SZSYB v Minister for Immigration

[2015] FCCA 3304

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYB v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3304

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. 

Legislation:

Migration Act 1958 (Cth), ss.53, 91R, 424A, 425

Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069
Minister for Immigration and Border Protection v WZAPN & Anor (2015) 320 ALR 467; [2015] HCA 22
Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16
SZSHK v Minister for Immigration and Border Protection & Anor (2013) 138 ALD 26; [2013] FCAFC 125
SZTQS v Minister for Immigration and Border Protection & Anor [2015] FCCA 978
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZSYB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1331 of 2013

Judgment of: Judge Barnes

Hearing date: 25 November 2015

Delivered at: Sydney

Delivered on: 25 November 2015

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: DLA Piper Australia

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSYB v Minister for Immigration & Anor [2015] FCCA 3304

CORRIGENDUM

1. In paragraph 54 of the Reasons for Judgment the two references to 4 March 2014 be replaced by references to 4 March 2013.

I certify that the preceding one (1)

numbered paragraph is a true copy of the

Corrigendum to the Reasons for Judgment

herein of Judge Barnes.

Associate:

Dated: 11 January 2016

ORDERS

1. Leave be granted to the Applicant to file an Amended Application and written submissions in court.

2. The name of the Second Respondent be amended to read the “Administrative Appeals Tribunal.”

3. The Application be dismissed.

4. The Applicant pay the costs of the First Respondent fixed in the amount of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1331 of 2013

SZSYB

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 21 May 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a citizen of Sri Lanka, arrived in Australia in April 2012 as an unauthorised maritime arrival.  He was permitted to lodge a protection visa application and did so in July 2012.  He claimed to fear harm in Sri Lanka from the army, the Karuna group and paramilitary groups for reason of his Tamil race; his imputed political opinion as a member of the LTTE; his failure to comply with demands of the army; and his membership of the particular social group of failed asylum seekers who fled Sri Lanka illegally.

3. His application was refused and he sought review by the Tribunal.  He attended a Tribunal hearing.  The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. 

4. In its reasons for decision the Tribunal set out the claims made by the Applicant in his entry interview, in his protection visa application, at the departmental interview, in a written submission to the Tribunal from the Applicant’s migration agent and at the Tribunal hearing.  It also referred to the adviser’s submissions at the hearing.

5. The Tribunal summarised the Applicant’s claims which were explained in his adviser’s written submissions as claims to fear persecution because of his actual or implied political opinion in support of the LTTE and against the TMVP/Karuna group; his Tamil race; and his membership of a particular social group consisting of failed asylum seekers (a claim that was said to be exacerbated by the Applicant’s Tamil race and suspected support for the LTTE). 

6. The Tribunal considered the Applicant’s claims about past events, in particular his claim that in late August 2011 he had been subjected to an extortion demand by the Karuna group, that they had demanded 200,000 rupees, but that he was able to convince them to accept only half this amount, which he then paid.  According to the Tribunal, the Applicant’s evidence was that this was the only occasion on which he ever suffered physical harm from the TMVP or the Karuna group.  He did not claim that they ever approached him again for money, that he was ever interrogated again by them, or that he was ever faced with extortion demands while working in Colombo or in the Central Province where he had had a jewellery business. 

7. The Tribunal discussed concerns it had raised with the Applicant at the hearing, particularly difficulties it had in accepting that anyone would have targeted him as a jeweller in August 2011, given that he had never worked in that place (or anywhere else in that district) and the fact that by August 2011 he had been unemployed for the best part of the year.

8. The Tribunal considered the Applicant’s claim that the Karuna group had heard of him because his mother had let it be known that he was intending to set up a new jewellery shop in the area.  However it found it difficult to understand why the Karuna group would have been prepared to accept half the money they had demanded if they had known that the Applicant had wealth at the level he claimed.  It also found it difficult to understand why the Applicant’s father, who had worked as a jeweller all his life and would reasonably be expected to have been known to have some savings, had never been confronted with such extortion demands while in retirement in the village.

