in the foreseeable future due to his connection with his father and/or his father’s brother if he was to return to Sri Lanka;

   b)the applicant will be associated with any of the three deceased men upon or after his return to Sri Lanka; or

   c)there is a real chance he would face serious harm in the foreseeable future due to his father’s previous apprehension.

4. The tribunal concluded that the applicant did not have a well-founded fear of serious harm or persecution for a Convention reason due to his father being detained during the Civil War, his father’s brother being killed during the 1990s, his uncle (being his sisters husband’s mother’s brother) being detained and killed at the climax of the Civil War, and/or the uncle’s son being detained and killed approximately six months after the end of the Civil War, or for a combination of these reasons. 

5. In assessing the applicant’s claims to have a well-founded fear on the grounds of his ethnicity, place of origin, accusations of links with the LTTE, his status as a young Tamil male or a Tamil man from an area where the LTTE was active or that he has been in India and will be therefore accused of connections with the LTTE, the tribunal took into consideration information from the UNHCR Guidelines published in December, 2012.

6. Specifically, the tribunal noted that according to those Guidelines:

   a)each case must be assessed on its own merits;

   b)ethnicity is not sufficient to establish that refugee protection is required;

   c)most families from areas previously controlled by the LTTE would have had some connection with the LTTE, but that place of origin on its own was not sufficient to establish that refugee protection was required; and

   d)specific groups might be particularly vulnerable, including people associated with the LTTE.

7. The tribunal recorded that the UNHCR has assisted people returning from India to Sri Lanka.  General country information accepted by the tribunal recorded that all returnees are treated alike regardless of ethnicity and that NGOs have not reported that Tamil returnees are treated differently after returning from long term stays in India. 

8. The tribunal accepted that the Guidelines reported that the vast majority of returnees to Sri Lanka are visited on at least one occasion when they return to their home area, but the Tribunal did not consider this in itself to be serious harm or significant harm. 

9. The tribunal recorded that the UNHCR have been assisting people returning to Sri Lanka from India.  The tribunal did not accept that “they would do this if it would lead to serious harm significant harm for any reason, such as the imputed as being supportive of the LTTE due to their time in India.” (errors in the original).

10. The tribunal was not satisfied that the applicant was of interest to the Sri Lankan authorities due to:

    a)any actual or perceived association with the LTTE;

    b)his association with family members;

    c)his time in India; or

    d)for any other reason.

11. Further, the tribunal was not satisfied that he would become of interest to the Sri Lankan authorities in the foreseeable future if he was returned to Sri Lanka even taking into consideration that:

    a)he had been outside of Sri Lanka for a significant period of time living in India;

    b)he claimed not to know how to stay safe or avoid the authorities;

    c)he does not have documents and would need to acquire them; and

    d)he does not speak Sinhalese.

12. The tribunal rejected those claims because the country of origin information relied upon by the tribunal recorded that the UNHCR assisted people returning from India to Sri Lanka, such as through organising documents and other assistance.  The tribunal was satisfied that the UNHCR would not do that if it led to serious harm for the returnee.  The tribunal considered that the applicant could utilise the services provided by the UNHCR to obtain the necessary documents to assist him as necessary.

13. The tribunal concluded that there was not a real chance that the applicant would face serious harm due to:

    a)his ethnicity;

    b)place of origin;

    c)perceived connections with the LTTE;

    d)his status as a young Tamil male or a Tamil man from an area where the LTTE was active;

    e)his absence from Sri Lanka for a significant period;

    f)his claimed lack of knowledge about how to stay safe or avoid the authorities;

    g)his lack of documents; and

    h)his inability to speak Sinhalese.

14. The applicant has also claimed to have a well-founded fear of persecution based on the fact that he:

    a)would be a failed asylum seeker;

    b)left Sri Lanka illegally; and

    c)came to Australia to seek protection.   

