SZSZQ v Minister for Immigration
[2017] FCCA 592
•28 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSZQ v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 592 |
| Catchwords: MIGRATION – Application to review decision of Refugee Review Tribunal – now the Administrative Appeals Tribunal – whether the Tribunal failed to apply the correct test or to engage in an active intellectual process in resolving issues or to address a centrally relevant submission or an aspect of the Applicant’s claims – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2A), 36(2)(aa), 499 |
| Cases cited: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 |
| Applicant: | SZSZQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1466 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 24 March 2016 |
| Date of Last Submission: | 14 June 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Godwin |
| Counsel for the Respondents: | Mr Smith |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1466 of 2013
| SZSZQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 29 May 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka, arrived in Australia in April 2012. He applied for a protection visa in September 2012. His application was refused and he sought review by the Tribunal.
The Applicant made claims to fear harm in Sri Lanka in an entry interview of 11 May 2012, a statutory declaration of 23 September 2012 which accompanied his protection visa application, an interview with the delegate of 28 September 2012, and a written submission from his representative to the Department dated 19 October 2012.
His application was refused. He sought review by the Tribunal. His representative provided a further written submission dated 27 March 2013 and supporting documentation. The Applicant attended a Tribunal hearing on 3 April 2013. His representative provided a post-hearing written submission of 1 May 2013 with supporting documentation. This submission referred to recent information in relation to the treatment of returned Sri Lankan nationals who had departed the country illegally.
Tribunal Decision
In its reasons for decision dated 29 May 2013 the Tribunal described the Applicant’s claims and evidence and his representative’s submissions. It summarised the Applicant’s claims as claims that he would suffer serious harm in Sri Lanka because he was perceived to have an association with the LTTE and because he refused to join the Karuna group. The Tribunal accepted that the Refugees Convention ground for this fear could be said to be an imputed political opinion in support of the LTTE and against the Karuna group. It acknowledged that the Applicant also claimed to fear harm for reasons of his Tamil race and membership of the particular social group of failed Sri Lankan asylum seekers, including a claim that he would be at risk of significant harm as a result of his interrogation and detention as a failed asylum seeker.
The Tribunal was prepared to accept that the Applicant was a Tamil fisherman from Sri Lanka who was a resident of Udappu but, having considered all his claims about his experiences in Sri Lanka together with relevant country information, stated that it had “strong doubts” about the credibility of his account.
In particular, the Tribunal doubted the truth of the Applicant’s claims about on-going frequent army round-ups to detain and question groups of Tamils in Udappu in order to identify LTTE supporters. He had claimed he had been frequently rounded up in such incidents up to 2010 and constantly interrogated and that in 2004, after her release from detention in such a round-up, his sister had committed suicide. The Tribunal found it implausible that the army would have the resources to carry out such operations on the suggested scale and frequency (every two days as initially claimed or weekly as he told the Tribunal). It also found it implausible that, if such operations were being carried out in Udappu on the scale and with the open brutality claimed by the Applicant, there would be no references to them in the media, including in internet news sites operated by overseas Tamil communities. The Tribunal had regard to the fact that the Applicant had been unable to produce any independent information to corroborate his claims in this respect and noted that while he had submitted a letter said to be from the head of his village which mentioned the army, it made no mention of any such round-ups.
The Tribunal also found that the Applicant’s account of an incident he claimed he witnessed in 2010 in which a named friend and business contact abducted in a white van, was not convincing and contained a number of inconsistencies, including in relation to the person abducted and the circumstances of the alleged abduction. While it accepted that a discrepancy in relation to the date of this incident may have been the result of misunderstanding or mistranslation, the Tribunal was not satisfied the Applicant had provided a consistent or convincing account either of the person named or the circumstances of the alleged abduction. The Tribunal found it implausible that those who carried out the abduction would have seen the Applicant beside the road and would wish to harm or silence him because he was a witness, but would have made no attempt to seize him at the time. Similarly, it found it implausible that those people, who were said to be members of the CID, would be sufficiently motivated to come to the Applicant’s house in their white van the next night in pursuit of him, but then would leave without carrying out any kind of search when his mother told them he was not at home. The Tribunal found that the letter from the village head did not assist the Applicant in relation to these claims as it stated clearly that there were no problems from the police and that it was the army who had attacked the Applicant.
The Tribunal also expressed doubts about the credibility of the Applicant’s associated claim that he was arrested shortly thereafter, taken to a camp and abused by army officers. It found the Applicant’s account of this incident at the hearing was “notably confused and unconvincing”. It described its concerns. It also found it implausible that if the army suspected the Applicant of involvement with the LTTE as claimed they would have released him after an hour with no reporting requirements, as he claimed.
The Tribunal also found implausible the Applicant’s claim that he was then able to hide from the authorities for 12 months while living in a village in Batticaloa district, but that he was able to work as a fisherman throughout this period. It was not satisfied it was plausible that he could have avoided navy patrols as suggested or that he would not have been detected.
Further, the Tribunal found the Applicant’s account of being confronted by the Karuna group on two occasions (in late 2011 and in 2012) to be “quite implausible”. Among other things, it had regard to his inability at the hearing to remember significant details (which it described). It found his suggestion that on both occasions the group had threatened him with death if he did not join them, but had also agreed to give him time to seek permission from his mother, was not to be believed. It also had regard to the absence of any information indicating that the Karuna group had been carrying out forced recruitment after the end of the civil war.
Finally, the Tribunal found that the Applicant’s claim that the CID came to his home in a white van three or four times a month during the period of his absence in Batticaloa district appeared “inherently implausible”.
Taking these considerations together, the Tribunal was unable to be satisfied as to the truth of major elements of the Applicant’s account of his experiences in Sri Lanka. It was not satisfied that he or other Tamils in Udappu had been subjected to frequent round-ups by the army or that he was ever interrogated and harmed through such a process before 2010. Nor was it satisfied that a named friend and business contact was abducted in a white van in 2010 or that in this way the authorities came to suspect the Applicant of involvement with the LTTE. As the Tribunal was not satisfied that the claimed abduction had occurred, it did not accept that the Applicant was ever targeted because he was a witness to it. It was not satisfied that the CID came to the Applicant’s house in search of him for such a reason or that they made repeated visits to his house over the next 12 or 18 months. While the Tribunal accepted that the Applicant may have moved to the Batticaloa area in 2010, it was not satisfied that he did so in order to hide from the authorities. It was not satisfied that he was ever threatened by the Karuna group in order to make him join them or for any other reason.
Under the heading “political opinion” the Tribunal considered the Applicant’s claims to fear harm in Sri Lanka for reason of his actual or imputed political opinion in favour of the LTTE and against the Karuna group or by reason of an imputed opinion of opposition to the government.
As the Tribunal was not satisfied that the Applicant’s account of incidents of past harm (including for this reason) was to be believed, it did not accept that there was a “history” by which he was already adversely known to the CID, the army, other authorities or the Karuna group which had led them to impute him with a political opinion adverse to them or in favour of the LTTE.
The Tribunal also had regard to the fact that the Applicant did not claim to have any particular political opinion, to have expressed in public any kind of political opinion, to have been involved in any form of political activity directed against the government or the Karuna group or in support of the LTTE, or to have drawn attention to himself in any political way.
Nonetheless, the Tribunal considered other aspects of the Applicant’s circumstances which might conceivably be factors increasing suspicion of him as having a pro-LTTE or anti-government political opinion.
Having regard to country information and material cited by the Applicant’s representative, the Tribunal was not satisfied that the information indicated that simply being a Tamil or a Tamil from Udappu was such as to give rise to such suspicion. Nor was it satisfied that there was anything in the information before it to indicate that an attempt by the Applicant to re-register with the local authorities would cause him any difficulty or increase suspicion of him.
The Tribunal was not satisfied that the Applicant had ever been imputed with a political opinion against the Karuna group or the government or in favour of the LTTE or that there was any other way which such political opinions had been imputed to him or any reason to believe such political opinions would be imputed to him in the future. Hence it was not satisfied that the Applicant would be harmed for such reason if he returned to Sri Lanka.
The Tribunal also considered the Applicant’s claims based on his Tamil race or ethnicity. It acknowledged that there was conflicting country information. It accepted that there was sufficient in the material before it to indicate that, at least up until the war in Sri Lanka ended in May 2009, Tamils were at an appreciable risk of persecutory harm at the hands of the authorities simply because of their Tamil ethnicity and that those living in the LTTE dominated Northern and Eastern provinces were more likely to be targeted.
However, the Tribunal considered that information cited also indicated that four years later the security and situation in Sri Lanka had stabilised and the risks posed to Sri Lankan citizens on the basis only of their Tamil ethnicity were substantially reduced. On the basis of information cited (in particular 2012 UNHCR Eligibility Guidelines), the Tribunal was not satisfied that Sri Lankans who were ethnically Tamil faced serious harm simply because of their ethnicity or that factors such as having geographic origins in the Tamil village of Udappu or elsewhere in the North Western Province put them at a greater risk of such harm. It was not satisfied that the information supported a conclusion that the Applicant himself faced a real chance of serious harm on return to Sri Lanka for those reasons or that there was anything about his personal circumstances which would operate to exacerbate the fact of his Tamil ethnicity or geographic origins such as to create a real chance that he would suffer serious harm.
The Tribunal then considered the Applicant’s claim to fear persecution because of his membership of the particular social group of “failed Sri Lanka (sic) asylum seekers”. It was prepared to accept that there was such a particular social group of which the Applicant could be said to be a member.