9. The Tribunal addressed the fresh claim raised by the Applicant at the hearing that the Karuna group had subsequently frustrated his efforts to establish a new business in the Batticaloa District and had threatened him with harm if he continued with his plans and that he had received an anonymous threatening phone call he attributed to the group.  The Tribunal was not satisfied that the Applicant had provided a convincing explanation for the late appearance of this claim about incidents which, if they had occurred, would have been dramatic and threatening for him and directly relevant to his claim to fear harm in Sri Lanka.  It was not satisfied that the Applicant’s failure to raise such claims earlier was accounted for by his limited education, relative youth, lack of sophistication or knowledge.  Moreover it was not satisfied that it was plausible that if the Karuna group wanted to extort money from local businesses, it would act to prevent him from establishing a business.

10. The Tribunal was unable to be satisfied that the alleged confrontation with the Karuna group over a proposed business or a subsequent threatening call ever occurred.  It was of the view that these claims were invented at the hearing and that this cast doubt over the general credibility of the Applicant’s broader claim to have suffered harm at the hands of the Karuna group.

11. The Tribunal also considered the Applicant’s claim that in mid-January 2012 he and a group of 40 or 50 other Tamils had been abducted by the Sri Lankan army, taken into the jungle, interrogated and beaten severely over some six hours.  As it had put to the Applicant at the hearing, the Tribunal was not satisfied that after being a victim of such extreme and prolonged abuse (and without the benefit of hospital or medical treatment) the Applicant would have been able to travel by bus three days later to his fiancée’s home, exhibiting only mild swelling and some pain.

12. While the Tribunal accepted that the absence of any media reports of such an alleged incident involving 40 or 50 Tamils did not mean that it had not occurred, it found it difficult to understand why media sites such as TamilNet, which was said to be vigilant in reporting incidents of harm to individual members of Sri Lanka’s Tamil minority, would apparently carry no reports of such gross and prolonged abuse of so large a group of people.

13. The Tribunal was not satisfied that the Applicant was abducted and beaten by the army as claimed.  Hence it did not accept that thereafter he fled to his fiancée’s house for that reason; that he was forced to live in hiding before he left Sri Lanka; or that the army came looking for him at his home in his absence. 

14. The Tribunal found that these conclusions also cast strong doubt on the reliability of the Applicant’s claim that in March 2012 the army had ordered him to present himself in two days to their camp to perform some work and that this motivated him to flee Sri Lanka.  The Tribunal also found it implausible that army officers who genuinely wished to harm a person would have given him such a warning, thus allowing him ample time to escape, instead of arresting him on the spot. 

15. The Tribunal concluded that the Applicant’s claims to have suffered harm at the hands of the Karuna group or the army were not credible.  It was not satisfied the claimed incidents had in fact occurred or that the Applicant had suffered harm in any other way from either the Karuna group or the army.  It pointed out that the Applicant’s claim to fear harm for the reason of his political opinion opposed to the TMVP and Karuna group rested on his claim that they had targeted him for extortion in August 2011 and later prevented him from establishing his business and had made an anonymous telephone threat to him.  It reiterated that it was not satisfied that these incidents did in fact occur or that the Applicant had been targeted in any way by the TMVP or the Karuna group, through them or as a result of them.

16. The Tribunal also had regard to the fact that the Applicant did not claim that he had expressed a political opinion against the TMVP or Karuna group in public or in any other way, or that he ever drew attention to himself in such a way and that he did not even claim to hold such views.  The Tribunal was not satisfied that the Applicant had ever been imputed with a political opinion opposed to the TMVP or Karuna group in Sri Lanka or that there was any reason to believe such a political opinion would be imputed to him if he were to return to Sri Lanka, or that he would be at any risk of harm for such a reason.

17. The Tribunal addressed the Applicant’s claim that he would be imputed with a pro-LTTE political opinion, notwithstanding that he did not claim that he or any family or other relatives had ever been involved in any way with the LTTE or held a pro-LTTE political opinion.  Insofar as he claimed he was accused of LTTE involvement in the incident he claimed occurred in January 2012, the Tribunal reiterated it was not satisfied that this incident occurred or that the army or anyone else had ever searched for the Applicant because they suspected he had some connection with the LTTE.  It did not accept he was suspected of a pro-LTTE opinion for such reason. 