15. Based upon the independent information before the tribunal which it accepted, the tribunal rejected these claims.

16. The tribunal concluded by recording that it had considered the applicant’s claim individually and cumulatively.  The tribunal recorded that it accepted that:

    a)the applicant was a young Tamil male from Vavuniya;

    b)he had lost several members of his extended family either during or fairly soon after the end of the Sri Lankan Civil War;

    c)he had lived in Indian refugee camp for approximately 22 years;

    d)he exited Sri Lanka illegally 22 years ago; and

    e)he had travelled to Australia in order to claim protection. 

17. However the tribunal considered, consistently with the independent country of origin information that it accepted, that returnees are treated alike regardless of ethnicity, and although it is an offence to leave Sri Lanka illegally, in reality, a prison sentence is seldom enforced, and if the authorities consider a person has been unknowingly duped into joining a people smuggling venture, they will be treated as a victim.  More specifically, information accepted by the tribunal indicated that:

    a)Tamils returning to the north and east of Sri Lanka are not treated any differently from Tamils living in the north or east of Sri Lanka; and

    b)no issues had been raised concerning the treatment of Tamils living in India for extended periods and returning to Sri Lanka.   

18. As to the applicant’s claims for complementary protection, the tribunal recorded that the applicant’s agent submitted that the applicant will be detained upon return to Sri Lanka due to his illegal departure and that he will be detained for a period of at least one year.  However, the tribunal was not satisfied that was likely.  It did accept that the applicant is likely to be interviewed by Sri Lankan authorities and held on remand for a short period upon return.  The applicant’s agent submitted that even if the applicant did not suffer Convention related harm whilst detained in prison, the treatment of prisoners in Sri Lanka amounts to torture, cruel, inhumane and degrading treatment for the purposes of the complementary protection provisions of the Migration Act1958 (Cth). The agent’s submission referred to the aftermath of riots in one of the country’s detention centres, and the torture of political prisoners. The submission noted that remand prisoners and those held on minor offences are held in the same facilities as more serious offenders, some remand prisoners languish in prisons for years, and that the combination of severe overcrowding and inadequate infrastructure in certain prison facilities places constraints on services and resources which may amount to degrading treatment for prisoners in certain prisons. The applicant’s agent referred to independent information in respect of those claims.

19. The tribunal did not accept that the applicant’s short detention upon return, even in overcrowded and unsanitary conditions, would meet the threshold required by Australian law to be considered significant harm for the purposes of s.35(2)(aa) of the Act. The tribunal referred to the statutory definition of significant harm, and its elements and concluded that the applicant’s claims in this regard were not made out.

20. The tribunal determined to affirm the decision under review.

The amended application filed on 22 August, 2013

1. The grounds of review specified in the amended application filed on 22 August, 2013 are articulated in one paragraph, but seem to be three in number.  The first is:

   1. There is a procedural error in that the Second Respondent ·

   a) erred in law by failure of taking into relevant considerations in making the decision.

   Particulars

   i) The Tribunal was informed of the applicant’s father was arrested and tortured by the army and that his uncle was arrested and tortured and killed in Sri Lanka. The Tribunal failed to consider that this information is sufficient for the army to use the relationship of the applicant with that of his father and family to be associated with the LTTE and arrested when he is returned to Sri Lanka. There was no way the Tribunal could conclude that they are no longer an interest to the Sri Lankan authorities.

   ii) The Tribunal has with it relevant country information that would allow it to conclude that there was a real chance risk of the Applicant to be arrested on his return and failed to apply them.

2. As will be apparent, this ground has two parts.  As to the first part dealt with in paragraph i) of the particulars, the applicant submits that the tribunal erred in law because it did not give adequate consideration to the fact that the applicant was closely related to two people, an uncle and a cousin both with the same surname, who had been accused of being members of the LTTE and who were tortured and killed by the Sri Lankan Army.  His father had also been detained by the Sri Lankan authorities.

