MZZQG v Minister for Immigration - [2015] FCCA 693

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZQG v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 693

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – protection visa application – judicial review – no matters of principle – failure to address an integer of a claim – application dismissed.

Legislation:
Migration Act 1958, ss.91R, 414

BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543
BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41
MZYLX v Minister for Immigration and Citizenship [2012] FCA 580; (2012) 128 ALD 138
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant:

MZZQG

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1233 of 2013

Judgment of:

Judge Riethmuller

Hearing date:

28 November 2014

Date of Last Submission:

19 December 2014

Delivered at:

Melbourne

Delivered on:

30 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Smyth

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Mr Sharpe

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The Application filed 7 August 2013, the Amended Application filed 2 May 2014, Further Amended Applications filed 26 June 2014, 18 July 2014 and 28 November 2014 be dismissed.
The Applicant pay the First Respondent’s costs, fixed at $9,769.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLG 1233 of 2013

MZZQG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Applicant seeks judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 30 June 2013 which affirmed a decision of a delegate of the First Respondent to refuse the Applicant a Protection (Class XA) visa.
The Applicant is a citizen of Sri Lanka. He is of Tamil ethnicity and Hindu faith. The Applicant entered Australia as an irregular maritime arrival on 25 July 2012.
On 23 January 2013 the Applicant lodged his application for a protection visa and was interviewed by a delegate of the Minister (Court Book (‘CB’) 23-87).
The Applicant claimed to fear persecution on four grounds: by reason of his ethnicity; actual or imputed political opinion; membership of particular social groups, namely Sri Lankan Tamils and failed asylum seekers (CB 192); and that the Tribunal made a qualitative assessment of possible detention of the Applicant contrary to s.91R of the Migration Act 1958 (Cth) as explained in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.
On 14 February 2013 a delegate of the First Respondent refused to grant the Applicant the visa (CB 136-162).

The Applicant’s case before the Tribunal

The Tribunal summarised the case put by the Applicant (at CB 252-254) as:
13. … The applicant claimed he had problems accessing education and employment in Chilaw, that Singhalese people would harass Tamil students on their way to and from school and that Sinhalese workers were always favoured over Tamil workers for government jobs.
14. At the hearing, the applicant stated that he attended a Catholic school in Chilaw where the majority of students were Tamils. He rode a bike to school. Sometimes people called out to him and accused him of being LTTE because his mother was born in Batticaloa and his father was born in Kandy. Sometimes they threw stones. This occurred up until 2011. Other Tamil students were also harassed. It was hard to tell how often this occurred but it was every time he was out or every few days. Sometimes people demanded money or put their hands in his pocket and took money, sometimes for lunch at school. This happened once a week. He told his mother but it was hard to resist because Tamils were a minority.
15. The applicant stated that the police attacked his father and took him and his father to the police station after a robbery at a neighbour’s home in 2010. The police questioned his father and released him some hours later after his uncle helped him arrange a lawyer.
16. The applicant stated that his father owned a van and worked as a delivery driver and as a salesman, purchasing groceries in Colombo and selling them to shops in Chilaw. His father travelled to Colombo once a week and it took him a long time because he was often questioned at checkpoints. Even though the number of checkpoints is now reduced, traffic police still question his father once or twice a month and demand money although his father has a licence and insurance.
17. The applicant stated that his family moved to Batticoloa in June 2011 for various reasons including that his father was being harassed by Sinhalese shop owners who were not happy that a Tamil family was living and doing business in a Sinhalese area. He stated that his father continued to work as a delivery driver and salesman in Batticaloa between June 2011 and February 2012, however, his father had problems in Batticaloa because the health department said father his could not sell his products although they were not past their used by date, and asked for money.
…
19. The applicant stated that his older sister married a Sinhalese man called Kennedy without her parent’s consent. The applicant does not know his brother-in-law’s full name. Kennedy’s brother, Charminda, was a member of the provincial council. The applicant does not know Charminda’s full name or which party he belonged to.
20. The applicant stated that his family moved to Batticoloa in June 2011 because his brother-in-law’s family harassed them for money and also because they felt isolated after his sister’s marriage because many of their relatives stopped visiting them. He stated that his parents felt isolated because Sinhalese do not treat Tamils with dignity and Tamils do not like Sinhalese and there is tension between them.
21. The applicant stated that his family had no contact with his sister after she married. He does not know why Kennedy’s family threatened his family. His family could not obtain any support from the police as Kennedy’s family are popular.
22. The applicant stated that he remained living in Chilaw with his aunt to finish school. In September or October 2011, Kennedy took him to his house, hit him, pointed a gun at him and told him to tell his father to pay some money. He did not tell his father or aunt about this incident because they might have stopped him from studying and taken him to Batticaloa. When asked if his father is wealthy, the applicant said his father is middle class. His brother-in-law may have asked for money because he was unemployed. The applicant stated that he and his family saw Kennedy after they returned to Chilaw and had no further issues with him. His father had no contact with Charminda.

