SZSNX v MIBP

[2015] FCCA 2271

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSNX v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2271

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka on various bases – applicant’s fears found to be not well-founded – whether the Tribunal failed to consider the applicant’s claims cumulatively, failed to apply the correct test for complementary protection, misdirected itself as to the correct law or breached ss.425 and 422B of the Migration Act 1958 (Cth) considered.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 46A, 422B, 425

Duggal v Minister for Immigration & Anor [2015] FCCA 1630
Minister for Immigration v SZMOK [2009] FCAFC 83

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
NAOA v Minister for Immigration [2004] FCAFC 241

SZBEL v Minister for Immigration (2006) 228 CLR 152
SZRSN v Minister for Immigration [2013] FCA 751
SZSGAv Minister for Immigration [2013] FCA 774
SZSHK v Minister for Immigration & Anor [2013] FCAFC 125
SZTAL v Minister for Immigration & Anor [2015] FCCA 64
SZTKE v Minister for Immigration [2015] FCA 1002

Applicant: SZSNX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 148 of 2013

Judgment of: Judge Driver

Hearing date: 21 August 2015

Delivered at: Sydney

Delivered on: 30 September 2015

REPRESENTATION

Counsel for the Applicant: Mr S Lawrence

Solicitors for the Applicant: Rasan T. Selliah & Associates

Solicitors for the Respondents: Ms M Stone of DLA Piper

ORDERS

1. A writ of certiorari shall issue, removing the record of the former Refugee Review Tribunal into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 148 of 2013

SZSNX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 20 December 2012.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka and had made claims based upon his religion and ethnicity and an imputed political opinion in favour of the Liberation Tigers of Tamil Eelam (LTTE).

2. The following statement of background facts is derived from submissions of the parties.

3. The applicant is a male citizen of Sri Lanka. He arrived in Australia as an unauthorised maritime arrival. The Minister exercised his discretion under s.46A of the Migration Act 1958 (Cth) (Migration Act)[1] and the applicant was able to lodge a protection visa application, which he did on 29 May 2012.[2]

   [1] CB 56.

   [2] CB 22.

4. The applicant claimed to fear harm in Sri Lanka due to an incident in 2006 in which a person, who unknown to the applicant, was a suspected member of the LTTE, used his telephone to make an international call.   One week later the police came to the applicant's home looking for the person who used the telephone, and they blindfolded the applicant and took him to a house where he was interrogated and beaten.  The applicant was later summonsed to the police station and accused of being associated with the LTTE, and since then has been regularly visited and questioned by the police.

5. The applicant's agent also advanced a claim on behalf of the applicant that he would be harmed on his return to Sri Lanka because he was a failed asylum seeker.

6. The applicant provided the following documentary evidence in support of his claims:

   a)receipt for payment in relation to the telephone facilities the applicant provided as part of his business;[3]

   b)a police report recording the applicant's wife's report of the incident when the applicant was taken from his home;[4]

   [3] CB 58.

   [4] CB 60-64.

7. The applicant also provided documents showing his attempts to seek asylum in 2008:

   a)a letter from the applicant to the Australian High Commission in Colombo dated 10 October 2008 setting out the applicant's fear of harm;[5]

   b)a letter from the Australian High Commission to the applicant dated 16 October 2008 which enclosed an application form for an Offshore Humanitarian Visa;[6]

   c)a letter from the International Red Cross dated 30 July 2008 acknowledging receipt of a request for protection;[7] and

   d)a letter from the UNHCR dated 8 August 2008 acknowledging receipt of a letter seeking protection.[8]

   [5] CB 65.

   [6] CB 66.

   [7] CB 67.

   [8] CB 69.

8. The application was refused by a delegate of the Minister on 17 August 2012.[9]

   [9] CB 13-116.

9. The applicant applied to the Tribunal for review of the delegate's decision on 14 September 2012.[10]  The applicant appeared at a hearing before the Tribunal on 28 November 2012.[11]

   [10] CB 117-128.

   [11] CB 145-147.

10. The Tribunal made its decision on 20 December 2012, affirming the decision under review.[12]

    [12] CB 153-171.

The decision of the Tribunal

1. The Tribunal accepted that the applicant was detained and mistreated in 2006 as claimed, and that the applicant was later questioned by the police.[13]  The Tribunal found, however, that this was an isolated incident relating to the specific set of circumstances which existed at that time.[14]  The Tribunal considered that the applicant was briefly of interest to the authorities because he had come into contact with a suspected LTTE terrorist. 

   [13] CB 165 [56].

   [14] CB 166 [59].