3. The applicant submitted that the tribunal failed to consider that it was not difficult to identify the applicant from his father’s name and so associate him with his uncle and cousin who were considered to be associated with the LTTE.  The applicant argued that the tribunal did not appreciate that that mere association with a suspected LTTE member was sufficient for him to be arrested, detained, tortured and possibly killed.

4. He argued that the tribunal wrongly and unreasonably assumed that because of the passage of time there would not be any issues for the applicant if he returned to Sri Lanka.  He argued that time, however, was of no relevance and that irrespective of the length of time persons known to have been associated with the LTTE were absent from Sri Lanka, they were targeted by the armed forces more as a matter of revenge.

5. The first respondent argues that while this ground is expressed as an allegation of a failure to take into account a relevant consideration, it is really a statement of disagreement with the tribunal’s finding that it was not satisfied on the evidence before it that the applicant would be associated with the members of his family who had been killed in Sri Lanka on his return to Sri Lanka or that there was a real chance that he would face serious harm in Sri Lanka because of his father’s earlier arrest.

6. In my view the applicant’s claims under this ground must fail because:

   a)the tribunal gave consideration to the matters now raised by the applicant;

   b)the applicant’s argument confuses the facts that he put before the tribunal in that one of his uncles and his cousin who were killed were from his mother’s side of the family and so it does not necessarily follow that it would not be difficult to identify the applicant from his father’s name, because it was different to the uncle and cousin; and

   c)the applicant’s complaint is really with the weight that the tribunal ascribed to the matters referred to by the applicant.

1. The tribunal’s findings of fact are not open to review as long as they are reasonably open to it on the evidence before it.  The fact that other minds may have arrived at a conclusion other than that reached by the tribunal is not enough to establish jurisdictional error: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131].

2. I accept the first respondent’s submission that the applicant’s argument amounts to an attempt to review the findings made by the tribunal and to reassign the weight given by the tribunal to the various pieces of information and evidence that it relied upon in coming to its conclusions.   This ground of review must fail.

3. The second aspect to this ground is contained in paragraph ii) of the particulars set out above.  On its face, this ground asserts that the tribunal failed to “apply” the country information that it had before it.  The applicant seems to develop this ground beyond the words stated in the particulars to assert that the tribunal did not give certain information proper weight and that the tribunal did not use up to date information when it had an obligation to do so.

4. The applicant argues that page 5 paragraph 3 of the UNHCR guidelines to which the tribunal referred in its reasons for decision states:

   All claims lodged by Sri Lankan Asylum seekers, whether on the basis of the refugee criteria contained in the Convention, or complementary forms of protection based on human rights obligations need to be considered on their own merits according to fair and efficient determination procedures and efficient status determination procedures and up to date and relevant country information.

5. The applicant points out that on the same page of the UNHCR Guidelines the risk faced by individuals with specific profiles are set out.  One of which is:

   (1) persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE).

6. The applicant argues that “the Tribunal decided in error that the profile of the Applicant was not on the list”.  The applicant submits that the tribunal’s conclusion about his profile was wrong because in response to a question from the tribunal as to whether he had provided funding or support to the LTTE he had replied in the affirmative.

7. However, the applicant’s assertion about that appears to be wrong.   The tribunal’s reasons record:

   The Tribunal asked the applicant whether he himself had provided funding or support to the LTTE whilst he was in India.  The applicant said the government used to give them some money in India, and they would collect the money to help people who had been affected by the war, but they did not support the parties in the Civil War. 

8. It was not suggested that the tribunal’s recitation of this evidence was wrong.  The tribunal was not satisfied that the applicant was of interest to the Sri Lankan authorities due to any actual or perceived association with the LTTE.  In those circumstances, to the extent that the tribunal either expressly or by implication found that the “profile of the Applicant was not on the list” set out in the UNHCR Guidelines, the tribunal was entitled to make that finding.

