SZSZT v Minister for Immigration

[2015] FCCA 2051

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSZT v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2051

Catchwords:
MIGRATION – Application for an extension of time – substantive application seeking review of the decision of the Administrative Appeals Tribunal – whether explanation for delay satisfactory – merit in the substantive application – extension of time granted – whether Tribunal failed to consider a claim expressly made or clearly arising – whether the Tribunal failed to assess if the applicant was at risk of serious or significant harm – jurisdictional error found – application allowed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 477

Federal Circuit Court Rules 2001 (Cth)

SZMFJ v Minister for Immigration & Anor [2009] FMCA 771
SZNZU v Minister for Immigration [2010] FMCA 197
SZNZI v Minister for Immigration & Anor [2010] FMCA 57
Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39
Minister for Immigration and Border Protection v SZRFT [2013] FCA 1377

Applicant: SZSZT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1444 of 2013

Judgment of: Judge Nicholls

Hearing date: 15 April 2014

Date of Last Submission: 4 February 2015

Delivered at: Sydney

Delivered on: 31 July 2015

REPRESENTATION

Counsel for the Applicant: Ms E Grotte

Solicitors for the Applicant: Michaela Byers, Solicitor

Solicitor for the Respondents: Ms S Given of Sparke Helmore

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The time to make the substantive application to the Court is extended to 26 June 2013 pursuant to Section 477(2) of the Migration Act 1958 (Cth).

3. A writ in the nature of certiorari issue quashing the decision of the second respondent made on 17 May 2013.

4. A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.

5. The first respondent to pay the applicant’s costs set in the amount of $ 6646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1444 of 2013

SZSZT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (“the Act”) made on 26 June 2013 seeking to extend the time within which to make a competent application pursuant to s.476 of the Act to seek review of the decision of the then Refugee Review Tribunal (“the Tribunal”) which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.

The Issue

1. Section 477(1) of the Act provides that an application made pursuant to s.476 of the Act must be made to this Court within 35 days of the date of the making of the Tribunal’s decision. In the current case, the application was made five days after the expiry of the 35 day period. On this basis, the substantive application pursuant to s.476 of the Act is not competent.

2. Section 477(2) provides that, upon written application by an applicant, the Court may extend the time for the making of the substantive application, if it considers it is in the interests of the administration of justice to do so. The applicant has made such an application in writing.

3. The issue before the Court, therefore, is whether it is in the interests of the administration of justice to extend the time. The relevant possible elements involved in such consideration have been the subject of various consideration by this Court. No exhaustive list can be formulated given that regard must be had to all the relevant circumstances of each case (SZMFJ v Minister for Immigration & Anor [2009] FMCA 771, SZNZU v Minister for Immigration [2010] FMCA 197, SZNZI v Minister for Immigration & Anor [2010] FMCA 57).

4. The period of delay in this case is five days. While the applicant had filed an affidavit made by him on 8 July 2013 seeking to explain the delay, when given the opportunity before the Court, no leave was sought to read the affidavit into evidence.

5. While an attempt was made after the hearing to draw the Court’s attention to the affidavit, no attempt was made, for example, by way of an Application in a Case pursuant to the Federal Circuit Court Rules 2001 (Cth), to bring the matter before the Court and seek relevant leave

6. As it stands the Minister was not given the opportunity to consider whether to challenge or test the applicant’s evidence. In these circumstances, the affidavit is not in evidence before the Court. In the absence of any other evidence, the delay remains unexplained.

7. However, as stated above, the delay is for a period of five days. This period is of such duration that it should not weigh against the finding below, that the proposed substantive application has legal merit in the sense of revealing jurisdictional error on the part of the Tribunal.

8. Nor did the Minister press any substantial argument that he would be otherwise prejudiced by any extension of time.

9. In all, therefore, for the reasons set out below, not only is there legal merit in the proposed substantive application such that time should be extended, there is jurisdictional error in the Tribunal’s decision that calls for the relief the applicant ultimately seeks to be granted.

10. Similar to other matters before this Court, following the hearing of this matter the Federal Court handed down judgment in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. What was relevantly found in that case concerned s.91R(2)(a) of the Act. This may have been relevant to the applicant’s grounds before this Court. The matter was adjourned awaiting the outcome of a special leave application to the High Court, and subsequent hearing. The High Court handed down judgment in the appeal on 17 June 2015 (Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22). The High Court’s judgment, allowing the appeal, does not assist the applicant.

Background

1. In evidence before the Court is the bundle of relevant documents filed by the Minister (“Court Book” – “CB”) and the affidavit of Michaela Byers, Solicitor, of 11 September 2013 which annexes a copy of the Transcript of the Tribunal hearing (“T”).

