SZSYP v Minister for Immigration & Anor
[2014] FCCA 7
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSYP v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 7 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka – applicant leaving Sri Lanka illegally – whether the Tribunal lawfully considered Australia’s complementary protection obligations to the applicant as a person who might be remanded in prison on his return, considered. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 414, 425, 430 Migration Amendment (Complementary Protection) Bill 2011 (Cth) |
| 1301683 [2013] RRTA 765 Portorreal v Dominican Republic, Comm No 188/1984, UN Doc CCPR/C/OP/2 Rouse v The Philippines, Comm No 1089/2002, UN Doc CCPR/C/84/D/1089/2002 SZBEL v Minister for Immigration (2006) 228 CLR 152 Tshisekedi v Zaire, Comm No 242/1987, UN Doc CCPR/C/37/D/242/1987 |
| Applicant: | SZSYP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1377 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2014 |
REPRESENTATION
| Counsel for the Applicants: | Mr J King |
| Solicitors for the Applicants: | Fragomen |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as amended on 9 December 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1377 of 2013
| SZSYP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 15 May 2013. 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 of persecution because of his Tamil race, his Hindu religion, his imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (LTTE) and his membership of the particular social group of “failed Tamil asylum seekers”.
The applicant was a prawn farmer and fisherman in Sri Lanka until he arrived in Australia on 21 May 2012 as an irregular maritime arrival.
On 19 September 2012, the applicant made an application for a protection visa[1].
[1] Court Book (CB) 21
The applicant claimed, amongst other things, to fear harm on the basis that he “will be detained, interrogated, tortured, abused and /or killed” in Sri Lanka[2].
[2] CB76 [19]
On 7 January 2013, a delegate of the Minister accepted that the applicant’s illegal departure from Sri Lanka had the result that he met the risk criteria for individuals who encounter difficulties with the authorities including possible detention[3]. The delegate nevertheless decided to refuse to grant the applicant a protection visa[4].
[3] CB124.2
[4] CB124
On 30 January 2013, the applicant applied to the Tribunal for review[5].
[5] CB127
The applicant’s claims before the tribunal included that he feared significant harm in Negombo prison in Sri Lanka[6]. In particular:
a)he feared the use of torture[7];
b)he feared cruel or inhuman treatment or punishment[8]; and
c)he feared degrading treatment or punishment[9].
[6] CB164 [84]
[7] CB164-166
[8] CB167
[9] CB167-170
On 15 May 2013, the Tribunal decided to affirm the delegate’s decision[10].
[10] CB183
The judicial review application
These proceedings began with a show cause application filed on 19 June 2013. The applicant now relies upon an amended application filed on 9 December 2013. The grounds in that amended application are:
1. The Tribunal fell into jurisdictional error by misconstruing or misapplying the applicable law, or otherwise failing to ask itself the right question.
Particulars
a. The Tribunal accepted that “the applicant may be remanded in [Negombo] prison for a few days in conditions which are cramped, uncomfortable and unpleasant”: [47].
b. The Tribunal found that there have been reports that Negombo prison is “overcrowded”: [42], but also found that “there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment”: [42].
c. As a matter of law, overcrowding can amount to cruel and inhuman treatment. If that was the Tribunal’s construction of s.36(2A) of the Act, it could not have made the findings in subparagraphs (a) and (b), because they would have been inconsistent.
d. The Tribunal went on to exclude a real risk of cruel and inhuman treatment by the following two findings:
i. that “the prospect of the applicant being detained for a prolonged period of time [is] remote”: [47] and probably only “a few days”: [47]; and
ii. bail “is routinely given”: [47], “although a family member is also required to provide surety” [42].
e. The finding in subparagraph (d)(i) involved an error in the construction of s.36(2A) of the Act, because cruel and inhuman treatment for a period of only a few days does not on that basis cease to be cruel and inhuman treatment, and in any event the Tribunal failed to ask itself the questions required to be asked by the definition of “cruel or inhuman treatment or punishment” in s.5(1).
f. Alternatively, the finding in subparagraph (d)(ii) involved an error in so far as the Tribunal failed to ask itself whether the applicant faced a real risk of significant harm if a family member was unable to or unwilling to provide the surety necessary to see the applicant released from the cruel and inhuman conditions, and insofar as the Tribunal treated the provision of surety as one of the “issues arising in relation to the decision under review” under s.425(1) without identifying that issue to the applicant: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32], [36], [43].
g. In view of the findings accepted by the Tribunal in subparagraphs (a), (b) and (d), the Tribunal misconstrued s.36(2A) of the Act, or failed to apply the “what if I’m wrong test”.
