MZZSZ v Minister for Immigration

[2014] FCCA 3146

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZSZ v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 3146

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa application – judicial review – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424A(3).

Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223
MZYTS v Minister for Immigration & Citizenship [2012] FMCA 1109
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, (2013) 136 ALD 547

Applicant: MZZSZ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 1539 of 2013

Judgment of: Judge Riethmuller

Hearing date: 15 May 2014

Date of Last Submission: 15 May 2014

Delivered at: Melbourne

Delivered on: 15 May 2014

REPRESENTATION

Solicitors for the Applicant: Mr Cunliffe

Counsel for the Respondents: Mr Brown

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed on 19 September 2013 and any amended application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1539 of 2013

MZZSZ

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal made on 28 August 2011 affirming a decision of the delegate of the first respondent to refuse the applicant a protection visa. 

2. The applicant is a citizen of Sri Lanka.  He is of Tamil ethnicity.  He came to Australia on 17 May 2012 as an irregular maritime arrival.  On 31 August 2012, the applicant lodged an application for a protection visa, at which time he was interviewed by a delegate of the Minister.

3. The applicant claims he fears persecution on a number of grounds by reason of his ethnicity as a Tamil, actual or imputed political opinion, his identity as a young person of Tamil ethnicity for the northwest province of Sri Lanka and membership of various social groups being Young Tamil Males, Young Tamil Males from that particular province, Young Tamil Males from the area in which he was living and/or an unaccompanied minor Tamil asylum seeker or returnee to Sri Lanka after unlawfully leaving the country.

4. The delegate of the Minister refused to grant the visa on 12 December 2012.  The application to the Tribunal was made on 21 December 2012.  The Tribunal outlined the applicant’s case in paras.10 to 12 of the decision:

   10.  He has provided copies of birth certificates for himself and family members. The Tribunal accepts that the applicant is a national of Sri Lanka and has asserted his claims against Sri Lanka as his country of nationality. The Tribunal is satisfied that the applicant does not have a right to enter or reside in a third country.

   11.  The applicant claims that soldiers from a nearby Army camp have forced him to perform unpaid labour and beaten or tortured him when he has refused. He claims that the soldiers have also harassed him and discriminated against him in other ways. He claims that, since he ran away from Sri Lanka, the soldiers have been to his house looking for him and have intimidated his mother and siblings. He fears his life will be in danger if he returns to Sri Lanka. The applicant’s migration again identified the applicant’s claims as discrimination amounting to gross violation of human rights, forced labour, abduction, arbitrary arrest, detention, physical assault and torture on the grounds of his ethnicity and membership of a particular social group of young Tamil males and also imputed political opinion as pro LTTE.

   12.  The issues in this case are whether the applicant is at risk of harm from the Sri Lankan Army by being forced to undertake unpaid labour, from the Army and other authorities or the Sinhalese population as a Tamil because he left Sri Lanka. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

5. The Tribunal went on to deal with the claims in the following paragraphs.  Ultimately, the Tribunal rejected the applicant’s claims setting out in paras.29, 30 and 31 the following :

   29.  The Tribunal accepts that the applicant was stopped on the way to and from work and rounded up in security sweeps by the Army during the conflict. The Tribunal accepts that the applicant may have been questioned about his knowledge of LTTE activities in the district during the conflict but considers that this questioning was routine and does not accept that the Army or the authorities imputed the applicant with an LTTE association at that time particularly as he was a child during the conflict and Udappu is not in the previously LTTE controlled or contested areas in the north and east. The Tribunal accepts that the applicant may have been harassed and beaten by soldiers during the conflict and the immediate aftermath. The Tribunal accepts that the applicant may have also seen or heard of Tamils detained and mistreated. The Tribunal accepts that the applicant’s age may have impacted on his recall of events, but his confused recall of some events and inconsistencies in his description of events together with his young age during the conflict, leads the Tribunal to the view that he has exaggerated some aspects of his treatment during this period.