18. The Tribunal considered whether a pro-LTTE opinion might be imputed to the Applicant based on other aspects of his circumstances.  On the information before it about the current situation in Sri Lanka, the Tribunal was not satisfied that the Applicant’s geographical origins would lead him to be suspected of having been a member of the LTTE or to hold a political opinion in favour of the LTTE or its aims.

19. The Tribunal also addressed a submission by the adviser that asylum seekers were considered by the authorities to have links with the LTTE and that they were interrogated on return to Sri Lanka.  It accepted that if the Applicant were to be returned to Sri Lanka it would probably be apparent that he had unsuccessfully sought protection, and that he had travelled here by boat, possibly in the company of other Tamils.  However, having regard to information on the treatment of returnees to Sri Lanka (cited in the delegate’s decision and the adviser’s submissions and specific reports from the Australian Department of Foreign Affairs and Trade referred to in a footnote to the Tribunal decision), the Tribunal was not satisfied that the information supported a conclusion that Tamils who travelled to Australia in this way and sought protection were automatically suspected of having links with the LTTE.  It was not satisfied the Applicant would be imputed with a pro-LTTE political opinion for this reason.  Nor, having regard to the country information, did the Tribunal accept that the Applicant would be suspected of having links with the LTTE simply because he was ethnically Tamil.

20. The Tribunal had regard to the fact that the Applicant did not claim any involvement with the LTTE or to support it, any political activity in Sri Lanka or any political profile in favour of Tamil independence against the current government as well as to its conclusion that it was not satisfied the incidents in which he claimed to have been harmed had ever occurred and to the country information.  On this basis the Tribunal was not satisfied that the Applicant had ever been imputed with a political opinion against the Karuna group or TMVP or in favour of the LTTE or its aims, or against the government or that such political opinions would be imputed in the future.  Hence it was not satisfied the Applicant would be harmed for such a reason if he were to return to Sri Lanka.

21. The Tribunal also considered the claims based on the Applicant’s Tamil race or ethnicity in light of country information and, in particular, changes to the attitudes towards Tamils after the civil war ended.  It acknowledged that a merits based assessment based on individual circumstances was necessary, as Tamil ethnicity could increase the vulnerability of persons within other risk profiles.  It had regard to the risk profiles outlined in a Guideline produced by the UNHCR in 2012.  However it was not satisfied that the information indicated that ethnic Tamils faced serious harm simply because of their ethnicity or that being a young male and having particular geographic origins, such as those of the Applicant, put them at a greater risk of harm.  It was not satisfied the Applicant faced a real chance of serious harm for these reasons or that there was anything in his personal circumstances that would operate to exacerbate the fact of his Tamil ethnicity so as to create a risk he would suffer serious harm. 

22. The Tribunal addressed the Applicant’s claims based on his membership of a particular social group (said in his adviser’s submissions to consist of failed asylum seekers).  The Tribunal was prepared to accept that there was such a particular social group, however it had regard to information concerning returned asylum seekers, including information referred to in the delegate’s decision, the adviser’s submission, the DFAT reports (which is, at the least, a reference to the cited material referred to earlier in its reasons) and the UNHCR Guidelines.

23. The Tribunal accepted that such information indicated that in recent times some returnees had reportedly suffered torture and other abuses at the hands of the authorities, but also that these cases overwhelmingly involved people who either had some form of connection with the LTTE, were suspected of such links or were criminal suspects.  It was not satisfied that this would be the case for the Applicant in his personal circumstances.

24. The Tribunal also had regard to information, including the DFAT reports, indicating that under standardised procedures applying to all cases regardless of ethnicity or circumstances of departure, returnees to Sri Lanka were routinely interviewed at the airport on arrival in processes involving police and security clearances that may take some hours and, if they revealed outstanding warrants or alerts, if the person were of security interest, or if there was evidence of involvement in people smuggling they may be subject to further questioning.

