MZZKA v Minister for Immigration
[2014] FCCA 151
•10 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZKA v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 151 |
| Catchwords: MIGRATION – Review of a decision of the Refugee Review Tribunal – whether there was a failure by the Tribunal to consider a claim or integer of a claim – whether the decision of the Tribunal with respect to s.36(2)(aa) of the Migration Act 1958 (Cth) was illogical or irrational – whether the Tribunal misconstrued or misapplied s.36(2)(aa) of the Migration Act 1958 (Cth) – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A), 430(1)(c)-(d) Immigrants and Emigrants Act No. 20 of 1948 |
| Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Waterford v Commonwealth of Australia (1987) 163 CLR 54 |
| Applicant: | MZZKA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 570 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 19 September 2013 |
| Date of Last Submission: | 19 September 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 10 February 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Selliah |
| Solicitors for the Applicant: | Rasan T. Selliah & Associates |
| Counsel for the Respondents: | Ms Batten |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The name of the First Respondent be amended to “Minister for Immigration and Border Protection”.
The Amended Application filed 17 September 2013 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 570 of 2013
| MZZKA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a review of the decision of the
Refugee Review Tribunal (“the Tribunal”) made on 2 April 2013.
The decision of the Tribunal affirmed a decision of a delegate of the First Respondent made on 4 September 2012 to refuse to grant the Applicant a protection visa.
The Applicant seeks:
·An order quashing the decision of the Tribunal;
·A writ of mandamus directed to the Tribunal, requiring it to determine the application according to law;
·The Applicant’s costs; and
·Any other orders the Court deems fit.[1]
[1] Amended Application filed 17 September 2013, at p.3.
Background
The Applicant, a citizen of Sri Lanka, arrived in Australia on
11 April 2012. On 29 June 2012, the Applicant applied for a protection visa. The Applicant filed a statutory declaration in support of his application. On 10 August 2012, the Applicant’s migration agent filed written submissions on behalf of the Applicant.[2]
[2] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.2 at paras.5-6.
The Applicant claimed he feared he would be harmed due to his:
·Tamil ethnicity;
·Imputed anti-government and pro-Liberation Tigers of Tamil Eelam (“LTTE”) political opinion; and
·Attempted illegal departure from Sri Lanka in 2009.
In the event that he was forced to return to Sri Lanka, the Applicant claimed he feared he would be targeted as a failed asylum seeker and for departing Sri Lanka illegally again.[3]
[3] Ibid, at para.7.
The Applicant’s application for a protection visa was refused by a delegate of the First Respondent on 4 September 2012. On
28 September 2012, the Applicant applied to the Tribunal to review the delegate’s decision.[4]
[4] Ibid, at para.8.
The Applicant’s migration agent filed submissions on
9 November 2012. On 12 November 2012, a hearing took place before the Tribunal. On 23 November 2012, the Applicant’s migration agent filed further submissions.[5]
[5] Ibid, at para.9.
On 2 April 2013, the Tribunal affirmed the delegate’s decision to refuse to grant the Applicant a protection visa. On 29 April 2013, this application for review was lodged by the Applicant.
The Tribunal’s decision
The Tribunal found important aspects of the Applicant’s evidence were not credible and other aspects were not supported by independent country information.[6]
[6] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.2 at para.8 (sic).
The Tribunal rejected the Applicant’s claim based on his Tamil ethnicity, and the claim based on his imputed anti-government and
pro-LTTE political opinion. The Tribunal noted that the Applicant had been acquitted of prior involvement or association with the LTTE and did not accept that the Applicant had been detained on suspicion of being an LTTE sympathiser in 2009–2010. The Tribunal further did not accept that the Applicant was repeatedly accused of being a LTTE sympathiser. The Tribunal found that the Applicant was held because he was charged with a breach of the Immigrants and Emigrants Act (“the IE Act”).[7]
[7] Ibid, at para.9 (sic).
The Tribunal concluded the Applicant’s fear of being targeted by the Sri Lankan authorities, the Tamil Makkal Viduthalai Pullikal (“TMVP”) or anyone else for perceived links with the LTTE was not well-founded. The Tribunal considered that the Applicant may have had past encounters with, or approaches by, the TMVP but was not satisfied that those encounters resulted in the degree of harm claimed by the Applicant and considered his evidence on those claims was “insincere and rehearsed”.[8]
[8] Ibid, p.3 at para.10.
The Tribunal was not satisfied that the Applicant would face serious harm in a way that amounts to persecution for being a returned failed asylum seeker.[9]
[9] Ibid, at para.11.
The Tribunal also considered whether the Applicant met the criteria for a protection visa under s.36(2)(aa) of the Migration Act 1958 (Cth)
(“the Act”) but was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there was a real risk that the Applicant would suffer “significant harm” as defined under s.36(2A) of the Act.[10]
[10] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.3 at para.13.
Grounds of review
The Applicant’s grounds of review are as follows:
1. The Second Respondent engaged in legal error by failing to consider a claim or component integer for a Convention reasons thereof. Alternatively the second respondent (sic) engaged in legal error by failing to ask itself the correct question.
2. The Second Respondent’s decision in relation to the assessment of Complementary Protection so illogical or irrational that no reasonable decision maker could have reached it.
Ground Three: The Second Respondent engaged in legal error by misconstruing or misapplying section 36 (2)(aa) of the Migration Act 1958 (Cth). The Second Respondent failed to consider all the integers of the complementary protection claims and the Second Respondent conflated the concepts of serious and significant harm and in so doing failed to consider the applicant’s claim pursuant to complementary protection criterion in seciont (sic) 36(2)(aa) of the Migration Act 1958 (Cth).[11]
The Applicant’s submissions
[11] Amended Application filed 17 September 2013, at pp.3-4.
Ground one
The Applicant submits that in the case of Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244, Allsop J (with whom Spender and Merkel JJ agreed) stated that a
decision-maker is required to correctly construe and consider claims (and component integers thereof) made by an applicant or apparent on the facts of the material before him.[12] As stated by Black CJ, French and Selway JJ in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”), this includes claims expressly raised or squarely raised by the material.[13] The Applicant referred in particular to paragraphs 55 and 56 of NABE.