   30.  The Tribunal does not accept that the applicant has been detained by the Army on more than 20 occasions since the end of the conflict and forced to undertake unpaid labour, beaten or locked in a bunker or made to drink urine or otherwise mistreated. Firstly, the Tribunal does not accept that there is an Army base in Udappu or that there has been a base there for some time. The information above states that the base was withdrawn after the end of the conflict in 2009. The photos provided by the applicant are of the Navy base at Udappu. The Tribunal does not accept that the applicant was taken to an Army base in Udappu for three or four months before he left Sri Lanka in 2012 and mistreated. Secondly, the Tribunal has not found any reports which support the applicant’ claims of forced labour and mistreatment of Tamil boys by soldiers in Udappu. Whilst the Tribunal accepts that the absence of reports does not of itself disprove the claim, Udappu is relatively close to Colombo and information is available about the village and the circumstances of the Tamil fishermen in the district and the Tribunal does not accept that the level of mistreatment described by the applicant, including that other boys were detained, would not have been reported by agencies or Tamil sources in Sri Lanka.

   31.  The Tribunal accepts that the applicant may have suffered some harassment and mistreatment by soldiers during the conflict and the immediate aftermath when the Sri Lankan authorities were seeking to eliminate the LTTE. The Tribunal does not accept that the applicant was suspected of having an association with the LTTE at that time or at the end of the conflict or since then. There is no longer an Army presence in Udappu and the evidence before the Tribunal does not indicate that the applicant will be subject to any future harm in Udappu from the Army. For the reasons above, the Tribunal does not accept that the applicant has been subject to ongoing detention, forced labour and mistreatment by soldiers in Udappu since the end of the conflict or that he will suffer such treatment in the future.

6. The Tribunal also dealt with the applicant’s claims of fear as a result of being returned a failed asylum seeker at considerable length and, ultimately, concluded:

   72.  The Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka as a member of a particular social group of either failed asylum seekers or returnees or persons who left Sri Lanka illegally., The Tribunal also finds that the applicant’s status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka does give rise to substantial grounds for believing that there is not a real risk he will suffer significant harm upon being returned to Sri Lanka.

   73.  The Tribunal finds that the applicant des not face a real chance of serious harm now or in the reasonably foreseeable future in Sri Lanka because of his race or as a member of a particular social group of young Tamil males or failed Tamil asylum seekers or Tamil returnees or persons who left Sri Lanka illegally, separately, or cumulatively. The applicant’s fear is not well founded.

   74.  The Tribunal also finds that there are not 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 he will suffer significant harm.

7. The applicant, in his application, sets out two grounds.  However, at the hearing of the matter, his solicitor sought leave to raise three further grounds.  I granted leave for that to occur at the hearing to ensure that all possibly bases for the applicant’s case could be put to the Court. 

8. I turn then to consider the grounds that the applicant has raised. 

Ground 1

1. The first ground is that the applicant alleges the Tribunal did not afford him procedural fairness.  At the Tribunal hearing, the Tribunal outlined to the applicant a summary of country information that the Tribunal had before it and asked the applicant to comment upon it.  This is set out in paras.25 to 27 of the decision as follows:

   25.  The Tribunal discussed information from the Department of Foreign Affairs and Trade (DFAT) that grass roots level organisation in the area have not heard any reports of Tamil youths being forced to do unpaid work on military bases. The applicant stated that Sinhalese people mainly work in such organisations and they would not reveal such information. He stated that the government is controlled by Sinhalese and there is no protection for him from Sinhalese people. The applicant’s migration agent submitted that the applicant does not know of any organisations working in the Udappu area or any boys who have made a complaint to organisations and the lack of reporting is not evidence that forced labour is not occurring.

   26.  At the hearing on 17 May 2013, the Tribunal put contrary information to the applicant that there are no reports of soldiers forcing Tamil youths in Uddupu to work on a local Army base or mistreating them for refusing to do so. The Tribunal noted that, if Tamil youths were being mistreated as he claims, it is likely that villagers would have informed Tamil politicians and human rights agencies and it would be reported by Tamil sources such as TamilNet. The applicant states again that it is difficult for Tamil people to make complaints to Sinhalese people. The applicant’s agent submitted that human rights advocated fall within a risk profile in Sri Lanka which may inhibit reporting of such abuses.

   27.  At the hearing on 17 May 2013, the Tribunal put to the applicant that the Tribunal had not located an Army base in Udappu and that information before the Tribunal indicates there is a Navy base in Udappu but not an Army base. The applicant stated that the base in Udappu is mainly Army with some Navy. The applicant provided photographs of the base. One photograph contains a sign which says Naval Detachment Udappu. A Google Maps search of Udappu shows a cluster of buildings on the beach which match the buildings in the photographs. DFAT subsequently advised the Tribunal that the Divisional Secretariat in Mundal, (which is the local government authority covering Udappu, referred to as Udappuwa in Sinhalese), had confirmed that there was an Army camp in Udappu during the war but it was withdrawn after the war ended. The Divisional Secretariat was not sure of the exact date the camp was withdrawn.