2. The background to the applicant’s grounds of the proposed substantive application is set out in the Minister’s submissions. I am satisfied that it is a fair representation of the material in the Court Book and for convenience adopt what was said there for the purposes of this judgment (see the Minister’s written submissions at [4] – [24]):

   “[4] The applicant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 5 June 2012. An entry interview was conducted with him on 17 July 2012:

   
   

   CB 2-18.

   [5] On 9 September 2012 the applicant applied for a protection visa: CB 20-30; 31-45.

   [6] The applicant gave his claims to protection at both the entry interview of 17 July 2012 and in a statutory declaration dated 9 September 2012 accompanying his protection visa application: see CB 46-49. In summary, the applicant claimed that he had worked as a fisherman in Sri Lanka. On 8 April 1998, a bomb was detonated near the applicant and he suffered the loss of a finger on his right hand and wounds to his arm and head. He claims that, while in hospital recovering from these injuries, the army visited him three times and threatened and interrogated him about the blast. When he was released from hospital, he was taken to the police station and detained for three days. He was taken to Court on 28 February 1999 and in the following eleven years was required to report to the police eleven times. The applicant claimed to fear that the ‘Police, CID, EPDP and SLA, will arrest and kill me on suspicion of my past and seek for me and take revenge against me’: CB 48.

   [7] On 16 September 2012, the applicant’s representative provided the Minister’s department with a written submission in support of his application: see CB 100-112. This submission stated that the applicant fears persecution because of his Tamil race, membership of particular social groups comprising ‘Sri Lankan Tamils’ and ‘Tamils from the North or East of Sri Lanka’ and real and imputed political opinion due to his race and former residence in a predominately Tamil region: CB 101. The submission also argued that the applicant would be entitled to protection under the complementary protection provisions under s 36(2)(aa) of the Migration Act 1958 (Cth) (Act).

   Delegate

   [8] On 18 October 2012, a delegate of the Minister refused the applicant’s application for a protection visa: CB 118-130.

   Tribunal's proceedings

   [9] On 23 November 2012, the applicant applied to the Tribunal for review of the delegate’s decision: CB 131-137.

   [10] On 23 January 2013, the Tribunal wrote to the applicant inviting him to appear before it on 21 February 2013 to give evidence and present arguments relating to the issues arising in the decision under review: CB 143-145.

   [11] On 7 February 2013, the originally scheduled hearing was cancelled: CB 146.

   [12] On 11 February 2013, the Tribunal wrote to the applicant inviting him to appear before it on 22 February 2013:

   
   

   CB 147-150.

   [13] On 22 February 2013, the applicant attended the Tribunal hearing with a representative and assisted by a Tamil interpreter: CB 152-154.

   [14] On 24 April 2013, the applicant was again invited to attend the Tribunal on 9 May 2013 to give evidence and present arguments relating to the issues arising in his case: CB 155-158.

   [15] On 29 April 2013, the Tribunal was informed by the applicant’s representative that the applicant had moved interstate and that the hearing scheduled for 9 May 2013 may need to be rescheduled: CB 159.

   [16] On 3 May 2013, the Tribunal wrote to the applicant inviting him to appear before it on 10 May 2013: CB 160-163.

   [17] On 10 May 2013, the applicant attended the Tribunal hearing with a representative and assisted by a Tamil interpreter: CB 165-167.

   [18] On 10 May 2013, the applicant’s representative provided the Tribunal with a further submission regarding ‘circumstances encountered by Sri Lankans who have illegally left their country’: CB 168-178.

   [19] On 17 May 2013, the Tribunal affirmed the decision under review: CB 182-204.

   Tribunal decision

   [20] The Tribunal accepted that the applicant had been injured in a bomb blast in 1998 but found he was not a ‘credible witness’ and rejected the rest of his claims regarding the incidents that allegedly occurred in Sri Lanka: CB 199, [52]. It found his evidence about these incidents was ‘implausible’ and contained ‘highly significant’ inconsistencies: CB 199, [52]. The Tribunal was not satisfied that these inconsistencies were explained by the amount of time that had passed and found that the applicant had been able to ‘fully participate’ in the two hearings that were conducted: CB 199-200, [53]-[54]. The Tribunal also gave ‘no weight’ to a letter purporting to corroborate these incidents from the applicant’s attorney in Sri Lanka: CB 199-200, [53].

   [21] The Tribunal was not satisfied on the basis of the country information before it that there was a real chance or risk that the applicant would be suspected of being associated with the LTTE or that he would face serious or significant harm due to his Tamil race, imputed political opinion as a LTTE supporter or membership of particular social groups comprising ‘Sri Lankan Tamils’ or ‘Tamils from the North or East of Sri Lanka’: CB 200, [55], [57]. The Tribunal also did not accept that the applicant would face serious or significant harm for reasons connected to his employment: CB 200, [56].