[12] (2001) 194 ALR 244 at para.42. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at paras.22-24 and 27 per Gummow and Callinan JJ, paras.88-89 per Kirby J, para.95 per Hayne J.
[13] Applicant’s Case Outline filed 17 September 2013, p.4 at para.54; (2004) 144 FCR 1 at paras.58-61.
The Applicant’s claims are set out at page 175 of the Court Book:[14]
[14] Court Book filed 26 July 2013.
The applicant fears persecution and has a well founded fear in Sri Lanka on account of his Tamil ethnicity, his imputed pro-LTTE and anti-government political opinion, his membership of particular social groups, ‘failed asylum seeker’, ‘failed asylum seeker who has already come to the adverse attention of the
Sri Lankan authorities’ and ‘person who has departed from
Sri lanka (sic) illegally’ which the latter could also be part of his imputed political opinion.
The Applicant submits that he made a claim that he would be imputed with a heightened political profile because of his breach of his reporting conditions with the Criminal Investigation Division (“CID”) every Sunday and hiding thereafter for the reasons of imputed political opinion or particular social group. As stated:
… if I return without the knowledge – return back because I have escaped the country without the knowledge of the CID, definitely they will put me in gaol and torture me ...[15]
[15] Affidavit of Christopher Michael McDermott filed 17 September 2013, Annexure “CMM-1”, p.4 at lines 22-25.
In the Tribunal interview, the following submissions were made:
Adv:Second point I just wanted to clarify was that the applicant was asked um whether he was wanted in Sri Lanka for any crimes or offences that he had committed or that he had been suspected of committing um and in response to that I just wanted to note that not only has he departed from the country illegally um and, but that he’s also failed to comply with his reporting requirements to the CID.
T:Sorry what was the beginning of that part, uh, I was just uh, I was just wasn’t able to keep up with you there. This is in regards to any offences that he’s been charged with or, or uh, how did you, how did you phrase the beginning of that part, I’m sorry Ms Khatri?
Adv:Sure, I’ll just repeat, so member um I was just clarifying that in response to your question as to whether the applicant had been um, had, was wanted in Sri Lanka for any crimes or offences, um I was clarifying that not only had he departed from the country illegally, and so would be wanted for that crime or offence, but that he has also now failed to comply with his reporting requirements to the CID (emphasis added).[16]
[16] Applicant’s Case Outline filed 17 September 2013, p.5 at para.55.
The Applicant submits that the Tribunal failed to consider this claim and whether the failure to report to the CID would contribute to the Applicant’s fears of persecution for the Convention reasons of imputed pro-LTTE profile and/or particular social group. Rather, the Tribunal,
at paragraph 127[17] of the decision, only considered the separate and independent claim that the CID would persecute the Applicant for information.[18]
[17] Court Book filed 26 July 2013, at p.292.
[18] Applicant’s Case Outline filed 17 September 2013, p.5 at para.56.
The Tribunal received information about how the Applicant was charged under the IE Act for illegally departing Sri Lanka and, specifically, how the Applicant was given a suspended sentence of six months. Information about the suspended sentence was presented to the Tribunal on at least three occasions:[19]
[19] Ibid, p.6 at para.57.
·In the entry interview transcript, the following was stated:
did anything else happen to you in jail? altogether I spent 3 to 3 and a half months in jail, until a new judge come and said that i had to pay 20,000 rupees, they told me that its (sic) like open jail if i commit crime or leave the country it will be a life sentence.[20]
[20] Court Book filed 26 July 2013, at p.21.
·In the Tribunal interview transcript (“the transcript”), the following was stated:
What do you think would be your punishment if you return now, because I understand you say that you were fined for the first time that you left Sri Lanka. Why wouldn’t they just fine you again?[21]
[21] Affidavit of Christopher Michael McDermott filed 17 September 2013, Annexure “CMM-1”, p.6 at lines 5-8.
to which the Applicant responded:
If I return now, there’s going to be a big problem because I was in the goal for six months and surely the CID asked me to sign every Sunday for few months and then – then from there I escaped without the knowledge of the CID.
The reasons I’ve been arrested the first time because of the suspicion of the LTP and then they say for five years my record will be there. If I go back to goal again, it will be nothing like the second time because this time I will be persecuted more because I have escaped the country without their knowledge, and definitely I been witness lot of persecution and I have been – underwent lot of persecution myself when I was in the goal. We, as the Tamils, we - - -[22]
[22] Affidavit of Christopher Michael McDermott filed 17 September 2013, Annexure “CMM-1”, p.6 at lines 8-20.
·
Attached to the Applicant’s written submissions[23] to the
First Respondent was a copy of the court order[24] made in relation to the Applicant’s charge for illegally departing the country.
In that document, the following was stated:
… According to this 06 months imprisonment with heavy work. I withhold this for five years. I hereby impose a penalty of Rs.20,000/= (Twenty thousand only) failure to pay the fine he will be sentenced for three (03) months.[25]
[23] Court Book filed 26 July 2013, at pp.228-240.
[24] Ibid, at p.241.
[25] Ibid.
At paragraphs 118[26] and 131[27] of the decision, the Tribunal found that there was not a real risk of the Applicant being detained and imprisoned for having illegally left the country a second time. Specifically, at paragraph 131 of the decision, the following was stated:[28]
Having regard to the country information cited above on the treatment of returnees to Sri Lanka, the Tribunal does not accept that there is a real risk that the applicant will be detained or harassed or mistreated at the airport on his return to Sri Lanka. The Tribunal makes this finding having regard to the fact that the applicant has already been found guilty of a breach of Sri Lanka’s Immigrants and Emigration Act (sic) because of his first and failed attempt to depart Sri Lanka illegally. The Tribunal relies on the overall weight of country information indicating that people who return to Sri Lanka after departing illegally are subject to prosecution and predominantly to a fine.[29]
and then at paragraph 132 of the decision:
Having regard to the Tribunal’s finding of fact set out above, the Tribunal does not accept that there is a real risk that the applicant will be detained or subjected to torture at the airport nor does it accept that there is a real risk that he will be subjected to torture by the military or the police or people from the authorities in Sri Lanka after he returns to his home in
Sri Lanka.[30]
[26] Ibid, at pp.290-291.