9. The applicant points out that the UNHCR Guidelines “considers that an internal flight or relocation alternative is not available in Sri Lanka where the fear emanates from the state itself or elements associated with it. The Tribunal yet unreasonably asked the Applicant if it was possible to relocate in some other area (possibly referring to Colombo, another area in Sri Lanka) if he was found to have a well-founded fear in Sri Lanka.”  However, whilst that might be so, the tribunal ultimately concluded that the applicant did not have a well-founded fear of persecution or harm should he return to Sri Lanka irrespective of where he might live in Sri Lanka.  The question of relocation became irrelevant in light of that finding.

10. The applicant further argues that whilst the tribunal stated that it took into consideration a report from Freedom from Torture entitled Sri Lanka Tamils torture on return from UK dated 13 September, 2013 the tribunal in fact gave the report no weight and otherwise paid it no attention.  What the tribunal said about that report is:

    47.    The report by Freedom from Torture (FfT), titled ‘Sri Lankan Tamils torture on return from the UK’ dated 13 September 2012 was also submitted.  This has been taken into account by the Tribunal.  The report related to 24 victims of torture who had voluntarily returned from the UK to Sri Lanka following the end of the Civil War.  The report revealed that Sri Lankan Tamils who in the past had an actual or perceived association at any level with the LTTE, but were able to leave Sri Lanka, faced a risk on return.  It was seen as the combination of both residence in the UK and an actual or perceived association at any level with the LTTE which placed the individual at risk (page 2). 

11. In light of the finding by the tribunal that the applicant was not likely to be perceived as having any links with the LTTE, nor that he was coming back to Sri Lanka from the UK, the tribunal was entitled to give the report little weight if that is what it determined to do.

12. This ground of review has no merit.

13. The second ground of review specified in the amended application filed on 22 August, 2013 is:

    1. There is a procedural error in that the Second Respondent

    b) erred in law by taking non relevant considerations in making the decision.

    Particulars

    i0 the Tribunal used outdated UNHCR country information in making the decision.

14. The applicant argues that the UNHCR Guidelines suggest that up to date information must be used in making the decision.  Whilst the “Applicant accepts through case history that the Tribunal is not obliged to seek information in support of the Applicant”, “the Applicant states that in the absence of relevant information relating to the Applicant’s claims which is necessary for the Tribunal to fulfil his obligations of S420(1) and making an informed decision.” “It is obvious and necessary for the Tribunal to refer to Country information available to the Member in order to make an informed decision.”

15. The applicant’s submissions on this ground are confused and confusing.  But by his written submissions he appears to argue that because differently constituted tribunals in different matters have reached conclusions that are different to the present decision under review, and they are seemingly based upon the same information, the present decision is either unreasonable, or the tribunal was biased in the sense that it only accepted information that suited a pre-determined outcome. 

16. The first respondent submits that this ground must fail because:

    a)the applicant has not shown that any more up-to-date, relevant country information than the December, 2012 UNHCR Guidelines existed; and

    b)the applicant has not explained how the tribunal was under an obligation to consider any more recent information. The tribunal was not under an obligation to seek out more relevant country information.

17. I accept the first respondent’s submissions.  The applicant does not identify any more up-to-date and relevant country information than the December, 2012 UNHCR Guidelines that were before the tribunal.  The tribunal was not under an obligation to seek out more relevant country information.

18. In any event, the selection and weight to be given to country information is a matter for the tribunal: NAHI v Minister for Immigration and Multicultural Affairs [2004] FCAFC 10 at [11]-[13]; Applicant NABD of 2002 v Minister for Immigration & Multicultural Affairs (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v Minister for Immigration & Multicultural Affairs (2006) 156 FCR 419 at [81]-[84]. The use made of country information by a particular tribunal in a particular matter cannot bind another tribunal to use that information in the same way, or at all.