2. The applicant argues that copies of the particular pieces of country information were not provided to him at the hearing or prior to the hearing and, therefore, there was a failure of procedural fairness.  Significantly, there is no evidence of a request having been made to the Tribunal by the applicant’s migration agent or the applicant himself for the provision of a copy of that country information or, indeed, a reference to the particular country information.  References to the country information are contained within the decision of the Tribunal.

3. The material was summarised to the applicant. It seems to me that he was put on notice of the Tribunal having been aware of such country information. He provided some answers at the hearing. This level of procedural fairness is clearly contemplated when one has regard to s.424A(3) of the Migration Act 1958 (‘the Act’), which provides

   s.424A  Information and invitation given in writing by Tribunal

   …

   (3) This section does not apply to information:

   (a)  that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   (b)  that the applicant gave for the purpose of the application for review; or

   (ba)  that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)  that is non-disclosable information.

4. In circumstances where the substance of the information was put to the applicant to enable him to comment upon it, where he did make comments upon it and where he did not seek from the Tribunal any references or copies of the particular information, I am not persuaded that the applicant has established that there has been a breach of the rules or principles of procedural fairness, either within the statutory framework that the Tribunal operates under the Act or at common law. In these circumstances I find that ground 1 is not made out.

Ground 2

1. The second ground that the applicant raised was that the Tribunal had applied a wrong legal test. The applicant relied, in particular, on para.12 (as set out above), arguing that it showed an overly simplistic view of the applicant’s case. It seems to me that it is unfair to the Tribunal to read para.12 in isolation. When taken with para.11, a proper picture of the applicant’s case is apparent. Para.12 reduces the applicant’s case down to its absolute essence but the details, which bring the case within the ambit or potential ambit of the provisions of the Act and the convention, are described in para.11.

2. The matters that are set out in paras.11 and 12 are the subject of extensive discussion by the Tribunal in the following paragraphs.  The Tribunal’s findings at paras.30 and 31 and 36 to 37 squarely deal with these issues:

   30.  The Tribunal does not accepts that the applicant has been detained by the Army on more than 20 occasions since the end of the conflict and forced to undertake unpaid labour, beaten or locked in a bunker or made to drink urine or otherwise mistreated. Firstly, the Tribunal does not accept that there is an Army base in Udappu or that there has been a base there for some time. The information above states that the base was withdrawn after the e d of the conflict in 2009. The photos provided by the applicant are of the Navy base at Udappu. The Tribunal does not accept that the applicant was taken to an Army base in Udappu for three or four months before he left Sri Lanka in 2012 and mistreated. Secondly, the Tribunal has not found any reports which support the applicant’ claims of forced labour and mistreatment of Tamil boys by soldiers in Udappu. Whilst the Tribunal accepts that the absence of reports does not of itself disprove the claim, Udappu is relatively close to Colombo and information is available about the village and the circumstances of the Tamil fishermen in the district and the Tribunal does not accept that the level of mistreatment described by the applicant, including that other boys were detained, would not have been reported by agencies or Tamil sources in Sri Lanka.

   31.  The Tribunal accepts that the applicant may have suffered some harassment and mistreatment by soldiers during the conflict and the immediate aftermath when the Sri Lankan authorities were seeking to eliminate the LTTE. The Tribunal does not accept that the applicant was suspected of having an association with the LTTE at that time or at the end of the conflict or since then. There is no longer an Army presence in Udappu and the evidence before the Tribunal does not indicate that the applicant will be subject to any future harm in Udappu from the Army. For the reasons above, the Tribunal does not accept that the applicant has been subject to ongoing detention, forced labour and mistreatment by soldiers in Udappu since the end of the conflict or that he will suffer such treatment in the future.