The Tribunal considered information before it concerning returned asylum seekers, including material cited in the delegate’s decision, the Applicant’s submissions and UNHCR Guidelines as well as recent DFAT reporting on the subject. It accepted that the information indicated that in recent times some of those returned to Sri Lanka from the United Kingdom and elsewhere had reportedly suffered torture and other abuses at the hands of the authorities. However the Tribunal noted that these cases overwhelming involved returnees who either had some form of connection with the LTTE, who were suspected of such linkages, or who were criminal suspects. It was not satisfied that this would be the case for the Applicant because, as it had found, it was not satisfied that his personal circumstances had ever given rise to a suspicion in the past that he supported the LTTE or that he had had any involvement with it.
The Tribunal also found that the information before it indicated that under standardised procedures applying to all cases, regardless of ethnicity or the circumstances in which persons left Sri Lanka, returnees were routinely interviewed by the authorities at the airport on arrival in Sri Lanka and that such processes involved police and security clearances which may take some hours. It accepted that if such checks revealed outstanding arrest warrants for prior criminal offences, if there were alerts against a person’s name in immigration watch lists, if persons were of security interest or if there was evidence of involvement in people smuggling then such persons may be subject to further questioning.
The Tribunal continued (at [30]-[34]):
On the basis of this information I accept that the Applicant would be subjected to such processes on return. I am not satisfied they would involve him being singled out or targeted in a discriminately fashion because of his Tamil ethnicity. I am not satisfied that the fact of his being questioned at the airport, even for extended periods, could reasonably be characterized as harm at any level, or that he would be subjected to any other form of mistreatment there. Nor am I satisfied that he would be subsequently targeted or subjected to serious harm because he sought asylum in Australia.
I note in this context the references in the submission of 28 March 2013 to a Sydney Morning Herald report by Ben Doherty (footnote omitted) regarding returnees from Australia who had been harassed following their arrival in their homes in Batticaloa. These six persons interviewed claimed they were campaign workers for the opposition Tamil National Alliance (TNA) and that they and other TNA activists were threatened by paramilitary groups allied to the government after the governing United People’s Freedom Alliance lost control of the Eastern Provincial Council. I am not satisfied that the cases have any relevance to the situation of the Applicant, who has never involved himself in political activity, or that they substantiate his claim that he would be harmed on return.
The information before the Tribunal also indicates that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the law in immigration and emigration (the Immigrants and Emigrants Act) 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, possibly for some days, until a bail hearing is available. Conditions in remand have been described in media reports (see, for example, ‘Asylum denied, a penalty waits at home’, Ben Doherty, Sydney Morning Herald, 8 December 2012…) as being overcrowded and unsanitary, 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 take the form of fines ranging up to Rs 100,000.
Taking together the country information and my findings about the Applicant’s personal circumstances I am 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. I accept, as the advisor submits, that the Immigrants and Emigrants Act provides for penalties of both imprisonment and fines on conviction for illegal departure. However, on the information before the Tribunal I am not satisfied that, in practice, imprisonment is actually imposed in such cases, or that the courts do not have discretion in sentencing. I am not satisfied there is a real chance that the Applicant would suffer imprisonment or that he would be subjected to other than a fine. Nor am I satisfied that the scale of the fine imposed could reasonably be seen as constituting serious harm.
I am not satisfied there is a real chance that the Applicant would suffer serious harm on arrival in Sri Lanka or at any subsequent point, because of his membership of the particular social group consisting of failed asylum seekers, whether or not this entity includes those who have left the country unlawfully.
The Tribunal summarised its conclusion that it was not satisfied there was a real chance that on return Sri Lanka the Applicant would suffer serious harm amounting to persecution for the Convention reason of his Tamil ethnicity, his actual or imputed political opinion or his membership of a particular social group. It observed that the Applicant did not claim to fear serious harm for any other Convention reason and found that no other reason was apparent on the face of the information before it. It was not satisfied that the Applicant met the Refugees Convention criterion.
The Tribunal then considered the complementary protection criterion. In that context it referred to the representative’s submission that the Applicant would satisfy that criterion as a failed asylum seeker because 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 awaiting bail on charges of having left the country illegally.
The Tribunal stated at [38]:
As noted, I am not satisfied as to the credibility of the Applicant’s claims that he would suffer harm of any kind on return to Sri Lanka for the reasons he has claimed. While I accept he would likely face arrest on charges of illegal departure, that he could well be placed in remand for a relatively brief period while awaiting a bail hearing, and that he would later be fined if found guilty I am not satisfied that this treatment could reasonably be said to amount either to serious harm in a Convention sense or significant harm in terms of Australia’s complementary protection arrangements. Nor am I satisfied that he would be exposed to significant harm for any other reason.
The Tribunal was not satisfied that the Applicant met the complementary protection criterion. It affirmed the decision not to grant him a protection visa.
These Proceedings
The Applicant relied on a Further Amended Application filed on 24 March 2016.
The grounds in the Further Amended Application are as follows:
1. The Tribunal fell into jurisdictional error in failing to apply the correct test for degrading punishment (sic) in relation to the applicant breaching the Immigration and Emigration Act in that the applicant illegally departed Sri Lanka and would be questioned and arrested 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.
2. There was a failure by the Tribunal to engage in “an active intellectual process” in resolving the issues raised by the possible detention of the applicant in cramped and unsanitary conditions on his return to Sri Lanka, and in particular gave no specific consideration to whether such detention could amount to degrading treatment or punishment or could result in extreme humiliation of the applicant.
3. The Tribunal failed to address a submission centrally relevant to the decision being made when it made no reference or finding in respect of the applicant’s submission that detention in cramped and unsanitary conditions for one or more days could amount to degrading treatment or punishment and could result in extreme humiliation.
4. The Tribunal failed to to (sic) address claims clearly articulated by the applicant on the material before the Tribunal.
Particulars
(a) The Tribunal failed to address the applicants (sic) claim of fear of harm from paramilitaries; and
(b) The Tribunal failed to address the applicant’s fear of harm as a meber (sic) of the social group of “failed Tamil asylum seekers.”
Grounds 1, 2 and 3 concern the Tribunal’s findings in relation to the complementary protection criterion, in particular issues raised by the possible detention of the Applicant on remand pending a bail hearing. The Tribunal found at [38] (in the context of considering the complementary protection criterion) that:
While I accept [the applicant] would likely face arrest on charges of illegal departure, that he could well be placed in remand for a relatively brief period while awaiting a bail hearing, and that he would later be fined if found guilty, I am not satisfied that this treatment could reasonably be said to amount either to serious harm in a Convention sense or significant harm in terms of Australia’s complementary protection arrangements.
Ground 1 (the correct test)
The Applicant pointed to the fact that the expression “significant harm” was defined in s.36(2A) of the Migration Act 1958 (Cth) (the Act) by reference to five categories of harm and that definitions of these categories of harm in s.5(1) of the Act (in particular “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”) incorporated reference to Articles (in particular Article 7) of the International Covenant on Civil and Political Rights (the ICCPR) which provides that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…”.
The relevant s.5(1) definitions are as follows:
“cruel or inhuman treatment or punishment” means 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.
“degrading treatment or punishment” means 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.
“torture” means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
The “Covenant” is defined in s.5 of the Act to mean the International Covenant on Civil and Political Rights (the ICCPR).
The Applicant submitted that the Tribunal’s “factual findings” about conditions in detention could not be reconciled with its assertion that being detained in such conditions “could not reasonably be said to amount to significant harm”. It was said that the definition of “degrading treatment or punishment” in s.5 of the Act posed questions of law for the Tribunal, but that it had not asked itself whether overcrowding and unsanitary conditions might involve “extreme humiliation” within that definition and had erred in making no reference to the international jurisprudence cited in the Applicant’s submissions. It was submitted that if the Tribunal had understood the applicable law it could not have reached the conclusion that detention in these conditions, even for a short term, “could not reasonably amount to” significant harm.
This was said to be a clear indication that the Tribunal had failed to appreciate the content of the statutory definition of “degrading treatment or punishment” as informed by Australia’s international obligations under the Convention Against Torture (the CAT) and the ICCPR (see SZSYP v Minister for Immigration and Border Protection& Anor [2014] FCCA 7 at [15]-[19]) and that the Tribunal had misunderstood the law it was required to apply and had applied an incorrect test.
The Applicant submitted that the Tribunal had accepted that conditions on remand in Negombo prison were overcrowded and unsanitary as described in a Sydney Morning Herald report of 8 December 2012 quoted in the submission to the Tribunal from the Applicant’s representative dated 27 March 2013. It was pointed out that the SMH report quoted returned failed asylum seekers as having described conditions on remand in Negombo prison as circumstances which they were “put … in with the murderers and the drug addicts” and where they “slept on the floor in line, [their] bodies pressed up against each other. [They] could not roll over”. It was also reported that they claimed that in another cell they “had to take turns sleeping because [there was] no space” some nights.
The Applicant contended that, as his representative had submitted to the Tribunal, such conditions in detention were of the sort that had been found by the Human Rights Committee to breach Article 7 of the ICCPR and to amount to inhuman and/or degrading treatment. It was suggested that international jurisprudence had routinely found that while detention itself may not breach Article 7 of the ICCPR, the conditions of detention may do so and that cited decisions of the Human Rights Committee demonstrated that poor prison conditions, including overcrowding, unsanitary conditions, exposure to cold, inadequate ventilation or lighting, inadequate bedding, clothing or nutrition and clean drinking water, lack of opportunity for adequate exercise and denial of medical treatment could amount to degrading treatment or punishment.