19. This ground of review has no merit.

20. The third ground of review specified in the amended application filed on 22 August, 2013 is:

    1. There is a procedural error in that the Second Respondent

    c) erred in law by not making a decision contradictory to the preponderance of evidence of Country evidence in support to the Applicant’s claims that makes it unreasonable to the common man.

    (faithfully reproduced)

21. The applicant made no particular written submissions in support of this ground.  It is difficult to understand what it means. 

22. The first respondent submits that this ground of review must fail as it does make any specific allegation about the tribunal’s conduct of the review, let alone an allegation of conduct capable of constituting jurisdictional error.

23. I agree.

The “reamended” application filed on 21 October, 2014

1. This application specifies four grounds of review.  The first ground of review provides:

   1. GROUND ONE:-

   The Tribunal fell into jurisdictional error by applying the incorrect test pursuant to section 91R (2) (a) of the Migration Act 1958 (Cth).

   Particulars:

   a) By making a qualitative assessment at paragraph [77] of the decision of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the RRT in the present case applied the wrong test in the application of s 91R (2) (a), and thereby fell into jurisdictional error. WZAPN V Minister for Immigration and Border Protection &Another [2014) FCA 947 at {30} and {45}.

2. The applicant addressed no oral submissions to this ground.

3. In WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 North J, sitting as the Full Court of the Federal Court of Australia determined that serious harm for the purposes of s.91R(1)(b) of the Act is, by reason of s.91R(2)(a) of the Act, constituted by a threat to life or liberty without reference to the severity of the consequences to life or liberty.

4. Here, the tribunal found that the applicant might be detained upon his return to Sri Lanka, he might be questioned and he might be dealt with for leaving the country illegally.  In relation to these matters, the tribunal determined:

   78.    …However the Tribunal has also considered the country of origin information which reports that all returnees are treated like regardless of ethnicity, and although it is an offence to leave Sri Lanka illegally, in reality a prison sentence is seldom enforced, and if the authorities consider a person has been unknowingly duped into joining a people smuggling venture, they will be treated as a victim…

5. The first respondent submits that the tribunal here found that any treatment of the applicant upon his return to Sri Lanka, such as questioning, detention or prosecution, would be as a result of the operation of a law of general application.  The tribunal, however, made no express finding to that effect.

6. The tribunal did, however, consider the matter in some detail.  Specifically, the tribunal said:

   73.    The applicant has also claimed to have a well-founded fear of persecution based on the fact that he would be a failed asylum seeker and/or he left Sri Lanka illegally and/or because he came to Australia to seek protection.  The Tribunal has found that country of origin information suggests that all returnees are treated alike, regardless of ethnicity (LKA40999).  The information also records that if they left illegally they are interviewed by the Sri Lankan authorities, detained on remand for a short period, the time of which may vary depending on what time of day or day of the week they return to Sri Lanka, and they are then bailed into the community. The Tribunal acknowledges the agent’s submission of 2 May 2013 and arguments in relation to illegal departure, but notes that there is no information before the Tribunal support a conclusion that any returnees have been given a jail term in relation to illegal departure, failed asylum seeker status, or any related claim thus far (the Tribunal notes the agent’s submission, including that the Department of Foreign Affairs and Trade do not monitor returnees, and accepts this, however there have been no other sources referred to such as NGOs, local or international media to support a claim that people are jailed due to illegal departure only, as opposed to other issues such as actual or suspected links to the LTTE). 

   74.    In considering this claims the Tribunal also considered the relevant Sri Lankan legislation, and more specifically section 45(6) of the Immigrants and Emigrants Act (I&E Act). Country of origin information records that the act was amended in 1998 (see The amendment has two subsections, with the first removing judicial discretion in relation to suspension of sentences under the Code of Criminal Procedure, the second in relation to the judicial discretion to discharge under the Code of Criminal Procedure.