   …

   36.  The Tribunal accepts that the applicant may believe that Tamil people are at risk of ongoing mistreatment and harm in Sri Lanka and may hold a subjective fear of suffering some harm himself. For the reasons set out above, the Tribunal does not accept that the applicant’s fears are well founded. Whilst the Tribunal accepts that Tamils in Sri Lanka have experienced discrimination and that Tamil men in the north and east have reported harassment by security forces and parliamentary groups, the situation for Tamil people in Sri Lanka has reportedly improves since the end of the conflict and being Tamil is not regarded by UNHCR as a risk profile. The Tribunal does not accept that the applicant faces a real chance of suffering serious harm now or in the reasonably foreseeable future in Sri Lanka because of his ethnicity The Tribunal does not accept that the applicant faces any heightened risk of harm because of his age. Whilst young Tamil males, particularly those from the north and east of Sri Lanka, have previously been imputed with an LTTE connection by the Sri Lankan authorities, the applicant was still a child at the end of the conflict, he has had no association with the LTTE and he is not from the north or east. The Tribunal does not accept that the applicant faces a real chance of suffering serious harm now or in the reasonably foreseeable future in Sri Lanka because his membership of a particular social group of young Tamil males.

   37.  The Tribunal does not accept that the matters above give rise to substantial grounds for believing there is real risk the applicant will suffer significant harm if returned to Sri Lanka.

3. It was also argued that the Tribunal failed to consider whether or not the country circumstances may change or may have changed since the country information was provided.  The applicant’s lawyers sought to argue that this case was substantially the same as the type of case that was discussed in MZYTS v Minister for Immigration & Citizenship [2012] FMCA 1109 and on appeal Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, (2013) 136 ALD 547 (‘MZYTS’).

4. There are some considerable differences in the cases that were put to the Tribunal in MZYTS and the case here.  In MZYTS there was, in fact, substantial country information portraying a very different picture of the stability of society and the country concerned between the date of the country information relied upon by the Tribunal for their decision and the date of the decision itself.  That country information was not referred to by the Tribunal in MZYTS and the question of further upheavals in the country was a real issue before the Tribunal.  As a result, the Tribunal’s decision was overturned on the basis that it had not properly dealt with that issue.

5. In this case, there does not appear to be country information of a similar vein.  The material before the Tribunal was all dealt with in its decision and there is not an evidentiary basis for showing that the Tribunal needed to squarely address further evidence about potential changes in the circumstances.  In my view, the comments of the Tribunal to the effect that the Tribunal was not persuaded that there would be a real chance of serious harm in the reasonably foreseeable future did not need to be further fleshed out by a discussion about the potential changes in the future, given the extent to which the Tribunal had reviewed what had happened in the past and the country information about the current circumstances in Sri Lanka.

1. It would, of course, have been quite different had this been a case where there was other country information showing potential or actual changes in the country’s circumstances which had been overlooked by the Tribunal or this was a live issue with an evidentiary foundation that had not been addressed.

2. In the circumstances, it seems to me that this is really an argument that the Tribunal should consider every hypothetical possibility, even if there is not an evidentiary basis for it or it is not squarely raised as a real issue.  That is not, in my view, the way in which the Tribunal must deal with these cases.  I am, therefore, not persuaded that ground 2 is made out.

Grounds 3 and 4

1. Grounds 3 and 4 are that the Tribunal’s decision is unreasonable in the sense described in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 and that the Tribunal failed to properly exercise its statutory functions. Those grounds were argued together. One effectively being a common law formulation of the principle, the other being a statutory formulation.

2. The grounds focused upon in para.30 of the decision, which provides:

   30.  The Tribunal does not accepts that the applicant has been detained by the Army on more than 20 occasions since the end of the conflict and forced to undertake unpaid labour, beaten or locked in a bunker or made to drink urine or otherwise mistreated. Firstly, the Tribunal does not accept that there is an Army base in Udappu or that there has been a base there for some time. The information above states that the base was withdrawn after the e d of the conflict in 2009. The photos provided by the applicant are of the Navy base at Udappu. The Tribunal does not accept that the applicant was taken to an Army base in Udappu for three or four months before he left Sri Lanka in 2012 and mistreated. Secondly, the Tribunal has not found any reports which support the applicant’ claims of forced labour and mistreatment of Tamil boys by soldiers in Udappu. Whilst the Tribunal accepts that the absence of reports does not of itself disprove the claim, Udappu is relatively close to Colombo and information is available about the village and the circumstances of the Tamil fishermen in the district and the Tribunal does not accept that the level of mistreatment described by the applicant, including that other boys were detained, would not have been reported by agencies or Tamil sources in Sri Lanka.