In addition to the court book filed on 24 July 2013, I have before me as evidence the affidavit of Jenny Falconer made on 16 July 2013, to which is annexed a transcript of the hearing conducted by the Tribunal on 30 April 2013.
I received the affidavit of Farid Varess made on 11 December 2013 for the purpose of granting the applicant leave to rely upon the amended application.
Both parties made written and oral submissions.
Consideration
Counsel for the applicant made helpful submissions concerning the complementary protection criterion as expressed in the Migration Act 1958 (Cth) (Migration Act). I gratefully adopt those submissions.
Complementary protection in Australian law
Section 36(2)(aa) of the Migration Act commenced on 24 March 2012. As recognised by four members of the Full Federal Court in Minister for Immigration v SZQRB[11] (SZQRB), the complementary protection regime seeks to give effect to Australia’s international obligations under international agreements that complement the Refugees Convention:
[11] (2013) 210 FCR 505
It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.[12]
[12] SZQRB (2013) 210 FCR 505 at [70] (Lander and Gordon JJ)
…
Australia also owes protection obligations by reason of the embodiment in ss 36(2)(aa), (2A), (2B) and (2C) of the Migration Act of aspects of the CAT and the ICCPR.[13]
[13] SZQRB at [313] (Besanko and Jagot JJ)
The “CAT” and the “ICCPR” refer to the Convention Against Torture and the International Covenant on Civil and Political Rights respectively.
Having considered those and other amendments to the Migration Act, all five members of the Full Federal Court continued to apply the longstanding approach taken and repeated by the High Court in NAGV and NAGW of 2002 v Minister for Immigration[14], Plaintiff M61/2010E v Commonwealth[15] and later decisions, to the effect that the Migration Act:
proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.[16]
[14] [2005] HCA 6; 222 CLR 161
[15] (2010) 243 CLR 319
[16] SZQRB at [135], [192] (Lander and Gordon JJ), [310] (Besanko and Jagot JJ), [378] (Flick J), applying Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (M61) at 339 [27] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ)
The proper construction of s.36(2)(aa) of the Migration Act, and the provisions which give content to the expression “significant harm” appearing in that paragraph, are thus informed by Australia’s international obligations under the CAT and the ICCPR. To say that the text of the statute ultimately controls its construction is not to deny that the meaning of the text may legitimately be informed by the international obligations to which it seeks to give effect.
The expression “significant harm” is defined by s.36(2A) to refer to five categories of harm, which relevantly for the purposes of this case include cruel or inhuman treatment or punishment and degrading treatment or punishment.
Cruel or inhuman treatment or punishment
Section 5(1) of the Migration Act defines this expression in the following terms:
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;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The above definition derives from the non-refoulement obligation implied under article 7 of the ICCPR.[17] According to the explanatory memorandum, “the purpose of expressly stating what cruel or inhuman treatment or punishment does not include is to confine the meaning to circumstances that engage a non-refoulement obligation”.[18]
[17] Explanatory memorandum, Migration Amendment (Complementary Protection) Bill 2011 (Cth) at 5 [20]
[18] Ibid at 5 [19]
Degrading treatment or punishment
Section 5(1) of the Migration Act defines this expression in the following terms:
an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
This definition also derives from the non-refoulement obligation implied under article 7 of the Covenant.[19]
[19] Ibid at 6 [24]
Article 7 of the Covenant and prison conditions
Common to both the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” is the requirement that the treatment or punishment be inconsistent with article 7 of the Covenant, which prohibits such treatment.