[27] Ibid, at p.293.
[28] Applicant’s Case Outline filed 17 September 2013, pp.6-7 at para.58.
[29] Court Book filed 26 July 2013, at p.293.
[30] Ibid, at p.294.
The Applicant referred to his statutory declaration[31] and the country evidence to submit that the Tribunal failed to deal with the claim that, if the Applicant was returned to Sri Lanka as a person who had previously departed illegally and was under a suspended sentence and reporting conditions, he would be subject to torture.
[31] Ibid, at pp.120-127.
The Applicant claimed fear of persecution because he failed to report to the CID and escaped the country. This is both imputed political opinion and member of a social group of people for whom the authorities are searching.
The Applicant contends that regard was only given to country information on whether failed asylum seekers (without suspended sentences) were fined or imprisoned, and the fact that the Applicant was only fined for his first illegal departure. No regard was given to the Applicant’s suspended sentence and whether there was a real risk the Sri Lankan authorities would enforce this six month sentence following the Applicant’s second illegal departure.[32]
[32] Applicant’s Case Outline filed 17 September 2013, p.7 at para.59.
The Tribunal dealt with the Applicant’s claim but made no findings. The Tribunal was required to set out its findings on any material question of fact.
Ground two
The Applicant submits that the Tribunal failed to give adequate weight to information presented and came to a conclusion that was so illogical or irrational that no reasonable decision-maker could have reached it. In Minister for Immigration and Multicultural and Indigenous Affairs
v SGLB (2004) 78 ALD 224, Gummow and Hayne JJ stated that,in determining whether a decision is so illogical or irrational to constitute a jurisdictional error, “the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds”.[33] Similarly, Madgwick J in SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 found that “[T]he determination must be a rational one” and that “If that critical legal requirement is not met, there will be jurisdictional error sufficient to warrant the issue of a constitutional writ”.[34] Further, in WAIJ v Minister for Immigration & Multicultural Affairs (2004) 80 ALD 568, Lee and Moore JJ stated that “[a] determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result”.[35] The Applicant also referred the Court to paragraph 130 of Minister for Immigration and Citizenship v SZMDS and Anor
(2010) 240 CLR 611.[36][33] (2004) 78 ALD 224 at para.38.
[34] [2005] FCA 995 at para.57.
[35] (2004) 80 ALD 568 at para.22.
[36] Applicant’s Case Outline filed 17 September 2013, p.7 at para.60.
The evidence indicates that, because the Applicant committed the same offence a second time, the original suspended sentence will be enforced and the Applicant will be imprisoned for at least six months. To come to a conclusion that there is no real risk of the Applicant being imprisoned would require a finding that there is no real risk the courts will enforce the suspended sentence. No reasonable decision maker, in the absence of any contrary evidence, would conclude that the suspended sentence would not be enforced. Rather, that conclusion would be founded on no better than an arbitrary selection of result. Further, in light of the Applicant’s previous illegal departure, Tamil ethnicity, age, sex, past LTTE suspicions and breach of his reporting conditions, the Applicant would be charged with a more severe penalty and will be subject to more severe torture.[37]
[37] Applicant’s Case Outline filed 17 September 2013, pp.7-8 at para.61.
Ground three
The Applicant submits that the Tribunal:
[F]ailed to assess key integers of the applicant’s claim under s36(2)(aa) of the Migration Act 1958 namely failing to consider whether the applicant’ s (sic) claim regarding the (1) failure to signing the reporting condition in every Sunday and subsequent hiding would give rise to make stronger LTTE suspicion and (2) minimum six month jail for his previous offence would constitute treatment of torture and punishment and degrading treatment for the purpose of section 36(2)(aa) and such torture or cruel inhuman treatment or punishment or degrading treatment is real risk that the non citizen will suffer significant harm.[38]
[38] Amended Application filed 17 September 2013, at p.4.
The Applicant contends that:
·The Tribunal did not deal conclusively with the claims made;
·The claims the Applicant made were sufficient to activate the complementary protection provisions; and
·
The Applicant’s claims were only considered within the context of the 1951 Convention relating to the Status of Refugees
(“the Convention”) and as such, the Tribunal did not consider the claims pursuant to s.36(2)(aa) of the Act.[39]
[39] Applicant’s Case Outline filed 17 September 2013, p.8 at para.62.
In SZSFK v Minister for Immigration and Citizenship & Anor
[2013] FCCA 7, it was stated by Driver J that:Given the manner in which the Reviewer approached his task
(ie to accept the claimed apprehensions and beatings, but to reject the claim under s.36(2)(a) for reasons specific to Convention claims), it was not open for the Reviewer to simply say, as he did, that the complementary protection claim was rejected for the same reasons. It was incumbent on him to engage with the language of s.36(2)(aa) and to consider the evidence relevant to that provision.[40]
[40] [2013] FCCA 7 at para.92.
In paragraph 113[41] of the decision, the Tribunal assesses the issue of the monitoring of the Applicant, but does so only with respect to whether it constituted “serious harm” for the purpose of s.91R of the Act; the Tribunal had a duty to also consider if the monitoring amounted to “significant harm” for the purpose of s.36(2)(aa) of the Act. The finding in paragraph 118[42] with relation to the failed asylum seeker claim was also only considered in relation to the Convention. Further, at paragraph 120[43] of the decision, the Tribunal considered the claim with respect to Convention-related harm, but not whether the Applicant would suffer “significant harm”.[44]
[41] Court Book filed 26 July 2013, at p.289.
[42] Ibid, at pp.290-291.
[43] Ibid, at p.291.
[44] Migration Act 1958 (Cth), s.36(2)(aa).
In light of the above matters, the Applicant submits that the Tribunal fell into jurisdictional error in contravening a statutory obligation.
The First Respondent’s submissions
Ground one
Ground one asserts that the Tribunal failed to deal with “a claim or component integer for a Convention reasons thereof”[45] or failed to “ask itself the correct question”.[46] There is no articulation of what the correct question is or how the Tribunal failed to ask itself the correct question.