   [22] Whilst the Tribunal accepted that the applicant may be questioned by the authorities on his return, it was not satisfied on the basis of the country information that there was a real chance that the applicant would face serious harm, or a real risk that he would face significant harm, if he returned to Sri Lanka as a failed asylum seeker: CB 201- 202, [61]-[63].

   [23] The Tribunal noted the country information before it that suggested the applicant was likely to be ‘charged, remanded and produced before a Magistrate who would determine whether he should be granted bail’ because he had departed the country illegally: CB 201, [59]. It found, however, that this would be the result of the enforcement of a law of general application that would not be applied to the applicant in a discriminatory manner: CB 202, [63]. It also found that the country information before it indicated that the applicant would likely be granted bail and there was only a ‘remote chance’ that he would be imprisoned: CB 203, [64]. The Tribunal was not satisfied that any ‘short term imprisonment’ faced by the applicant prior to when he applied for and was granted bail would amount to serious or significant harm: CB 203, [65].

   [24] Having considered the applicant’s claims both separately and cumulatively, the Tribunal found that the applicant did not face a real chance of persecution for any Convention reason or that there was a real risk that he would face significant harm if he returned to Sri Lanka: CB 204, [66].”

Proposed Substantive Application

1. The proposed substantive application, as amended, has five grounds. However, in written submissions and before the Court, the applicant only pressed grounds four and five:

   “4. The Second Respondent (the Tribunal) failed to assess the risk of serious and significant harm to the applicant after release from remand, thereby failing to consider all of the applicant’s claims to a protection (Class XA) visa.

   Particulars

   (a) The Second Respondent accepted that the applicant was a Tamil male from the north-east of Sri Lanka, which had been an LTTE-controlled area, that the applicant had been involved in a bomb blast in the north-east, and that the applicant had departed Sri Lanka illegally, thereby committing a criminal offence for which he would be convicted upon his return to Sri Lanka, but failed to consider whether these accepted factors cumulatively would expose the applicant to serious and significant harm after he was released from remand.”

   5. The Second Respondent (the Tribunal) failed to assess whether the applicant was at risk of serious and significant harm in the application by the Sri Lankan authorities of the irregular departure provisions of the Sri Lankan Immigration and Emigration Act.

   Particulars

   (a) The Tribunal noted that the applicant's wife, parents and three siblings could stand as guarantor without enquiring whether they could stand as guarantor, or alternately assess the risk of harm if a family member could not stand as guarantor.

   (b) Failure by the Second Respondent to make those enquiries amounted to a failure to undertake the Second Respondent’s statutory duty of review, being a legal error.”

Consideration

1. The applicant’s argument on ground four is as follows. The Tribunal accepted that the applicant was a Tamil male from the north east of Sri Lanka, an area formerly under the control of the Liberation Tigers of Tamil Eelam (“LTTE”), and he had been involved in a bomb blast in that area, and had subsequently departed Sri Lanka illegally. The applicant said that for that latter reason he would be convicted on return to Sri Lanka of a criminal offence.

2. The applicant submitted that the Tribunal fell into jurisdictional error, in particular, failed to exercise its jurisdiction in the manner explained by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (“Yusuf”), because while it considered these elements of the applicant’s case in the context of what would likely occur on the applicant’s arrival in Sri Lanka, which would include his being held on remand, it failed to consider the likelihood of both serious and significant harm, in the context of what would likely happen to the applicant on release from remand into the Sri Lankan community.

3. Before the Court, the applicant drew attention to part of [65] of the Tribunal’s decision (at CB 203):

   “…I find that on the applicant’s return to Sri Lanka he faces short term imprisonment on remand prior to applying for and obtaining bail (as evidenced by the country information referred to above from DFAT and the Sydney Morning Herald) and a fine as a result of being charged under the I&E Act. He has several family members in Sri Lanka who can act as guarantors. I find that this does not amount to either serious harm in itself and does not amount to persecution for a Convention reason because it is the enforcement of a generally applicable law. I do not accept that he faces a real chance of persecution for a Convention reason during this short term period of imprisonment. I further find that this short term imprisonment or imposition of a fine does not amount to significant harm under s.36(2A) in that it does not constitute the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment…”

4. The applicant’s argument was that he had claimed to fear serious and significant harm on return to Sri Lanka. In relation to serious harm, this was put as arising from his membership of a particular social group, being persons who departed Sri Lanka illegally. That fear was not limited to what he said would occur to him immediately on arrival, but also what would likely occur after he was released from remand into the Sri Lankan community.