25. On the basis of this information the Tribunal accepted that the Applicant would be subjected to such processes on return.  However it was not satisfied that this would involve him being singled out or targeted in a discriminatory fashion because of his Tamil ethnicity and was not satisfied that the fact of being questioned at the airport, even for extended periods, could reasonably be characterised as harm at any level or that the Applicant would be subjected to any other form of mistreatment there.  Nor was it satisfied that he would be subsequently targeted or subjected to serious harm because he had sought asylum in Australia.

26. In addition, the Tribunal had regard to the fact that the information before it also indicated that under tightened procedures adopted in late 2012, returnees who were believed to have left the country in breach of the Sri Lankan immigration and emigration law were arrested at the airport and brought before a court to apply for bail.  It found that the information was that bail was routinely given on the accused’s own recognisance, although a family member was also required to “provide surety” and that if the arrival occurred over a weekend or on a public holiday, the returnee was placed in the remand section of Negombo Prison, possibly for some days, until a bail hearing was available.

27. The Tribunal accepted that conditions in remand had been described in media reports as overcrowded and unsanitary, although it found that there had not been reports that returnees held on remand awaiting bail hearings had been subjected to torture or other forms of deliberate mistreatment.  It found that the penalties eventually imposed on returnees by the courts for illegal departure took the form of fines ranging up to 100,000 rupees. 

28. The Tribunal concluded that, taking together the country information and its findings about the Applicant’s personal circumstances, it was not satisfied that being questioned at the airport on arrival, detained for a few days in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined, could reasonably be seen as constituting serious harm.  It was not satisfied there was a real chance the Applicant would suffer serious harm at these or any subsequent points because of his membership of the particular social group of failed asylum seekers (whether or not that social group included those who had left the country unlawfully).  The Tribunal was not satisfied that the Applicant met the Refugees Convention criterion.

29. The Tribunal considered the complementary protection criterion and the adviser’s submission that the Applicant would satisfy that criterion as a failed asylum seeker on the basis that there was a real risk he would be subjected to significant harm on return, either at the airport or subsequently, or while on remand in prison.  The Tribunal referred to its earlier findings, in particular its lack of satisfaction as to the credibility of the claim that the Applicant would suffer serious harm on return to Sri Lanka because of his membership of the particular social group of failed asylum seekers.  It stated that it had considered the information before it relating to the treatment of those who had left Sri Lanka unlawfully.  While it accepted that the Applicant would likely face arrest on charges of unlawful departure, that he could well be placed in remand for a relatively brief period while awaiting a bail hearing and that he might later be fined if found guilty, it was not satisfied this would involve treatment that could reasonably be said to amount either to serious harm in the Convention sense or significant harm within the complementary protection criterion.  Nor was it satisfied that the Applicant would be exposed to significant harm for any other reason and found that he did not meet this criterion.  The Tribunal affirmed the delegate’s decision. 

30. The Applicant sought review by application filed on 14 June 2013.  There was one generally expressed ground in the application consisting of an assertion that the decision was affected by legal error.

1. This ground did not particularise the way in which the decision was said to be affected by legal error.  However, subsequently, an unidentified person (purportedly on behalf of the Applicant) sought to file (outside the time provided for in directions) submissions on behalf of the Applicant and a “Draft Amended Application” addressing specific aspects of this Tribunal decision and raising three grounds expressed in conventional legal terms.  The Applicant told the court that he had no knowledge of the source of these documents, but nonetheless confirmed that he wished to rely on the matters they raised.

2. The issues raised in these documents were addressed in detail in written and oral submissions for the Minister.  Notwithstanding the unsatisfactory way in which someone with, at the least, exposure to legal training, has endeavoured to assist the Applicant (while not being prepared to act for him, to provide the lawyer’s certification required under the Migration Act 1958 (Cth) (the Act), or to appear today to represent the Applicant), in the particular circumstances of this case I gave leave to the Applicant to file in court and rely on the Amended Application and written submissions.