   75.    However, in 2006 there was a further act amending the I&E Act (see This states at s2(2), that the provision in s 45(6) in relation to the judicial discretion to suspend sentences is repealed.

   76.    This appears to suggest that judges continue to have a discretion under s 303 of the Code of Criminal Procedure in relation to suspending any sentences in relation to offences under s 45 of the I&E Act.  The Tribunal notes that this would be consistent with the most recent DFAT advice about the convictions under s 45 resulting in fines rather than imprisonment (although the DFAT advice does not specifically refer to whether sentences of imprisonment have been suspended).

   77.    In addition, there is country of origin information that records that custodial sentences are rarely imposed, and people are seen more as victim (LKA40999). In and of itself the Tribunal does not consider this delay and short remand to be serious harm or persecution, even having considered the agent submission of 2 May 2013.  The UNHCR Guidelines also record that people may be visited by the authorities once they return to their home. However, country of origin information also suggests that the authorities are pursuing people smugglers.  The evidence before the Tribunal does not enable it to find that there is a real chance this could lead to serious harm or persecution of the applicant for a Convention reason. 

   78.    The Tribunal has considered the applicant’s claim individually and cumulatively.  That is, the Tribunal accepts that the applicant is a young Tamil male from Vavuniya, his has lost several members of his extended family either during or fairly soon after the end of the Sri Lankan Civil War, being his father’s brother, and his wife’s husband’s mothers’ brother and his son; he has lived in Indian refugee camp for approximately 22 years, he exited Sri Lanka illegally 22 years ago and has travelled to Australia in order to claim protection.  However the Tribunal has also considered the country of origin information which reports that all returnees are treated like regardless of ethnicity, and although it is an offence to leave Sri Lanka illegally, in reality a prison sentence is seldom enforced, and if the authorities consider a person has been unknowingly duped into joining a people smuggling venture, they will be treated as a victim (LKA409990).  Information from the Department of Foreign Affairs and Trade (DFAT) records that NGOs have not raised any specific issues regarding the treatment of Tamils returning to the north and east, in that they are not treated any differently from Tamils anywhere else in the north or east.  In relation to the treatment of Tamils who have lived in India for extended periods, the Department of Foreign Affairs and Trade noted that NGOs had not raised any issues of concern regarding the treatment of Tamils living in India for extended periods and returned to Sri Lanka (DFAT report 1478, released to MRT-RRT 28 February 2013).   

7. I accept the first respondent’s submission that the tribunal did find that any questioning, detention or prosecution of the applicant that might occur upon his return to Sri Lanka would not be for a Convention reason but as a result of the operation of a law of general application.  In my view, the decision in WZAPN is distinguishable on that basis.  This ground of review fails.

8. Ground 2 of the reamended application is in the following terms:

   2. GROUND TWO

   .The RRT did not take into account relevant consideration.

   Particulars:

   The RRT did not take into account at paragraph (67), due the Applicant’s uncle’s and cousin’s death, his father’s brother’s death, and his father being previously detained.

9. Paragraph 67 of the tribunal’s reasons for decision is in the following terms:

   67.    In relation to the claim that the applicant has a well-founded fear of serious harm or persecution due to his uncle’s and cousin’s deaths, his father’s brother’s death and/or his father being previously detained by the Sri Lankan Army, the Tribunal has found that it is not satisfied that these would impact on the applicant if he was to return Sri Lanka. There are several reasons for this, including that the father was detained over 20 years ago during a period of the Civil War, and the father’s brother was killed during the same period. The Tribunal notes the country of origin information records that the Civil War has now ended. As a result the Tribunal is not satisfied that the same tensions would be present in the Sri Lankan community, and the young Tamil men would not face the same risks as they did during the Civil War period.  The Tribunal finds that the applicant’s father may have been detained over 20 years ago by the Sri Lankan army, and may have endured torture, but that he was then been released.  In applying a forward thinking test the Tribunal finds that this is not sufficient to enable it to be satisfied that the threshold has been reached whereby the applicant would have a real chance of serious harm in the foreseeable future due to his own connection with his father and/or father’s brother if he was to return.  There is no evidence before the Tribunal that the Sri Lankan authorities have made any effort since this time to question, apprehend or detain the applicant’s father and/or the applicant.  In making this finding the Tribunal notes that the applicant and his father have resided outside of Sri Lanka since 1990.  However, the Tribunal must apply a forward thinking test and there is nothing before the Tribunal to establish that the applicant or his father are currently of interest to any of the Sri Lankan authorities.