3. These findings by the Tribunal were supported by the discussions of the Tribunal in paras.26 to 29 which provide:

   26.  At the hearing on 17 May 2013, the Tribunal put contrary information to the applicant that there are no reports of soldiers forcing Tamil youths in Uddapu to work on a local Army base or mistreating them for refusing to do so. The Tribunal noted that, if Tamil youths were being mistreated as he claims, it is likely that villagers would have informed Tamil politicians and human rights agencies and it would be reported by Tamil sources such as TamilNet. The applicant states again that it is difficult for Tamil people to make complaints to Sinhalese people. The applicant’s agent submitted that human rights advocated fall within a risk profile in Sri Lanka which may inhibit reporting of such abuses.

   27.  At the hearing on 17 May 2013, the Tribunal put to the applicant that the Tribunal had not located an Army base in Udappu and that information before the Tribunal indicates there is a Navy base in Udappu but not an Army base. The applicant stated that the base in Udappu is mainly Army with some Navy. The applicant provided photographs of the base. One photograph contains a sign which says Naval Detachment Udappu. A Google Maps search of Udappu shows a cluster of buildings on the beach which match the buildings in the photographs. DFAT subsequently advised the Tribunal that the Divisional Secretariat in Mundal, (which is the local government authority covering Udappu, referred to as Udappuwa in Sinhalese), had confirmed that there was an Army camp in Udappu during the war but it was withdrawn after the war ended. The Divisional Secretariat was not sure of the exact date the camp was withdrawn.

   28.  The Tribunal raised this information with the applicant at a further hearing on 14 August 2013. The applicant stated that there is still an Army base at Udappu because the Army still fears a resurgence of the LTTE. He stated that he was taken to the camping the photos. He stated that the information there is no longer an Army base at Udappu should not be trusted because it has come from a Sinhalese source. The applicant’s migration agent submitted that, although the photos depict a Navy base, the Army was also there and the applicant referred to the base as an Army camp because he was affected by the Army not the Navy. He submitted that the applicant’s evidence should be seen through the prism of his age and that it is reasonable he would perceive the security forces as one entity.

   29.  The Tribunal accepts that the applicant was stopped on the way to and from work and rounded up in security sweeps by the Army during the conflict. The Tribunal accepts that the applicant may have been questioned about his knowledge of LTTE activities in the district during the conflict but considers that this questioning was routine and does not accept that the Army or the authorities imputed the applicant with an LTTE association at that time particularly as he was a child during the conflict and Udappu is not in the previously LTTE controlled or contested areas in the north and east. The Tribunal accepts that the applicant may have been harassed and beaten by soldiers during the conflict and the immediate aftermath. The Tribunal accepts that the applicant may have also seen or heard of Tamils detained and mistreated. The Tribunal accepts that the applicant’s age may have impacted on his recall of events, but his confused recall of some events and inconsistencies in his description of events together with his young age during the conflict, leads the Tribunal to the view that he has exaggerated some aspects of his treatment during this period.

4. There was not a complete rejection of the applicant’s evidence, as can be seen from the terms of para.31 where the Tribunal found:

   31.  The Tribunal accepts that the applicant may have suffered some harassment and mistreatment by soldiers during the conflict and the immediate aftermath when the Sri Lankan authorities were seeking to eliminate the LTTE. The Tribunal does not accept that the applicant was suspected of having an association with the LTTE at that time or at the end of the conflict or since then. There is no longer an Army presence in Udappu and the evidence before the Tribunal does not indicate that the applicant will be subject to any future harm in Udappu from the Army. For the reasons above, the Tribunal does not accept that the applicant has been subject to ongoing detention, forced labour and mistreatment by soldiers in Udappu since the end of the conflict or that he will suffer such treatment in the future.

5. This is a case where fact finding was required.  There is no question that there was evidence before the Tribunal that there was not, at the relevant time, an army base.  There was also an explanation given by the applicant about why he said there was an Army base when there may have only been a Navy base, as depicted in the photographs that he produced.  This was a question for the Tribunal to determine, in its fact finding, that is, whether it accepted the applicant’s evidence or whether, in light of that information and his evidence generally, particularly in light of the Tribunal’s findings at the end para.29, the Tribunal accepted or rejected his account.  Ultimately, the Tribunal rejected the relevant part of his account. 

6. I am not persuaded that, in these circumstances, the Tribunal’s rejection of that part of the applicant’s account was unreasonable in the relevant sense.  It seems to me that on the material before the Tribunal, it was reasonably open to it to accept or reject his account.  It was for the Tribunal to see him give his version of events, to hear him, and to make findings of fact.  The Tribunal has done so.  It is not open to me to review the merits of those findings of fact and substitute alternative findings even if I were to be of a different view.  In these circumstances, I am not persuaded that this ground is made out with respect to that paragraph.