2. The Tribunal considered that the persons who detained the applicant in 2006 did not show any interest in harming him after he was released and that they did not seek to harm him further.[15]  The Tribunal found that the subsequent questioning of the applicant by the police was not part of an ongoing campaign to harass him and was a legitimate activity by the authorities.[16]  The Tribunal noted the applicant's evidence that since then he had not had any direct contact with the police, and considered that if anyone had wanted to harm the applicant there was sufficient time and opportunity to do it.[17]

   [15] CB 166 [60].

   [16] CB 167 [61].

   [17] CB 167 [61].

3. The Tribunal accepted that in 2008 when he wrote to the Australian authorities about seeking asylum, the applicant believed that people were coming to his house to harass him.  However, the Tribunal was not satisfied that this was in fact the case because if people had wished to harm the applicant there was sufficient time and opportunity to do so.[18]

   [18] CB 169 [68].

4. The Tribunal concluded that the applicant's fear that the people who mistreated him in 2006 had an ongoing interest in him, and his fear that he would be of interest to the police in the reasonably foreseeable future, were not well-founded.[19]

   [19] CB 167 [61].

5. On the basis of country information, the Tribunal did not accept that the applicant faced harm more generally on the basis of his Tamil ethnicity or because he was a failed asylum seeker.[20]

   [20] CB 167-168 [63]-[64]

6. Finally, the Tribunal considered the applicant's claim that if he returned to Sri Lanka he would suffer psychologically as a result of being returned.  The Tribunal did not accept that this fitted within the complementary protection provisions as this would not be intentionally inflicted on the applicant or intended to subject him to significant harm.[21]

   [21] CB 170 [72].

7. The applicant provided the following evidence to the delegate about his personal circumstances:[22]

   [22] CB 52-55.

   a)he was born 27 October 1962 in Jaffna, Sri Lanka and is of Tamil ethnicity and of the Islamic faith;

   b)he resided in Jaffna until 1990 when he and other Muslims were displaced and moved to Colombo, Sri Lanka;

   c)he has worked as a tailor most recently and ran his own business, which included a telephone line which members of the public were able to pay to use. Both these businesses were operated from his home;

   d)he married in 2003 to a Tamil of the Christian faith and has one son (now aged 10 or 11 years);

   e)on 15 November 2006 a man attended his home and used the telephone to make an international call;

   f)on 22 November 2006 men attended his home and introduced themselves as policemen.  They then forced the applicant into their car and blindfolded him.  The applicant was taken to a house, forced to sit on a chair and interrogated.  The applicant was questioned as to his identity and religion and his pants were pulled down to confirm his religion. The interrogators asked the applicant questions about the whereabouts of a man called [S] and showed him a photograph of a man who the applicant recognised as the man who had made the phone call from his house;

   g)the applicant was beaten and assaulted during the interrogation, which lasted two hours;

   h)the applicant was then released, apparently because his wife had gone to police and made a complaint;

   i)from “time to time” following the incident the police would come to the applicant’s home to ask whether he had seen [S];

   j)on 1 September 2007 the applicant was summonsed to the police station at Wattala and questioned.  The applicant was questioned and asked if he was working for the LTTE and about the communication business he was running.  It was suggested to the applicant that he was running the business on behalf of the LTTE. Police accused the applicant of having “too many Tamil people coming and going from the home”.  The applicant was kept at the station for around an hour and then allowed to leave;

   k)from that date police would come to the applicant’s house often, “sometimes once a month, sometimes twice a month”.  The applicant lost customers as a result and eventually closed his communications business;

   l)the applicant’s life “became unbearable”, he was scared he would be arrested and he left his house and stayed at friends’ places;

   m)the applicant feared being harmed should he return to Sri Lanka, including being abducted and beaten again; and

   n)in January 2012 police again came to his home but he was not there and the applicant took up an opportunity to leave Sri Lanka by boat.

8. Similar, but in some respects more detailed, information about the 2006 incident involving [S] had been provided by the applicant to the Australian official who interviewed him when he first arrived in Australia:[23]

   Once I had a customer called [S]who made a phone call on the phone in my shop after one week from the time [S]made the call men came looking for me. A suicide bomber had tried to kill [K], younger brother to [MB], the President of Sri Lanka. It was alleged that [S] who made a call from my Telecom office was set to have helped the female suicide bomber

   [23] CB 13-14.

9. Further information in regards to the physical actions involved in the incident was also given:[24]

   Already I have been taken away, beaten up and tortured, made to sit with my legs tightened and holding me from behind and they put a chair over me. I have been blindfolded my hands held behind me and stripped. They released my blindfold briefly and showed me a mobile phone with a picture and asked me if I knew him

   [24] CB 20.

10. The applicant also told the official[25] about people in 2012 coming to him and asking if he had received letters from [S]. These inquiries made him become fearful that he “might be attacked again”.

    [25] CB 13.

11. The applicant also told the official[26] that the area he lived in was predominantly “Singalese” and as a Muslim he was regarded with suspicion and that the authorities did not like the fact that he had many Tamil customers.