It was also pointed out that the UK Home Office had stated in relation to Article 3 of the European Convention on Human Rights (which provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”) that:
Conditions in prisons and police custody 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 and a grant of Humanitarian Protection may be appropriate.
The Applicant contended that the present Tribunal decision was distinguishable from the Tribunal decision considered by Judge Driver in SZSYP. In SZSYP no jurisdictional error had been found in the Tribunal’s consideration of whether the risks of and in detention on remand in Negombo prison amounted to significant harm. It was submitted that in SZSYP the Tribunal had indicated an awareness of the definition of “degrading treatment or punishment”, whereas in this case the Tribunal had referred only to the composite term “significant harm” and that the Tribunal in SZSYP had relied upon the absence of any evidence of returnees being subjected to cruel or inhuman treatment or punishment or other extreme humiliation required for an act or omission to constitute degrading treatment or punishment amounting to significant harm, whereas the Tribunal in this case had found that “there have been no reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment”. The Tribunal in SZSYP was also said to have made a finding focused on the content of the statutory test. It was also pointed out that the Tribunal in SZSYP had made a specific finding that the prospect of the applicant being detained for a long period of time was remote, whereas there was said to be no such finding in the present case.
In supplementary submissions updating the original submissions which had been prepared some time before the hearing, the Applicant maintained these submissions. In particular, it was contended that the Tribunal’s decision failed to demonstrate an awareness of the relevant statutory definition by either setting it out or framing its findings against the elements of that definition. It was submitted that in this respect the Tribunal’s approach was distinguishable from the approach taken by the Tribunal in SZSZV v Minister for Immigration and Border Protection & Anor [2015] FCCA 622. It was contended that Ground 1 could succeed on the basis originally articulated, even if the court did not accept other matters raised in the supplementary submission.
The Applicant raised an additional contention in the supplementary submission to the effect that the Tribunal was jurisdictionally obliged to assess the content of the statutory definitions of conduct constituting significant harm as informed by the international law concerning the content of Australia’s international obligations under the CAT and the ICCPR. In essence, it was submitted that the Tribunal ought to have had regard to international jurisprudence when considering whether the Applicant’s detention on remand could lead to him suffering significant harm, in particular degrading treatment or punishment.
The Applicant acknowledged that in SZSZV this court had concluded, having regard to comments made by the Full Court of the Federal Court in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211; [2012] FCAFC 147 at [19]-[20], that there was no such jurisdictional requirement on the Tribunal. In MZYYL Lander, Jessup and Gordon JJ had stated at [19]-[20]:
19. Further, the test adopted in s 36(2)(aa), (2A) and (2B) is significant harm, not irreparable harm, being the test referred to in the General Comment No 31 on the ICCPR (Human Rights Committee, General Comment No 31: The Nature of the General Legal Obligations Imposed on State Parties to the Covenant, 80th sess, UN Doc CCPR/C/21/Rev.1/Add.13 (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.
20. It is therefore neither necessary nor useful to ask how the CAT or any of the International Law Treaties would apply to the circumstances of this case. The circumstances of this case are governed by the applicable provisions of the Act, namely s 36(2)(aa) and 36(2B), construed in the way that has been indicated.
However the Applicant contended that the decision in MZYYL was not binding on this question and that the decision in in SZSZV should not be followed in this respect.
The Applicant submitted that MZYYL was not strictly binding in relation to the construction of the definition of “degrading treatment or punishment” in s.5 of the Act because the Full Court in that case was not considering the definitions in s.5 of the Act, but rather was considering the content of s.36(2B)(b) of the Act in exercising it original jurisdiction. It was acknowledged that the decision of the Full Court must nonetheless be given “due respect”. However it was submitted that while the court in MZYYL had stressed that the task of the Tribunal was to apply the particular provisions of the Act in the circumstances before it and not to consider how the international treaties would apply to those circumstances, such a general admonition would in terms be inapplicable to the definition of “degrading treatment or punishment” in s.5 of the Act once the circumstances were found by the Tribunal to constitute “extreme humiliation which is unreasonable” as that definition then required the Tribunal to determine whether the circumstances would also be inconsistent with Article 7 of the ICCPR. On this basis it was contended that MZYYL could not prevent the Tribunal from making an assessment of whether there would be a breach of Article 7 in the particular circumstances before it.
The Applicant submitted further that was a “necessity for circumstances to be found to be inconsistent with Article 7 of the ICCPR before they can fall within the definition of degrading treatment or punishment” and that this meant that the circumstances caught by this definition were a subset of the circumstances that were inconsistent with Article 7.
It was pointed out that in written submissions to the Tribunal the Applicant’s representative had referred to departmental guidelines (in PAM3) concerning complementary protection. It was suggested that a substantial part of the submissions concerning the international jurisprudence about Article 7 of the ICCPR appeared to have been taken from these guidelines. This contention was maintained notwithstanding that the guidelines in effect at the time of the Tribunal were not in evidence and the only guidelines before the court in these proceedings were PAM3 guidelines dated June 2013, which was after the date of the Tribunal decision.
The Applicant pointed out that the June 2013 version of the PAM3 guidelines stated that the statutory definitions of “torture”, “cruel and inhuman treatment and punishment” and “degrading treatment or punishment” were informed by Australia’s international obligations under the CAT and the ICCPR and derived from international jurisprudence and that the Tribunal was to turn its mind to international jurisprudence. PAM3 was said to direct decision-makers to interpret these definitions by reference to the international jurisprudence as to the meaning of cruel or inhuman treatment or punishment in the context of Article 7 of the ICCPR and to indicate that it was intended that the meaning of the term “extreme humiliation” would be informed by international jurisprudence in a consideration of when treatment would constitute “degrading treatment or punishment” in breach of Article 7 of the ICCPR.
It was also pointed out that on 21 June 2013 the Minister had issued a Direction (Direction No. 56) under s.499 of the Act requiring decision-makers to have regard to the guidelines where relevant to the decision under consideration. Counsel for the Applicant contended that, notwithstanding the decision of the Full Court in MZYYL, the Tribunal would now be required by Direction No. 56 and s.499(2A) of the Act to consider the international jurisprudence when construing the content of the definition of “degrading treatment or punishment” in s.5 of the Act.
The Applicant also contended that it would be consistent with the statutory scheme and intention of the legislature for decision-makers to be required to consider what circumstances had been found in international jurisprudence to constitute degrading treatment or punishment by reason of their causing “extreme humiliation which is unreasonable” when assessing whether the circumstances before them were within the definition of “degrading treatment or punishment” in s.5(1) of the Act.
These arguments were summarised as a contention that MZYYL was not binding on the question raised in ground 1 and did not preclude a construction of the definitions of concepts amounting to significant harm in s.5(1) of the Act that required the Tribunal to have regard to international jurisprudence and that pursuant to Direction No. 56 and s.499(2A) of the Act the Tribunal would now be required to turn its mind to the international jurisprudence.
It was also pointed out that, as Judge Driver explained in SZSYP at [18]:
… 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.
However as discussed below, while judgment was reserved counsel for the Applicant drew the Court’s attention to the remarks of Kenny and Nicholas JJ in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 at [65]-[66]. Neither party has sought to make further submissions about the effect of SZTAL or to draw the Court’s attention to any other recent developments, despite being given the opportunity to do so. In SZTAL Kenny and Nicholas JJ stated at [65]-[66]:
65. The proposition that it is unnecessary to explore the operation of the relevant treaties when considering the operation of the complementary protection regime is subject to the qualification that where any applicable provisions of the complementary protection regime adopt the standards of one of those treaties, then it will be necessary to consider the relevant treaty provisions and any relevant jurisprudence: see, for example, paragraph (e) of the definition of “torture”, paragraphs (c) and (d) of the definition of “cruel or inhuman treatment or punishment”, and paragraphs (a) and (b) of the definition of “degrading treatment or punishment” in s 5(1) of the Migration Act. At the hearing of the appeals, counsel for both parties was asked whether paragraph (c) of the definition of “cruel or inhuman treatment or punishment” and/or paragraph (a) of the definition of “degrading treatment or punishment” might apply in the circumstances of these appeals. These paragraphs circumscribe the acts and omissions that may constitute “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”, in that an act or omission that otherwise constitutes “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” will not do so because that act or omission is not inconsistent with Art 7 of the ICCPR.
66. As the Minister’s supplementary submissions indicate, there is a lack of clarity in the authorities concerning the interaction of Art 7 and Art 10 of the ICCPR in the context of poor prison conditions. For present purposes, we accept that the relevant authorities fall broadly into the three categories identified by the Minister: see [33] above. These authorities and the scholarly commentary to which the Minister referred indicate that the circumstances in which exposure to poor prison conditions will infringe Art 7 (either alone or with Art 10) are not settled. The Minister expressly did not submit that the risk that the appellants will be exposed to poor prison conditions in the circumstances found by the Tribunal was necessarily incapable of constituting a breach of Art 7 of the ICCPR. The basis for the Minister’s position is clear and it is unnecessary to explore the issue further in these appeals. (emphasis in original)
The First Respondent submitted that it had not been established that the Tribunal failed to apply the correct test in the manner contended for by the Applicant.
It was pointed out that the contention that the Tribunal had failed to grapple with the claim that the Applicant’s possible detention in cramped and unsanitary conditions could amount to degrading treatment or punishment which could result in extreme humiliation was central to the Applicant’s case and suggested that his case appeared to be premised on the assumption that the Tribunal had made a finding that he would in fact be detained for a period of time in prison in cramped and unsanitary conditions. However it was submitted that this was not what the Tribunal had found and that there had been no unqualified acceptance of such matters by the Tribunal. Rather, it was said to have found only that the Applicant could well be placed in remand for a relatively brief period while awaiting a bail hearing (on the basis of country information in relation to returnees arriving in Sir Lanka over a weekend or on a public holiday) and that any such detention on remand would be “for a few days in possibly cramped and unsanitary conditions” (emphasis added).