3. In oral submissions the Applicant took issue with the merits of the Tribunal decision.  He repeated his claims about events in Sri Lanka and claimed to fear harm on return.  He suggested that the Tribunal’s decision was wrong.  Such claims seek impermissible merits review and do not, of themselves, establish jurisdictional error on the part of the Tribunal.

4. The first ground in the Amended Application is expressed as a submission that “the Tribunal committed a legal error in applying the wrong test pursuant to section 91R of the Migration Act 1958 (Cth)(the Act) and/or asking itself the wrong question”. 

5. First, insofar as this ground sought to rely on the reasoning of North J at first instance in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 at [30] and [45] to the effect that by undertaking a qualitative assessment of the nature and degree of harm experienced by the Applicant in being questioned and investigated by authorities at the airport, the Tribunal had failed to apply the test of serious harm in s.91R(2)(a) of the Act (on the basis of the view taken by North J that serious harm in s.91R(1)(b) was constituted by a threat to life or liberty, without reference to the severity of the consequences) that decision was overturned on appeal in Minister for Immigration and Border Protection v WZAPN & Anor (2015) 320 ALR 467; [2015] HCA 22. The High Court rejected the view that the likelihood of future episodes of temporary detention constituted a threat to liberty within s.91R(2) of the Act irrespective of the circumstances and consequences of that detention for the person in question. Insofar as ground 1 is based on the reasoning at first instance in WZAPN it cannot succeed.

6. However, the written submissions raised two additional issues in relation to Ground One.  These were addressed in the First Respondent’s submissions.  The first issue is a contention that the Tribunal failed to deal with the Applicant’s claim to fear serious harm due to his membership of the particular social group of failed asylum seekers.  It was submitted that while the Tribunal had acknowledged the existence of such a social group, it had conflated this claim with the claim with respect to the Applicant’s ethnicity and had only considered the ethnicity claim.

7. However the Tribunal was clearly cognisant of the Applicant’s claim to be a member of a particular social group.  It also understood that the manner in which the claim had been presented had raised issues as to whether the risk to the Applicant was in some way exacerbated or affected by his Tamil ethnicity (or the fact that he was a person who had left Sri Lanka unlawfully).

8. As set out above, the Tribunal considered the particular social group claim having regard to information about standardised procedures applying to all persons on return to Sri Lanka, regardless of ethnicity or circumstances of departure.  It also considered whether the fact of the Applicant’s Tamil ethnicity would lead to him being singled out or targeted in a discriminatory fashion.  Such an approach does not support the claim that the Tribunal failed to consider the Applicant’s claim based on membership of a particular social group of failed asylum seekers or that it misunderstood that claim or that it conflated the claims made by the Applicant.

9. The second elaboration of this ground in the written submissions is a contention that the Tribunal erred by failing to consider whether the Applicant would suffer harm during the process of questioning on his return to Sri Lanka and whether the questioning and investigation could, in and of itself, be regarded as serious harm pursuant to s.91R(2) of the Act.

10. The short answer to this contention is that the Tribunal expressly considered the process of questioning and the possibility of the Applicant suffering harm amounting to persecution for a Convention reason during this process.  It was not satisfied that the fact or process of questioning, even for extended periods, could reasonably be characterised as harm at any level or that the Applicant would be subjected to any other form of mistreatment at the airport.  Ground 1, and the elaboration thereon in the written submissions now relied on by the Applicant, is not made out. 

11. The manner in which the Tribunal proceeded is not demonstrative of jurisdictional error in the manner contended for either in ground 1 or in the Applicant’s submissions. 

12. Ground 2 in the Amended Application is that the Tribunal “further erred in failing to consider the real risk of serious harm to the applicant with respect to significant economic hardship under s.91R(2)(d)” of the Migration Act.

13. There is, however, something of a difference between the manner in which this ground was pleaded and the manner in which it was addressed in the Applicant’s submissions (and, hence, responded to by the First Respondent).  This demonstrates how unsatisfactory it can be for this form of quasi-representation to be provided to an applicant. 