Relevantly for the purposes of this case, the following kinds of conditions in prisons and other places of detention have been recognised as involving a breach of article 7:
(a)extremely cramped or unsanitary conditions,[20] exposure to cold[21] or inadequate ventilation or lighting;[22]
(b)lack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate exercise;[23] and
(c)denial of medical treatment.[24]
[20] Human Rights Committee, Portorreal v Dominican Republic, Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987) at [11]
[21] Human Rights Committee, Conteris v Uruguay, Comm No 139/1983, UN Doc Supp No 40 A/40/40 (17 July 1985) at [10]
[22] Human Rights Committee, Brown v Jamaica, Comm No 775/1997, UN Doc CCPR/C/65/D/775/1997 (23 March 1999) at [6.13]
[23] Human Rights Committee, Mukong v Cameroon, Comm No 458/1991, UN Doc CCPR/C/51/D/458/1991 (21 July 1994) at [9.3]-[9.4]; Human Rights Committee, Tshisekedi v Zaire, Comm No 242/1987, UN Doc CCPR/C/37/D/242/1987 (2 November 1989) at [13]; Human Rights Committee, Mika Miha v Equatorial Guinea, Comm No 414/1990, UN Doc CCPR/C/51/D/414/1990 (8 July 1994) at [6.4]
[24] Human Rights Committee, Brown v Jamaica, Comm No 775/1997, UN Doc CCPR/C/65/D/775/1997 (23 March 1999) at [6.13]; Rouse v The Philippines, Comm No 1089/2002, UN Doc CCPR/C/84/D/1089/2002 (25 July 2005) at [7.8]
The Tribunal’s statutory review function
Finally, the recent decision of the Full Federal Court in Minister for Immigration v MZYTS[25] reiterated two propositions that are also material to the resolution of this case.
[25] [2013] FCAFC 114
First, the Tribunal’s task on review under s.414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s.65 of the Migration Act in respect of the criteria for a visa in issue before it.
In that regard, the Full Federal Court emphasised (at [34]):
Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.
Secondly, the Tribunal’s review function miscarries where its reasons do not permit the Court on judicial review to infer that the Tribunal formed the state of satisfaction required of it[26].
[26] at [45]-[46]
Did the Tribunal misconstrue s.36(2A) of the Migration Act?
In considering the applicant’s claims for protection as a refugee by reason of his unlawful departure and the consequences on his return the Tribunal said the following at [46] of its reasons:
Under recently tightened procedures those returnees who are believed to have left the country in breach of the law on immigration and emigration are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. Conditions in remand have been described in media reports[27] as being overcrowded, although there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The penalties eventually imposed on returnees by the courts for illegal departure have involved fines ranging up to Rs 100,000.
[27] See, for example, “Asylum denied, a penalty waits at home,” Ben Doherty, Sydney Morning Herald, 8 December 2012, >
The Tribunal concluded that the applicant is not a refugee under s.36(2)(a) of the Migration Act. The Tribunal then went on to consider the applicant’s claims to complementary protection. It dealt with his claim to fear harm as a person who had departed Sri Lanka unlawfully in the following terms[28]:
Taking into account the information under “Unlawful departure” above, while the Tribunal accepts that, as a person who departed Sri Lanka illegally, the applicant will be questioned by the Sri Lankan authorities at the airport and in consultation with his local police authorities, the Tribunal is not satisfied that he has any adverse profile which will be revealed throughout that process. The Tribunal accepts that: whilst the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant, returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given. The weight of country information also indicates the applicant will be subject to a fine but not a custodial sentence for his illegal departure from Sri Lanka, and on that basis the Tribunal finds that the prospect of the applicant being detained for a prolonged period of time to be remote. Further, the Tribunal notes that, despite the large numbers of reports involuntary returnees to Sri Lanka, including from Australia and including a large number who departed Sri Lanka illegally by boat, and despite the high level media interest in those returnees, there has been no reporting of such returnees being exposed to acts or omissions amounting to significant harm. Specifically, there has been no reporting of such returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of them being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act.
[28] CB195 [52]
The applicant’s claims raised the possibility that the applicant faces harm by being placed in a Sri Lankan prison for the offence of having departed Sri Lanka illegally, without his passport and from an unauthorised port of departure[29].
[29] CB193 [43]
In particular, the applicant claimed that any level of interaction with Sri Lanka’s prison system would result in the applicant being exposed to a real risk of significant harm in the form of cruel or inhuman treatment or punishment and/or degrading treatment or punishment[30].
[30] CB164 [84]
The applicant submitted evidence of and relied on the use in Sri Lankan prisons of methods of torture and conditions such as overcrowding, inadequate medical treatment, insufficient water, poor hygiene, rat infestation and the presence of poisonous snakes as being conditions amounting to cruel or inhuman treatment or punishment and/or degrading treatment or punishment[31].
[31] CB167-170
The offence committed by the applicant carries a penalty of imprisonment for not less than one year and not more than five years[32].
[32] CB173-174 [107]
The Tribunal was satisfied that[33]:
a)the applicant unlawfully departed Sri Lanka for Australia by boat and without a passport;
b)the applicant is likely to be known to have done so by the Sri Lankan authorities upon his return to Sri Lanka; and
c)the applicant is likely to be considered by the Sri Lankan authorities to have breached Sri Lankan laws regarding unlawful departure.