It was acknowledged that the Tribunal’s conclusion in relation to complementary protection was a “rolled up” conclusion and that there was no separate consideration of the definitions of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”. However it was submitted that the Tribunal was plainly aware that “significant harm” comprised a number of elements. This was said to be apparent from the earlier reference in the reasons for decision to the Applicant’s submission that any period of detention, including while awaiting a court appearance, would expose him to significant harm, in particular torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
It was submitted that, properly understood, a fair reading of the present Tribunal decision revealed identical reasoning to that of the Tribunal in SZSYP which Judge Driver had explained as follows at [44]:
… 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 … 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.
The First Respondent also contended that the fact that there was a rolled-up conclusion in relation to the complementary protection criterion did not indicate that there was any misunderstanding of the test, in circumstances where the Tribunal considered that on no view could the treatment being considered amount to significant harm.
The First Respondent submitted that, as in SZSZV, the Tribunal in this case was clearly of the view that being held in remand pending a bail hearing (albeit in “possibly cramped and unsanitary conditions”) was not such as to amount to significant harm as contemplated by s.36(2A) of the Migration Act in circumstances where the risk of detention would only arise if the Applicant returned to Sri Lanka on a weekend or on a public holiday when the Magistrates Court was closed and also that the likely period of remand in prison in such circumstances would be for “a few days” or “a relatively brief period”.
It was also contended that the Tribunal’s conclusion that the Applicant would not suffer significant harm must be considered in light of its anterior finding that there was no evidence that detainees on remand in Negombo prison were subjected to “torture or other forms of deliberate mistreatment”. The First Respondent submitted that this information, which the Tribunal took into account, must be seen as feeding into its overall assessment that it was not satisfied that the treatment of the Applicant would likely face (including that he could well be placed into remand for a relatively brief period while awaiting a bail hearing and that he would later be fined if found guilty) was treatment that could reasonably be said to amount to significant harm in terms of Australia’s complementary protection obligations.
Counsel for the First Respondent also addressed the Applicant’s supplementary submissions to the effect that the Tribunal ought to have had regard to international jurisprudence when considering whether the Applicant’s detention on remand could lead to him suffering “degrading treatment or punishment” and that its failure to do so was such that it must have misunderstood the law and applied an incorrect test.
It was submitted that in light of the way the Tribunal reasoned in this matter it was unnecessary to consider the extent to which a Tribunal is required to or may, if it sees fit, have regard to international jurisprudence.
Further, insofar as the Applicant relied on PAM3 Guidelines to which the Tribunal was obliged to have regard by reason of Direction No. 56 made by the Minister under s.499(2A) of the Act, it was pointed out that as Direction No. 56 did not come into effect until after the decision of the Tribunal, it was not binding on the Tribunal in present case.
In any event, the First Respondent submitted that clauses 2 and 3 of Direction No. 56 in their terms contemplated that the Tribunal was only obliged to consider the guidelines or country information to the extent that they were relevant. It was submitted that it was the Tribunal’s views on relevance which mattered, not those of the court (see SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34; [2015] FCA 150 at [20]).
The First Respondent submitted that, as discussed in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 and SZTMD at [15], the Court was entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material. It was submitted that the court should infer that the Tribunal in this case did not refer to the international jurisprudence because it did not consider it to be material, but rather considered other information it relied upon to be material, in particular information that led it to findings in relation to the likelihood, length and conditions of detention that did not involve an unqualified acceptance that conditions on remand were necessarily as contended for by the Applicant’s representation (also see SZSZV at [116]).
It was also submitted that having regard to the absence of an acceptance by the Tribunal that the Applicant would be detained for a lengthy period on remand or an unqualified acceptance that conditions on remand were necessarily cramped and unsanitary, it was open to the Tribunal to prefer particular cited country information rather than other information in relation to prison conditions in Sir Lanka and/or the approach taken in international jurisprudence referred to by the Applicant’s representative.
Consideration
This ground relates to the Tribunal’s consideration of the complementary protection criterion in s.36(2)(aa) of the Act which is that the Applicant is:
a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;…
Section 36(2A) provides:
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.
The concepts of “torture”, “cruel or inhuman treatment punishment” and “degrading treatment or punishment” are defined in s.5(1) of the Act as set out at [34] above.
The first aspect of the Applicant’s argument in relation to Ground 1 involves a contention that the factual findings by the Tribunal about his likely imprisonment on remand could not be reconciled with its conclusion that it was not satisfied that the likely treatment he faced could reasonably be said to amount to significant harm in term of Australia’s complementary protection obligations. This was said to demonstrate that the Tribunal had failed to appreciate the content of the s.5(1) definition of “degrading treatment or punishment” and thus had failed to apply the correct test in a manner constituting jurisdictional error. It is apparent that the reference in ground 1 to “degrading punishment” is intended to be a reference to “degrading treatment or punishment”.
The Tribunal addressed the representative’s submission that there was a real risk the Applicant would be subjected to significant harm on return in that he would likely face arrest on charges of illegal departure and accepted that he “could well be placed in remand for a relatively brief period while awaiting a bail hearing”. Reading the Tribunal decision fairly and as a whole these findings in relation to the complementary protection criterion were clearly based on its anterior factual findings reached in the context of consideration of the Refugees Convention criterion.
Those earlier factual findings were based on country information cited, including DFAT Reports, and also the Applicant’s personal circumstances. The Tribunal acknowledged the Applicant’s submissions, which included the generally expressed submission that “[a]ny period of detention, including while awaiting a court appearance, would expose the Applicant to significant harm, in particular torture, cruel or inhuman treatment or punishment or degrading treatment or punishment”. As indicated, such earlier findings also had regard to media reports (in particular a Sydney Morning Herald article cited by the Applicant’s representative) which described conditions on remand as being overcrowded and unsanitary. However, while Tribunal accepted that the Applicant “could well be placed in remand”, it did not accept that detention would likely be for a lengthy period or that conditions on remand in Negombo prison were necessarily cramped and unsanitary. Rather it accepted that the Applicant “could well be” detained on remand “for a few days in possibly cramped and unsanitary conditions” (emphasis added) while awaiting a bail hearing. However it also had regard to the absence of any reports that returnees held on remand in Negombo prison awaiting bail hearings had been subjected to torture “or other forms of deliberate mistreatment”.
It has not been established that these factual findings cannot be reconciled with the Tribunal’s conclusion in relation to complementary protection such as to support the contentions that the Tribunal failed to appreciate the content of the statutory definition of “degrading treatment or punishment” and failed to apply the correct test. In the context of considering the complementary protection criterion the Tribunal reiterated its acceptance that the Applicant could well be placed in remand for a relatively brief period while awaiting a bail hearing. This must be seen as encompassing the Tribunal’s earlier findings about “possibly” cramped and unsanitary conditions and the absence of evidence of deliberate mistreatment of returnees held on remand in Negombo prison awaiting his bail hearings.
Moreover in the circumstances of this case the fact of the Tribunal’s “rolled-up” conclusion about significant harm does not support the contention that it failed to appreciate the content of the concepts amounting to significant harm such as to establish jurisdictional error in the manner contended for by the Applicant. The Tribunal acknowledged the representative’s submission that relevant categories of significant harm would be established in relation to any period of detention. However it also had regard to the absence of reports of returnees being held in Negombo prison on remand being subjected to “torture” or other forms of “deliberate mistreatment”, relevant to the “intention” aspect of the definitions in issue. It is apparent that the Tribunal was not satisfied, having regard to the country information and its findings about the Applicant’s personal circumstances, that the conditions in detention on remand for a relatively brief period while awaiting a bail hearing could reasonably be said to amount to significant harm within any of the concepts defined in s.5(1) of the Act.
It has not been established that the Tribunal’s failure to refer to international jurisprudence cited in the representative’s submission, in particular decisions said to demonstrate that poor prison conditions could amount to degrading treatment or punishment, indicates or supports a conclusion that the Tribunal failed to appreciate the content of the Migration Act definition of “degrading treatment or punishment” (or the content of any of the other definitions of concepts constituting significant harm) and hence that it failed to apply the correct test. This contention was also put in slightly different terms in support of grounds 2 and 3.
First insofar as reference was made by the Applicant’s representative to international jurisprudence to the effect that imprisonment in Sri Lanka in poor conditions may breach Article 7 of the ICCPR or may amount to degrading treatment or punishment, in this instance the Tribunal did not accept that there was a real chance that the Applicant would suffer post-conviction imprisonment. International jurisprudence about poor prison conditions for those convicted of offences was not directly relevant.
Further, insofar as the Applicant sought to rely on Direction No. 56 and PAM3 Guidelines in relation to the relevance of international jurisprudence, this direction post-dated the Tribunal decision (as did the version of the Guidelines tendered in these proceedings) and hence was not binding on the Tribunal in this instance. In any event, as the Minister submitted, such later guidelines and the Direction in terms contemplate that the Tribunal is only obliged to consider the guidelines (or country information) to the extent relevant.