[45] Amended Application filed 17 September 2013, at p.3.
[46] Ibid.
Contrary to the Applicant’s assertion, the Tribunal dealt with the Applicant’s claims to fear harm and the Applicant’s alleged breach of reporting conditions. The Tribunal referred to the claims but did not accept the Applicant’s claims in relation to the CID. The Tribunal found the Applicant’s claims “as to the attention directed towards him by the CID, and his claim that the CID intend to harm him, insincere and rehearsed”.[47] The Tribunal was not satisfied the CID have an intention to target the Applicant for harm as claimed, or in any way.[48]
[47] Court Book filed 26 July 2013, p.292 at para.125.
[48] First Respondent’s Contentions of Fact and Law filed 18 September 2013, pp.3-4 at para.16.
The Tribunal did not accept the Applicant will return with a “heightened and pre-existing anti-government & pro-LTTE political profile”.[49] The Tribunal further did not accept the Applicant would continue to now be regarded by the CID, or anyone, as someone who holds relevant or important information as to LTTE activities, or that he should be targeted for harm for holding such information.
The Tribunal considered the CID and the TMVP would have been able to “trace and harm”[50] the Applicant if that was their intention.
A further finding is made in relation to harm from the CID at paragraph 128 of the decision.[51]
[49] Court Book filed 26 July 2013, p.292 at para.125.
[50] Ibid, at para.126.
[51] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.4 at para.17.
The First Respondent contends that this ground is an attempt to take issue with the Tribunal’s factual finding that the Applicant did not have a profile such that he would be targeted for serious harm by the Sri Lankan authorities.[52]
[52] Ibid, at para.18.
The First Respondent referred the Court to the decision in NABE where it was found that:
Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction.[53]
However, the Court confirms that:
The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.[54]
[53] (2004) 144 FCR 1 at para.55. See also: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at para.24 per Gummow and Callinan JJ, Hayne J agreeing at para.95.
[54] (2004) 144 FCR 1 at para.60. See also: SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at para.18 per Selway J.
The Tribunal dealt with the Applicant’s claim to fear harm from being a returned asylum seeker as part of his imputed pro-LTTE profile claim. The Tribunal expressly found that it did not accept that the Applicant had a heightened political profile.[55] Further, at paragraph 125 the Tribunal found:
[T]he Tribunal does not accept the applicant will return with a heightened and pre-existing anti-government & pro-LTTE political profile due to his Tamil ethnicity, adverse encounters with TMVP, attempted/illegal departures, or for any other reason.[56]
[55] Court Book filed 26 July 2013, p.289 at para.113.
[56] Ibid, at p.292.
The Applicant’s complaint in particular 1.2 of the amended grounds of application[57] impermissibly seeks to attack the factual finding made by the Tribunal that there was not a real risk the Applicant would suffer significant harm. A finding by the Tribunal on a matter of fact cannot be reviewed unless the finding is vitiated by an error of law.[58]
The Applicant has not identified any error on the part of the Tribunal.[59]
[57] Amended Application filed 17 September 2013, p.3, at particular 1.2.
[58] Waterford v Commonwealth of Australia (1987) 163 CLR 54 at 77 per Brennan J; Colby Corporation Pty Ltd v Federal Commissioner of Taxation (2008) 165 FCR 133 at para.16.
[59] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.4 at para.19.
The Tribunal had regard to the fact that the Applicant had already been found guilty of a breach of Sri Lanka’s IE Act because of his first and failed attempt to depart Sri Lanka illegally.[60]
[60] Ibid, at para.20.
The First Respondent submits that the findings made in paragraph 112[61] of the decision need to be read in the light of the way that the background was presented and how the Tribunal read the claim.
The Tribunal did not accept that the Applicant was credible in relation to his detention. It is also necessary to read the findings in paragraphs 128 and 132 to 133 of the decision.[62]
[61] Court Book filed 26 July 2013, at pp.288-289.
[62] Ibid, at pp.293-294.
The Tribunal was required to set out its findings on any material questions of fact, and refer to the evidence or any other material on which the findings of fact were based.[63] It was not necessary for the Tribunal to record its assessment of each piece of evidence relied on by the Applicant.[64]
[63] Migration Act 1958 (Cth), s.430(1)(c)-(d).
[64] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.4 at para.21; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346.
Ground two
Ground two complains the Tribunal’s finding that the Applicant did not meet the criteria in s.36(2)(aa) of the Act was so “illogical or irrational that no reasonable decision maker could have reached it”.[65]
[65] Amended Application filed 17 September 2013, at p.3.
The First Respondent submits that the Applicant has not established that no rational or logical decision-maker would have arrived at the decision on the evidence.[66] The First Respondent referred to the case of Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”) and submitted that there was “some probative material or logical grounds”[67] for the Tribunal to reach the conclusion it did. That being the case, no error of law occurred.[68]
[66] (2010) 240 CLR 611.
[67] (1999) 197 CLR 611, at para.145.
[68] First Respondent’s Contentions of Fact and Law filed 18 September 2013, pp.4-5 at para.24; (2010) 240 CLR 611.
Ground three
Ground three asserts the Tribunal misconstrued or misapplied s.36(2)(aa) of the Act, and failed to consider integers of the Applicant’s claim under s.36(2)(aa) of the Act.
The complaint against the Tribunal’s construction and application of s.36(2)(aa) of the Act is that the Tribunal conflated the concepts of serious and significant harm and thereby failed to consider the Applicant’s claim pursuant to s.36(2)(aa) of the Act.[69]
[69] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.5 at para.26.
The First Respondent submits that this contention should not be accepted as the Tribunal correctly identified the criteria for a grant of a protection visa under s.36(2)(aa) of the Act. The Tribunal applied that criteria in assessing the evidence that was before it. The Tribunal did not accept there was a real risk the Applicant will suffer “significant harm”.[70] The Tribunal’s finding was open to it on the evidence before it.[71]
[70] Migration Act 1958 (Cth), s.36(2A).
[71] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.5 at para.27.