The Applicant’s Grounds

The Applicant’s case ultimately relied upon four grounds, as follows:
1. The Tribunal fell into jurisdictional error in that it failed to deal with an integer of the claim the applicant put to it.
Particulars
The integer not dealt with by the Tribunal was that the applicant’s brother-in-law’s conduct amount to persecution of the type contemplated by s 91R of the Migration Act 1958 (Cth), in relation to which the State would withhold protection because of the applicant’s ethnicity.
2. The Tribunal fell into jurisdictional error in that it failed to accord the applicant procedural fairness in relation to two claims he sought to agitate before it.
Particulars
The two claims were:
(i) That s 45 of the Immigrants and Emigrants Act 1945 (Sri Lanka) is differentially applied and/or applied by the State so as to have a discriminatory impact on persons of Tamil ethnicity; and
(ii) that the applicant would suffer persecution of a particular social group, i.e. repatriated/returned illegal deportees from Sri Lanka.
3. The Tribunal fell into jurisdictional error in that it ignored or overlooked evidence relevant to the evaluative tasks it was required to perform, so that it failed lawfully to perform the review required of it by s 414 of the Migration Act 1958 (Cth).
Particulars
The relevant material ignored or overlooked was the information the Applicant provided in writing about his likely treatment upon return to Sri Lanka.
4. The Tribunal fell into jurisdictional error in that it erroneously applied a qualitative assessment to the detention it accepted the applicant would suffer upon return to his nationality country.