As in SZTMD, in this case the inference can be drawn that the Tribunal did not refer to international jurisprudence (including that cited in the representative’s submission) as it did not consider it relevant in the particular circumstances of this case. This is not indicative of jurisdictional error, having regard to the Tribunal’s factual findings about the possible duration and circumstances of any detention on remand and also given that it is apparent that the Tribunal did not base its decision on the aspects of the s.5 definitions (in particular the exceptions) that refer to the ICCPR (see SZTAL at [65]). If the Applicant intended to submit that the Tribunal must always determine whether an act or omission is within the exceptions to the definition of “degrading treatment or punishment” or whether the circumstances would also be inconsistent with Article 7 of the ICCPR as considered in international jurisprudence, that is not so.
In that respect, whether or not the decision of the Full Court of the Federal Court in MZYYL is strictly binding in relation to construction of the definition of “degrading treatment or punishment”, in my view it cannot be disregarded in any consideration of the manner in which the Migration Act is to be read.
It is necessary to consider what was said by the Full Court of the Federal Court in SZTAL about both MZYYL and the relevance of international jurisprudence in this context. The passages from SZTAL drawn to the Court’s attention by the Applicant appear in the part of the joint judgment that did not accept the contention that the international jurisprudence concerning Article 7 of the ICCPR (or the equivalent in Article 3 of the European Convention) assisted in determining the construction of the “intention” aspect in the words “pain or suffering that is intentionally inflicted” in the definition of cruel or inhuman treatment or punishment and the words “an act or omission … intended to cause extreme humiliation which is unreasonable” in the definition of “degrading treatment or punishment” (see SZTAL at [18]).
As Kenny and Nicholas JJ stated in SZTAL at [61]:
One may accept that at a general level it is true to say that the complementary protection regime was enacted to give effect to Australia’s obligations under a number of international instruments, including the CAT and the ICCPR. In the present statutory context, this is only one consideration that bears on the question of construction: cf. Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; 248 CLR 619 at [40], citing Carr v Western Australia [2007] HCA 47; 232 CLR 138 at [5]–[7]. This is because the relevant definitions in s 5(1) and the text of s 36 of the Migration Act show that the Parliament did not intend by these provisions to implement the relevant obligations under the CAT and the ICCPR in their entirety.
Their Honours’ view that Parliament did not intend to implement the obligations under the CAT and the ICCPR “in their entirety” was said to be confirmed by statements in the Explanatory Memorandum to the Migration Amendment (Complementary Protection) Bill 2011 that while the definitions in s.5(1) of the Act were “derived” from the CAT and ICCPR, these concepts were “exhaustively defined” in s.5(1) (SZTAL at [62]). Kenny and Nicholas JJ also referred to differences between the s.5 definitions and the ICCPR and CAT Articles in issue (in particular the inclusion of the element of intention in the s.5 definitions), before indicating (at [62]) that … “it may be inferred from the relevantly narrower definitions in s 5(1) that the complementary protection provisions in s 36 of the Migration Act were intended to give effect to only a subset of Australia’s obligations under the CAT and the ICCPR...”
Importantly, before making the remarks at [64]-[65] that were drawn to the court’s attention, their Honours stated at [63]-[64]:
The general principle of construction that courts construe statutory provisions implementing Australia’s obligations under a treaty consistently with that treaty is therefore of limited application in the context of the complementary protection provisions of the Migration Act. In particular, that principle cannot assist in the construction of the intention element in the relevant definitions in s 5(1) since that element does not exist in the ICCPR concepts of “cruel, inhuman or degrading treatment or punishment”: see Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (2nd revised ed, NP Engel, Publisher, 2005) at 161. We are not therefore persuaded that the jurisprudence on Art 7 of the ICCPR or Art 3 of the European Convention is relevant to this issue of construction.
Our conclusion in this regard is consistent with Minister for Immigration and Citizenship v MZYYL(2012) 207 FCR 211, in which a Full Court of this Court considered the standard of protection required by s 36(2B)(b) of the Migration Act. In considering this standard, the Court emphasised (at [36]) that s 36 of the Migration Act must be read as a whole, noting (at [18]) that the complementary protection provisions define the criteria and obligations by reference to the definitions set down in that Act. Hence, as the Court said (at [20]) it was unnecessary “to ask how the CAT or any of the international law [sic] treaties would apply to the circumstances of [the] case”, since they were governed by the applicable provisions of the Migration Act alone: see also Minister for Immigration and Border Protection v SZSWB [2014] FCAFC 106 at [30]. We reject the appellants’ submission that MZYYL 207 FCR 211 is inconsistent with, or overtaken by, Minister for Immigration and Citizenship v SZQRB(2013) 210 FCR 505, where, at [70] and [99], the Court proffered only a very brief summary of the complementary protection regime, the operation of which was not in issue in that case. We would therefore reject the appellants’ submissions that MZYYL 207 FCR 211 is plainly wrong.
As pleaded and argued this case does not turn on the construction of the “intention” element in the relevant definitions in s.5 referred to in SZTAL. The Applicant’s submissions did not take issue with the Tribunal’s approach to the “intention” aspect in the definitions of concepts amounting to significant harm. However, the approach taken in MZYYL and SZTAL is of more general application.
Had the Tribunal been considering whether conduct that otherwise constituted degrading treatment or punishment would not do so because the act or omission in question was not inconsistent with Article 7 of the ICCPR or was within the qualification or exception in relation to lawful sanctions not inconsistent with the Articles of the Covenant (see paragraphs (a) and (b) in the definition of “degrading treatment or punishment” and also paragraphs (c) and (d) in the definition of “cruel or inhuman treatment or punishment”) then, as was made clear in SZTAL at [65]:
The proposition that it is unnecessary to explore the operation of the relevant treaties when considering the operation of the complementary protection regime is subject to the qualification that where any applicable provisions of the complementary protection regime adopt the standards of one of those treaties, then it will be necessary to consider the relevant treaty provisions and any relevant jurisprudence: see, for example, paragraph (e) of the definition of “torture”, paragraphs (c) and (d) of the definition of “cruel or inhuman treatment or punishment”, and paragraphs (a) and (b) of the definition of “degrading treatment or punishment” in s 5(1) of the Migration Act…
However the Tribunal’s findings in this case did not involve consideration of such exceptions.
In the circumstances of this case and having regard to its findings, the Tribunal’s failure to refer to international jurisprudence in the manner contended for by the Applicant is not demonstrative of jurisdictional error. In particular, in determining whether the treatment of the Applicant on return to Sri Lanka as a person who had departed illegally, including being that he “could well be” detained on remand for a few days in possibly cramped and unsanitary conditions amounted to significant harm, it was not necessary for the Tribunal to refer to international jurisprudence in making the findings that it made. It has not been established on this or any of the other bases contended for by the Applicant that the Tribunal failed to apply the correct test for degrading treatment or punishment.
Ground 1 is not made out.
Ground 2 (an “active intellectual process”)
As indicated, ground 2 in the Further Amended Application is as follows:
There was a failure by the Tribunal to engage in “an active intellectual process” in resolving the issues raised by the possible detention of the applicant in cramped an (sic) unsanitary conditions on his return to Sri Lanka, and in particular gave no specific consideration to whether such detention could amount to degrading treatment or punishment or could result in extreme humiliation of the applicant.
The Applicant submitted that the Tribunal had simply made a “sweeping finding” that detention on remand (which, it was suggested, the Tribunal had found was likely) could not reasonably be said to amount to significant harm, but that it had made no attempt to address the specific claims of the Applicant concerning “degrading treatment or punishment” and had not engaged in an active intellectual process in considering how the factual circumstances it was said to have accepted could reasonably be said not to amount to extreme humiliation within the definition of “degrading treatment or punishment” in s.5(1) of the Act.
It was pointed out that in WZAQU v Minister for Immigration and Citizenship (2013) 140 ALD 612; [2013] FCA 327 Flick J had stated at [12]:
In considering whether or not a claim or a part of a claim has been taken into account and resolved, it is “the reality, and not the appearances, which matters”: compare Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 595; 144 ALR 567 at 594; 48 ALD 481 at 506 per Kirby J. A requirement, whether imposed by common law or by statute, to consider a claim involves a decision-maker to engage in “an active intellectual process directed at that representation or submission”: Tickner v Chapman (1995) 57 FCR 451 at 462; 133 ALR 226 at 238 (Tickner) per Black CJ. See also: NAJT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 147 FCR 51; [2005] FCAFC 134 (NAJT). Both Madgwick and Hill JJ endorsed the formulation of Black CJ in Tickner that “an active intellectual process” was required: NAJT at [46] per Hill J; see also at [212] per Madgwick J.
Counsel for the Applicant suggested that the failure of the Tribunal to engage in an active intellectual process could also be seen in its failure to engage with the international jurisprudence referred to in the representative’s submission about circumstances which could give rise to or constitute cruel or unhuman treatment or punishment and/or extreme humiliation within the definition of degrading treatment or punishment.
The First Respondent submitted that, for the reasons given in relation to ground 1, this ground of review should also be rejected.
Consideration
This ground is not made out. First while the Tribunal accepted the Applicant would likely face arrest on charges of illegal departure, as discussed above, the Tribunal did not find that such detention was “likely” (although it did accept the Applicant “could well be” placed on remand) or that conditions on remand were necessarily cramped and unsanitary. Further it found that such possible detention would be for a relatively brief period and that there had not been reports of returnees held on remand in Negombo prison awaiting bail hearing who had been subjected to torture or other forms of deliberate mistreatment. It was satisfied that the Applicant would later be fined (that is, not imprisoned) if found guilty.
