QLN147 v The Republic of Nauru

[2018] HCATrans 178

[2018] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M27 of 2018

B e t w e e n -

QLN147

Appellant

and

THE REPUBLIC OF NAURU

Respondent

KIEFEL CJ
GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 SEPTEMBER 2018, AT 10.01 AM

Copyright in the High Court of Australia

MR N.M. WOOD:   May it please the Court, I appear for the appellant. (instructed by Robinson Gill Lawyers)

MR G.R. KENNETT, SC:   May it please the Court, I appear with my learned friend, MS C.L. SYMONS, for the respondent. (instructed by Republic of Nauru)

KIEFEL CJ:   Yes, Mr Wood.

MR WOOD:   Your Honours, the appellant’s underlying claim had five elements:  first, he departed Sri Lanka illegally; secondly, he would be arrested and charged on return as a result; thirdly, he may be remanded for some days pending a bail hearing; fourthly and critically, while so remanded he would be exposed to certain conditions in the relevant institution, and the precise nature of the conditions that he claimed he would be exposed to is the critical factum upon which the appeal turns; fifthly, that exposure to those conditions that he had claimed he would be exposed to would involve a breach of Article 7 of the ICCPR and, in combination with Article 2, engaged Nauru’s non‑refoulement obligations.

The Tribunal accepted points 1 to 3.  With respect to point 4 ‑ what were the conditions to which the appellant would be exposed for that short period of time in detention – it is convenient to start with what the Tribunal found.  There are two paragraphs that are critical. 

The first is paragraph 67, which appears, relevantly, under the heading “Assessment of complementary protection claims”.  In paragraph 67, six or seven lines down, the Tribunal contemplated that it is possible that the appellant:

could be held on remand for a small number of days while awaiting a hearing in a magistrates court, in cramped and unsanitary conditions ‑

That description, “cramped and unsanitary”, is the universe of the Tribunal’s description of the conditions to which the appellant might or would be exposed in that institution.  

We know it is Negombo prison from paragraph 58 of the Tribunal’s reasons, where, albeit in a part of the statement that deals with the Refugee Convention aspect of the claim, about eight lines down, the Tribunal makes the finding:

If the arrival occurs over a weekend . . . the returnee is placed in the remand section of Negombo prison ‑

No country information is cited by the Tribunal at paragraph 67, reflecting its description of the nature of conditions as “cramped and unsanitary”.

KIEFEL CJ:  Did not the Tribunal refer to the country information more generally?

MR WOOD:   No, in my submission, not.

KIEFEL CJ:   Not at all?

MR WOOD:   Not the identity of it, no.

GAGELER J:   Is that paragraph 54?

MR WOOD:   It is certainly part of the Republic’s – let me have a read of it.

GAGELER J:   At least there is a mention of it.

MR WOOD:   Where is that mention, your Honour?

NETTLE J:   The first line of paragraph 54.

MR WOOD:   Yes.  There is no doubt that part of the Republic’s case is that the Tribunal – that the finding that the Court should make, reflecting the finding that his Honour made below, was the generic reference to considering the country information and the submissions which embodied it by the appellant’s agent to the Tribunal supports a finding that it considered it and my challenge is to persuade the Court that that is not so.

KIEFEL CJ:   The framework within which you consider what inferences are available about the Tribunal’s reasons is really the statutory obligation to give reasons, is it not?

MR WOOD:   That is right.

KIEFEL CJ:   The Republic’s point about section 34(4) is that the Tribunal only needs – is only required to set out the findings of fact on which it based its reasons.

MR WOOD:   I am prepared to deal with that.  I was going to do it later but I am happy to do it now.  If your Honours turn to tab 19 of the materials – it is the decision of Justice McHugh in Durairajasingham.  There are only two paragraphs that are important.  Firstly, paragraph [64], of his Honour’s judgment – in my submission, where I am going is that the Republic’s reading of Durairajasingham is quite wrong. 

So, at paragraph [64], his Honour cites from a decision of a Full Court in a case called Addo and the relevant part of the quote from Addo was set out in paragraph [64] where in particular, in the second sentence of the quote, it was said by the Full Court:

Section 430 –

which reflects, I think, precisely, section 34 of the Act here:

does not require a decision‑maker to give reasons for rejecting evidence inconsistent with the findings made . . . 

It is not necessary, in order to comply with s 430(1), for the tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made.

What his Honour says at [65] is that that passage correctly sets out the effect of 430(1)(c), which requires the Tribunal to refer to the evidence upon which the findings that it made were.  What his Honour goes on to say in the second sentence is that:

the obligation to set out “the reasons for the decision” (s 430(1)(b)) –

which is a separate parallel obligation:

will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings.  Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out –

I will go on to elaborate, if your Honours do not mind, slightly later, once I have set the point up.  But there is a substantial body, particularly of Federal Court and Full Court case law, emerging not just from Durairajasingham but Yusuf and SZGUR, for example, that is now at least orthodox in that court for when inferences can be drawn from absences or omissions in statements of reasons.

KIEFEL CJ:   It depends on the case.  It depends on the facts of the case and the reasons.

MR WOOD:   It absolutely does.

KIEFEL CJ:   I mean, these general statements are not really all that helpful.

MR WOOD:   It absolutely does depend on the facts, which is why I would like to turn back to those facts, if your Honours would permit.  So, no country info was cited by the Tribunal in support of its description of cramped and unsanitary as being the universe of conditions that the appellant would be exposed to.  However, that description may not come from nowhere.  It reflects substantially country information that the appellant had provided to the delegate of the first round of this process.