7. The applicant also argued that there are other examples of unreasonable findings contained in paras.20 and 24 which provide:

   20.  The Tribunal noted that the applicant was not detained at the end of the conflict, indicating that he was no suspected of being connected to the LTTE at that time. The applicant stated that he was suspected of having an association with the LTTE and, even though there is no LTTE activity in his area, the Army is there, people are being kidnapped and Tamil people are being targeted.

   …

   24.  The applicant stated that none of the families of the boys who were taken by the Army or other members of the Tamil community in Udappu complained to the police about this treatment of Tamil boys. The Tribunal noted that there are Tamil politicians and members of opposition political parties in the district who would have taken steps to prevent Tamil boys being treated in the way they claimed. The applicant said they did not.

8. In addition, the applicant also set out arguments with respect to paras.26 and 42:

   26.  At the hearing on 17 May 2013, the Tribunal put contrary information to the applicant that there are no reports of soldiers forcing Tamil youths in Udappu to work on a local Army base or mistreating them for refusing to do so. The Tribunal noted that, if Tamil youths were being mistreated as he claims, it is likely that villagers would have informed Tamil politicians and human rights agencies and it would be reported by Tamil sources such as TamilNet. The applicant states again that it is difficult for Tamil people to make complaints to Sinhalese people. The applicant’s agent submitted that human rights advocated fall within a risk profile in Sri Lanka which may inhibit reporting of such abuses.

   …

   42.  The applicant’s agent submitted that DFAT does not monitor the treatment of returnees after they have been remanded and that the US Department of State report on human rights practices in Sri Lanka indicates that, in general, people on remand wait for several weeks or months before appearing in court. He submitted that poor prison conditions in Sri Lanka amount to cruel and degrading treatment or punishment; there is a documented risk of corporal punishment in prison; and that persons on remand are held with convicted prisoners. The Tribunal noted that Australia’s complementary protection provisions require an element of intention. The applicant’s agent submitted that knowingly imprisoning people in degrading conditions is intentional. He submitted that the Tribunal should not place any weight on information set out below that persons convicted of trying to depart Sri Lanka illegally have been fined as it comes from the Sri Lankan government; and that attempting to commit a crime will carry a lesser penalty that actually committing a crime. He submitted that returnees from countries with a large Tamil diaspora such as Australia may be followed or questioned by police because the LTTE is still trying to raise funds in Australia. The Tribunal queried whether persons from Udappu will be associated with the LTTE in view of media reports of economic motives for their travel to Australia. The applicant’s agent submitted that Udappu was not divorced from LTTE activity during the war.

9. These paragraphs shed light on the Tribunal’s process of reasoning which relies largely on the Tribunal’s common sense and ordinary knowledge of the world. In para.24, the Tribunal has effectively made findings of fact with reference to the fact that there are politicians in the area who may well have taken action against Tamil boys being treated in the way claimed by the applicant. The Tribunal is entitled to have regard to these facts, but this does not oblige the Tribunal to make particular findings

10. The most significant argument relates to para.39.  Read on its face, the Tribunal in that paragraph says:

    39.  At the hearing on 14 August, the applicant stated that a person he knows was returned to Sri Lanka from Australia 3 or 4 weeks ago and taken to the fourth floor [of CID headquarters] in Colombo and tortured. When asked how he knows this, the applicant stated that he spoke to his friend’s mother who told him that his friend had been taken., The Tribunal put top the applicant that the Tribunal has no reports of returnees from Australia  being mistreated. The applicant stated that someone may be safe for 3 or 4 weeks after being returned but no one knows what happens after that.

11. The Tribunal put to the applicant that the Tribunal had no reports of returnees from Australia being mistreated.  The solicitor for the applicant tended a UNHCR report that had been referred to in the Tribunal decision and pointed out that at paras.9, 17, 79 and 94 there is some evidence of returned asylum seekers to Sri Lanka suffering serious harm.  However, when one reads on through the Tribunal decision, it seems that the Tribunal did, in fact, squarely address this issue. 

12. The Tribunal set out an extensive quote from the Department of Foreign Affairs in the trade report at para.43 of its decision.  Where, at page 10 of the printed decision, there is a number of paragraphs that deal with investigations into and evidence about any mistreatment, as alleged, of returning Tamils to Sri Lanka. 