14. On its face, ground 2 appears to involve a contention that the Tribunal failed to consider whether there was a real risk of serious harm to the Applicant in the future constituted by significant economic hardship (one of the kinds of serious harm listed in s.91R(2) as it stood at the relevant time). However, as explained in written submissions, the claim was that the Tribunal erred in failing to consider the claims the Applicant had made with respect to the extortion he had faced and the impact this had had on his capacity to subsist. In particular, it was said that the Applicant had squarely raised a claim that he was a victim of extortion by the Karuna group and that the Tribunal had failed to consider this claim.

15. This ground is not made out on either basis.  The Tribunal clearly considered the claim made by the Applicant based on his claims about past extortion, including threats and approaches by the Karuna group.  As indicated, the Tribunal was not satisfied that the incidents the Applicant claimed had occurred had in fact occurred or that he had suffered harm in any other way from the Karuna group (which was the entity which was said to have engaged in extortion).

16. It is the case that the Applicant’s claims about past extortion attempts were couched in terms that he would have been perceived to be wealthy by the Karuna group.  The Tribunal understood and considered that aspect of the claim.  No jurisdictional error is established on the basis on which this ground was explained in written submissions.

17. The Tribunal also considered the manner in which the Applicant had framed his claims to fear harm in the future and dealt with such claims, including his claim to fear harm from the Karuna group.  While expressed in terms of political opinion, such claim rested on his claims that he had been targeted for past extortion, prevented from establishing a business and received an anonymous telephone threat.  As the Tribunal was not satisfied that such past events had occurred or that the Applicant had otherwise expressed a political opinion and drawn attention to himself, it was not satisfied that the Applicant had a well-founded fear of harm in the future or that he would be harmed for such a reason if he were to return to Sri Lanka.  Hence it was not necessary for the Tribunal to address whether, if such harm occurred it would amount to significant economic hardship.  Ground 2 is not made out.

18. Ground 3 is that the Tribunal erred in failing to consider the Applicant’s claim that he would suffer significant harm in the form of inhumane and degrading treatment on return to Sri Lanka. 

19. As explained in written submissions, this ground took issue with the Tribunal’s reasoning in considering the complementary protection criterion.  It was submitted that the Tribunal’s finding that while the Applicant could well be placed in remand for a brief period this would not involve significant harm was unreasonable, insofar as the Tribunal had accepted that prison conditions had been described in media reports as being overcrowded and unsanitary.

20. The Applicant submitted that the Tribunal had failed to consider the conditions of what was described as the Applicant’s “imprisonment”.  It appears that this was intended to be a reference to “remand”, as the Tribunal did not accept that the Applicant would be sentenced to a term of imprisonment.  The Tribunal considered the conditions of remand in addressing the Refugees’ Convention criterion.  It referred back to those findings in considering the complementary protection criterion.  The Tribunal’s findings in relation to the complementary protection criterion were informed by its prior factual findings (including as to the length and conditions of detention).  It was permissible for the Tribunal to reason in this matter (see SZSHK v Minister for Immigration and Border Protection & Anor (2013) 138 ALD 26; [2013] FCAFC 125). The Tribunal findings in this respect were open to it in the context of considering whether the Applicant would face a real risk of significant harm.

21. It has not been established that the Tribunal’s reasoning was unreasonable, in the sense of being illogical or arbitrary, such as to establish jurisdictional error (see Minister for Immigration and Citizenship v SZMDS & Anor (2010) 240 CLR 611; [2010] HCA 16). Insofar as the written submissions for the Applicant seek merits review, merits review is not available in this court. Ground 3 is not made out.

22. In addition, the solicitor for the First Respondent very properly brought to the court’s attention the decision of Griffiths J in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (on appeal from the decision of Judge Emmett in SZTQS v Minister for Immigration and Border Protection & Anor [2015] FCCA 978). That case also involved a Sri Lankan asylum seeker and findings by a Tribunal about the effect of tightened procedures in relation to returnees who had left the country in breach of Sri Lankan immigration and emigration laws. As in the present case, the Tribunal in SZTQS found that such persons would be brought before a court to apply for bail and that “bail is routinely given on the accused’s own recognisance, although a family member is also required to provide surety”.