If your Honours open the book of further materials which I will call the “court book” for convenience at page 63.  Your Honours will see at page 63 at about three‑quarters of the way down the page, there is a paragraph starting “Conditions in Sri Lankan prisons”.  It goes on to refer that paragraph to a US Department of State report from 2012 that noted:

that Sri Lanka’s ‘prison conditions [are] poor and [do] not meet international standards due to gross overcrowding and the lack of sanitary facilities’.

That may well have been either through the submission or perhaps more likely awareness of the content of that report the foundation for the Tribunal’s finding.

Turning back, however, to paragraph 67 of the Tribunal’s reasons in this case, immediately after the sentence where the Tribunal accepted the possibility that the appellant might be held for a number of days in “cramped and unsanitary conditions”, what the Tribunal says is that it:

does not accept that this in itself would constitute torture or [relevantly to this case] cruel, inhuman or degrading treatment or punishment –

The “in itself”, of course, provides the identity link to the precise nature of conditions which the Tribunal had found the appellant might be exposed to – cramped ‑ ‑ ‑

KIEFEL CJ:   Mr Wood, in your outline of argument the only factor that you seem to identify in paragraph 5, and I think there is one other point which was not encompassed by what you call the summary description of the Tribunal, is inadequate food.  Is there anything further that you say is not encompassed by what the Tribunal identified? 

MR WOOD:   The absence of medical facilities is another point that I would submit is not comfortably encompassed by “overcrowded and unsanitary”.  Food, I submit, is plainly not encompassed. 

Can I at this juncture try to make a distinction between two parts of the case?  One point is this:  his Honour’s reasoning below, at least an aspect of it, was to the effect that the Tribunal accepted “cramped and unsanitary”.  That reflected the flavour of the material which the appellant had provided. 

KIEFEL CJ:   Which tends to suggest that it had regard to it, but you say it got that just from country information.

MR WOOD:   It either had regard to it or, if it did not have regard to it, it accepted at the headline level, at a very meta level, the description of the effect of conditions, “cramped and unsanitary”.  His Honour said, “therefore no error.”  So one part of the case is that that cannot deal with aspects of the conditions that the appellant had sought to identify by reference to country information that are not comfortably encompassed by the description “cramped and uncomfortable”.  Therefore you have a problem moving from point 4 to 5.  If you cannot conclude that the conditions in themselves do not constitute inhuman or degrading treatment if you have missed conditions that were claimed by the appellant to be cumulatively part of the matrix:  inadequate food, absence of medical facilities.  That is one part of the case ‑ perhaps the focus of my argument.

A second point is this, however, and it might be an appropriate segue to take your Honours to paragraph 60 of the Tribunal’s reasons.

NETTLE J:   Paragraph 60 did you say?

MR WOOD:   Paragraph 60.  I took your Honours a moment ago to 58, where the Tribunal made its findings about what would happen if taken to Negombo and so forth.  It was structurally part of the Tribunal’s statement that relates to Refugee Convention claims, but there is a degree of cross‑pollination.  In particular, at the second half of paragraph 60 the Tribunal says:

Nor is there any credible evidence that –

relevantly:

any brief period spent in remand awaiting a hearing in the magistrates court would rise to the level of persecution or other harm such that returning him to Sri Lanka would amount to a breach of Nauru’s international obligations –

plural.  Now, part of the argument below, which the Republic accepted, was that that reasoning or that sentence was apt to apply not just with respect to the Refugees Convention but also with respect to other obligations.

KIEFEL CJ:   The ICCPR, Article 7.

MR WOOD:   Correct, because of the plural and the reference to other harm.  So, we have a statement there by the Tribunal there is “no credible evidence”.  Now, moving beyond the point about food and medical facilities and so forth being broader than the description of cramped and unsanitary, we have a finding that there is no credible evidence.  Now, there was a range of highly persuasive, if I could put it that way, opinions, including from the Special Rapporteur on Torture to the effect that ‑ ‑ ‑

KIEFEL CJ:   You say it is highly persuasive but when one is talking about inferences the omission of it may suggest that the Tribunal did not consider it to be highly persuasive.  Special Rapporteurs are not always considered to be persuasive even by courts.

MR WOOD:   No, but the question before the Court is whether in circumstances - and there is a set of circumstances that have a bearing here as I will seek to work through - absence of reference to the report, absence of discussion of reasons why it ought not to be accepted, absence of reference to a range of country information relied on by the appellant in support of his claims justifies an inference that that report, in itself, which spoke of “cramped and unsanitary”, the Special Rapporteur did not speak of lack of food, he spoke of “cramped and unsanitary”.

KIEFEL CJ:   But when you say conditions in a country like Sri Lanka, prison conditions are cramped and unsanitary, is that not a shorthand expression for what you would expect also to be the case?  I mean, you would not expect people to be well fed and if there are unsanitary conditions you would not expect medical assistance to be high on the list of priorities either, would you?  So when his Honour Justice Marshall says it gives the flavour is that not what he is saying?  You have the general picture.

MR WOOD:   My case, your Honour, is that whether or not someone would be exposed to degrading treatment does depend on the precise nature of the treatment to which a person would be exposed, indeed, to that extent, I think the Republic agrees.  So, for example, they emphasise the precise duration of exposure. 

Now, if your Honour asks me does “cramped” – if the gist of your Honour’s question is does “cramped and unsanitary” fairly encompass lack of food, my answer is no.  One might find oneself in a cramped cell that is dirty, filthy even, but where food is provided.  It may well be the case that statistically, if you like, across the world places where you expect to find prison cells that are both dirty and overcrowded, you might not be surprised to find ‑ ‑ ‑

KIEFEL CJ:   That relatives have to bring food to you.