The Tribunal considered the Applicant’s claims regarding “stronger LTTE suspicion”.[72] The Tribunal was not satisfied, on the evidence before it, that there was a real risk the Applicant will suffer “significant harm”[73] for reasons of Sri Lankan authorities monitoring him.[74]
The Tribunal found that:
Having regard to all of the Tribunal’s findings of fact, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm at the hands of the
Sri Lankan authorities, or the government or anyone else based on the reasons set out in his claims.[75]
[72] Amended Application filed 17 September 2013, at p.4.
[73] Migration Act 1958 (Cth), s.36(2A).
[74] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.5 at para.28.
[75] Court Book filed 26 July 2013, p.293 at para.131.
The Tribunal’s findings of fact included its rejections of the Applicant’s claim he would return to Sri Lanka with a heightened and pre-existing pro-LTTE political profile. The Tribunal was not satisfied the CID have an intention to target the Applicant for harm as claimed, or in any way. The Tribunal did not accept the Applicant would continue to now be regarded by the CID, or anyone, as someone who holds relevant or important information as to LTTE activities or that he should be targeted for harm for holding such information.[76]
[76] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.5 at para.29.
The First Respondent contends that there are two reasons why the assertion in relation to the “minimum six month jail for his previous offence”[77] should be rejected.
[77] Amended Application filed 17 September 2013, at p.4.
First, the claim that the Applicant would suffer “torture or cruel inhuman treatment or punishment or degrading treatment”[78] as a result of “minimum six month jail for his previous offence”[79] was never raised by the Applicant, and therefore the Tribunal was not required to consider the claim.[80]
[78] Ibid.
[79] Ibid.
[80] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.5 at para.31; (2004) 144 FCR 1 at para.58.
The First Respondent referred to page 6 of the transcript.[81]
The question is directed to the Applicant’s claimed fear of harm in relation to his second offence of breaching the IE Act and for his second illegal departure from Sri Lanka. The Tribunal did make findings about that at paragraph 131[82] of its decision.
[81] Affidavit of Christopher Michael McDermott filed 17 September 2013, at Annexure “CMM-1”.
[82] Court Book filed 26 July 2013, at p.293.
It is well-established that the Tribunal is only required to consider the claims made by an applicant that were sufficiently raised on the material before the Tribunal and not those depending for their exposure upon constructive or creative activity by the Tribunal.[83] The Tribunal is required to respond to “a substantial, clearly articulated argument relying upon established facts”.[84] A conclusion that the Tribunal has failed to consider a claim not expressly advanced is not to be made lightly.[85]
[83] (2004) 144 FCR 1 at para.58.
[84] Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at para.24 per Gummow and Callinan JJ, referred to in (2004) 144 FCR 1 at para.68.
[85] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.6 at para.32; (2004) 144 FCR 1 at para.68.
The Applicant never claimed to fear harm as a result of the imposition of the “minimum six month jail for his previous offence”[86].
The Applicant has been represented by the same migration agent throughout the protection visa application process. The claim was not raised in any of the written material filed on behalf of the Applicant, including:
·The Applicant’s statutory declaration;
·The written submissions dated 10 August 2012;
·The written submissions dated 9 November 2012; and
·The written submissions dated 23 November 2012.[87]
[86] Amended Application filed 17 September 2013, at p.4.
[87] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.6 at para.33.
The claim is not referred to in the delegate’s decision and was not raised before the Tribunal. Further, the Applicant did not make any complaint to the Tribunal that the delegate had failed to deal with the claim.[88]
[88] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.6 at para.34.
The Tribunal is required to respond to “a substantial, clearly articulated argument relying upon established facts”.[89] The relevant facts were not established. The Applicant did not provide the Tribunal with any facts to support the assertion he would be imprisoned for his previous offence.[90]
[89] Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 at para.24 per Gummow and Callinan JJ, referred to in (2004) 144 FCR 1 at para.68.
[90] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.6 at para.35.
The only reference in the material before the Tribunal to the alleged suspended sentence is in the translated Court document attached to the 23 November 2012 submissions.[91]
[91] Ibid, at para.36.
This reference is not sufficient for the claim to ‘clearly arise’ from the material before the Tribunal. To hold otherwise would require the Tribunal to engage in an independent analytical exercise of the material to discover potential claims where it has no such obligation.[92]
[92] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.6 at para.37; NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at para.15.
As the claim was not articulated and did not clearly arise from the material before the Tribunal, the Tribunal was under no obligation to consider the claim.[93]
[93] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.6 at para.38.
Second, even if it can be said that the claim is raised ‘squarely’ on the material, it was unnecessary to make a finding on this claim because it is “subsumed in findings of greater generality”.[94] Specifically, at paragraph 131[95] of its decision, the Tribunal makes relevant findings and at paragraph 119,[96] the Tribunal had regard to the fact that there could be a more severe penalty imposed by the law for a second offence.
[94] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at para.47.
[95] Court Book filed 26 July 2013, at p.293.
[96] Ibid, at p.291.
The Tribunal was not satisfied that the Applicant will suffer “significant harm”[97] as a result of being questioned, detained or prosecuted for any offence under the IE Act, or for any other reason. The Tribunal’s findings of fact included the finding that this would be the Applicant’s second offence of departing Sri Lanka illegally.
The Tribunal had regard to the country information on the treatment of returnees and did not accept there is a real risk the Applicant will be detained or harassed or mistreated at the airport on his return to
Sri Lanka.[98]
[97] Migration Act 1958 (Cth), s.36(2A).
[98] First Respondent’s Contentions of Fact and Law filed 18 September 2013, p.7 at para.40.
On a fair reading of the whole of the Tribunal’s decision, it was unnecessary to make a separate finding. Accordingly, the
First Respondent submits that this ground should fail.
Conclusions
The first ground advanced by the Applicant is that the Tribunal erred in not considering a claim or a component integer of a claim advanced by the Applicant. This seemed to be advanced in two ways:
·First, that the Tribunal failed to consider that the Applicant would be imputed with a heightened political profile because of his breach of reporting conditions with the CID; and
·Second, that the Tribunal failed to accept that there was a real risk that the Applicant would suffer significant harm within the meaning of s.36(2)(aa) of the Act because his second illegal departure would constitute a breach of the conditions for his suspended sentence which would mean he would be liable to six months in prison, in addition to any penalties imposed for the second illegal departure.