5. The applicant referred to written submissions put before the Tribunal by his then representative (see CB 174.1):

   “In addition, the available information also suggests that involuntary returnees remain at risk of serious harm after their release into the community. In that regard, the UNHCR’s Eligibility Guidelines confirm that:

   UNHCR post-return monitoring data indicate that in 2011, upon arrival in the village of destination, 75% of the refugee returnees were contacted at their homes by either a military (38%) or police (43%) officer for further ‘registration’. 26% of these returnees were again visited at home for subsequent interviews, with a handful receiving a number of additional visits by the police and military.”

6. In relation to “significant harm”, before the Court the applicant first said he wanted to delete the reference to “significant harm” from the ground. However, after a request for clarification from the Court, he stated that he “relied” on his personal circumstances. Ultimately, I understood his position to be as explained by his representative to the Tribunal (see CB 169.9):

   “While there is no reason to dispute the information that all returnees are subject to the provisions of the I&EA, we submit that it is during the on-arrival series of interrogations or during the period of remand that the applicant is initially at risk of Convention-related persecution or other significant harm. The information referred to by DFAT further demonstrates that returnees face a lengthy period in prison and we submit that our client is at risk of persecution or other significant harm during the period of incarceration. We also contend that he is at risk of significant harm after release into the community, whether or not he serves a year in prison.”

   [Emphasis added.]

1. Some explanatory context is relevant here. The applicant’s representative had referred to country information which they said supported the proposition that those who had departed Sri Lanka illegally would come to the attention of authorities immediately on return and, amongst other things, would be charged under the Sri Lankan Immigrants and Emigrants Act (“I&EA”) and detained on remand. The applicant’s current complaint is that he claimed to fear harm beyond this point. That is, when he was released from remand into the community.

2. The applicant sought to develop this argument before the Court. However, the argument appeared to lose focus, with reference only to “membership of a particular social group”, said to be comprised of returnees in the context of serious harm. The Court was taken to country information referred to in the Tribunal’s decision record ([36] at CB 191 to CB 192), concerning the treatment of those of Tamil ethnicity and those who had supported the LTTE. Plainly, such information was not relevant to illegal departure and that particular group.

3. In all, I understood the applicant’s complaint in ground four to be that the applicant had claimed, as revealed in his representative’s submissions, that he feared serious and significant harm on return to Sri Lanka not just up to the point of release from remand (which was likely to occur to him) but after release into the Sri Lankan community. That risk was said to arise from various elements, taken both singularly and cumulatively. Namely, his Tamil ethnicity, that he would be perceived to be a supporter of the LTTE, his “status” as a failed asylum seeker, someone who had left Sri Lanka illegally, and who would continue to be “monitored” by the Sri Lankan authorities.

4. The applicant asserted that the Tribunal did not address this claim in its decision record and thereby fell into jurisdictional error because it failed to carry out its statutory duty to review.

5. The Minister’s response was that when the Tribunal’s reasons are read holistically, that is fairly, it can be seen that the Tribunal understood the totality of the applicant’s claims, and expressly dealt with all of them, as appropriate, in relation to both the Refugees Convention and the complementary protection criterion at s.36(2)(aa) of the Act.

6. The Minister’s response requires close attention to what the applicant claimed, either as expressly made, or clearly arising from the circumstances presented (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1, Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389).

7. As stated above, the applicant relied on his representative’s submissions (dated 10 May 2013), as articulating his claims in this regard (see CB 168 to CB 178). The Court was not taken to any other part of the applicant’s presentation of his claims in relation to ground four.

8. What is of immediate note is that those submissions were said to have been provided for the purpose of addressing what was raised at the “second” hearing before the Tribunal on 10 May 2013. This was said to be “circumstances encountered by Sri Lankans who have illegally left their country” (CB 168.3).

9. The submissions referred to various pieces of country information that “…confirms that returnees from a country that has been involved in criticising the Sri Lankan government is a significant risk factor to be considered by decision-makers” (CB 168.4).

10. The submissions also refer to country information concerning “the circumstances encountered by Sri Lankan returnees” (CB 169.1). This focussed on what was said would occur on return, including being interviewed by security agencies, being charged under the I&EA, penalties under the I&EA, being bailed or put on remand.

11. Plainly, the initial focus in the submissions was on what would likely happen on return to “all returnees” who left illegally and are subject to the I&EA. However, it was in this context that the submissions also stated “we also contend that he is at risk of significant harm after release into the community, whether or not he serves a year in prison” (CB 169.9).