MR WOOD:   That may well be the case as a matter of fact but statements of reasons have a particular importance so we should not really be speculating about whether or not when food is not, of its nature, covered by “cramped and unsanitary”, one should not be guessing as to whether or not the Tribunal would have also thought well, yes, I accept you are also not going to get food or medical assistance and that is part of the conditions that I have considered in concluding that cumulatively, despite all of the above, you will not be exposed to degrading treatment.

GAGELER J:   So, if it is necessary to look at the precise nature of the treatment, what was the precise nature of the treatment that was being advanced on behalf of the applicant?

MR WOOD:   Can I walk your Honours through exactly that?  I have taken your Honours to the limited country information that was provided by the appellant to the delegate which reflected the US Department of State report which, I accept, talked about cramped and unsanitary.  It said that it may constitute or breach international standards but was, I accept, in substance, limited to that proposition.  There are two further parts of the court book I will take your Honours to.  Firstly, at page 109 ‑ ‑ ‑

KIEFEL CJ:   This is the core appeal book or the further materials?

MR WOOD:   No, this is the further materials.  When I say “court book” I mean the further materials book. 

NETTLE J:   So, Mr Wood, there was nothing in the Special Rapporteur’s report that was left out of account in terms by the Tribunal?

MR WOOD:   Except for the fact that the Special Rapporteur – and this is where I will take your Honours – if your Honours turn to page 110.

NETTLE J:   Yes.

MR WOOD:   So, this is part of a lengthy submission that the appellant gave to the Tribunal – the appellant’s agent gave to the Tribunal, rather.

NETTLE J:   Yes.

MR WOOD:   And, at the bottom of page – so at page 109, at paragraph 74, it is noted that:

On 10th May 2016 the UN Special Rapporteur –

prepared a report.  One thing to note, in passing, is that that 2016 date is both later than the 2012 country information that has been referred to earlier and also reflected an actual inspection, if you like, by Mr Mendez himself.  Turning then to page 110, the final paragraph on that page Mr Mendez says that he is:

deeply concerned, however, about the conditions of life in all prisons.  All are characterized by a very deficient infrastructure and pronounced overcrowding.  As a result, there is an acute lack of –

and there is a long list of more specific conditions that were said to flow – to exist – but are recognised – and this is a point that his Honour made below – that the identification of the causal relationship meant, if you like, that if one is to be fair to the Tribunal, one might say, recognition of conditions as being cramped and uncomfortable might have carried with it, or be taken to – the Tribunal might be taken to have understood that that encompassed the matters that causally flow from cramped and uncomfortable.  But, one does not find in that list a reference to food, that being not something that does causally flow from cramped and uncomfortable.

But, the point I wanted to make in response to your Honour Justice Nettle – and this deals with the second conceptual point of my case, I suppose – is that Mr Mendez said that:

These combined conditions constitute in themselves a form of cruel, inhuman and degrading treatment.

So, whilst it is true that the Tribunal accepted “cramped and unsanitary”, nowhere does one find in the Tribunal’s statement any consideration of the fact that we have an opinion expressed following a recent visit – 2016 – by the Special Rapporteur expressing the view – which evidently does not bind the Tribunal but, nevertheless, is a view of someone of some repute ‑ ‑ ‑

KIEFEL CJ:   But the rapporteur is not talking about someone who is there for one day, two days or three days.

MR WOOD:   I accept that.  It is unqualified by reference to time.  I accept that.

KIEFEL CJ:   Exactly.

MR WOOD:   There is an interpretive matter about whether or not the reference…..themselves, but I take that point.

KIEFEL CJ:   I mean, it seemed to have carried some weight with the Tribunal that it was a relatively short period.

MR WOOD:   Yes.

KIEFEL CJ:   It might not occur because I think, as the Tribunal itself said, it depended upon when you arrived.

MR WOOD:   That is right.

KIEFEL CJ:   You are in bad luck if you happen to arrive on a public holiday or a weekend, I think, was the ‑ ‑ ‑

MR WOOD:   I appreciate that, but I do not see that as being part of the issue in dispute.  But I accept that in terms of time that is critical.  That is part of my appreciation, which I think is common to both sides, that the precise circumstances matter. 

The second page that I will take the Court to is page 117.  This is part of the same document, the same submission from the appellant’s agent to the Tribunal.  At the bottom of page 117, at paragraph 100, responding to findings which I note – and I have noted this in writing; I do not need to take your Honours back to it – but the delegate found that Negombo was the place.  So the appellant’s agent is, in a real world, responding to the issues on the review and never takes issue with the finding that Negombo would be the place to which the appellant would be taken, if he was taken anywhere for a period of remand.

So that is not an issue, which is part of the reason why his Honour’s reasoning below, in some respects, is unsatisfactory because in some respects his Honour rejected the appeal below on the basis that the appellant never said anything about Negombo.  We have given numerous answers to that, including that the submissions that were advanced to the Tribunal responded to the findings made by the delegate which took as a starting point that Negombo was the location.

So at the bottom of page 117 it was contended that the appellant may be detained even if that is only for a short period pending a decision on bail – that takes us through to the fourth line on page 118.  Then it is the balance of that paragraph that is important.  Firstly, it is said:

Prison conditions in Sri Lanka have been recognised as likely to breach article 3 of the European Convention –

and hence Article 7 of the ICCPR.  There is a reference in footnote 47 to the UK Home Office from 2012.  Then this is said:

In particular, Sri Lanka’s prisons have been found to suffer from severe overcrowding, antiquated infrastructure and limited access to food and basic assistance.