In considering the complementary protection criterion, the Tribunal sufficiently addressed the Applicant’s claims about whether detention in itself or in conditions claimed to be present in Negombo prison constituted significant harm in light of its earlier findings. As discussed above, the Tribunal’s “sweeping” or rolled-up finding in relation to the complementary protection criterion is to be seen in context and in light of its earlier account of the Applicant’s claims and circumstances and its findings in relation to detention on remand and conditions in detention.
As discussed above, in this case the Tribunal was not obliged to engage with international jurisprudence in determining whether the circumstances constituted an act or omission that caused, or was intended to cause, extreme humiliation which was unreasonable within the definition of “degrading treatment or punishment”.
The Tribunal’s findings in this respect did not involve consideration of paragraph (a) or (b) in the definition of “degrading treatment or punishment” (see SZTAL at [65] set out at [84] above). Having regard also to what is said above in relation to the later PAM3 guidelines and Direction No. 56 and the basis for the Tribunal’s findings, its failure to give express consideration to cited international jurisprudence is not indicative of a failure to engage in an active intellectual process in relation to relevant representations or submissions or in relation to any aspects of the Applicant’s claims.
Reading the Tribunal decision fairly and as a whole I am satisfied that it considered the Applicant’s claims and, in that context, the representative’s submissions, insofar as necessary to do so. It has not been established that the Tribunal failed to engage in an active intellectual process in resolving the issues raised by the possible detention of the Applicant on remand for a few days in possibly cramped and unsanitary conditions such as to give rise to jurisdictional error in the manner contended for in ground 2.
Ground 3 (the Applicant’s submission to the Tribunal)
Ground 3 in the Further Amended Application is as follows:
The Tribunal failed to address a submission centrally relevant to the decision being made when it made no reference or finding in respect of the applicant’s submission that detention in cramped and unsanitary conditions for one or more days could amount to degrading treatment or punishment and could result in extreme humiliation.
The Applicant submitted that the Tribunal had failed to address a submission that was “significant” and “centrally” relevant to the decision being made (see Linfox Australia Pty Ltd v Fair Work Commission (2013) 240 IR 178; [2013] FCAFC 157 at [47] and cases cited therein).
It was pointed out that the representative’s written submission to the Tribunal on the issue of complementary protection extended over some 13 pages. However it was suggested that those 13 pages had simply been summarised by the Tribunal as a submission that:
Any period of detention, including while awaiting a court appearance, would expose the Applicant to significant harm, in particular torture, cruel or inhuman punishment or degrading treatment or punishment.
It was submitted that although the Tribunal had made a general finding on the issue of complementary protection obligations arising from the likely detention of the Applicant, it had failed to engage with or to address the representative’s central submission relating to degrading treatment or punishment. In particular, it was submitted that the Tribunal had made no attempt to grapple with the issues of how prison conditions in Negombo prison, as described in the cited Sydney Morning Herald article, were distinguishable from those found by the Human Rights Committee to amount to degrading treatment or punishment; how the policy of the UK Home Office in relation to Article 3 of the European Convention on Human Rights in relation to conditions in prisons in Sri Lanka could be distinguished to such an extent that its guidance was not reasonable; or why the extensive reports relied upon in the representative’s submission about mistreatment of prisoners in Sri Lankan prisons did not sustain a finding that there was a real risk that the Applicant might be mistreated when in detention.
It was contended that the Applicant had been left without any explanation as to how the Tribunal addressed his central submission that the circumstances of his likely detention could be said to approximate those found to constitute degrading treatment or punishment or inhuman treatment by the Human Rights Committee and UK Home Office policy. By proceeding in this manner the Tribunal was said to have failed to address the substance of the representative’s central submission relating to degrading treatment or punishment.
The Applicant referred to the fact that in Soliman v University of Technology Sydney (2012) 207 FCR 277; [2012] FCAFC 146 at [55]-[56] the Full Court of the Federal Court had inferred that there had been a failure to address a submission from the absence of any attempt by the decision maker to grapple with it in the reasons given. Their Honours cautioned at [57]:
Just as reasons for an administrative decision should not be read with an eye keenly attuned to discerning error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 per Brennan CJ, Toohey, McHugh and Gummow JJ), eyes should not be so blinkered as to avoid discerning an absence of reasons or reasons devoid of any consideration of a submission central to a party’s case.
The Applicant submitted that the Full Court decision in Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431; [2013] FCAFC 114 was further support for the proposition that the Tribunal had erred in the manner contended for in this ground. In that case the Tribunal had referred to a post-hearing submission, but had not set out or described the content of the submission in relation to the most recent country information about conditions in the applicant’s home country of Zimbabwe. The Court expressed the view (at [38]) that the Tribunal’s task:
…could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there.
The Full Court found in MZYTS that the Tribunal’s reasons did not disclose any consciousness as to what the applicant was articulating through his representative’s statements and his submissions about a recent increased risk of violence in his home country of Zimbabwe (at [39]) and that the absence of any evaluation by the Tribunal of the current situation in Zimbabwe in the face of what was being submitted and in the context of the Tribunal’s statutory task signified a constructive failure to exercise jurisdiction.
The Applicant also placed reliance on SZULI v Minister for Immigration and Border Protection [2015] FCA 999. In that case it had been contended that the Tribunal had had regard to only part of a report cited and had failed to give proper consideration to another important part of the report (see SZULI at [21]-[22]). While this argument was rejected by Flick J at [23], SZULI was said to confirm that the fact that a Tribunal extracted “bits” out of a submission or a piece of evidence was not in itself sufficient to show that it had engaged with the submission and the central parts of it.
The First Respondent submitted that in this case most of the country information cited in the representative’s submission to the Tribunal had related to general prison conditions in Sri Lanka which had led the representative to make the general submission that: “Given the prevalence of torture, cruel and inhuman treatment and degrading treatment or punishment in Sri Lankan prisons, the Tribunal should accept that there is a real risk the applicant will face significant harm.”
However it was submitted that there was nothing to suggest that the Tribunal was unaware of this information and that, in any event, statements about Sri Lankan prison conditions generally and the duration of periods of post-conviction imprisonment in the submission and information cited therein was not of such significance, materiality or importance in relation to what would happen to this Applicant if held on remand pending a bail hearing as a returned failed asylum seeker who had left Sri Lanka illegally, as to require express consideration (and see SZSZV at [114]-[116]).
Moreover, insofar as the representative’s submission referred to international jurisprudence and European policy in relation to prison conditions, the First Respondent submitted that much of the material relied upon in relation to prison conditions was of a particularly general nature or related to the fact that, in other contexts, Sri Lankan prison conditions had been found to fall foul of the relevant treaties. It was reiterated that there was no acceptance by the Tribunal that the Applicant would necessarily be detained, that any or detention on remand would be for a lengthy period or that the Applicant would necessarily be exposed to cramped and unsanitary conditions. Importantly, the Tribunal was not satisfied on the evidence before it that in practice a penalty of imprisonment (as distinct from a fine) was imposed in relation to those convicted of illegal departure.
The First Respondent submitted that having regard to the manner in which the Tribunal had reasoned, including preferring its own information, rather than the country information and international jurisprudence relied upon by the Applicant, it could not be said to have fallen into error constituting jurisdictional error by failing to refer to the part of the submission relied upon by the Applicant in relation to general prison conditions in Sri Lanka, including international jurisprudence in respect to general prison conditions. Rather, it was contended that it should be inferred that the reason the Tribunal did not refer to such material was because it did not consider it to be of relevance or material in the circumstances of this case. It was submitted that what was material to the Tribunal decision (and was considered) was more up-to-date information about the treatment of persons who had departed Sri Lanka illegally which was directly applicable to the Applicant’s circumstances.
Consideration
This ground was said to relate to Parts D and E of the representative’s submission to the Tribunal dated 27 March 2013 headed “D: Does the Applicant fear acts or omissions amounting to significant harm?” and “E: Is there a real risk the Applicant will suffer significant harm?”.
There is no suggestion that the Tribunal failed to have any regard at all to the March 2013 submission. Rather the contention appears to be that an “important” part of the submission was not taken into account (SZRUI at [22] and see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317).
Part of the submission in question cited country information and media reports about returned illegal departees potentially facing detention on remand awaiting bail hearings. The Tribunal addressed this issue. It was not necessary for the Tribunal to refer specifically to particular items of country information cited by the representative. It has not been established that the Tribunal failed to have regard to the most recent relevant country information in the manner considered in MZYTS.
The representative did submit in this part of the submission that “any” level of interaction with Sri Lanka’s interrogation process and prison system “will result” in the Applicant experiencing significant harm in the form of torture; cruel or inhuman treatment; or punishment; and/or degrading treatment or punishment.
The Tribunal expressly referred to this submission, as well as to the oral and post-hearing written submissions about the poor standard of prison conditions and torture and degrading treatment or punishment in Sri Lankan prisons. However the Tribunal’s factual findings and conclusions implicitly rejected the sweeping proposition that “any” period of detention would expose the Applicant to significant harm.
Moreover, while the representative’s submission cited country information about the use of torture by police in interrogation and prisons generally, as the First Respondent submitted, such evidence related to general prison conditions (not possible short-term detention on remand in Negombo prison pending a bail hearing).
In any event, the Tribunal considered the Applicant’s claims about the prospect of mistreatment while in Negombo prison on remand, but had regard to the absence of any reports of torture or other forms of deliberate mistreatment of returnees held in Negombo prison awaiting bail hearings. It also considered the prospect of imprisonment on conviction for illegal departure but, as indicated, was not satisfied that in practice imprisonment was actually imposed in such cases. In these circumstances it was not necessary for the Tribunal to refer further to the part of the submission addressing prison conditions generally.