Both the Applicant and the First Respondent referred to the case of NABE in relation to the failure by the Tribunal to deal with a claim. The Court in that matter considered whether the absence of a finding of a relevant fact might amount to jurisdictional error. The Court referred to the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389:
Where the Tribunal fails to make a finding on “a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ, Hayne J agreeing at [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act.[99]
[99] (2004) 144 FCR 1 at para.55.
At paragraph 58, the Court considered the extent of the Tribunal’s obligations with respect to claims:
The review process is inquisitorial rather than adversarial.
The Tribunal is required to deal with the case raised by the material or evidence before it: Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at [114](Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant: Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.[100][100] (2004) 144 FCR 1 at para.58.
Later, the Court referred to the judgment of Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364:
His Honour, in our view, correctly stated the position when he said (at [18]):
The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.[101]
[101] Ibid, at para.60.
With respect to the submission that the Tribunal failed to deal with the Applicant’s claim of fear from his alleged breach of reporting conditions with the CID, the Tribunal dealt with that issue firstly by referring to the Applicant’s claims in paragraph 21[102] of its decision and, in particular, to the Applicant’s claims that:
·He was released from detention in May 2010 on the condition that he report to the CID every Sunday and that he did so for about one and a half years; and
·In late 2011, he was accused of lying about having no information about the LTTE, was threatened by a CID officer and went into hiding.
The Applicant claimed that he left Sri Lanka through a smuggler and believes there would be severe consequences in the event that he was caught again, as it was the second time he had left Sri Lanka.
[102] Court Book filed 26 July 2013, at pp.262-264.
The Tribunal summarised the Applicant’s claims as fearing he will be harmed owing to his “Tamil ethnicity, his imputed pro-LTTE and anti-government political opinion”,[103] his attempted illegal departure from Sri Lanka in 2009 and as a failed asylum seeker departing Sri Lanka illegally for a second time.
[103] Ibid, at p.175.
At paragraphs 49 and 50 of its decision, the Tribunal dealt with the issue of why the CID would continue to be interested in the Applicant:
The Tribunal asked the applicant why would the CID still be interested in him after he had been found not guilty of being associated with the LTTE; the Tribunal put it to the applicant that it doubted the CID continue to have an interest in the applicant based on the evidence that charges against him had been dismissed by the Court. He replied that even though he has been found not guilty, he has been tortured by the CID and because he escaped and because he stopped reporting to the CID it is interested in him. He said that the other reason is that the CID is interested in him because he has been arrested for LTTE suspicion. He said the CID do not believe what the Court says and they do not follow what the Court orders. He said there are many incidents of kidnapping and torture even though Courts find people are not guilty.
The Tribunal asked the applicant whether he is wanted in Sri Lanka for any crime or offence. He replied he has not committed any offence although he departed Sri Lanka illegally. The applicant said that there are no arrest warrants current for his arrest if he returns to Sri Lanka.[104]
[104] Court Book filed 26 July 2013, at pp.268-269.
At paragraph 125 of its decision, the Tribunal dealt with these claims:
On the evidence before it, the Tribunal does not accept that the CID has an intention to harm the applicant because it disregards the decision of the Court in Sri Lanka. Although the Tribunal accepts that there may be instances where the CID may consider the decision of a Court to have been incorrect, in this case, the Tribunal found the applicant’s claims as to the attention directed towards him by the CID, and his claim that the CID intend to harm him, insincere and rehearsed. Based on the Tribunal’s findings as to the (sic) all of the applicant’s circumstances, the Tribunal is not satisfied the CID have an intention to target the applicant for harm as claimed, or in any way. Similarly, the Tribunal does not accept the applicant will return with a heightened and pre-existing anti-government & pro-LTTE political profile due to his Tamil ethnicity, adverse encounters with TMVP, attempted/illegal departures, or for any other reason.[105]
[105] Court Book filed 26 July 2013, at p.292.
I am satisfied that the Tribunal did deal with the Applicant’s claim that he would be imputed with a heightened political profile because of his breach of reporting conditions with the CID.
Did the Applicant claim to fear harm because his second illegal departure would constitute a breach of the conditions of his suspended sentence, which would mean he would be liable to six months in prison? Or was such a claim apparent on the face of the material?
The Applicant, by reference to the delegate’s decision, referred to the summary his representative had made of his claims:
The applicant fears persecution and has a well founded fear in Sri Lanka on account of his Tamil ethnicity, his imputed pro-LTTE and anti-government political opinion, his membership of particular social groups, ‘failed asylum seeker’, ‘failed asylum seeker who has already come to the adverse attention of the
Sri Lankan authorities’ and ‘person who has departed from
Sri Lanka illegally’ which the latter could also be part of his imputed political opinion.[106]
[106] Ibid, at p.175.
There is no reference in that summary to a fear arising from a breach of the conditions of his suspended sentence.
The Applicant referred to various parts of the transcript with reference to this claim. The Applicant refers, at page 4 of the transcript, to being persecuted because he “escaped from the country illegally”.[107] He says, “If I return, definitely they will put me in goal and they will persecute me”[108] and later, “because I have escaped the country without the knowledge of the CID, definitely they will put me in gaol and torture me”.[109]
[107] Affidavit of Christopher Michael McDermott filed 17 September 2013, Annexure “CMM-1”, p.4 at line 1.
[108] Ibid, at lines 10-12.
[109] Ibid, at lines 23-25.
In the transcript, the following exchanges occur:
Well, tell me why you fear that you will be seriously harmed for leaving Sri Lanka illegally, as you claim you did? - - - I fear because the first time I have been arrested and been put in a Boosa camp without any particular reason. So now the second time, if I return back and now I have the case that I came out from the country illegally, definitely a worse situation will come more than the first in prison.
Is the law in Sri Lanka such to make it a crime to leave the country without permission? - - - Yes.