23. However in SZTQS Judge Emmett found (and Griffiths J agreed) that the conclusion that the applicant would be granted bail was based on the Tribunal’s acceptance that a member of his family would have to provide a financial surety for him.  That is, it was accepted that the requirement to “provide surety” meant that a family member would be required to make a payment.  On this basis, it was concluded in SZTQS that the question of whether a family member would provide a financial surety for the applicant was a crucial link in the chain of reasoning of the Tribunal and was an issue that, in order to comply with s.425 of the Migration Act, the Tribunal had to identify to the applicant. There was evidence that enabled the Court in SZTQS to be satisfied that this had not occurred in the Tribunal hearing.  In addition, no submissions had been made to the Tribunal or evidence provided by the applicant in SZTQS regarding whether he had a family member who would provide financial surety and the other evidence before that Tribunal regarding the applicant’s wealth and the wealth of his family was said to be vague and non-conclusive.  In those circumstances the Tribunal’s finding in SZTQS that a family member would provide surety was found to be a conclusion that was not obviously open on the known material. 

24. There are two critical distinctions between SZTQS and the present case.  First, while it is not clear what information was before the Tribunal in SZTQS, in this case, having regard to the affidavit of Katherine Nicole Hooper, affirmed on 4 November 2015 (which annexes a copy of DFAT Report 1479 of 4 March 2013 referred to in footnote 4 to the Tribunal decision) it is clear that the DFAT Report of 4 March 2013 was before the Tribunal.  The Tribunal had regard to this information (as it stated on a number of occasions, including in a reference to information about the procedures adopted in return to returnees who had left Sri Lanka in breach of the immigration and emigration laws).  Relevantly, the last paragraph of this item of information (in response to a request for clarification about individuals being charged and remanded for offences regarding illegal departure) referred to the process of possible remand (depending on the time of a person’s arrival in Sri Lanka) and transfer to the Magistrates Court in session and stated:

    We understand the current process for bail is that all persons are granted bail based on personal recognisance (on their own responsibility), with the requirement for a family member to stand as guarantor.  There is no payment required for bail (emphasis added).

25. Thus, on the country information before this Tribunal and its findings of fact, the issue of payment of surety as a condition of obtaining bail (and therefore of the Applicant’s family’s ability to make such a payment) did not arise.  The country information relied on and cited by the Tribunal made it clear that there was no payment required (as distinct from the concept of giving a personal guarantee).

26. Even if there is an issue as to whether or not the Tribunal ought to have raised with the Applicant the issue of the availability of a family member to give a guarantee absent any notion of payment (an issue I do not consider it appropriate to determine in the absence of proper argument in that respect), the second point of distinction between this case and SZTQS is that there is no transcript of the Tribunal hearing in evidence before the court in this case. Nor is there anything in the Tribunal reasons for decision to support the drawing of an inference that the Tribunal failed to raise dispositive issues with the Applicant at the hearing in the sense required by s.425 of the Act. It has not been established that the Tribunal fell into jurisdictional error in the manner considered in SZTQS. 

27. Further, insofar as there might be any suggestion that the Tribunal was under an obligation to put information (as such) to an applicant under s.425 of the Act, I note the distinction drawn by Yates J in Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052 between s.424A as the primary source of the obligation to give an opportunity to comment on information (which in s.424A(3) excludes adverse country information) and s.425.

28. As no jurisdictional error has been established on any of the bases contended for by or on behalf of the Applicant, the application must be dismissed.

29. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $6,646.  The Applicant indicated that he did not know how he would be able to pay this amount.  I take this to be a submission as to a lack of funds.  However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.  The amount sought is appropriate and reasonable in light of the nature of this and other similar matters.  The Applicant’s personal circumstances may, however, be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  10 December 2015