Ground One

The Applicant submits that the Tribunal fell into error because it did not address an integer of the Applicant’s original claim; that is, whether the brother-in-law’s conduct amounted to persecution in relation to which the State would withhold protection because of his ethnicity.
The Tribunal made the following findings in relation to the Applicant’s submissions concerning his brother-in-law (CB 254-255.):
23. The Tribunal accepts that the family of the applicant’s brother-in-law may have asked the applicant’s father for money, whether for person reasons or in the form of political donations. The Tribunal notes that provincial elections were held in 2011. The Tribunal accepts that the applicant’s father may not have wanted to give money to his son-in-law’s family. The applicant has not provided any evidence that his father suffered any harm as a result of any demands for money. The Tribunal does not accept that the applicant’s brother-in-law pointed a gun at the applicant and demanded that he tell his father to pay money. The Tribunal does not accept that the applicant would not tell his father or aunt of such an extreme threat if it had occurred or that the applicant’s father, a middle class business man, would not have reported such a threat to the police if he had been informed or that the police would not have acted in relation to such a criminal act. The Tribunal also does not accept that the applicant’s brother-in-law pointed a gun at the applicant and demanded money yet took no further action when no money was paid. The Tribunal notes that the applicant and his family had no further problems with the applicant’s brother-in-law after they returned to Chilaw in February 2012.
24. The Tribunal does not accept that the applicant’s brother-in-law or his family demanded money or harassed the applicant’s father because of his ethnicity. The Tribunal does not accept that the applicant’s brother-in-law married a Tamil woman then threatened her family because of their ethnicity.
25. The Tribunal accepts that Tamils in Sri Lanka have experienced discrimination. The US Department of State reported in 2012 that “[b]oth local and Indian-origin Tamils maintained that they suffered long-standing, systematic discrimination in university education, government employment, and other matters controlled by the government… Tamils throughout the country, but especially in the north and east, reported frequent harassment of young and middle-aged Tamil men by security forces and paramilitary groups”.
26. The Tribunal accepts that the applicant has suffered some discrimination and harm in the past from Sinhalese people arising from his ethnicity and that his father has experienced some mistreatment and corrupt treatment by government authorities that might have been discriminatory. The Tribunal does not accept that this past treatment of the applicant or his father amounted to serious harm. The applicant was able to continue his studies up until he left Sri Lanka. His father was able to maintain his business. The Tribunal does not accept that the applicant or his father suffered serious harm in the past from the applicant’s brother-in-law or his brother-in-law’s family. The applicant has not claimed to have suffered any past harm from security forces or paramilitary groups. The Tribunal notes that the situation for Tamil people in Sri Lanka has reportedly improved since the end of the conflict and that being Tamil is not regarded by UNHCR as a risk profile. The evidence before the Tribunal does not indicate that the applicant will face any creased risk of harm on return to Sri Lanka.
27. The Tribunal finds that the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future in Sri Lanka from Sinhalese people, the authorities, his brother-in-law or his brother-in-law’s family because of his ethnicity. For the same reasons, the Tribunal also finds that the risk of significant harm is remote and that the applicant’s ethnicity does not give rise to substantial grounds for believing that he faces a real risk of significant harm upon being returned to Sri Lanka. [emphasis added]
The Applicant’s argument under this ground is based upon the proposition that the use of the words “because of ethnicity” that appears in paras. 24 and 27 above, the Tribunal’s reasoning on the topic of the risk that the Applicant faced from his brother-in-law is infected by a restriction of this type. That is, that the Tribunal approached the topic of the fact-finding in this regard through the lens of considering only those risks that were based upon the Applicant’s ethnicity rather than looking generally at the risks that his brother-in-law presented. The argument then proceeds upon the basis that, having failed to consider the risks generally, the Tribunal also then failed to consider whether or not the police would protect the Applicant from those risks. The failure to protect, it was said, would arguably be based on ethnicity and therefore would be a Convention reason.
It seems to me, however, that a fair reading of paras.23 to 27 disclosed that the Tribunal rejected all of the factual bases upon which an inference could be drawn or a finding could be made that the Applicant may be at risk of serious harm from his brother-in-law. The relevant passages are highlighted in the quote above. It should be noted that the focus of the Tribunal on ethnicity in paras. 24 and 27 is clearly a response to the way in which the Applicant framed his case, which appears, for example, at page 186 of the court book where the Applicant’s adviser put the case on this basis.
The Applicant has a fear of harm from his Singhalese brother in-law. Their marriage has caused significant familial issues to our client’s family in that the brother-in-law is extorting the family by demanding money from them. Our client instructs that his brother-in-law is oppressing his family on the basis of their Tamil ethnicity. He advises that the hostility with his brother-in-law remained despite the fact that the family attempted to relocate to another region in Sri Lanka, namely Batticoala, and returned to Chilaw a few months later. [emphasis added]
The Applicant also relies upon comments by Bromberg J in MZYLX v Minister for Immigration and Citizenship [2012] FCA 580, where his Honour said:
25. In my view, the Reviewer’s reasons reveal an acceptance of a well-founded fear of the father. However, the appellant need not travel so far to establish that it was necessary for the Reviewer to consider the state protection claim. The absence of a finding by the Reviewer that the appellant had failed to establish a well-founded fear of serious harm from the father, would suffice. The “inevitable logic” that North J referred to in Razai is based upon a finding that the asylum seeker would not face serious harm in the reasonably foreseeable future. In this case, no such finding was made.
26. In the absence of such a finding, the Reviewer was wrong to conclude as he did at [87], that the issue of state protection did not arise.
In that case, his Honour distinguished the reasoning of North J in Razai v Minister for Immigration and Citizenship [2012] FCA 394 on the basis that in Razai the appellant had failed to establish a well-founded fear of serious harm.
It seems to me that a fair reading of that paragraph is to the effect that, where there is evidence from which the Tribunal could draw the conclusion that there was a risk of serious harm, then that is sufficient to require the Tribunal to either deal with the question of harm or the question of State protection or both, depending upon the findings in the particular case. In this case, however, a fair reading of the Tribunal’s decision shows that they rejected each of the pieces of evidence that may show a risk of harm. On the findings as made by the Tribunal, there was nothing that had been accepted which could have formed the basis for a finding of risk of harm to the Applicant. In these circumstances, it seems to me that the comments of Bromberg J in MZYLX are not apposite to this case, but rather the reasoning of North J in Razai and the reasoning of Collier J in BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 are applicable.
In the circumstances, I find that the Applicant has not established this ground either on the basis of there being any basis from which the Tribunal could conclude (after their fact-finding) that he was at risk of harm, nor on the basis that the Tribunal failed to reach a view (it appears to me that the Tribunal concluded that he was not at risk of harm and rejected his evidence in this regard), and finally on the basis of a rejection by the Tribunal of the claim that the police would not have acted in relation to such criminal acts as set out in para.23.