    [26] CB 14.

12. The applicant told the official[27] his main concern in travelling to Australia was his safety.  He told the official “many people had been abducted from Wattala and shot, many have disappeared”.

    [27] CB 19.

13. In a letter written to the Australian High Commission on 10 October 2008[28] the applicant recounted incidents in the second half of 2008 where he was the subject of intimidating incidents including unknown persons tapping at his door “very hardly” at midnight leading to him having to “escape” through the rear door.

    [28] CB 65.

The judicial review application

1. These proceedings began with a judicial review application filed on 25 January 2013.  That application was amended on 30 August 2013 pursuant to procedural orders made by then Judge Raphael.  I granted leave for the applicant to rely upon a further amended application filed on 21 August 2015.  The grounds in that application are:

   Ground 1: Jurisdictional Error – Failure to Consider Claims Cumulatively

   1. The Second Respondent failed to consider the applicant’s claims, for both convention and complementary protection, in their cumulative entirety, leading to a constructive failure to exercise jurisdiction, amounting to jurisdictional error.

   Ground 2: Jurisdictional Error – Failure to Apply the Correct Test in Respect of Complementary Protection

   1. The Second Respondent erred in law in considering whether the Applicant was entitled to complementary protection under section 36(2)(aa) of the Act

   Ground 3: Jurisdictional Error – Misdirection of Law

   1. The Second Respondent misdirected itself by directing itself that any psychological suffering that the Applicant may experience by being removed from Australia and detained upon his return would not be intentionally inflicted on him or intended to subject him to significant harm.

   Ground 4: Breach of sections 422B of the Migration Act 1958 (Cth)

   1. The Second Respondent breached section 422B and 425 of the Act by mischaracterising the arguments put by the Applicant regarding torture and/or denying the applicant the opportunity of making representations on this point.

2. In addition to the court book filed on 21 February 2013 I have before me as evidence the affidavit of Gananatha Nayanajith Minithantri, to which is annexed a transcript of the Tribunal hearing held on 28 November 2012.  I also received the affidavit of Michelle Elizabeth Stone (solicitor for the Minister) made on 17 August 2015 in which she deposes as to certain parts of the audio recording of the Tribunal hearing which were indistinct.  In addition, I received into evidence the two discs containing the audio recording of the hearing and permitted one of them to be played in court.  The purpose of that was to attempt to reach a common understanding of an indistinct portion of the recording of significance.

3. Both the applicant and the Minister made both written and oral submissions. 

Consideration

Ground 1 – Did the Tribunal fail to consider the applicant’s claims cumulatively?

1. By the first ground, the applicant pursues a detailed and, with respect, sophisticated analysis of the Tribunal’s assessment of his claims.

2. The Tribunal made findings[29] that the applicant was targeted by agents of the Sri Lankan state on 22 November 2006 and that an adverse political opinion was attributed to him related to the LTTE.  However the Tribunal found the applicant was not currently of adverse interest to the Sri Lankan authorities or agents of the state.

   [29] CB 166.

3. This finding was to a significant extent based on the finding that there was an absence of direct harm being caused to the applicant in the period between the November 2006 incident and the applicant’s departure for Australia.[30]

   [30] CB 166.

4. The connection between these findings rested on the premise that if the applicant was of adverse interest to the authorities, the authorities would have caused him harm:[31]

   [31] CB 166-167.

   60The Tribunal finds that those persons had sufficient time and opportunity to access the Applicant if they had an ongoing interest in him. The absence of direct contact between those persons and the Applicant after he was released on 22 November 2006, indicates to the Tribunal that those persons were not seeking to harm him further

   61The lack of contact with the Police, after the interview on 1 September 2007, indicates to the Tribunal that he was not a person of ongoing interest to the Police in Sri Lanka after the interview

   …

   The tribunal has formed the view that if indeed agents of the state, or anyone else wanted to contact or harm the applicant, there was sufficient time and opportunity to do it while he was living there. The Applicant’s evidence indicates that no serious attempt was made to contact him directly after 1 September 2007.

   62The Applicant … was easily accessible to the authorities or anyone else seeking to find him

   ...

   If the authorities, paramilitaries, the police, or any other agent of the state was seeking to harm him, they had ample time and opportunity to do it while he was there.

5. The various events that the applicant had stated had occurred in the period between 2006 and 2012 (involving visits to his house and other inquiries) were analysed in the following way:[32]

   60 The Tribunal has considered the Applicant’s claim that the incident on 22 November 2006 led to ongoing harassment from the authorities, including his questioning on 1 September 2007, the visits to his home until 2008, and inquiries about him in 2012. However the Tribunal has formed the view that the persons who mistreated the applicant on 22 September 2006, did not demonstrate any interest in harming him further after he was released

   [32] CB 166

6. The applicant submits that the absence of direct harm has been used to reason a positive conclusion that the authorities had no interest in the applicant.