Insofar as the representative’s submission cited a Sydney Morning Herald article about conditions in which returned failed asylum seekers were held on remand, this article was specifically considered by the Tribunal, which also acknowledged the existence of other media reports about conditions in remand being overcrowded and unsanitary. However, as indicated, the Tribunal found there had not been reports of deliberate mistreatment of returnees held on remand in Negombo prison awaiting bail hearings. It also acknowledged and accepted that information before it, including the submission, indicated that in recent times, some returnees (suspected of links with the LTTE or who were suspected criminals) had reportedly suffered torture and other abuses at the hands of the authorities. However it found that this would not be the case for the Applicant in his personal circumstances.
Given the Tribunal’s reasoning, as discussed above in relation to Ground 1 it was not necessary for it to refer expressly to cited international jurisprudence about conditions that may breach Article 7 of the ICCPR or Article 3 of the European Convention. Similarly, given the basis for its reasoning, it was not necessary for the Tribunal to consider the representative’s submission about whether the exceptions in the statutory definitions were applicable.
The representative’s submission also canvassed changes that had occurred in the treatment of returned failed asylum seekers to Sri Lanka. The Tribunal accepted that such changes had occurred (including prosecution for illegal departure) and considered the Applicant’s claims on the basis of the changed conditions. However the Tribunal reached its own view, based in part on cited country information, about the relevance of such changes to the Applicant’s claim to face a real risk of significant harm on return to Sri Lanka. It did not fail to address a centrally relevant submission in this respect.
Insofar as this ground suggests that the Tribunal accepted that the Applicant would necessarily be detained on remand and, if so, would face cramped and unsanitary conditions, that is not the case. Rather, the Tribunal accepted that returnees believed to have departed illegally who returned to Sri Lanka on a weekend or public holiday would be detained on remand in Negombo prison until a bail hearing was available. While the Tribunal did accept on this basis that the Applicant may “well” be detained on remand for a few days (or a “relatively brief period”) in conditions that were “possibly” cramped and unsanitary, it was clearly of the view that detention for a few days in such conditions in circumstances where there was no evidence of deliberate mistreatment could not reasonably be said to amount to either serious or significant harm.
It has not been established that the Tribunal failed to address a centrally relevant submission in a manner constituting jurisdictional error.
This ground is not made out.
Ground 4
The fourth ground in the Further Amended Application is as follows:
The Tribunal failed to address claims clearly articulated by the applicant on the material before the Tribunal.
Particulars
(a) The Tribunal failed to address the applicants (sic) claim of fear of harm from paramilitaries; and
(b) The Tribunal failed to address the applicant’s fear of harm as a meber (sic) of the social group of “failed Tamil asylum seekers.”
The Applicant acknowledged that the Tribunal had recorded his initial claims, including his claims that he feared he would be killed by the Karuna group and feared harm because of his membership of the particular social group of failed Tamil asylum seekers. However it was submitted that it had failed to consider the two integers of his claims referred to in the particulars to this ground.
It was pointed out that in the statutory declaration the Applicant provided in support of his protection visa application he had (in describing past events in Sri Lanka) referred to the abduction of his neighbour in mid-2010. He claimed that while he did not know why this person was taken away, “[s]ometimes people around Udappu are abducted by paramilitary groups and held for ransom.” Further, under the heading “Who I Think Will Harm/Mistreat Me if I Was Forced to Return to That Country” the Applicant not only referred to a fear of harm, mistreatment or being killed by the Sri Lankan authorities, but also claimed “I fear I will be harmed, mistreated or killed by the Karuna if I return to Sri Lanka” and had explained that he feared he would be “harmed, mistreated or killed for reasons of my political opinion - I refused to join the Karuna group”.
It was submitted that in this way a claim was clearly articulated by the Applicant that he feared harm from paramilitaries. Reliance was also placed on the fact that in a written submission to the Tribunal of 27 March 2013 the Applicant’s representative had referred to a 2012 decision of the Tribunal in which it was said to have:
… referenced a report from the US Department of State (USDOS) indicating that young and middle-aged Tamil men continue to be harassed by security forces and paramilitary groups in the predominantly Tamil areas of Sri Lanka …
The submission also set out an extract from the 2012 Tribunal decision as follows:
The Tribunal considered information which indicates that detention, threats, harassment, kidnapping and unlawful killings, continue against Tamil citizens in the eastern and northern region of Sri Lanka. According to the US Department of State (USDOS), young and middle-aged Tamil men were frequently harassed by security forces and paramilitary groups. They reported that “unlawful killings by security forces and government-allied reported that “unlawful killings by security forces and government-allied paramilitary groups” were continuing in the predominantly Tamil areas and “civil society activists, persons viewed as Liberation Tigers of Tamil Eelam (LTTE) sympathizers, and journalists” faced an elevated risk of harm.USDOS reported the following situation:
In the east and the north military intelligence and other security personnel, sometimes worked with armed paramilitaries, were responsible for the documented and undocumented detention of civilians suspected of LTTE connections. Detention reportedly was followed by interrogation that frequently included torture. There were reports that detainees were released with a warning not to reveal information about their arrest or detention, under the threat of rearrest or death… The government monitored political meetings, particularly in the north and east. There also were credible reports that civilian and military officials questioned local residents and groups who met with foreign diplomats regarding the content of their meetings.
…
The Department of Foreign Affairs and Trade (DFAT) advised on 15 June 2010 that they were aware of threats against Tamils. They advised that extortion was primarily carried out by paramilitary groups. They advised that some businesses “have been asked to make payments to individuals associated with local political/paramilitary groups in return for not being harassed/threatened”. DFAT indicated in its latest advice that the “security situation in the north and east is greatly improved since the end of the military conflict” but noted that “incidents of violence can occur”.
…
Tamil media sources indicate that despite the end of the civil war, the Tamil community in the east and north are continuing to face targeting by the authorities and paramilitary groups.
The Tribunal noted that while the security situation has improved in Sri Lanka, since the end of the civil was in May 2009, armed paramilitary groups are continuing to target the Tamil communities in the north and east of the country and they do it with impunity. The USDOS reported that paramilitaries have been involved in assisting government military forces in the assault and murder of civilians; impeding the movement of residents, especially Tamils; assisting government authorities in detaining and torturing individuals alleged to have LTTE connections; frequently harassing Tamil men; and conducting illegal seizures of private land and practising extortion with impunity. (footnote omitted) (emphasis in submission)
Secondly, it was contended that there was a clearly articulated claim made in the statutory declaration accompanying the protection visa application that the Applicant feared harm as a member of the particular social group of “failed Tamil asylum seekers” and that the Tribunal had failed to address this claim.
It is not in dispute that the Applicant did make such a claim in his initial statutory declaration. It was pointed out that he also claimed that he was scared that if he was forced to return to Sri Lanka he would be detained and tortured for fleeing illegally. In this context he stated in his statutory declaration:
… I have heard that Tamil refugees that have been returned from the UK have been detained at the airport by police officers and taken for questioning. Sometimes they are jailed for long periods of time and tortured. The government suspects them of having links to the LTTE because they tried to flee Sri Lanka. They do not like people fleeing Sri Lanka illegally because it makes the government look bad. They call us traitors.
Counsel for the Applicant acknowledged that the representative’s submission to the Tribunal of 27 March 2013 had expressed the particular social group claim as an issue of whether the Applicant had a well-founded fear of persecution on the basis of membership of the particular social group of “failed Sri Lanka asylum seekers”. However it was contended that an Immigration and Refugee Board of Canada Report that was cited and discussed in these submissions was in fact dealing with failed Tamil asylum seekers. It was also pointed out that in an earlier submission to the Department the Applicant’s representative had referred to this report as independent country information said to suggest that the Sri Lankan authorities were of the view that: “any Tamil who fled the country in an unauthorised way must be an LTTE … sympathizer.”
It was submitted that the Tribunal had erred in confining its consideration to a social group consisting of “failed Sri Lankan asylum seekers” in its findings and reasons. It was said to have given no consideration to whether there was a narrower particular social group consisting of “failed Tamil asylum seekers” and, if so, whether the Applicant would face persecution by reason of membership of this group. This was said to amount to a failure to complete the exercise of the Tribunal’s jurisdiction in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394-395 ([26]-[27]) per Gummow and Callinan JJ.
Further, insofar as the Tribunal had considered generally what might happen to a returnee at the airport in Sri Lanka, the Applicant submitted that this did not address the fact that the information before the Tribunal from the representative’s submission was to the effect that there was a broader risk beyond the airport for Tamil returnees on return to their home areas.
The First Respondent submitted that insofar as any claim to fear harm from paramilitaries was advanced by the Applicant, it was advanced rather “faintly”. It was suggested that the part of the statutory declaration relied on by the Applicant in support of this proposition simply involved a recounting of what was said to have happened to the Applicant’s neighbour in the past. In that context he explained that: “[s]ometimes people around Udappu are abducted by paramilitary groups and held for ransom.” It was submitted that this was not a “clear” claim of a basis to fear harm on the part of the Applicant and could be seen as simply an attempt to explain what might have happened to his neighbour.
Similarly, it was submitted that when regard was had to the detailed written submission provided to the Tribunal dated 27 March 2013, it was apparent that if any such claim was advanced it was advanced only faintly.
The First Respondent pointed out that in the part of the submission addressing imputed political opinion and race, the Applicant claimed to fear physical and sexual abuse by Sri Lankan security personnel. The submission referred to reports from Human Rights Watch as to sexual abuse of suspected supporters of the LTTE. It was acknowledged that in this context the representative had also quoted part of an earlier Tribunal decision, but submitted that when the extract was read in its entirety it was apparent that it was addressing harm or threats directed to or against Tamils in the Eastern and Northern region of Sri Lanka suspected of LTTE connections. It was pointed out that the Tribunal considered, but did not accept, that the Applicant would be so suspected.