Ground Two

This ground was developed on the basis that the Tribunal member gave two ‘monologues’ during the course of the hearing, as is apparent in the transcript at pp.37-38 and 40. Those monologues were in the following forms:
TRIBUNAL MEMBER: Yes. What I understand about what happens when people return to Sri Lanka is that – this is information that has been provided by the Australian Department of Foreign Affairs. The Department of Foreign Affairs says that for everybody that’s returned – everybody that’s returned has to be processed at the airport by their Department of Immigration and Immigration and they’re also interviewed by the SIS and the CID. They’re checked against databases and checks are made to see if the person is wanted for any reason in Sri Lanka.
So people are processed as quickly as possible. It seems to be the same process whether they’re Tamil or Sinhalese. When people have been returned from Australia someone from the Australian government is at the airport monitoring them being processed. For other people when they are returning someone from the International Organisation of Migration is there assisting them to go through the airport process. The information we have is that unless – there are no problems for people going through that process unless they are wanted by the police or security forces for some reason. Okay, yes. Then I understand that once people have gone through that immigration process and they are now then – sorry, once they’ve gone through that process, that immigration process people who have left Sri Lanka illegally are being arrested and are charged with an offence under Sri Lankan law. Because it’s an offence under Sri Lankan law to leave the country illegally. People are being reprimanded, that means put into prison for one day or a few days until they can be brought to court. According to the Australian Department of Foreign Affairs, you know, they can be brought to court the next day or if it’s the weekend they will be brought to court on Monday but there’s another press report that says they might be – it might be more than a few days. It might be up to two weeks that they are in prison. Then they’re being released on bail. So bail and then they often – and they usually have to have a family member who can be a guarantor for them. And so far nobody has been convicted yet of having left illegally. Under the law the penalty is a fine and a prison sentence. It’s the same penalty for trying to leave. A lot of other people have been caught and charged in the act of trying to leave Sri Lanka illegally. A number of those people have already been convicted and they’ve been fined but they haven’t been put in prison. There are more than a thousand people who have been charged under this law. Although nobody has yet been convicted - no-one who has been returned from Australia has yet been convicted, there’s a newspaper report that quotes a lawyer who is acting for many of these people in the courts in Colombo and he has said that everyone will most likely get a fine. Someone from the Attorney-General’s Department in Colombo has said that the people that have been convicted for trying to leave Sri Lanka are all being fined to try and stop them getting on another boat. Yes, do you want to say anything about that?
…
TRIBUNAL MEMBER: I understand and I’ve seen a few reports – a number of reports about people being tortured on return to Sri Lanka. Some of those reports – and advisers have put in a lot of submissions about some of these matters. Some of those reports about torture have been found not to be entirely accurate or, you know, when more details were sought the details could not be provided. Other sources say that there’s – nobody that’s been returned has been harmed, that the only people that – that there are certain groups of people that are at risk but generally just people returning who – sorry, I will just rephrase that. There are certain groups who are returning who might be at risk. One of the groups that might be at risk are people who are thought to be connected to the LTTE. Okay. So clearly people who are thought to be connected to the LTTE are being detained and are at risk of harm. Otherwise people who are simply returning, who have left the country for whatever reason are being returned, don’t have any connection to the LTTE, not wanted for any other reason, there is no evidence that any of those people are being harmed on return. But in your case, the issue in your case, I think, or one of the issues in your case, is whether or not you would be connected to the LTTE. Whether anyone would think that you had a connection to the LTTE. And that’s one of the things that I have to consider about your case because you have referred to an incident in 2007 but I have to consider whether that, you know, that incident in 2007 would lead the authorities to consider that you had a connection to the LTTE.

It appears to me that, whilst they can be described as ‘monologues’, they were, in fact, the Tribunal member setting out in some detail the country information that the member had regard to, to allow the Applicant to comment upon it and to discharge the obvious obligations upon the Tribunal with respect to procedural fairness. What is also clear from the transcript is that, after each of these statements by the Tribunal member, the Applicant provided a number of responses.
Importantly, as appears in the transcript, the Applicant also obtained an adjournment for a period of time, during which time he could have discussed the matter with his adviser. The Applicant was represented at the hearing by a migration agent who was a solicitor. There were also extensive written submissions in this case. Finally, I note that this is not a case where the Applicant is putting individual or unique information about himself on this particular point, but rather a case where the Tribunal member had to determine what they accepted of his generalised fear and the country information available.
In these circumstances, I’m not persuaded that the Applicant was effectively denied a fair hearing because of the way in which the Tribunal member put the country information to him. I therefore dismiss this ground.