7. The absence of such harm having occurred led the Tribunal to find the applicant’s fears were “mere speculation”. [33]

   [33] CB 167 [61].

8. The applicant submits that this reasoning perhaps fails to sufficiently take into account the variable and fluid way in which the individuals that constitute state entities may operate and assumes a degree of coherence, efficiency and goal driven behavior on behalf of the Sri Lankan authorities and others that was not addressed in the evidence.

9. An important part of the applicant’s case was his evidence about his questioning by police in September 2007.  This importance was in part because it showed that the events of 2006 were not isolated and police interest in the applicant continued.

10. The applicant’s evidence as to the 2007 incident[34] was that he was questioned and asked if he was working for the LTTE and about the communication business he was running.  It was suggested to the applicant that he was running the business on behalf of the LTTE. Police accused the applicant of having “too many Tamil people coming and going from the home”.

    [34] CB 54.

11. The Tribunal[35] at [61] characterised this incident as, “legitimate activity by the authorities at a time of civil war and heightened security concerns”.

    [35] CB 167.

12. The Tribunal having made the findings above moved to consider the applicant’s “broader claim” that[36] “as a Tamil person from Northern Sri Lanka he will be subjected to torture or other forms of serious harm by the authorities and paramilitaries”.

    [36] CB 167.

13. The Tribunal noted country information suggesting certain Tamils were at risk of targeting including, “persons viewed as Liberation Tigers of Tamil Eelam sympathisers” but went on to discount this as a risk applicable to the applicant as “the Tribunal has formed the view that the applicant does not have the profile of a Tamil person who is at risk of being targeted by the authorities or paramilitaries in Sri Lanka”.

14. This was effectively a positive finding that the applicant was not viewed as a LTTE sympathiser because of the absence of harm over the period between late 2006 and 2012[37].

    [37] The corollary of this reasoning is perhaps that persons in Sri Lanka viewed as “LTTE sympathizers” in this period would necessarily have been of interest to the state and that this interest would necessarily have led to their detention or other harm having been inflicted.

1. It is notable that at no stage of the reasoning process does the Tribunal find that the events of 2006, combined with the applicant’s social group membership, were incapable of giving rise to persecution.  The process of reasoning was entirely based on the absence of harm in the relevant period.

2. The Tribunal then proceeded to assess the applicant’s claim that “as a Tamil failed Asylum seeker, who left the country illegally, and was forcibly returning to Sri Lanka, he will be detained and mistreated by the authorities”.[38]

   [38] CB 168 [64].

3. The Tribunal found “that certain persons belonging to high risk groups, including persons viewed as LTTE sympathisers, “are at risk of attracting the adverse interest of the authorities once they return to Sri Lanka”.[39]

   [39] CB 168 [64].

4. In respect of the applicant, however, the Tribunal found that “the applicant does not have the profile of a person at risk of attracting the adverse interest of the authorities in Sri Lanka if he returns as a Tamil failed asylum seeker”.[40]

   [40] CB 168 [64].

5. The applicant submits that this finding again seems based on the premise that the absence of harm between 2006 and 2012 equates necessarily to the applicant not being viewed as an LTTE sympathiser.

6. The Tribunal considered the applicant’s claims in respect of his status as a Muslim[41], the enquiries he had said were being made about him in 2012, the suspicion with which he asserted his Singhalese neighbors viewed him and the visits to his house in 2008.  The Tribunals findings were that none of these evidenced harm caused to the applicant or sought to be caused to him.

   [41] CB 168-169 [65]-[68].

7. Before moving on to consider complementary protection the Tribunal made its ultimate finding in this respect, stating, “the Tribunal finds that there was no direct and apparent attempt made to harm the applicant during that period, because no one was seeking to harm him”.[42]

   [42] CB 169 [69].

8. Then at [69] the Tribunal states:[43]

   Accordingly in view of the above findings, the Tribunal finds that the applicant did not face a real chance of harm in Sri Lanka at the time when he departed the country in 2012.  It finds that in the reasonably foreseeable future, there is no real chance that the Applicant will be subjected to circumstances amounting to persecution.

   [43] CB 169.

9. The applicant submits, however, that the reasons for decision in this respect evidence no analysis indicating that the Tribunal considered whether the combination of the 2006 incident (which did lead to adverse political beliefs being attributed to the applicant) involving an attempted murder of the younger brother of the President of the country, the 2007 questioning, the applicant’s claims (vague though they had in some respects been found to be), the applicant’s illegal departure from Sri Lanka, his forcible return, his status as a Tamil from Northern Sri Lanka who had sought to claim asylum elsewhere, might cumulatively create a real chance of him being viewed upon return as an LTTE sympathizer and thus create the risk of persecution and ill treatment, even if no harm had been inflicted in the period between 2006 and 2012.