12. In that context the submissions refer to country information concerning “torture” conducted by the Sri Lankan security agencies (CB 169 to CB 170). The submissions then refer to UNHCR “risk profiles” for Tamils returning to Sri Lanka and those groups that “are at a comparatively higher level of risk…” which includes Tamils from formerly LTTE controlled areas (CB 170 to CB 171).

13. The submissions then address the view said to have been “formed” by “some decision makers” which it was said “…overlooks the persecutory conduct [that] the Sri Lankan authorities might engage in during the interrogation processes” (CB 171.3 to CB 173.3). This leads to the submission on serious penalties said to be imposed under the I&EA and to “remand prisoners” (CB 173).

14. It is in this context that the submissions refer to involuntary returnees remaining at risk of serious harm after their release into the community (CB 174.1).

15. The submissions then revert to focus on the questions of serious harm and significant harm “inflicted on prisoners” (CB 174.3 to CB 177.8). In context, this again was focussed on the period of remand and subsequent imprisonment under the I&EA, not release into the community. This is made clear with the submission that “the applicant is likely to be imprisoned for at least a year” (CB 177.9).

16. What can be said on a fair reading of these submissions (containing the applicant’s claims to fear harm), is that the focus is on the likelihood of risk of serious and significant harm on return to Sri Lanka. That is, the period up to, and including, being on remand and the period while in prison following conviction under the I&EA. This gives strength to the Minister’s submissions before the Court.

17. However, while the references in the representative’s submissions to the likelihood of harm following release into the community are comparatively brief, they are, nonetheless, still express claims to fear serious or significant harm after release into the community (CB 169.9 and CB 174.1).

18. Given the nature of the applicant’s submissions before the Court it is important to note the context in, or the bases on, which those claims were put. At CB 169.9, the context is “…all returnees” and that the applicant is at risk in that context, “also… after release into the community”. At CB 174.1, the focus is on “involuntary returnees… after their release into the community”.

19. As set out above, the submissions also, in part, made reference to “risk profiles for Tamils” (CB 170.5), and a reference to “…the applicant may be singled out because he is a Tamil” (CB 177.10). It is not clear whether these two specific references were directed to the period up to, and including, remand and imprisonment or also with reference to the period after the release into the community. The greater focus of the submissions as a whole would indicate that it was to the former. However, what follows, in my view, and on balance, proceeds on the basis that it was meant to include the period after the release into the community. That is, that the applicant claimed to fear serious and significant harm on return to Sri Lanka, and after release from remand, because of his Tamil ethnicity.

20. An important point to note is the applicant’s reliance now on what he says were the two different and distinct period in which harm would be inflicted on the applicant. That is, the period on return and up to, and including, being on remand, and separately the period after his release into the community.

21. In my view, the applicant’s emphasis now on two distinct periods seeks to provide clarity to the representative’s submission to the Tribunal. That is, at first glance, is not immediately apparent. It is the case, as set out above, that reference was made to harm “after release into the community”. However, I do not understand the representative’s submissions before the Tribunal to make such an emphasis. Rather, in my view on a fair reading of the submissions, that argument was put to emphasise that the applicant could be at risk, as an involuntary returnee, at all times throughout his stay in Sri Lanka. That is, the harm was not confined to just the immediate period of return. The important point is that the claim was that he feared harm as an involuntary returnee, and what would likely happen to him immediately on return, and into the foreseeable future, after release into the community.

22. Taking each of the descriptors of “involuntary returnee”, and “Tamil ethnicity” the question arising is how the Tribunal dealt with these claims. What the Tribunal set out at [58] (at CB 200) to [65] (at CB 204) of its decision record provides the basis of the consideration of the applicant’s ground. The heading at the beginning of this section is important to note, “[i]llegal departure failed asylum seeker” (CB 200). There is no error in the Tribunal taking the view that the applicant claimed to fear harm on return as an involuntary returnee following his failed attempt at asylum in Australia, or that the Tribunal sought to characterise the “involuntary returnee” claim in that way.

23. The Tribunal’s decision record at [58] (at CB 200 to CB 201) plainly acknowledges, and understands, that the applicant’s claim to fear harm on return to Sri Lanka was because he departed illegally and returned as a failed asylum seeker.

24. I understood the Minister’s answer to the applicant’s ground to derive from the proposition that the Tribunal’s analysis was focussed on the claim as made in the submissions. That is, that the Tribunal considered the claim that the applicant would suffer serious and significant harm for reason of his illegal departure from Sri Lanka.

25. That proposition may be accepted in a general sense. The Tribunal plainly, at [58] (at CB 200) to [65] (at CB 204) sought to address the matter of the illegal departure in the applicant’s circumstances.