Ground Three

The third ground was included by way of a further amended application filed 18 July 2014. The Applicant submits that the Tribunal fell into jurisdictional error in that it ignored or overlooked evidence relevant to the evaluative tasks it was required to perform, so that it failed lawfully to perform the review required of it by s.414 of the Migration Act 1958. The information claimed to be overlooked by the Tribunal was the information the Applicant provided in writing about his likely treatment upon his return to Sri Lanka.
The Minister argues at para.4.3 of their Further Written Submissions that the failure to refer to likely treatment of the Applicant upon his return to Sri Lanka does not mean the matter was not considered by the Tribunal in the making of their decision. It is the Minister’s argument at para.5 of their Further Written Submissions that:
5. …ignoring a piece of evidence will only amount to jurisdictional error if the oversight so distorts the picture of the applicant’s case that it causes the Tribunal to fail to consider the case that emerged from the evidence and submissions before it.
I referred the parties to the decisions of Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; (2013) 302 ALR 572; (2013) 136 ALD 41, Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 and Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114; (2013) 136 ALD 547 for their consideration and adjourned the matter for further submissions.
The Applicant’s case was put on the basis that the Tribunal did not properly consider this material, saying:
24. In the applicant’s submission, there is a firm foundation for the conclusion that the Tribunal completely ignored the material pointed to under the last paragraph. Certainly, it does not refer to any of it, either in its reasons or in the course of the hearing. In itself, this is suggestive of its having been overlooked: see the authorities cited in SZSRS, at [33].
The Applicant lists all of the references to material that the Applicant’s advisors made in the various submissions at para.23 of the Applicant’s further submissions filed 18 July 2014. Not every reference has been discussed by the Tribunal.
The Tribunal identified the substance of the claims made by the Applicant in the Applicant’s material. At p.196 of the Court-book, in a lengthy submission by the Applicant’s advisors, submissions were made that:
The Sri Lanka Guardian reported the presence of TID officials at the airport “armed with airline passenger lists [who] single out individuals and take them into custody. Some of them are held at the airport for several hours and interrogated whilst some are taken away in unmarked white vans to unknown destinations”. The report notes that “[a]ccording to airport sources, some of those taken in unmarked vehicles are taken to unknown places and their fate is not known unless they are released”. It was reported that there had been an increase in the arrest of “Tamils from London” after “the failed visit of the President Mahinda Rajapakse to the UK”.
The IRBC referred to information sourced from “an adjunct professor of political science at Temple University, who is currently conducting research on Sri Lanka”, who quotes “information from sources in Sri Lanka” who report that “the government has stationed former Tamil Tigers, who have sided with the government and are working with the Sri Lankan security forces” at Colombo International Airport, “where they screen arriving individuals”.
In September 2012 Human Rights Watch documented thirteen cases of Tamils being subjected to arbitrary arrest and ill treatment, including torture and sexual assault, on return to Sri Lanka from a foreign country.
The non-government organisation, Freedom From Torture, published a report in September 2012 documenting 24 cases of Tamils being detained and tortured after being returned to Sri Lanka from the United Kingdom. In many cases, the returnees were detained within a month of their return, often at their homes or at checkpoints. One case involved detention on arrival. Most of the returnees had real or perceived associations with the LTTE, and were interrogated about these links during detention. Five detainees were reportedly interrogated about “their own activities and / or the activities of other Tamils in the UK in support of the LTTE”. This report builds on an earlier report which concluded that “notwithstanding the formal conclusion of hostilities, Tamils with an actual or perceived association with the LTTE remain at particular risk of detention and torture in Sri Lanka”.
In April 2012 Tamilnet reported that a “28-year-old Tamil man, recently deported from the UK was found killed in Trincomalee on 18 April”. The man had reportedly seen “strange persons” wandering around his house earlier in the day, and had warned relatives not to go out. The report noted another returnee, has been “knifed to death by a motorbike squad in a Sri Lanka Army camp in Vadamaraadchi”, and that while ‘white-van’ disappearances were well-known, “the present trend seems to be the use of a knife”.
When turning to these issues, the Tribunal said:
41. Whilst there are reports claiming that Tamil returnees have been harmed on return to Sri Lanka [Freedom from Torture, Sri Lankan Tamils tortured on return from the UK, 13 September 2012; refused to give fish to the Navy; Amnesty International, Sri Lankan Asylum Seekers tortured after being forcibly returned from Australia, 3 September 2010], other sources contest these claims. In 2012, the UK Home Office noted that these allegations lack substance and detail and that:
The principal focus of the authorities continues to be, not Tamils from the north (or east) as such, but persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the LTTE and ensuring it was supplied with arms [UK Home Office, 2012, Country Policy Bulletin – Sri Lanka, October].
Further, one prominent report of mistreatment, by the NGO, Freedom from Torture, was concerned with the treatment of returnees with an actual or perceived connection to the LTTE. The Tribunal discussed this information with the applicant.
After that the Tribunal discusses a number of different reports and, in particular, the Department of Foreign Affairs and Trade advice on the issue, which it quotes from at length. At para.50 the Tribunal notes that the DFAT advice is supported by a recent press report from the Sydney Morning Herald:
‘Asylum denied, a penalty awaits at home’, Sydney Morning Herald, 8 December 2012
Ultimately the Tribunal concludes:
52. The Tribunal places weight on the DFAT advice which is supported by the December 2012 news report and is satisfied that the applicant will be held in remand for a short period, from between one day to several days, if he is charged with an offence under the Immigrants and Emigrants Act. The Tribunal accepts that the applicant’s parents and aunt and uncle may have travelled to Australia. The applicant has other uncles in Sri Lanka, however, and the Tribunal does not accept that he does not have an adult relative in Sri Lanka to guarantee his bail.
The Tribunal also considered whether or not the Applicant would be at risk of harm if he were held in remand or in prison, saying:
53. The Tribunal has considered whether a short period of remand gives rise to a real risk he will suffer significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test for assessing well-founded fear under the Refugees Convention, that is, a substantial chance, not one that is remote or far-fetched.
…
55. There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. Freedom from Torture reported on a number of claims of torture in 2012 and identified that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad” [Freedom from Torture, Sri Lankan Tamils tortured on return from UK, 13 September 2012]. The Tribunal has found, for the reasons set out above, that the applicant does not have a perceived association with the LTTE which would cause him to be targeted in the prison system. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain and suffering by an intentionally inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand.
Ultimately it appears to me that the Tribunal has engaged with the material placed before it and squarely considered it. Whilst the Applicant may have hoped for more detailed discussion of the material put forward by his advisers, the Tribunal clearly identified the substance of it, and key references from it. Ultimately, the Tribunal preferred the DFAT advice (as corroborated in an article from the Sydney Morning Herald) to the reports the Applicant relied upon. These are ultimately matters for the Tribunal and therefore do not result in a finding of jurisdictional error.