10. The applicant submits that an analysis overly focused based on the absence of harm (and assuming a coherent and predictable state, whose omissions could be relied upon to draw certain inferences) obscured the cumulative and proper consideration of the full integers of the applicant’s claim for convention protection.

11. The Tribunal also rejected the applicant’s claim for complementary protection:[44]

    The Applicant claims that as a Tamil failed asylum seeker he faces torture and other forms of significant harm by the authorities in Sri Lanka. However the Tribunal has already rejected these claims for the reasons provided. The Tribunal has found that information from external sources, which was discussed with the Applicant at the hearing, does not support the view that Tamil failed asylum seekers, who left the country illegally, and are forcibly returning to Sri Lanka, are mistreated by the authorities when they return.

    The Tribunal found that certain high risk groups do face an increased vulnerability of attracting the adverse interest of the authorities in Sri Lanka. However it is not satisfied that the applicant belongs to a high risk group or that he has the profile of a person who will be of interest to the authorities, or other agents of the state, in Sri Lanka. The Tribunal has noted that the previously the applicant attracted the interest of the authorities in 2006 and 2007. However the Tribunal has found, for the reasons provided, that those matters did not lead to ongoing interest by the authorities regarding the applicant.

    The Tribunal accepts that the Applicant will be detained and questioned when he returns. However, it is not satisfied by the information it has from external sources, that these and other processing measures taken by the authorities in Sri Lanka will lead to torture or any other harm for the applicant which will amount to significant harm for the purposes of s.36(2)(aa).

    [44] CB169-170 holding [71].

12. The applicant submits that the reasons for decision in this respect similarly evidence no analysis indicating that the Tribunal cumulatively considered all aspects of the applicant’s claim.  Rather it is submitted they evidence an analysis overly focused on the absence of harm prior to his departure (and assuming a coherent and predictable state, such that omissions/failures to harm, could be relied upon to draw certain inferences) which obscured the cumulative and proper consideration of the full integers of the applicant’s claim for complementary protection.

13. The applicant contends that the proper ultimate question was not whether the applicant was “of interest” to the authorities prior to his departure from Sri Lanka, it was whether following a forced return to Sri Lanka he faced a real risk of being significantly harmed.  He submits this risk was not excluded by the findings to the effect that the Tribunal was “satisfied” or “not satisfied” of certain matters.

14. I prefer the Minister’s submissions on this ground.  In my opinion, the Tribunal did consider the applicant’s claims cumulatively, although it did not expressly say that it had done so.  Of course, an assertion of consideration of claims cumulatively will not sustain an invalid decision and neither will a decision be rendered invalid simply by the absence of such an assertion.  In the present case, cumulative consideration can be inferred from the Tribunal’s reasons.  In particular, at [63] the Tribunal considered the applicant’s risk of harm as a Tamil:

    The Tribunal has considered the applicant’s broader claim that as a Tamil person from northern Sri Lanka he will be subjected to torture or other forms of serious harm by the authorities and paramilitaries. Information from external sources summarised above, which the Tribunal accepts, indicates that despite the end of the civil war, certain groups of Tamils are still at risk of targeting by the authorities and paramilitaries in Sri Lanka. The information indicates to the Tribunal that “civil society activists, persons viewed as Liberation Tigers of Tamil Eelam (LTTE) sympathizers, and journalists”[45], as well as political activists and human rights workers, [46] face such a risk. The information indicates that Tamil communities in eastern and northern Sri Lanka, where the LTTE was particularly influential during the civil war, are most vulnerable to targeting. However, in the present matter, the Tribunal has formed the view that the applicant does not have the profile of a Tamil person who is at risk of being targeted by the authorities or paramilitaries in Sri Lanka. The Tribunal has noted that the applicant was born and raised in the north, but as a Muslim he was expelled from Jaffna by the LTTE in 1990, and he has not lived in an LTTE controlled area since then. The Tribunal finds that apart from that brief period in 2006, when the applicant was inadvertently implicated in an LTTE activity, he has not been involved in any activity which gives him the profile of a person at risk of attracting the adverse interest of the authorities or paramilitaries in Sri Lanka. The Tribunal finds that the applicant’s fear that he will be targeted for being a Tamil from northern Sri Lanka, is not well-founded. 

    [45] US Department of State 2012, Country Reports on Human Rights Practices 2011 – Sri Lanka, 24 May, Sections 1, 6.

    [46] Department of Foreign Affairs and Trade 2012, DFAT Report 1446 – RRT Information Request: LKA40999, 22 October. 