So, again, the distinction has been drawn then in the terms of the appellant’s own submission to, for example, limited access to food not being encompassed by overcrowding but being a distinct point and a separate element of the matrix of conditions.

NETTLE J:   Was the Federal Court’s decision in SZTAL the only thing relied upon for lack of food?

MR WOOD:   The SZTAL decision in the Circuit Court, which I will take the Court to in a moment, which was footnoted of course by the appellant’s agent at footnotes 48, 49 and 50 referred in itself to a range of Human Rights Committee decisions that recognise that the level of principle, that not being provided with access to adequate food could lead to a finding of degrading treatment. 

Now, it is no part, as I understand it, of the Republic’s case to say well, this is all futile, any error, any failure by the Tribunal to think about the food issue, for example, could not have made a difference because that is not relevant degrading treatment.  That is not part of the controversy; that is not a point that they make.  Can I take the Court to SZTAL ‑ ‑ ‑

NETTLE J:   No, the point I wanted to establish was:  was there any evidence, apart from SZTAL, if that be evidence, of a lack of sufficient food?

MR WOOD:   In Sri Lankan prisons?

NETTLE J:   Yes, and particularly in Negombo prison.

MR WOOD:   Across prisons in Sri Lanka, in SZTAL, which the information referred to in the judgment of the Federal Circuit Court, which is cross‑referred by the appellant’s agent, which is why I will take your Honours to SZTAL – that decision is at tab 24 of the materials.  If your Honours look firstly at paragraph 12, which is part of the summary of the relevant facts of that case, his Honour Judge Driver set out the findings which the Australian Tribunal had made in that case.  Looking at the quote:

Country information indicates that prison conditions . . . may not meet international standards.  Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms –

and so forth.  The way the claim was presented of course it is not a matter of fact for the Court to decide.  The way the claim was presented again consistently was, by way of example again food, distinct from overcrowding and sanitary conditions.

Jumping then, if I can, to paragraph 28, paragraph 28 does not relate to a factual claim about the conditions in prisons themselves but at the level of principle identifies a set of human rights committee decisions suggestive of the relevance of all these quite particular conditions.  So paragraph 28 indicates that:

the HRC recognise that article 7 . . . is violated by . . . 

a)        extremely cramped or unsanitary conditions ‑

I note again your Honour’s point earlier about the time period and I accept the time period can be important.

KIEFEL CJ:   Up to two weeks.

MR WOOD:   Yes.  Then:

b)       lack of adequately nutritious food or water ‑

I recognise again that this is an assertion of law, not fact, but in terms of fact, coming to paragraph 32, which indeed is the particular paragraph cited by the appellant’s agent at footnote 48 of the submission that I have taken the Court to, this is said ‑ the Tribunal in that case:

made . . . findings . . . that prison conditions . . . 

b)include “overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms” ‑

So it may be said, if this were a merits review process and it might be said on a remitter, if my client is successful, that that evidence was insufficient to persuade the Tribunal as a matter of fact that in prisons generally or in Negombo prison particularly that provision of access to food is inadequate, but that was the claim.

GAGELER J:   So what is the evidence you are referring to, the finding of the Tribunal that is referred to in the decision of the federal magistrate?

MR WOOD:   That is right.  It is at best secondary, perhaps tertiary – that is right.  It is not uncommon in the Australian tribunals for appellants’ agents to refer to recent decisions of tribunals and invite the present tribunal to come to a similar finding.  It might be thought more persuasive to refer to primary sources, photographs, what have you.

What matters most here is that a claim was made, it was supported by a secondary or perhaps tertiary source, being a finding by the Tribunal in the SZTAL Case which the appellant’s agent specifically encouraged this Tribunal to look at to support the proposition that there was a matrix of conditions and absence of food or lack of adequate food was one of those claimed conditions.

NETTLE J:   It is pretty old, Mr Wood, it is back in the 1990’s that the things relied upon to establish the lack of nutritious food and the denial of medical treatment, footnotes 38 and 39.

MR WOOD:   I think, your Honour, footnotes 38 ‑ they relate to paragraph 28, they relate to the propositions of principle, decisions of the human rights committee, not about Sri Lanka but as to the proposition of law.

NETTLE J:   Whatever they relate to, are they not the basis of the finding on which you rely at paragraph 32?

MR WOOD:   No.  I do not think so, your Honour.  I think at 32 what the Court was doing was observing findings that were made by this Tribunal about the actual conditions in Sri Lanka as opposed to what is being recorded at footnote 38 which is citations of human rights committee decisions for the proposition that inadequate food is relevant to whether treatment is degrading.

NETTLE J:   I am sorry, so what is at 28 is not the basis of the Tribunal’s decision?

MR WOOD:   What is at 28, I recognise, does not provide support for the contention of fact that as of today, if you like, at the time the claim was advanced, Sri Lankan prisons ‑ ‑ ‑

NETTLE J:   Did not have medical or food.

MR WOOD:   Correct.

NETTLE J:   What does then?  Paragraph 32, is it?

MR WOOD:   Yes, 12 and 32.

NETTLE J:   Upon what facts was that finding based?

MR WOOD:   The primary evidence that might have – that presumably or might have been before the Tribunal that supported the findings which the Tribunal made in that case was not provided.

NETTLE J:   We do not know what that was.

MR WOOD:   That is right.

GAGELER J:   Mr Wood, it is a big ask to say that the Tribunal in this case was bound to give reasons for not giving significant weight to a reference that is found in a footnote in paragraph 100 of the submissions made on behalf of the applicant.  It is hardly highlighted as a central integer of the claim.