The First Respondent submitted that to the extent that any claim relating to abduction by or harm from paramilitary groups was raised in the statutory declaration explaining why the Applicant left Sri Lanka, or in the representative’s reference to the earlier Tribunal decision, it was apparent that any such claimed fear was because of the Applicant’s Tamil ethnicity and/or imputed political opinion as an LTTE sympathiser and that these claims were considered by the Tribunal. The Tribunal was said to have made general findings which were sufficiently broad to cover any such claim.
In essence, Counsel for the First Respondent submitted that a distinct claim to fear harm from paramilitaries was not squarely advanced on the material before the Tribunal such as to require the Tribunal to consider it, but that in any event any such claim was addressed by the Tribunal’s general findings as to whether the Applicant was at risk of serious harm because of his Tamil ethnicity or an imputed political opinion.
As to the second particular to this ground, the First Respondent acknowledged that in his statutory declaration the Applicant did claim to fear harm by virtue of his membership of the social group of “failed Tamil asylum seekers”, whereas the Tribunal had considered a slightly different social group claim based on membership of the particular social group of “failed Sri Lankan asylum seekers.” However it was pointed out that this was the way the social group claim had been framed in the representative’s subsequent pre-hearing written submission to the Tribunal of 27 March 2013. This submission had addressed the issue of claimed membership of a particular social group of “failed asylum seekers” or “failed Sri Lankan asylum seekers”. The representative had summarised the Applicant’s claim as a claim that he feared “that his profile with the Sri Lankan authorities prior to his departure from the country places him at greater risk of capture and abuse if he returned to Sri Lanka as a failed asylum seeker”.
It was also pointed out that in a post-hearing submission of 1 May 2013, under the heading “Failed Asylum Seekers: New Information available to the Tribunal” the Applicant’s representative addressed a report from DFAT confirming that since late November 2012 the Sri Lankan government had started to enforce the law in relation to offences related to illegal departure from Sri Lanka. In that context the submission referred to the experiences of “failed Sri Lankan asylum seekers”.
The First Respondent submitted that not only did the Tribunal address this particular social group claim, but also that it made sufficiently broad findings to encompass all variations of the social group claim based on being a failed asylum seeker that may have been advanced or that arose clearly on the material before the Tribunal. Relevantly, the form of harm said to be feared by the Applicant was torture and other abuse at the hands of the Sri Lankan authorities. The Tribunal concluded that only returned asylum seekers who had an actual or perceived connection with the LTTE were at risk of suffering any abuse, that the Applicant was not such a person. It also found that he would not be singled out or targeted in a discriminatory fashion because of his Tamil ethnicity or targeted or subjected to serious harm because he had sought asylum in Australia.
In addition, the First Respondent submitted that the Tribunal’s general finding about whether the Applicant faced serious harm by reason of the fact that he had sought asylum in Australia related not only to circumstances at the airport, but also to circumstances beyond the airport. First, the Tribunal was not satisfied that the processes to which the Applicant would be subjected on return (which, it was conceded, appeared to relate to the airport) would involve him in being singled out or targeted in discriminatory fashion “because of his Tamil ethnicity”. It went on to find that it was not satisfied that the Applicant would be “subsequently” targeted or subjected to serious harm “because he sought asylum in Australia”. This was said to be a general finding which would cover a myriad of social group claims with the common element of the fact of unsuccessfully seeking asylum in Australia that could be advanced.
Consideration
A failure to consider a “substantial clearly articulated argument” that if accepted might establish a well-founded fear of persecution for a Convention reason (Dranichnikov at [24]) or that the Applicant met the complementary protection criterion may amount to jurisdictional error.
As the Full Court of the Federal Court stated in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [45] a jurisdictional error may be established “[i]f the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material…” However as their Honours explained “[t]his is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision”.
Further, the Full Court continued at [46]-[47]:
It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
It is also the case that the Tribunal must consider a claim which arises “squarely” on the material before it in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1; [2004] FCAFC 263 at [58] (and see NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] affirmed on appeal in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 124 and Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287; [2013] FCAFC 161 at [70]).
The Applicant did not make an express claim to fear harm from “paramilitaries” generally or in addition to his claim to fear the Sri Lankan “authorities” and the Karuna group. His claims in his statutory declaration about the abduction of his neighbour (possibly by the CID in a white van) did not clearly or squarely raise such a claim. Rather, as elaborated on in the statutory declaration and thereafter, this incident was the basis for the Applicant’s claim to fear harm from the Sri Lankan authorities (in particular the Army) on the basis that he had witnessed this event or would be perceived as having an association with the LTTE. His representative submitted to the Tribunal that the Applicant had a profile with the Sri Lankan authorities and an imputed political opinion through his association with the person abducted.
The fact that the representative’s submission quoted an earlier Tribunal decision which referred to harassment of Tamils suspected of LTTE involvement by security forces and paramilitary groups did not clearly or squarely raised a claimed fear of harm from paramilitaries generally such that it had to be considered by the Tribunal (see NABE (No.2)). Identification of such a claim would have required “constructive or creative activity by the Tribunal” (see NABE (No.2) at [58]). Moreover, unlike the applicant in SZSKH v Minister [2014] FCCA 135 the Applicant and/or his representative did not claim that he could be the victim of serious criminal activities on the part of the paramilitaries groups.
The Applicant did claim to fear the Karuna group because he refused to join it and claimed that he would be imputed with a political opinion in favour of the LTTE and against the Karuna group. However the Tribunal expressly considered such claims. It was not satisfied that the Applicant had been threatened by the Karuna group in order to make him join them or for any other reason. It did not accept that there was a history by which he was already adversely known to the Karuna group. It noted that he did not claim to have been involved in any form of political activity directed against the Karuna group or in support of the LTTE. Having regard to the Applicant’s circumstances (including his Tamil ethnicity) the Tribunal was not satisfied that he had ever been imputed with a political opinion against the Karuna group or the government or in favour of the LTTE or that there was any reason to believe that such political opinions would be imputed to him in the future. Hence it was not satisfied that there was a real chance that the Applicant would suffer serious harm on such basis.
If, contrary to my view, a broader claim to fear paramilitaries did arise squarely on the material before the Tribunal, as the First Respondent submitted it was based on the Applicant’s ethnicity and claimed imputed pro-LTTE political opinion and was sufficiently considered in the Tribunal’s findings as to whether persons were at risk of serious harm because of their Tamil ethnicity and its lack of satisfaction that the Applicant would be imputed with a political opinion in favour of the LTTE (see Applicant WAEE at [47]).
In other words the Tribunal considered the bases underlying any fear of paramilitary groups generally on the part of the Applicant. Such findings were sufficiently broad to encompass any claimed fear of paramilitaries arising on the material before the Tribunal.
In addition, the Tribunal considered the particular issue of treatment of returnees following their arrival in their homes referred to in the representative’s submissions as follows:
31. I note in this context the references in the submission of 28 March 2013 to a Sydney Morning Herald report by Ben Doherty [footnote omitted] regarding returnees from Australia who had been harassed following their arrival in their homes in Batticaloa. These six persons interviewed claimed they were campaign workers for the opposition Tamil National Alliance (TNA) and that they and other TNA activists were threatened by paramilitary groups allied to the government after the governing United People’s Freedom Alliance lost control of the Eastern Provincial Council. I am not satisfied that [the] cases have any relevance to the situation of the Applicant, who has never involved himself in political activity, or that they substantiate his claim that he would be harmed on return.
In this part of its reasons the Tribunal sufficiently addressed any claimed fear of harm to the Applicant after return to his home area (including, in that context, threats by paramilitary groups) insofar as such harm was said to occur to political activists.
The claim in particular (a) to this ground is not made out.
The other aspect of this ground is a claim that the Tribunal failed to address the Applicant’s claimed fear of harm as a member of the particular social group of “failed Tamil asylum seekers”.
First, this contention overlooks the fact that while the initial social group claim was made in these terms, it was reformulated in the Applicant’s written submissions to the Tribunal as a claim of membership of a particular social group of “failed Sri Lankan asylum seekers” or “failed asylum seekers”. Such claims were considered by the Tribunal.
In addition, as contended for by the First Respondent, the Tribunal also had regard to the Applicant’s “personal circumstances” and characteristics, which included his Tamil ethnicity and the absence of any suspected link to the LTTE. It made sufficiently broad findings to encompass a variation of the “failed asylum seekers” claim, such as “Tamil failed asylum seekers”. In particular, in the context of addressing the particular social group claim as advanced in the representative’s submissions, the Tribunal also considered whether the processes to which the Applicant would be subjected on return as a failed asylum seeker would involve him being singled out or targeted in a discriminatory fashion because of his Tamil ethnicity. The Tribunal also addressed the representative’s general submission that the Applicant’s “profile” with the Sri Lankan authorities prior to his departure placed him at greater risk of capture and abuse if returned to Sri Lanka as a failed asylum seeker in the context of making findings about claimed past harm, claimed actual or imputed political opinion and about the Applicant’s Tamil ethnicity and/or geographic origins. As set out above, it also addressed the claimed risk beyond the airport for Tamil returnees.
Such findings sufficiently addressed the social group claims advanced to the Department and to the Tribunal.
Ground 4 is not made out.
Accordingly the Application should be dismissed.
I certify that the preceding one hundred and sixty-two (162) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 28 March 2017
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