15. The Tribunal’s reasoning took into account the applicant’s claim to be of interest to the authorities.  Similarly, at [64] and [71], as the Tribunal considered the applicant’s risk of harm as a failed asylum seeker, the Tribunal took into account the applicant’s Tamil ethnicity and his claim to be of interest to the authorities.

16. The applicant’s submissions with respect to this ground suggest that the Tribunal’s findings that the applicant was not of adverse interest to the Sri Lankan authorities did not take into account the “variable and fluid way in which the individuals that constitute state entities may operate and assumes a degree of coherence, efficiency and goal driven behaviour”.  The submissions take issue with the fact that the Tribunal had regard to the lack of prior harm to the applicant when considering whether he was of interest to the authorities.  With respect, this departs from the ground pleaded, and crosses the indistinct line into merits review, in the absence of a relevant alternative ground. 

17. In any event, the Tribunal rejected on a rational basis the applicant's claim to be of interest to the authorities or to have a profile that put him at risk of being of interest to the authorities, at [59]-[60] and [64].  Contrary to what is submitted on behalf of the applicant, the Tribunal considered whether the applicant was at risk of “becoming” of interest to the authorities upon his return to Sri Lanka and found that he was not, and in doing so had regard to the incidents which occurred in 2006 and 2007.[47]

    [47] See [64] and [71].

Ground 2 – did the Tribunal fail to apply the correct test in respect of complementary protection?

1. The second ground alleges that the Tribunal failed to separately consider the applicant's claims against the complementary protection criterion. 

2. I accept the Minister’s submissions that this ground of review cannot be sustained.

3. The Tribunal found that the applicant was not of interest to the authorities due to the incident in 2006 or due to his Tamil ethnicity, and therefore was not required to consider these claims separately against the complementary protection criterion.[48]  The only claims which were not factually disposed of in the Tribunal’s earlier findings were the claims to fear harm as a failed asylum seeker and to fear psychological harm due to being returned to Sri Lanka.  Both of these claims were separately assessed against the complementary protection criteria at [71]-[72] of the Tribunal’s decision record. 

   [48] See for example SZSGAv Minister for Immigration [2013] FCA 774; SZSHK v Minister for Immigration & Anor [2013] FCAFC 125.

4. The applicant's written submissions allege that the Tribunal erred by not expressing its findings at [73] in terms which exactly reflected the wording of s.36(2)(aa). I cannot accept that submission. The reasons of the Tribunal are not to be read with an “eye keenly attuned to the perception of error.”[49] The Tribunal clearly understood the test which it was required to apply: it was correctly set out at [70]. That this test was not then repeated in a formulaic way in subsequent paragraphs is not demonstrative of any jurisdictional error.

   [49] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 271-2, 277, 280-1 (Brennan CJ, Toohey, McHugh and Gummow JJ) and 294-5 (Kirby J).

Ground 3 – did the Tribunal misdirect itself in respect of psychological harm?

1. The Tribunal accepted[50] that the applicant was traumatised, afraid to return to Sri Lanka and that he would find it traumatic to return. Nevertheless the Tribunal was satisfied this did not give rise to complementary protection.

   [50] CB 170.

2. The Tribunal reasoned that this harm was not capable of falling within the scope of s.36(2)(aa), not because of its inherent quality, but because of how it would be inflicted:[51]

   Any psychological suffering which the applicant may experience from being removed from Australia will not be intentionally inflicted in him or intended to subject him to significant harm. Accordingly the Tribunal is not satisfied that the Applicant is at risk of being subjected to significant harm if he is removed from Australia.

   [51] CB 170 [72].

3. Section 36(2A) defines the term “significant harm” as used in s.36(2)(aa) to mean:

   (2A)  A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)  the non-citizen will be subjected to degrading treatment or punishment

4. The term, “cruel or inhumane treatment or punishment” in turn is defined in s.5 of the Migration Act:

   an act or omission by which:

   (a)  severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)  pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

5. The applicant submits that the Tribunal erred in law in holding that it was necessary in order to be satisfied of the need for complementary protection that there was a real risk the applicant would suffer intentionally inflicted severe mental suffering at the hands of the Sri Lankan authorities (if that is what the Tribunal held).

6. The applicant submits in the alternative that if it is the case that the Tribunal was reasoning that while the suffering could be relevantly a consequence of the Australian Government actions in returning the applicant, it would nonetheless not be an intentional infliction, this was erroneous.

7. The applicant contends that if the requisite suffering would flow from a refusal of a visa and the return of the applicant it could indeed be an intentional infliction of such suffering by the Australian Government, it being something that could be considered to be an inevitable consequence of that action if not a desired consequence (what might be perhaps considered an oblique intent).