MR WOOD:   We do not even need to get to the – the footnote provides the link to the support such as it was for the claim but the claim was given in the very paragraph about limited access to food.  We come back to a familiar distinction between merits review and judicial review.  One way to simplify the case is this, we can always set to one side cases about when one can find error in failing to consider particular information or evidence which are cases that I will take the Court to in a moment and come back to familiar territory about failure to consider a claim, trite, both here and in Nauru, an error of law, indeed, a jurisdictional error.

Now, here the reason why I stepped out the five elements of the claim is this, that one easy way to think about this case is this, the claim was here are the conditions that I claim I will be exposed to on remand for a period, I submit, in Negombo, responsive to the findings that the delegate had made.  They are these:  overcrowding, unsanitary, limited access to food and basic infrastructure.  That was the claim.  Now, it might be said, and this is what I hear coming to me, that the evidence to support the claim, for example, about adequate food, was weak, that may be so, but the claim was clearly advanced and the claim was that a set of conditions cumulatively, those being the conditions, would amount to a breach.

Now, when one comes to the Tribunal’s decision one finds not only no reference to the underlying country information, such as it was – limited, secondary or tertiary with respect to supporting the food point – but also a high level, if I can put it that way, from the Special Rapporteur about cramped and unsanitary in themselves being, subject to the time point, degrading.  No reference to any of that material, but fundamentally the easiest way through this case is to see no reference to the full set of conditions said to justify the conclusion.

It is speculative to say if the Tribunal had accepted that the conditions that had been claimed were clearly broader than cramped and unsanitary, what would the Tribunal have done with that?  We just do not know.  The Supreme Court’s reasoning, his Honour Justice Marshall, I submit, advanced two strands of reasoning to dismiss the appeal below. 

GAGELER J:   I am sorry, Mr Wood.  In answer to the Chief Justice you said that there was something about inadequate medical assistance as well.  Where is that? 

MR WOOD:   I did not see it when I flipped through the pages but I think it is there.  I will try to find it and take your Honours to it.

NETTLE J:   In SZTAL, is it?

MR WOOD:   It may be.  I am confident it is there somewhere, but I do not have it at my fingertips.  I will try to find it.

KIEFEL CJ:   I think it is in the rapporteur’s report.

MR WOOD:   Yes, that may be so.  Thank you, your Honour.

NETTLE J:   At 109. 

MR WOOD:   There were two lines of reasoning, I submit, from Justice Marshall.  The first was manifested at paragraphs 35, 36 and 42.  At 35 his Honour in effect summarised an argument advanced by the Republic:

Counsel for the Republic accepts that the Tribunal is required to consider relevant and serious submissions –

but this material did not possess that character.  Then his Honour accepted that in paragraph 36, and in the third line said:

That material was very general.  It did not relate to the specific matter required to be considered by the Tribunal.  That is, whether detention for up to three days on remand in Negombo –

In our written outline of submissions advanced some months ago now, paragraphs 34 to 38 embody the reasons why we say that his Honour’s reasoning there should be rejected.  There are a number of reasons, none of which were engaged with by the Republic in writing.  I am happy to address them but I essentially adopt what we have said at paragraphs 34 to 38 with respect to that aspect of his Honour’s reasoning. 

I have mentioned one aspect of the argument, which is that the appellant’s agent’s submission to the Tribunal recognised it would be detention for a small period on remand, and it responded to a finding that Negombo was likely to be the place.  In any event, the material relied on was expressed in general and universal terms. 

The second aspect of his Honour’s – sorry, before I move on to the second aspect – I note that part of what his Honour says at paragraph 36 reflects the submission which the Republic advanced which is that, if you are thinking about the case as a failure to consider information case, tracing back to Justice Robertson’s decision in SZRKT which has proved influential, his Honour found that not every failure to consider every item of information will amount to an error of law or a jurisdictional error, only where the information is, if you like, substantial or significant – his Honour, essentially, breaking down a distinction that had been drawn down the years between claim and information in support of a claim and doubting the rigidity of that distinction, if you like.

But, again, one way to sideline that debate is to recognise that here we have a claim and the claim was, here are the conditions.  So it is, in fact, perhaps, a bit artificial to see failing to consider whether you would be exposed to conditions involving lack of adequate food as new information because it was a claimed condition.  But, I will come back to that point that the Republic make.

The second aspect of his Honour’s reasoning which reflects questions put to me, particularly by the Chief Justice, is in paragraph 40 and that is to the effect that:

“cramped and unsanitary conditions”, although brief, captures the flavour of that material –

And to that, the Republic, in submission, add, of course, the reference to paragraph 31 of the Tribunal’s reasons which contains the generic statement to the effect that it had had regard to country information in the submission of 28 June 2016, without going into details about the nature of that country information or the points that it advanced.

So, I want to deal with that second point first, the “cramped and unsanitary”, capturing the flavour point.  It is important, in my submission, to start the analysis from the Supreme Court’s own recognition at paragraph 30 that the appellant’s material:

went beyond the Tribunal’s finding –

I will read the exact quote.  His Honour says this:

The submissions of the Appellant before the Tribunal included evidence about conditions in Sri Lankan prisons.  That evidence went beyond the Tribunal’s finding that conditions in Negombo would be “cramped and unsanitary”.

That is right, it did.  That recognition is hard to square with his Honour’s subsequent statement at paragraph 40 that the findings of the Tribunal captured the flavour.  Those two findings are very difficult to reconcile.  The true position is that – as I have sought to demonstrate by walking the Court through the material – is that the claimed conditions clearly did go beyond “cramped and unsanitary” in their very terms, both in the submissions and in the underlying information, such as it was, that supported those submissions, distinction was frequently drawn between “cramped and unsanitary” and “absence of food”, for example, regardless of what might be the case in the real world about the coincidence of those phenomena.