[33] CB193-194 [44]
Overcrowding
The Tribunal appears to have accepted that conditions in Negombo prison for an accused on remand may be “overcrowded”[34]. However, the applicant contends that the Tribunal failed to go on to ask itself the questions required to be asked by the Migration Act, in particular, the questions posed by the various limbs of the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s.5(1) of the Migration Act.
[34] CB194 [46]
Those definitions posed at least three questions of law for the Tribunal which the applicant contends were not properly addressed:
a)the Tribunal never asked itself whether overcrowding might involve “pain or suffering, whether physical or mental” within the meaning of the definitions. The conditions relied on by the applicant, including overcrowding, plainly involved at least some degree of suffering for the duration of his detention. The Tribunal would have erred in concluding otherwise;
b)the Tribunal never asked itself whether such pain or suffering “could reasonably be regarded as cruel or inhuman in nature”. Relevant to that question were the other prison conditions relied on by the applicant, as well as the international decisions and jurisprudence cited by the applicant[35]; and
c)the Tribunal never asked itself whether the pain or suffering relied on by the applicant was consistent with article 7 of the ICCPR or arose only from lawful sanctions not inconsistent with the ICCPR;
[35] CB169 [97]-[100]
The applicant contends that the above is sufficient to demonstrate an error of law by the Tribunal. He contends that the conclusions of fact reached by the Tribunal compounded that error.
In contrast to the Tribunal’s conclusions that there had been “no reporting” of mistreatment amounting to significant harm, however, the applicant had relied on and provided a range of reports evidencing mistreatment in Sri Lankan prisons capable of amounting to significant harm.
For example, the applicant expressly relied on:
a)UK Home Office operational guidance note dated April 2012, concluding that “[c]onditions in prisons … are very poor and taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of torture, are likely to reach the Article 3 threshold”[36].
b)Report by ACAT-France and the Asian Legal Resource Centre dated June 2012, revealing the extent to which torture is used as a method to run Sri Lankan prisons, and the conditions in those prisons[37].
c)Country report by the US Department of State dated 24 May 2012, confirming reports of torture of detainees at Boosa Prison in Galle[38].
[36] Article 3 of the European Convention on Human Rights provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” CB175 [113]
[37] CB165 [87], CB167 [94]
[38] CB166 [89], CB168 [95]
None of those reports were referred to by the Tribunal. In light of the Tribunal’s duty under s.430(1) of the Migration Act to record its findings on material questions of fact, the applicant submits that the omission is significant. Had the Tribunal referred to and considered those reports, he submits that it might have asked itself the questions required by the Migration Act to be asked. It follows in the applicant’s submission that:
a)if the Tribunal considered the reports, the only way in which the Tribunal could have concluded there had been “no reporting” of relevant mistreatment in Sri Lankan prisons, without asking itself the questions required to be asked by the Migration Act, was by misdirecting itself as to the proper construction of s.36(2A) and the meaning of the expressions in that provision; and
b)if the Tribunal did not consider the reports, the Tribunal’s review function miscarried, as the reports were plainly material to the applicant’s claim and their absence was treated by the Tribunal as dispositive of the applicant’s claim[39].
[39] Applicant WAEE v Minister for Immigration [2003] FCAFC 184 at [46]-[47] (French, Sackville and Hely JJ); MZYTS [2013] FCAFC 114 at [68] (Kenny, Griffiths and Mortimer JJ)
The applicant contends that both outcomes involve jurisdictional error on the part of the Tribunal.
In my view, the Tribunal reasoned that the applicant would not be subjected to cruel and inhuman treatment or degrading treatment because first, the risk of detention only arose on a weekend or public holiday, and secondly, the likely period of his detention in prison would only be for a few days. It was in my view a necessary part of that reasoning that the conditions in prison were not so bad that a detention for a brief period would amount to cruel and inhuman or degrading treatment and that the chance of the applicant being detained for a prolonged period of time was remote. I accept the Minister’s submission that the Tribunal was aware of the definitions of “cruel and inhuman treatment or punishment”, “degrading treatment or punishment” and “torture” in s.5(1) of the Migration Act[40]. The Tribunal’s conclusion was a “rolled up one” at [52] and [53] of its reasons. Those reasons are not amenable to deconstruction in order to determine whether the Tribunal placed any significance on the question of whether, for example, intentional conduct was involved. In my view, the Tribunal reasoned that the likely period of time that the applicant would be held in prison, if at all, and the known conditions of that detention, were not such as to satisfy the test for significant harm (whether that harm would be inflicted intentionally or otherwise).