26. However, the question remains as to whether the Tribunal considered the entire temporal focus of the claim. That is, as set out above, the claim was said to have currency not only for the period immediately on arrival, and subsequent questioning and remand, but also for the period after his release into the community.

27. It is important to note that the Minister’s submissions drew attention to the Tribunal’s reference to what was described as a “considerable amount of independent country information” (see for example [59] at CB 201, [61] at CB 201 to CB 202 and [63] at CB 202).

28. The Minister’s position was that, based on this country information, the Tribunal made “global findings” in relation to returnees to Sri Lanka. These findings addressed, amongst other things, his Tamil ethnicity. The Tribunal found that ethnicity was not an issue as to how returnees were dealt with on return.

29. The Minister’s argument was that the representative’s submissions did not posit that any “different” harm would befall the applicant after release from remand, or that there was a different social group to which he would belong, in circumstances following his release from remand.

30. Rather, the Minister submitted, that the representative’s submissions proposed that the applicant fell within the group of returnees with the characteristic of being Tamil, and then simply submitted that he would remain at risk after release in the same way that he was risk before the release. That is, as a returnee and a Tamil. Therefore, when the Tribunal made findings addressing the applicant’s circumstances as a returnee and as a Tamil, it dealt with all the elements of the applicant’s claim.

31. The applicant relies on two, it must be said, “general” assertions made in the submissions (found at CB 169.9, see at [20] above and CB 174.1, see at [19] above). The statements made by the representative to the Tribunal need to be properly understood in their context. That context was that the applicant, a Tamil, would be at risk on return because he was a “returnee”.

32. The submissions make reference (at CB 169.8) to the I&EA, that the applicant would be subject to the provisions of that Act, and that he would be at risk of Convention related harm, during a series of on arrival interrogations, or during the period on which he would likely be placed on remand. He also faced a risk of a lengthy period in prison and was at risk of both serious (“persecution”) and significant harm during that period.

33. The contention is that the applicant would be at risk of significant harm after he was released into the community, whether or not he goes to prison. It must be said that the representative’s submissions are not a model of clarity in relation to how that contention is subsequently explained.

34. Nonetheless, it is reasonable to say, on balance, that what follows (at CB 169.10) is put in explanation of that contention. The words “[i]n that regard”, as they immediately follow the contention, in my view, serve to link the contention to what immediately follows. That is, that “the conduct of police and other security authorities is of grave concern to the UN Committee Against Torture” (CB 169.10). What then follows are excerpts of the Committee’s report.

35. While it may be that some of that concern is focussed on torture in detention, police custody, and in prison, which would relate to the period of remand and any imprisonment, at least one part can be reasonably understood as relating to their conduct in the community generally (CB 170.1:

    “…The Committee further notes with concern reports documenting individual cases of torture and ill-treatment where the victims were allegedly randomly selected by police to be arrested and detained for what appears to be an unsubstantiated charge and subsequently subjected to torture or ill-treatment to obtain a confession for those charges (art. 2, 11, 15 and 16).”

36. In this light, therefore, the preferred view of the submission is that after release into the community, the applicant, as a returnee, would be subject to random “selection” by the police for arrest and detention on “unsubstantiated charges”.

37. The applicant’s case, in relation to the time after release, has a more distinct focus when regard is had to the direct link between the submissions on “returnees” generally, and their “arrival in the village of destination” where a large proportion of “returnees” were contacted at their homes by either a military or police officer and “were again visited at home for subsequent interviews” (at CB 174.1).

38. This claim on balance may be seen as different to the claim as to what would happen to the applicant immediately on return. It is focussed on the likelihood of harm after release into the community. The Tribunal’s consideration and analysis did not extend to consideration of this claim, as it related to the period after release.

39. Nor can it be said, even on a fair reading, that the Tribunal’s “global” findings properly addressed what was a separate temporal and, in fact, locational claim, made by the applicant.

40. Ground four does reveal jurisdictional error in the Tribunal’s decision. It therefore argues for time to be extended for the making of a competent application. Further, the error is such that in the absence of any reason not to exercise the discretion to grant final relief, the order sought by the applicant should be made.

41. Notwithstanding the above, it is appropriate to consider ground five given it was argued before the Court.

42. Ground five asserts that the Tribunal fell into error because it failed to assess whether the applicant was at risk of serious and significant harm, by reason of the application by Sri Lankan authorities of the “irregular departure provisions” of the Sri Lankan the I&EA.

43. The particulars refer to the Tribunal’s finding that the applicant’s wife’s parents and three siblings could stand as “guarantors” for the applicant in any application for bail made by him, in relation to charges that may be laid against him under the I&EA following his return to Sri Lanka (see [65] at CB 203 and [13] above). The particulars also assert that the Tribunal failed to enquire first, as to whether they could stand as guarantor or, second, assess the risk of harm to the applicant if they could not do so.