10. It is apparent from paragraph 67 of the tribunal’s reasons that the tribunal did indeed take into account the applicant’s uncle’s and cousin’s deaths, his father’s brother’s death and his father’s previous detention by the Sri Lankan Army.  The tribunal weighed those matters in its deliberations but for the reasons given by the tribunal, it concluded that those matters did not lead to the conclusion that the applicant would be perceived as having links with the LTTE.  I have discussed these matters in more detail above.

11. This ground of review has no merit.

12. Ground 3 of the reamended application is in the following terms:

    3, GROUND THREE

    The RRT asked itself the wrong question.

    Particulars;

    By Focussing on the circumstances around which the Applicant does not have any documents paragraph (71), but, the RRT failed to deal with the question of whether the Applicant had a passport and would therefore be the subject of penalties under the Immigrants and Emigrants Act,

13. Paragraph 71 of the tribunal’s reasons for decision is in the following terms:

    71.    The applicant has also claimed to fear harm because he has not returned to Sri Lanka since 1990, and related claims including that he does not know how to stay safe or avoid the authorities; he does not have any documents and he is afraid if he goes to the police or authorities to get documents he would be at risk; and he does not speak the language (Sinhalese).  The Tribunal finds that the applicant is a Sri Lankan who has lived in a refugee camp in Tamil Nadu, as supported by the documentation supplied by the applicant and the independent evidence supplied through the Department of Foreign Affairs and Trade (updated information supplied after the third hearing, which confirms the applicant had resided in the refugee camp from 1990 until 2012).

1. The tribunal was alive to the fact that the applicant had no passport.  It specifically referred to the fact that the applicant had no documents.  It is not clear how the fact that the applicant might be subject to penalties under the Immigrants and Emigrants Act (perhaps because he departed the country without a passport) impacted upon his claim for protection.  The tribunal considered the prospect that the applicant might be prosecuted for departing the country illegally and found that the applicant would not be subjected to persecution for that reason.  Rather, he wold be subjected to a law of general application.

2. Ground 4 of the reamended application is in the following terms:

   4. GROUND FOUR.

   The RRT took into account an irrelevant consideration.

   Particulars:

   The RRT took into account, at paragraph (87) of the decision, the RRT did not accept that any consequences of the prison conditions, when the applicant return to Sri Lanka there are possibilities that he may face significant harm.

3. Paragraph 87 of the tribunal’s reasons for decision is in the following terms:

   87.    The Tribunal finds that prison conditions in Sri Lanka are negatively affected by overcrowding and related problems.  However, the Tribunal does not accept that any consequences that may be felt by the applicant have the required intention so as to meet the threshold of significant harm.  In addition, the Tribunal does not accept that the limited time that the applicant is likely to spend in remand (from several hours to several days) would be sufficient to meet the significant harm threshold. 

4. In my view, this paragraph is a statement of the conclusion reached by the tribunal when it considered the evidence that it had before it against the definition of significant harm for the purposes of s.36(2A) of the Act. The conclusion that the tribunal arrived at in relation to that matter was open to it on the evidence before it and the findings of the tribunal. This ground of review has no merit.

Conclusion

1. The tribunal’s decision is not affected by any jurisdictional error. 

2. The application must be dismissed with costs.

I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered

Deputy Associate: 

Date:       23 December 2014