8. The Minister contends that this ground does not accurately reflect the Tribunal’s findings.  I agree.  The Tribunal at [71] addressed the applicant’s claims that he would suffer significant harm as a result of being detained and questioned.  The Tribunal found that this would not amount to significant harm.  The Tribunal there made no finding as to the “intention” element in relation to the applicant’s detention and questioning on return to Sri Lanka.  The Tribunal’s findings regarding intention appear at [72]:

   The Tribunal has considered the applicant’s claim that he was traumatised by what happened to him on 22 November 2006 and events which followed, including the interview he had with the police on 1 September 2007. The applicant’s adviser has argued that to return the applicant to Sri Lanka would result in further trauma and suffering for him. The Tribunal accepts that the applicant is afraid to return to Sri Lanka and if he is forced to return he will find it traumatic. Nevertheless, the Tribunal is not satisfied that this is a matter which falls within the complementary protection provisions. The Tribunal finds that any psychological suffering which the applicant may experience from being removed from Australia will not be intentionally inflicted on him or intended to subject him to significant harm. Accordingly, the Tribunal is not satisfied that the applicant is at risk of being subjected to significant harm if he is removed from Australia.   

9. The Tribunal in that paragraph was considering a submission made by the applicant’s migration agent that to return the applicant to Sri Lanka would result in him facing further trauma and suffering.  The Tribunal accepted that if the applicant was forced to return to Sri Lanka he would find it traumatic.  The Tribunal found that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted on him or intended to subject him to further harm. 

10. Accordingly, the suggestion in the applicant's written submissions that the Tribunal somehow confined itself to a consideration of harm suffered at the hands of the Sri Lankan authorities, or to a consideration of the intention of the Sri Lankan authorities, cannot be sustained.  The Tribunal at [72] was clearly considering whether the psychological suffering which the applicant may experience due to being removed from Australia would be intentionally inflicted.

11. The applicant's submissions otherwise contend that the Tribunal erred by not finding that the psychological trauma would be intentionally inflicted by the Australian government due to the removal of the applicant.  The Minister contends that this seeks impermissible merits review of the Tribunal’s conclusions in this respect.  More importantly, the Tribunal’s findings were reasonably open to it, having regard to the findings of the Federal Court in SZRSN v Minister for Immigration.[52]

    [52] [2013] FCA 751.

12. I note that the Federal Court has reserved judgment in SZTAL v Minister for Immigration & Anor[53] which concerned the meaning of the legislative reference to the intentional infliction of harm but I have not considered it necessary to await that judgment.  I am bound by the decision of the Federal Court in SZRSN.

    [53] [2015] FCCA 64.

Ground 4 – did the Tribunal breach ss.422B and 425 of the Migration Act?

1. In order to comply with its obligations under s.425 of the Migration Act, the Tribunal must avoid falling into the error identified by the High Court in SZBEL v Minister for Immigration.[54]  An applicant is entitled to know the substance of the issues likely to be dispositive of the review.  Where dispositive issues arise at the Tribunal hearing, the Tribunal must explain what they are and give the applicant a fair chance to deal with them.  This issue was discussed very recently by the Federal Court in SZTKE v Minister for Immigration.[55] 

   [54] (2006) 228 CLR 152.

   [55] [2015] FCA 1002 at [22]-[49].

2. This transcript of the hearing (augmented by my understanding of the sound recording reflected in the words in bold below) records the following exchange between the Member [M] and the advisor to the applicant (Adv):

   [M]Okay and the second point

   AdvAnd the second point is just that the risk of yeah um torture or his (unintelligible) while he’s being questioned on his return to Sri Lanka so it’s not it’s not whether the authorities in order for the authorities to establish the applicant (unintelligible) or not, they will have to question him and if the risk of being tortured or or or or (unintelligible)

   [M]And why would he be tortured?

   AdvBecause it’s the Sri Lankan authotities do use torture as a way of interrogating people because the country information documents that that is the case

   [M]Which country information are you referring to?

   AdvAll country information

   [M]Anything specific?

   Adv(unintelligible) About Sri Lanka but when a particular person will be tortured, that is the problem; there is no way of knowing whether this particular applicant will suffer torture when he’s being questioned – that information is not available. I can provide general information about the use of torture in Sri Lanka uh

   [M]Okay, I’ve heard enough, that’s it. Okay. Your advisor has argued that you will be tortured because Sri Lankan authorities always use torture when they interact

   AdvActually I said that it’s a risk

   [M]Okay. Well it’s good as the argument. I’ll think about it

1. This exchange concerned perhaps the applicant’s most significant argument, that as a consequence of being removed to Sri Lanka he would be inevitably placed into the hands of the state (the same place where he had been beaten on account of inferred political opinion in late 2006) and might be tortured.

2. The applicant submits that, in respect of this issue it seems the Tribunal misunderstood and misconstrued his arguments and then prevented further submissions being made.