[40] see CB 198 at [70]
As was pointed out by counsel for the applicant during the trial of this matter, the decisions of the Tribunal have varied on the issue of complementary protection in the circumstances faced by the applicant. In case number 1301683 decided on 20 June 2013[41] the Tribunal reached a different conclusion on the same issue as in this case. In case 1301683 the Tribunal at [34]-[71] of its reasons comprehensively reviewed the available information concerning the risk of detention of returning Sri Lankans whose departure was unlawful. The Tribunal found that the risks of and in detention did not give rise to a real chance of serious harm amounting to persecution, or significant harm amounting to torture, or cruel, inhuman treatment or punishment. However, the Tribunal found that the detention of the applicant in that case for even a short time in Negombo prison would give rise to a real chance of degrading treatment or punishment because of the applicant’s particular characteristics. At [64] the Tribunal said:
On the evidence before me, the applicant exhibits certain personal characteristics which render him so vulnerable that the conduct, punishment or treatment he faces while on remand, even for a short period, would rise to the level of degrading treatment. These characteristics are his youth, innocence, impressionability, immaturity, lack of worldly experience together with his appearance and slight physical stature. In simple terms, while he may now have turned [age], he is still effectively a child in terms of my assessment of his particular vulnerability.
[41] 1301683 [2013] RRTA 765
Each case must depend upon its own facts and the two cases appear distinguishable. Nevertheless, case 1301683, because of the comprehensive examination of the available information, provides a useful guide for the Tribunal. While in the present case the Tribunal’s consideration of the issues is much briefer, I am unwilling to infer that the Tribunal in this case failed to grapple with the considerations dealt with so comprehensively in case 1301683.
While the reasons for the Tribunal rejecting the applicant’s claim to complementary protection on the basis of his feared detention in prison in Sri Lanka on return could have been more fulsomely expressed, I am unwilling to draw the inferences that would be necessary to support a finding of jurisdictional error as advocated by the applicant.
Did the Tribunal breach s.425 of the Migration Act?
Once again, I adopt the helpful submissions of counsel for the applicant on the relevant legal principles.
The decision of the High Court in SZBEL v Minister for Immigration[42] (SZBEL) remains the leading authority on the requirements of s.425(1) of the Migration Act. Section 425(1) provides:
The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
[42] (2006) 228 CLR 152
The following propositions emerge from that decision:
a)Ordinarily, unless the Tribunal tells the applicant something different, the applicant is entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision[43].
b)Where the delegate does not base his or her decision on particular aspects of the applicant’s claim; and the delegate’s reasons do not indicate that those aspects were in issue; and the Tribunal does not identify those aspects as important issues by challenging the applicant’s evidence or otherwise; and the Tribunal decides against the applicant based on those aspects, the tribunal fails to comply with s.425(1) and fails to accord procedural fairness[44].
[43] [36]
[44] [43]
The issues arising in relation to the decision under review
The Tribunal found that returnees may be “placed in the remand section of Negombo prison” and if so would remain there “until a bail hearing is available”[45]. The Tribunal made the following finding as to the circumstances in which the Tribunal was satisfied that bail would be granted[46]:
Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety.
(emphasis added)
[45] CB194 [46]
[46] CB194 [46]
The Tribunal went on to conclude that, as bail is “routinely given”, the applicant may be remanded in custody for “a short duration of a few days”, and “the prospect of the applicant being detained for a prolonged period of time [is] remote”[47]. It is implicit in that conclusion that the Tribunal found or assumed that a family member of the applicant would be both able and willing to provide surety for the applicant’s bail. That was the only basis upon which the Tribunal could, consistently with its own findings, conclude that the applicant would not be detained for longer than a few days.
[47] CB195 [52]
The applicant contends that the “issues arising in relation to the decision under review” within the meaning of s.425 therefore included the issue whether the applicant had a family member who would be able and willing to provide surety in the manner or in the amount required for the applicant’s bail so as to cause him to be released from Negombo prison.
The applicant notes that the Tribunal’s reasons for decision omit any reference to:
a)the nature or quality of the surety required to be provided for bail;
b)the amount of any money that would or might be required for the applicant’s bail;
c)the capacity of the applicant’s family members to provide the required surety; and
d)any relevant bail laws in Sri Lanka, such as the Bail Act (No 30 of 1997).
Notwithstanding the omission of any reference to or consideration of those matters, it is probable that the Tribunal assumed or concluded, adversely to the applicant, that one of his family members could and would provide a surety if required to do so.