44. While the ground asserts a failure, presumably, to properly assess the risk of harm, which may possibly be an assertion of legal error because of a misapplication of the relevant tests, the particulars assert legal error on the basis of a failure to make “enquiries”, which is said to be a failure to undertake a statutory duty of review, and thus revelatory of legal error.

45. Before the Court, the applicant argued that the failure to make the inquiry occurred at the Tribunal hearing. The applicant referred to T13 and T14, which occurred during the “second” hearing before the Tribunal.

46. At this stage in that hearing, the Tribunal put to the applicant certain country information and certain views about that country information in relation to the I&EA, including whether it was a law of general application, the possible detention of the applicant, and relevantly (T13.4):

    “[Tribunal]: …And that from the country information but also looking at your situation you do have a wife and three siblings who could act as guarantors for you at the court.”

47. The applicant’s submission before the Court, was that what is set out at T13 of the Tribunal hearing with the applicant, is a long series of “conclusions” put to the applicant, rather than “questions” put to him by the Tribunal. Further, and in particular, that the Tribunal should have asked the applicant whether there was actually a family member who could fulfil the role of guarantor for him.

48. The applicant relied on Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25]:

    “Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a ‘duty to inquire’, that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. There are two reasons for that.”

49. Further, he referred to Minister for Immigration and Border Protection v SZRFT [2013] FCA 1377 at [40]:

    “In the relevant sense ‘critical’ means ‘of decisive importance with respect to the outcome; crucial’ (Macquarie Dictionary online) (cf. ‘tending to determine or decide; decisive, crucial’: Oxford English Dictionary on-line). Professor Groves pointed out in 2011 that ‘no case has gone so far as to suggest that information must be decisive to the ultimate issue’ (Groves at 202) and I was taken to none since then. Still, it seems to me that for a fact to be critical it must at least be decisive of, or crucially important to an anterior issue which provides ‘a sufficient link’ to the outcome of the review. That is not the case here. At best for the respondents, all the inquiry would have achieved is confirmation of the pregnancy. At worst, it would have shown that SZRTF was mistaken or dishonest. Even if the inquiry had confirmed the pregnancy, numerous other questions remained to be decided before the tribunal could be satisfied that the respondents were entitled to protection visas.”

1. The applicant submitted that the question as to whether there was a family member who could actually act as guarantor for the applicant was an obvious inquiry to make in the circumstances of the case. The Tribunal’s failure to do so was a failure to review and, therefore, revelatory of jurisdictional error in the way explained by the authorities.

2. In essence, I understood the point the applicant sought to make, was not whether there was a family member who could fulfil the role of the guarantor, but whether any such person was prepared to do so or willing to give their consent, or whether it was possible. It is the failure to make the inquiry of that latter circumstance that is the basis for the legal error alleged by the applicant.

3. The Minister’s response was based on the proposition that the applicant’s argument failed to properly understand the nature of the country information before the Tribunal, and to which it brought to the applicant’s attention at the hearing.

4. The Minister’s position was that the applicant’s argument assumes, with reference to the country information, that the consent of a prospective guarantor is required. Noting that the relevant context is the role of a guarantor in the release, “on bail”, of the applicant from remand.

5. The Minister referred to [32] of the Tribunal’s decision record (at CB 188 to CB 189), to which the Court had been taken by the applicant as background to what was subsequently found by the Tribunal at [65] (at CB 203). That paragraph reports on the country information before the Tribunal to which it said it had drawn the applicant’s attention at the “first” hearing, and notes subsequent country information from DFAT which led (in part) to the “second” hearing before the Tribunal. That information was contained in reports from DFAT on the “irregular departure provisions” of the I&EA.

6. The Minister drew attention to the Tribunal’s decision record at [32] (at CB 188):

   “…At a second hearing, I referred to this and noted that the same advice suggested he would be charged, remanded and produced before a magistrate who would determine whether he should be granted bail.  I noted that a person could be remanded for more than 24 hours if they arrived on a weekend or public holiday until the Magistrates Court was in session.  I noted the advice said that all persons are granted bail based on personal recognisance with the requirement for a family member to stand as guarantor and that no payment was required for bail.  I noted that he had a wife and three siblings who could do this…

7. This is also set out at [46] of the Tribunal’s decision record (at CB 195):

   “The Tribunal sought clarification from DFAT as to the meaning of 'remand' in that information.  This is the response:

   A: In question F (DFAT Report 1478 refers) post refers to individuals being charged and remanded for offences regarding their illegal departure. Does ‘remand’ in this sense mean an administrative process to appear at court at a later date? Or does it mean physically remanded and, if so, does it necessarily mean remanded in prison, or in some other type of facility?