3. This erroneous analysis is said to be reflected in the reasons of the Tribunal where the same mischaracterisation of the arguments seems to occur.[56] In fact the advisor seems to have appropriately couched the torture issue as not one of inevitability, but one of serious risk.

   [56] CB [53].

4. The applicant contends that a fair reading of the transcript, augmented by the clarification afforded by the sound recording, establishes that the Tribunal failed to afford a fair hearing opportunity because the applicant and his advisor were thwarted from making submissions and the evidence and submissions which had been given were mischaracterised.  The applicant submits that he did not have a fair opportunity to give evidence or present arguments regarding torture on return to Sri Lanka. 

5. The Minister contends that a breach of s.422B(3) of the Migration Act is not sufficient to make out a jurisdictional error on the part of the Tribunal.[57]  This aspect of ground four should be rejected.

   [57] Duggal v Minister for Immigration & Anor [2015] FCCA 1630; Minister for Immigration v SZMOK [2009] FCAFC 83.

6. I agree. 

7. To the extent that Ground 4 alleges a breach of s.425 of the Migration Act, this is said to be on the basis that the Tribunal did not properly understand the submissions advanced by the applicant's agent with respect to a claim that the applicant would be tortured upon his return to Sri Lanka, and that by not allowing the agent to explain this claim at the hearing, the hearing opportunity afforded to the applicant became a hollow gesture.

8. The Minister notes first that the applicant's written submissions suggest that the Tribunal understood the applicant's agent to have claimed that it was “inevitable” that the applicant would be tortured on return to Sri Lanka, whereas the Tribunal in fact expressed the submission as being that torture by the authorities was “endemic” and that any person taken in for questioning by the Sri Lankan authorities was subjected to torture.

9. The Minister contends that this is in fact consistent with the agent's submissions recorded at page 27 of the Tribunal transcript and in the affidavit of Ms Stone affirmed on 17 August 2015.  To the extent that the applicant contends otherwise, the Minister contends that he has not discharged his evidentiary burden to make out this contention.[58]   The precise nature of the submission made by the applicant's agent was initially unknown to the Court, as the relevant part of the submission is recorded as “unintelligible” in both transcripts which have been prepared in these proceedings.  However, with the benefit of the sound recording I was able to discern the words spoken by the agent as set out above.

   [58] NAOA v Minister for Immigration [2004] FCAFC 241 at [21].

10. In my opinion, the transcript as augmented by the sound recording reveals that the Tribunal misunderstood and mischaracterised the submission being made by the applicant’s agent.  It is true that there was a general discussion as reflected in the transcript at pages 18-21 and pages 25-26 about risk factors and the Tribunal might have gained the impression from that discussion that the applicant was contending that torture of returnees at the hands of the Sri Lankan authorities was inevitable.  That discussion, however, in my opinion, simply renders more significant the agent’s attempts to clarify her submission in the exchange extracted above.  The agent attempted to explain to the Tribunal that the country information disclosed that the Sri Lankan authorities did use torture and that this was a risk factor that the Tribunal needed to take into account.  She was not submitting that torture was inevitable.  The Tribunal’s discussion in its reasons, if it had been limited to what is set out at [49] and [50][59] might not have indicated error but the concluding analysis at [53] does in my opinion disclose error:[60]

    The adviser argued that torture by the authorities in Sri Lanka was endemic and any person taken in for questioning by the Sri Lankan authorities was subjected to torture. The adviser argued that when the applicant is returned to Sri Lanka, he will be tortured. The adviser further argued that the applicant did not “feel safe” in Sri Lanka, because of the difficulties he previously had there, and if he returned to Sri Lanka he would suffer psychological harm and be traumatised. She argued that the applicant, a person originally from northern Sri Lanka, will attract the adverse interest of the authorities when he is processed as a failed asylum seeker forcibly returning to Sri Lanka. 

    [59] CB 163

    [60] CB 164-165

11. That paragraph misrepresented the submission ultimately put forward.  The Tribunal misunderstood the submission because the advisor was cut short.  The Tribunal assumed, incorrectly, that the advisor was repeating what had been said earlier.  On the contrary, she was attempting to qualify it.  If the Tribunal had permitted the advisor to complete the clarification, the submission would not have been misrepresented.

12. I conclude that because the advisor was cut short, leading to a misunderstanding by the Tribunal and a mischaracterisation of the submission ultimately being put, the hearing opportunity was not a fair one. That constituted a breach of s.425. The applicant should receive the relief he seeks.

Conclusion

1. The applicant has established that the decision of the Tribunal is affected by jurisdictional error.  I will make orders in the nature of the constitutional writs of mandamus and certiorari.

2. I will hear the parties as to costs.

I certify that the preceding eighty-nine (89) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  30 September 2015