Ground 4

The fourth ground was included by way of a third further amended application filed 28 November 2014 pursuant to leave granted by me on that day. The Applicant submits that the Tribunal fell into error because it erroneously applied a qualitative assessment to the detention that the Tribunal accepted the Applicant would be suffer upon his return to Sri Lanka.
The reasons of the Tribunal set out a qualitative approach to imprisonment in Sri Lanka, saying (at CB263):
63. For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment.
Prima facie this appears to be an error, having regard to the reasons of North J in WZAPN where His Honour said:
[45] By making a qualitative assessment 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 reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error.
This decision is on appeal to the High Court of Australia, however it has recently been disapproved by a bench of three Judges of the Federal Court on appeal in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41.
Counsel for the Minister argues that an independent basis for the decision is that the possible imprisonment was not found to be for a Convention reason, as the Tribunal said at para.51:
51. The Tribunal is satisfied that the Immigrants and Emigrants Act 1945 is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason. The Tribunal finds that section 45 of the Immigrants and Emigrants Act 1945 is a law of general application and does not give rise to persecution under the Refugees Convention.
In light of this finding of the Tribunal, the Applicant must fail for the same reasons that the Applicant in WZAPN ultimately failed. Also, in light of the more recent authorities, WZAPN is no longer good law.
I must therefore dismiss the application.
As costs ordinarily follow the event, I will order costs on scale (as provided for in Sch.1, Pt.3, Div.1, Item 3) subject to any application for a different costs order.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate:

Date: 30 March 2015