So, when you start with the recognition that the evidence which the appellant advanced went beyond that which was rather summarily described as “cramped and unsanitary” by the Tribunal, one starting, in my submission, from a good platform for an argument that the conditions claimed that are not encompassed and do not necessarily causally flow from those recognised by the Tribunal were not considered.

I have taken the Court through Durairajasingham and the point there being that it is not the cases the Republic submit, that there is never a need to refer to evidence that contradicts or undermines a finding that the Tribunal arrives at by virtue of the Tribunal’s separate obligation to give reasons for its decision.  And I noted earlier that there is now a large body of case law, particularly in the Federal Court level, about what inferences can be drawn from gaps or absences in the Tribunal reasons.  Can I take the Court just to two of those cases?

The first is MZYTS, which is tab 12 of the material.  It is a long judgment, I certainly will not be reading it all.  It is sufficient to get a flavour of the background facts to have a look at paragraphs 41 and 42 of the Full Court’s judgment.  Essentially, what occurred was that after the Tribunal hearing the appellant’s agent provided submissions as to the circumstances in Zimbabwe and political violence and cycles of political violence and there was no reference to that country information by the Tribunal in its decision.  So, 41 to 42 give a flavour of the background in that regard.

Moving then to the reasoning of the Court, the submission of the Minister in that case is summarised at paragraph 48 and the Minister’s submission was that:

whether the Tribunal has in fact ignored or overlooked . . . material which is centrally relevant . . . can be answered by an inference to be drawn from the Tribunal’s reasons . . . the Court could not infer the Tribunal had ignored any such material.  Rather, he submitted the Tribunal simply preferred other material –

That submission ultimately was rejected squarely by the Federal Court.  Paragraphs 49 to 50 represents a headline proposition that the Court, in effect, reflects throughout the remainder of its analysis and, in particular, the final sentence of 50 where the Court says that:

The absence from the recitation of country information of the material referred to in the post‑hearing submissions is indicative of omission and ignoring, not weighing and preference.

Then, a distinction is identified in paragraphs 51 and 52 from the decision in SZGUR and, in particular, the judgment of then Chief Justice French and your Honour the Chief Justice today, between two possibilities, if you like, when you have material not referred to in reasons.  One possibility being that the material was not considered.  Another possibility being that the material was not considered by the Tribunal to be material and the Full Court in this case said, I think in paragraph 52 about five lines down that:

the omission cannot be sensibly understood as a matter considered, but not mentioned, as contemplated –

in that way.  My submission is that here when the claim was – here are the set of conditions that cumulatively give rise to degrading treatment.  It is extremely difficult to characterise a claim that inadequate food is available or inadequate medical facilities are available as not material because, indeed, they were part of the claim, which was why again I note that the simple way to understand the case is just that a claim about conditions ‑ ‑ ‑

KIEFEL CJ:   Well, the Republic does not deny that they are material.  The essential question is whether or not what the Tribunal referred to in summary is apt to convey that they had regard – and the other references to the process of the hearing conversations, the appellant’s material – whether those taken together are sufficient to suggest that when it described the conditions in summary it was conscious of more.

MR WOOD:   Yes.  Can I then try to deal with those two remaining issues which I think your Honour has fairly summarised there?  One, what is the significance of the generic statements by the Tribunal that consider country information?  And what is the significance of the exchange between the appellant personally and the Tribunal member at the hearing?  That latter point is easy, I think, your Honour.

It is unsurprising that the appellant in Nauru, assisted by agents but not perhaps himself an expert on the conditions in Sri Lankan prisons, presumably not having been in one before, would not have at his ready disposal himself an answer to give to the Tribunal’s question about the conditions ‑ ‑ ‑

KIEFEL CJ:   Perhaps it was not so much his answer and the fact that he did not provide further material at that point as it discloses that the Tribunal was conscious of prison conditions more generally, and that it obviously had informed itself.

MR WOOD:   Well, I accept, your Honour, that it is undeniable that the Tribunal was conscious, to an extent, of some material and it had formed some preliminary views about the circumstances in Negombo – cramped and unsanitary.  So I think in the hearing it was described as “dirty and overcrowded”.

Now, there is no doubt that he was familiar with that.  The question and the underlying issue in this case is, bearing in mind that the claim was one where cumulative conditions were said to give rise to the conclusion of a breach of Article 7 and where neither in the hearing nor anywhere in its decision record does the Tribunal refer to what I have identified as being conditions that are not the same as, are not encompassed by, do not necessarily causally flow from cramped and unsanitary – whether one forms the view fairly on the material before the Court that the Tribunal did not have regard to those additional conditions, which were part of the matrix.

And so, in that respect, the reliance by the Tribunal on the exchange at the hearing does not assist.  There is no basis for a conclusion that that brief exchange with the appellant personally and the Tribunal members justifies a conclusion that the claim very clearly advanced by the appellant through his agent in the submissions was abandoned.  And the claim advanced through his agent in the submissions was clear and it included conditions to which I have referred – food, medical facilities and so forth.

GAGELER J:   I get the food.  Where is the medical facilities claim clearly articulated?  Just give me the page reference.

MR WOOD:   I would, if I could.  I wish I had taken a note, your Honour.  But I will do before we are done.

NETTLE J:   This is from SZTAL, is it not?

MR WOOD:   I will need to check that.

NETTLE J:   That is the only place I can find any sort ‑ ‑ ‑

KIEFEL CJ:   I think it is page 110 of the further material, which I think is the rapporteur’s material – “limited access to medical treatment”.