   Remand in this sense means physical remand as in the Australian legal context.  Those held on remand are held in a prison.  For those returning to Colombo International Airport, they would be remanded at the Negombo Prison's Remand Unit.  

   Post’s experience with returnees from Australia is that persons are arrested by the Sri Lanka Police Service Criminal Investigation Department (CID) after being processed back into Sri Lanka by the Department of Immigration and Emigration. They are held in police custody at the CID Airport Office throughout the investigation period, which can last up to 24 hours under relevant legislation.

   They are then produced before a magistrate and the Magistrate's Court will determine whether the person is to be released on bail, to appear before the court at a later date, or is remanded into custody.

   If a person needs to be held for more than 24 hours as a result of a Magistrates Court not sitting, such as when a person arrives during a weekend or public holiday, arrested persons are transferred to the nearby Negombo Prison (Remand Section) until the Magistrates Court is in session.

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

   However, we note that the court may decide not to grant bail if the returnee is found to be a facilitator/organiser of people smuggling, or the court may grant specific bail conditions if the person is a repeat offender.”

8. The Minister’s submission was that there is nothing in this country information which was put to the applicant to say that consent by the family member was required.

9. Rather, that the information from DFAT was that a “particular process” would take place. That is, that the applicant would be released on bail, in circumstances where there existed a family member to stand as “guarantor”, without the need for the payment of any money, thus not requiring inquiry into the family’s capacity to pay. That he had various family members was sufficient to meet this requirement to obtain his release.

10. In short, the Minister’s position was that no subjective consent was involved. In essence, to effect release, what was required was a personal recognisance, and the existence of a family member to stand as guarantor.

11. I agree with the Minister that there is no express requirement evident in the country information that the family member must give consent to providing the guarantee. However, I understood the applicant’s submission before the Court to be not only confined to consent, but also the capacity of the family member to present as guarantor. Although this was not developed before the Court, the submission that the inquiry should have been, to the effect of, whether a family member “could” stand as guarantor implies capacity, or availability, to do so.

12. The Minister’s submission, in relation to the requirement for a family member to stand as a guarantor, in my view, relies on a narrow understanding of the DFAT advice. In my view, it is at least arguable that, implicit in the country information, that something more is required than simply the mere existence of a family member, somewhere in Sri Lanka. That is, that a family member must “stand” as guarantor. The process, therefore, is that “all persons” are granted bail on personal recognisance and the presentation of a family member to stand as guarantor.

13. In any event, fine semantic distinctions are not necessary in the disposition of this ground. That is because, even on the applicant’s view of the country information, the inquiry that he says should have been made, was made by the Tribunal.

14. First, it is important to note that the applicant’s case before this Court was that the “obvious” inquiry should have been made of the applicant himself. There was no argument that the Tribunal should have made this inquiry of the family members in Sri Lanka or indeed anyone else.

15. Second, the applicant’s attack was premised on the Tribunal having made a series of statements, about the country information, and not posing each statement as it referred to various elements of the country information, as a question.

16. For example, the statement quoted above, concerning country information and his family situation, the applicant now says, should have been posed as a question instead of a statement. That is, presumably, “do you have family who would be willing and able to stand as guarantors?”.

17. On any plain reading of the transcript that question was asked by the Tribunal, if not in so many words. Having set out a series of propositions flowing from the country information and the applicant’s evidence as to his personal circumstances, the Tribunal said (T14.1):

    “[Tribunal]: So I realise that I just put a large amount of information to you. So I want to give you the opportunity to comment but if you think for example that you need to speak to your agent before answering I'm quite happy for that to occur.”

18. That question was repeated to the applicant’s representative who was also at that hearing (T14.4):

    “[Tribunal:] Thank you. Mr Baylis is there anything you [would] like to say in relation to what I just said?”

19. The Tribunal made it clear that on the matter of bail, and the question of any guarantee, as set out in country information, the applicant had family who could fulfil the role of guarantor. The applicant and his representative were then asked if there was anything they wanted to say. In the circumstances, this was the relevant inquiry. If his family members were unwilling, incapable, or unable, to stand as guarantors then the Tribunal’s question invited any answer to that effect.

20. That the Tribunal chose to present the information initially as statements, rather than asking a series of questions in relation to each item of information does not alter the situation that, ultimately, the question was asked. Ground five does not assist the applicant and is therefore not made out.

Conclusion

1. For the reasons set out above, the application for an extension of time should be granted. Further, the substantive relief the applicant seeks should also be granted. I will make the orders accordingly.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 31 July 2015