The delegate similarly made no mention of that matter[48]. The principles espoused in SZBEL are said to have been thus invoked with the result that the Tribunal could not treat the issue as one arising in relation to the decision under review unless it had first identified the issue as such to the applicant.
[48] CB104-125
In my view, the Tribunal adequately put country information concerning the treatment of failed asylum seekers and persons who had left Sri Lanka illegally to the applicant and his representative at the Tribunal hearing. The transcript records the following exchange between the Tribunal and the applicant[49]:
[49] Transcript, pages 36-37
MEMBER: So not because you are a failed asylum seeker? I’m just wondering where that, or what that claim is based in?
INTERPRETER: Yes, yes, because I am a failed asylum seeker as well I will be tortured and killed.
Because I had not been caught by the C.I.D., so they are… they are really annoyed that I had not been caught, so they are looking for me.
Because my wife said that this man is deceased, so therefore they will kill me and give… and confirm say that the wife has already said deceased so there is no reason for … for them not killing me.
This is what… is really is painful to me, that my wife said this.
MEMBER: Now I just want to put to you some independent information about the processes that failed asylum seekers and people who are… who have illegally departed Sri Lanka, are recorded as going through.
And the sources come from a range of places but they include the Australian Department of Foreign Affairs… and government sources from the UK and Canada.
And they suggest that the procedures for involuntary returnees are fairly standardised now.
And they have not reported on any differences in the way Tamils are treated, at the airport at least.
And that where there is a suggestion that a person may have illegally departed and committed a breach of an existing law in Sri Lanka about where and how people should depart, then those cases will be referred to the courts.
The information suggests that when a person is questioned at the airport including by the C.I.D. then the local police station may also be contacted to see if there are any outstanding criminal offences.
INTERPRETER: No, no. Can he say something now?
MEMBER: Just wait so that you have all of the information.
Now that process can take several hours.
For people who are known to have left illegally, for example without a passport or by boat.
The information suggests that those people are brought before a court to apply for bail.
And from what the information suggests, that bail is routinely given.
But it may mean that person is held at a prison for maybe a number of days depending on when they return to Sri Lanka and whether there’s an intervening weekend before the court is sitting.
And then after bail is provided, they are returned to their homes and then they have to appear before court.
And from what I understand, the sources indicate that fines are what are routinely given unless someone is considered to be an organiser of a people smuggling operation.
The information also suggests that many people who have applied and failed to succeed in achieving refugee status have been returned, and returned to their village without any indication of them facing any harm.
So did you have anything you wanted to say about any of that information?
INTERPRETER: On 24th April 2013, there’s a video on the internet where a person, a citizen, a Tamil citizen in another country has gone back to Sri Lanka and he has been tortured. It is taken by a foreigner and the video is on the website.
Tamilwin, the website Tamilwin, where… there is a human rights activist is giving…
There’s a lady who is giving evidence that there is human rights violation in Sri Lanka where a citizen of another country is being tortured by the Sri Lankan government.
April 29th, 2013, the Human Rights Amnesty Commission is… is releasing a report today that even after four years of war, there is torture, abduction and killing in Sri Lanka. That’s a report by the Amnesty International…
ABC News, ABC News
MEMBER: Okay, I accept that there are many reports of ongoing human rights violations in Sri Lanka. But the question that needs to be assessed is not whether there are reported human rights abuses in Sri Lanka. It’s whether or not you face a real chance of a real risk of that type of harm. And if so, for what reason?
In my view, the essential and significant issue upon which this aspect of the review turned was the Tribunal’s view, drawn from country information, that the applicant would be held in prison for only a short time if at all pending the granting of bail, which would be very likely to be granted, and the applicant would be unlikely to be given a custodial sentence for the offence of having left Sri Lanka unlawfully. I do not accept that the relevant issue was whether the applicant had family members who could provide a surety. In any event, the applicant’s representative was alive to the possibility that the applicant might have difficulty in obtaining bail because the transcript records him submitting to the Tribunal[50]:
The Tribunal indicated that those individuals are generally brought before a court and then the information suggests that bail is routinely given, but in that circumstance it’s, the point is that bail … the applicant may not have the finances to pay for that bail.
[50] Transcript, page 42
I do not accept the applicant’s assertion that the Tribunal failed to comply with its obligations under s.425 of the Migration Act.
Conclusion
The applicant has failed to establish a case of jurisdictional error by the Tribunal. The decision is therefore a privative clause decision and the application must therefore be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 31 January 2014
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