MR WOOD:   Just a moment, your Honours.

NETTLE J:   Sorry, it is the food that is SZTAL.

KIEFEL CJ:   Yes.  “Medical treatment” is about line 45 on page 110.

MR WOOD:   Thank you.  If there are any further ones, I will try to identify them.  So that is that point.  That leaves us then with the significance, or lack thereof, of the generic statement, particularly at paragraph 31 of the Tribunal’s reasons that it had regard to the country information in the appellant’s agent’s submission.  There is a useful digest of applicable authorities in dealing with an argument about the significance of a highly‑generic statement like that in a relatively recent decision of Justice Flick in the case of Buadromo, which is behind tab 4. 

Of course, the facts are different.  That case involved the exercise of a character‑style discretion by the Minister rather than a visa or non‑refoulement claim, per se.  I rely on it only for its digest of case law that assists on the topic.  If your Honours turn to paragraph 25 – 25 to 27 his Honour outlines a set of uncontroversial principles with respect to the general approach.  So, 25 is Wu Shan Liang referred to but at 26, his Honour notes that the eyes of the Court should:

“not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case” –

and reference to case law.  The next sentence says ultimately it is always a matter of inference which must be so.  At 27, his Honour cites a set of cases that urge caution to be applied in assessing the significance of generic:

“stock standard” or “formulaic” –

statements and, in particular, the final sentence of 27, that:

Recitations, for example, that particular matters have been “noted” or “considered” does not preclude an analysis as to whether such matters have been given such consideration as is required by law. 

Were it otherwise, Tribunals would readily immunise their decisions from successful judicial review by including a stock standard statement and that would be that for every case, evidently.

If the Court could turn then to paragraph 31, there is mention in 31 of the proposition that, if you like, the degree of care or detail with which you might expect a statement of reasons to be prepared is affected by the context and where, as here, you are looking at a context involving life or death decisions, one might expect a greater degree of detail or care being expressed and that is part of the matrix to understanding the significance of a gap or an absence or rather, more particularly, sorry, the significance of a highly‑generic statement that submissions have been considered.

Jumping then to paragraph 42, which really largely elaborates the point that had already been made but notes the idea of:

“proper, genuine and realistic consideration” –

which, I think, is a phrase that traces back to Khan and the origins of that phrase is also discussed by Justice Flick in this case and that that is not evidenced merely by a generic statement of a submission having been noted nor – equivalently in this case – is it necessarily discharged by a mere bald reference to a submission having been considered when there is otherwise no evidence of consideration in the body of the written statement as to the particular matters set out in the actual submission.

Turning then to paragraph 46, his Honour fairly identifies the dilemma which a court faces when presented with an argument or an issue of this kind being an exercise of evaluative judgment where the court obviously has to be concerned about not falling into merits review, in effect.  How does his Honour resolve that dilemma or find himself on the right side of the line?  That is particularly discussed at paragraphs 50 and 51 where ‑ ‑ ‑

KIEFEL CJ:   Mr Wood, speaking for myself, I am not finding this particularly helpful.

MR WOOD:   No.  Well, your Honours, it is, if nothing else, a reference point to a number of other cases that have identified applicable principles.  The other paragraphs that I would invite your Honours to look at, in particular, are 53 to 56.  The nub of the point is essentially that, it being claimed that these were conditions, one would expect that claim to be dealt with in the manner of – and it could have been dealt with in any number of ways, including by saying, “Well, your evidence isn’t weighty.  You haven’t taken me to primary sources” or it might have been dealt with on the basis that “overcrowding and unsanitary as well as inadequate food but only for a short period does not give rise to degrading, but we just don’t know”. 

The ultimate question is on the balance of probabilities, did the Tribunal in circumstances where it did not cite the information, it did not refer to the concepts at play, beyond crowded and unsanitary, and it did not weigh competing information, it did not come to any alternative view, it just passes through without comment, aside from the generic reference.

The submission that I make is the more probable view is that the material, that aspect of the claim, was not considered and that what has occurred is that the Tribunal in a somewhat summary fashion, having identified to the appellant at the hearing its preliminary view, the conditions were aptly described as dirty and overcrowded, proceeded on that basis of an understanding of the conditions and said well, that in itself does not mean degrading, but did not take into account the claim that the conditions were broader and, indeed, that there was opinion supporting the conclusion, albeit subject to the point about time.

So, in those circumstances, it disabled itself from making the assessment which was point 5 of the claim, which is that the conditions cumulatively led to degrading treatment.  It is for that reason that the decision should be overturned.  Thank you.

KIEFEL CJ:   The Court will adjourn to consider the course it will take.

AT 10.57 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.06 AM:

KIEFEL CJ:   We need not trouble you, Mr Kennett.

MR KENNETT:   If the Court pleases.

KIEFEL CJ:   The Court is of the view that this appeal should be dismissed for the following reasons.

The appellant is a citizen of Sri Lanka of Tamil ethnicity from the Mannar region.  He travelled from Sri Lanka to Australia via India.  On arrival he was transferred to Nauru.

The appellant’s application under s 5(1) of the Refugees Convention Act [2012] (Nr) (“the Act”) to be recognised as a refugee was rejected by the Secretary of the Department of Justice and Border Control of Nauru (“the Secretary”).  The Secretary determined under s 6(1) of the Act that the appellant is not a refugee to whom protection obligations are owed and is not owed complementary protection by the Republic of Nauru.  The Refugee Status Review Tribunal of Nauru (“the Tribunal”) affirmed the Secretary’s determination.