13. The Tribunal goes on to consider other reports identifying that there have been reports where mistreatment has been claimed – not necessarily by Australians – and the UK Home Office report that addresses this, saying at para.44:

    44.  Having regard to the findings  set out above , the Tribunal finds that the applicant is not wanted by the Sri Lankan authorities because of an imputed LTTE association or for any other reason and will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures set out by DFAT. As the applicant had no contact with the LTTE prior to leaving Sri Lanka, the Tribunal does not accept that he will be suspected of LTTE involvement since being in Australia or that he will be imputed with having been involved in raising funds for the LTTE just because he has been in Australia.

14. Ultimately, the Tribunal, after recounting these various items of evidence and considering them, made a finding at para.46 as follows :

    46.  The Tribunal places weight on the advice from DFAT that there have been no reports of mistreatment of returnees from Australia. The Tribunal does not accept that the applicant will be at risk of harm on return to Sri Lanka because of his ethnicity. As stated above, Tamil ethnicity is not a risk factor identified by the UNHCR in its most recent guidelines and the information above indicates that the attention of the authorities is not being directed at Tamils because of their ethnicity. LandInfo also concluded in 2012 that here [sic] is nothing to indicate that returning Tamils are treated in any particular way or are at risk of violations. The Tribunal does not accept that the applicant will be taken to CID headquarters in Colombo, tortured or killed or disappeared or followed by police after he returns to Sri Lanka.

15. It seems to me that, ultimately, the Tribunal has made findings in this regard based upon a wide variety of evidence and that the Tribunal’s statement that there has not been reports of returnees ‘from Australia’ being mistreated is correct and that the Tribunal has turned its mind more generally to the claims with respect to mistreatment of returnees.  In the circumstances, I am not persuaded in the way in which the Tribunal has dealt with this ground and is a matter that would be the subject of judicial review. 

16. The applicant’s lawyers also argued that in para.71 there is a recognition of a potential fine of the applicant.  That paragraph provides:

    71.  The fine likely to be imposed on the applicant is between 5,000 and 100,000 Sri Lankan rupees according to the information above. On the current exchange rate, this amounts to between $40AUD and $811AUD. The Tribunal does not accept that the imposition of such a fine on the applicant will give rise to a real risk of significant harm. The applicant is a young man who has been employed in Sri Lanka and is capable of earning an income. The Tribunal is satisfied that the applicant has the resources to pay the fine likely to be imposed.

17. This comes at a point in the decision where the Tribunal has identified that the applicant is likely to be fined for illegally leaving Sri Lanka (that is leaving without proper documents) and addresses what is the likely fine and likely impact of that upon him.  It seems to me that given that this is supported by an extensive discussion running from paras.48 to 70 of the decision that the Tribunal has squarely addressed these questions and that those findings were, in fact, open to the Tribunal as findings of fact on the material available to it.

18. I am not persuaded that this shows a judicial review ground under grounds 3 and 4.

Ground 5

1. Ground 5 of the application was that the decision should be set aside on the basis of apprehended bias. This ground was argued briefly. It is argued that, as the Tribunal is effectively a Tribunal of persons either on contract or casual employment, that they are not truly separate from the executive nor truly independent. Arrangements for employing members is as described and the tenure of the judicial officers of the Commonwealth, under Chapter 3 of the Constitution, is quite different to those of the Tribunal members. But that is the very nature of Tribunals and that, of itself, is not a basis for concluding that there is a reasonable apprehension of bias on the part of a Tribunal member.

2. It was suggested from the bar table that this particular member may have since left the Refugee Review Tribunal but there is no evidence of that and, indeed, the mere fact that a person may or may not continue with a particular Tribunal does not, of itself, seem to me to be sufficient to establish even an arguable case for reasonable apprehension of bias. 

Conclusion

1. I am not persuaded that there is anything that is contained in the Court Book on the evidence that would provide any arguable basis for a case of a reasonable apprehension of bias on the part of the Tribunal.

2. In these circumstances, I must, therefore, dismiss the application that is currently before the Court. 

   [Further argument ensued]

3. In this matter the respondent has been entirely successful.  Ordinarily, costs follow the event in civil proceedings and judicial review proceedings.  The solicitor for the applicant quite properly points out that the applicant is impecunious and unlikely to be able to pay a cost order.  It is established that this is not a proper basis for declining to make a costs order in a migration matter.  In the circumstances, costs ought follow the event.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  2 April 2015