So if you break the law in a country, don’t you expect it to have consequences? - - - The reason why I had to leave the country illegally, because I have no choice because I’ve been – my life has been threatened, just fear for my life, I have to leave the country illegally, and in Sri Lanka, it’s not like equal opportunity or equal punishment for everyone. It’s only for the Tamil people. They have the law but only for the Tamil people. It’s a serious offence for us. So it’s a different punishment for us and even in the gaol there is a lot of killing happening. For example, if you are in Australia, if anyone do a crime, it will be equal punishment without any race or any religion, but only the Tamils will have more punishment or will be rejected for the sake of being a Tamil there.
What do you think would be your punishment if you return now, because I understand you say that you were fined for the first time that you left Sri Lanka. Why wouldn’t they just fine you again? - - - If I return now, there’s going to be a big problem because I was in the gaol for six months and surely the CID asked me to sign every Sunday for few months and then – then from there I escaped without the knowledge of the CID. The reasons I’ve been arrested the first time because of the suspicion of the LTP and then they say for five years my record will be there. If I go back to gaol again, it will be nothing like the second time because this time I will be persecuted more because I have escaped the country without their knowledge, and definitely I been witness lot of persecution and I have been – underwent lot of persecution myself when I was in the gaol. We, as the Tamils, we - - -
Can you just slow down a bit, please, Madam Interpreter? I’m sorry, I just want to – I know it’s being recorded but I also want to keep up with you. So just from where you were saying that he was told that his record would be kept for five years? - - - Five years, yes, and if I go back to gaol, definitely I will be definitely persecuted, more than the first time because of their knowledge – without their knowledge I have escaped …[110]
[110] Affidavit of Christopher Michael McDermott filed 17 September 2013, Annexure “CMM-1”, p.5 at lines 13-31 and p.6 at lines 1-28.
At pages 13 to 15 of the transcript[111] there is discussion of a document from the Court which had not been provided to the Tribunal. At that stage, it appeared that the Applicant’s representative had not seen the document but agreed to provide it to the Tribunal after the hearing.
[111] Affidavit of Christopher Michael McDermott filed 17 September 2013, at Annexure “CMM-1”.
At page 30 of the transcript, the Applicant was asked if he was wanted in Sri Lanka for any crime or offence to which he replied:
There is no – any other crime that I’ve committed, except if you see that in court they told me once at court saying that I escaped the country illegally.
Do you know if there are any formal documentary warrants for your arrest in Sri Lanka? - - - No.[112]
[112] Affidavit of Christopher Michael McDermott filed 17 September 2013, Annexure “CMM-1”, at lines 24-28.
At page 37 of the transcript, the Tribunal sought to clarify the basis of the Applicant’s claims:
MEMBER:Yes. It actually has to be considered in the light of the delegate decision record, but I notice in your submission, Ms Khatri, you make reference to a claim of persecution on the basis of membership of a particular social group, and you characterise that social group as “Returned Tamils”. In the delegate’s decision record, the – it seemed as if three grounds under membership of particular social group were advanced. One was the “Failed asylum seekers”, one was – the other one was “Failed asylum seekers already come to the adverse attention of Sri Lankan authority”. The third group referred to in the decision record which is “Wealthy Tamil businessmen in Sri Lanka”. Have you revised your submission from the time of the delegate’s decision or can you explain that?
MS KHATRI: Sorry Member, I apologise for the confusion. Just wanted to maintain that we do advance that the (indistinct) particular social group that were noted in the delegate’s decision and apologies for not including that and making that clear in the submissions that we recently provided.[113]
[113] Affidavit of Christopher Michael McDermott filed 17 September 2013, Annexure “CMM-1”, at lines 9-29.
At no stage during the hearing, or in submissions, did the Applicant raise a fear of harm because his second illegal departure would mean that he would be liable to six months in prison for breaching the terms of the Court’s order on 30 April 2010.
The document in question appears in its English translation at page 241 of the Court Book. The relevant parts read:
Accordingly ………. 136 has no previous offence. and accepting the offence at the first instance was taken in to consideration and the punishment will be give according to that.
According to this 06 months imprisonment with heavy work. I withhold this for five years. I hereby impose a penalty of Rs.20,000/= (Twenty thousand only) failure to pay the fine he will be sentenced for three (03) months.
Note:Suspect has paid a sum of Rs.20,000/= as penalty and the evidence for this is annexed.[114]
[114] Court Book filed 26 July 2013, at p.241.
The submissions made to the Tribunal and the evidence of the Applicant concerning the likelihood of him being imprisoned should he return to Sri Lanka were made in the context of the Applicant’s:
·Illegal escape from the country;
·Escape without the knowledge of the CID;
·Tamil ethnicity; and
·Breach of his reporting requirements to the CID.
At no stage was the issue put squarely before the Tribunal in terms of a breach of the provisions of the court order made on 30 April 2010.
Nor was it, in my view, apparent on the face of the material before the Tribunal that the Applicant had a claim based on the court order that he would be imprisoned on his return to Sri Lanka without the Tribunal constructing the document and making certain assumptions about the Sri Lankan legal system. In my view, it could not be said that the claim clearly arose from the material before it.
On that basis, I am not satisfied that the Tribunal was in error for the reasons advanced in ground one.
Ground two alleges error on the part of the Tribunal in that its assessment of whether the Applicant would be at risk of suffering significant harm should he return to Sri Lanka was so illogical and irrational that no reasonable decision-maker could have reached it.
The Applicant alleges that, in considering country information, the Tribunal did not adequately distinguish the Applicant from general failed asylum seekers because of his suspended sentence and also did not distinguish the Applicant from general failed asylum seekers on the basis of his Tamil ethnicity, previous attempted illegal departures, previous LTTE accusations and breach of his reporting conditions.
This ground raises what is sometimes referred to as
‘Wednesbury unreasonableness’. In Eshetu, the Court referred to Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) in the joint judgment of Gleeson CJ and McHugh J:
In Wednesbury (35) itself, which was concerned with an issue as to whether the imposition of a condition imposed by a licensing authority was so unreasonable as to be beyond the proper exercise of the authority's powers, Lord Greene MR (36) said that what a court may consider unreasonable is a very different thing from "something overwhelming" such that it means that a decision was one that no reasonable body could have come to. As Mason J pointed out in Minister for Aboriginal Affairs v
Peko-Wallsend Ltd (37), when the ground of asserted unreasonableness is giving too much or too little weight to one consideration or another "a court should proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits".[115][115] (1999) 197 CLR 611 at para.44.