The sole ground of the appellant’s appeal to the Supreme Court of Nauru had regard to the complementary protection provided by the Act.  It was that the Tribunal had failed to consider or have regard to matters put before it concerning conditions in Sri Lankan prisons in which he would be held if he was returned or expelled to Sri Lanka.  Those conditions were such that he would be exposed to “cruel, inhuman or degrading treatment” which is prohibited by Article 7 of the International Covenant on Civil and Political Rights (“the ICCPR”).

In submissions made by his lawyer in connection with his application the appellant had claimed that if he is returned to Sri Lanka he would be charged with an offence because he had departed that country illegally and he may be remanded in custody for some days pending a hearing before a Magistrate.  The risk of cruel and inhuman and degrading treatment to which the appellant would be exposed was identified by him as poor prison conditions which do not meet international standards due to gross overcrowding and lack of sanitary facilities.

In his submissions to the Tribunal (“the Document”), the appellant provided further information concerning the conditions in Sri Lankan prisons generally and referred, in a series of footnotes, to three further sources that were said to provide support for the propositions that those conditions are recognised as likely to breach Article 3 of the European Convention on Human Rights (which is phrased in terms equivalent to Article 7 of the ICCPR) and that Sri Lankan prisons have been found to suffer from severe overcrowding, antiquated infrastructure, limited access to food and basic assistance.

Both the Secretary and the Tribunal appear to have accepted it to be likely that the appellant would be arrested on his return to Negombo airport and that it is possible that he might be held on remand until the next sitting of the Magistrates Court in that area, depending on when he arrived.  In the hearing before it, the Tribunal suggested to the appellant that a person who cannot be taken immediately to a Magistrates Court may be held on remand in Negombo Gaol for a period of one to three days.  The Tribunal expressed the view that, whilst the gaol was “not a very nice place” and is “old”, “dirty” and “crowded”, there was no information which indicated that people who are held on remand there for this “fairly brief period” have been harmed.  The observation invited a response.  The appellant responded, through an interpreter, to the effect that there had been a report of a woman in custody being raped by the authorities. 

In its reasons the Tribunal referred to the reports of the Commonwealth Department of Foreign Affairs and Trade, which had been cited in the Secretary’s decision, from which it appeared that Sri Lankan citizens who have left that country illegally are arrested at the airport and brought before a Magistrates Court.  If they plead guilty a fine is imposed; if they plead not guilty they are routinely given bail and are required to return to the court at a later date.  If arrival occurs over a weekend or a public holiday they may be held at the remand section of Negombo prison possibly for some days until they can be brought before the court.

The Tribunal did not accept that there was a reasonable possibility that the appellant would be jailed for his offence.  It said there was no credible evidence that he would be subjected to a harsher penalty because of his ethnicity or that any brief period spent in remand would amount to a breach of Nauru’s international obligations.  The Tribunal noted the submission of the appellant’s representative that imprisonment in unacceptable conditions amounts to the treatment prohibited by the ICCPR but it did not accept that being held for a short time in cramped and unsanitary conditions constitutes such treatment.

The Supreme Court described the material put before the Tribunal by the appellant as general in nature and not addressed specifically to the remand section for short term prisoners of Negombo prison, where he might be held and said that the Tribunal’s reference to “cramped and unsanitary conditions”, although brief, “captures the flavour of the material”.  It held that it was open to the Tribunal to find that detention in such conditions for a number of days would not constitute cruel, inhuman or degrading treatment.  The Supreme Court affirmed the Tribunal’s decision.

On his appeal to this Court the appellant contends that the conditions referred to in his material were referable to all Sri Lankan prisons; that the Tribunal was obliged to refer to each aspect of them; and the Tribunal was obliged to refer to that information if it is not to be inferred that it failed to consider the information or regarded it as irrelevant to its decision.  A third possibility is that the Tribunal failed to give reasons as it is required to do under s 34(4) of the Act. 

The respondent, the Republic of Nauru, submits that the Tribunal’s duty to give reasons does not encompass any obligation to canvass evidence upon which it chooses not to rely.  Section 34(4) of the Act relevantly requires the Tribunal to set out “the evidence or other material on which findings of fact were based”.  This requirement does not provide a basis for the inference for which the appellant contends. 

The Republic further submits that, in any event, there is no foundation in fact for the inferences.  The Tribunal expressly stated that it had had regard to the country information cited in the appellant’s Document “as discussed with the applicant at the hearing” and referred to that country information in connection with returning asylum seekers.  The Tribunal referred specifically to the appellant’s oral evidence relating to prison conditions in canvassing the question whether it would constitute treatment of the kind prohibited by the ICCPR.  The references by the Tribunal to the conditions in Negombo Prison “capture the flavour” of the information in the Document, as the Supreme Court found.  The only inference to be drawn from the Tribunal’s consideration of the appellant’s information and the conclusions it expressed is that in so far as that information might have pointed to a different conclusion, the Tribunal did not find it to be persuasive. 

The respondent’s submissions should be accepted.  In oral argument the appellant relied upon the specific omissions of references to the availability of food and medical assistance in Sri Lankan prisons to support the inference that the Tribunal failed to consider these additional factors.  The summary given by the Tribunal of prison conditions may be explained by its primary focus being on the short period that the appellant might be held on remand.  If the period had been more substantial, one might have perhaps expected a more detailed reference to each aspect of those conditions. 

Clearly enough, the Tribunal was apprised of the matters regarding prison conditions which the appellant had raised and considered them in determining whether complementary protection was owed to him.  No further reasons were required. 

The Court will adjourn until 2.15 pm.

AT 11.16 AM THE MATTER WAS ADJOURNED