In coming to his view on the obligation of the Tribunal with respect to ‘unreasonableness’, Gummow J in Eshetu referred firstly to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118 to 119:
"In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached."[116]
[116] (1999) 197 CLR 611 at para.136.
His Honour went on to adopt the approach of Gibbs J, concluding:
It would permit review in cases where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.[117]
[117] Ibid, at para.145.
At paragraphs 66 to 78 of the decision,[118] the country information on the treatment of persons with LTTE links is outlined and paragraphs 79 to 98[119] set out country information on returned failed asylum seekers and illegal departure. At paragraph 108[120] of the decision, the Tribunal expressly deals with the difference in information presented by the Applicant and information identified by the Tribunal and provides reasons for its preference for accepted “information from official sources”.[121] At paragraph 113,[122] the Tribunal rejected a claim that the Applicant would be targeted for serious harm as a result of being a person of continued interest. It accepted that while he may have been accused of being an LTTE sympathiser, those accusations had been determined by the Court to be unfounded.
[118] Court Book filed 26 July 2013, at pp.273-278.
[119] Ibid, at pp.278-285.
[120] Ibid, at pp.287-288.
[121] Ibid, p.288 at para.108.
[122] Ibid, at p.289.
At paragraphs 115 to 121[123] of its decision, the Tribunal dealt with the issue of fear of harm as a failed asylum seeker.
[123] Court Book filed 26 July 2013, at pp. 290-291.
At paragraph 118,[124] the Tribunal noted that country information indicated that the Applicant may face prosecution for departing
Sri Lankan illegally and, if found guilty, would be liable to the penalty prescribed for that offence, in other words, a fine or imprisonment.
The Tribunal also noted that the Applicant had been fined for his first offence. The Tribunal also found that Tamils are not specifically targeted. At paragraph 119[125] of its decision, the Tribunal stated that it had regard to the fact that there could be a more severe penalty imposed by the law for a second offence. It also found that there was not a real chance that the Applicant would be prosecuted for alleged association with the LTTE. At paragraph 125,[126] the Tribunal made findings about the Applicant’s fears concerning the CID and concluded that it did not accept that he would return (to Sri Lanka) “with a heightened and pre-existing anti-government & pro-LTTE political profile due to his Tamil ethnicity, adverse encounters with TMVP, attempted/illegal departures, or for any other reason” (emphasis added).[127]
[124] Ibid.
[125] Ibid, at p. 291.
[126] Ibid, at p. 292.
[127] Ibid.
The Tribunal, as I have previously found, did not have clearly before it, a claim that there was a real risk that the Applicant would suffer harm because of his suspended sentence arising from his previous attempt to illegally leave Sri Lanka. Nevertheless, the Tribunal did consider that the Applicant had a previous conviction for attempting to leave Sri Lanka illegally and there could be a more severe penalty imposed for a second offence.
The Tribunal specifically considered and rejected claims that the Applicant would suffer as a returned asylum seeker because of his Tamil ethnicity and previous LTTE accusations. With respect to a claim based on his breach of reporting to the CID, the Tribunal found that the Applicant was not of any on-going interest to the CID and could not have hidden from the CID in Sri Lanka if he was of genuine interest to the CID. It is implicit, in my view, that the Tribunal is also rejecting any claim that the Applicant would suffer harm because of a breach of reporting conditions to the CID. The Tribunal accepts, at paragraph 127,[128] that the Applicant may have been asked to inform on the LTTE to the CID but does not accept that he would continue now to be regarded by the CID as someone who holds relevant or important information as to LTTE activities.
[128] Court Book filed 26 July 2013, at p.292.
In dealing with the complementary protection provisions, the Tribunal firstly refers, in paragraphs 16 to 18,[129] to the criteria for meeting the provisions of s.36(2)(aa) of the Act, and, at paragraph 17,[130] sets out the definition of what will constitute “significant harm”.[131] At paragraph 131[132] of its decision, the Tribunal concludes that it does not accept that there is a real risk of the Applicant suffering “significant harm”.[133]
The Tribunal refers, in particular, to this in the context of “being questioned, detained, or prosecuted for any offence under the Immigration and Emigration Act (sic), or for any other reason”[134] (emphasis added). The Tribunal refers to its previous findings of fact and to the fact that the Applicant has already been found guilty of a breach of the IE Act because of his previous failed attempt to depart
Sri Lanka illegally.
[129] Ibid, at p.262.
[130] Ibid.
[131] Migration Act 1958 (Cth), s.36(2A).
[132] Court Book filed 26 July 2013, at p.293.
[133] Migration Act 1958 (Cth), s.36(2A).
[134] Court Book filed 26 July 2013, at p.293.
At paragraphs 132 and 133,[135] the Tribunal makes specific findings about the risk of the Applicant being subject to torture, or being subjected to cruel and inhuman treatment or punishment or that he would be arbitrarily deprived of life or subjected to degrading treatment or punishment.
[135] Ibid, at p.294.
I am satisfied that, in reaching its conclusions, the Tribunal had some probative material to support its findings and logical reasons for its conclusions. The Tribunal clearly gave more weight to certain material than to other material, but that is a matter of merit.
Further, with respect to ground three of the Applicant’s grounds,
the Tribunal is not, in my view, under an obligation to revisit its findings of fact. It is obliged to consider whether there is a real risk that the Applicant will suffer ‘significant harm’ as defined by the Act.
The claim that the Applicant would suffer torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as a result of being required to serve a minimum of six months goal for his previous offence was never raised by the Applicant. The Tribunal did, however, clearly consider that he might be subject to a more severe penalty because of a second offence. Having regard to its findings of facts, the Tribunal did not accept that there was a real risk that the Applicant would be subject to torture by the military or the police or people from the authorities in Sri Lanka, which appears to be the Applicant’s claim if he was to be gaoled on his return to Sri Lanka.
For these reasons, I am not satisfied that the Applicant has established jurisdictional error on the part of the Tribunal and the application must therefore be dismissed.
I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 10 February 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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