FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSZV v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 622 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal – whether the Tribunal failed to consider important evidence relied on by the Applicant – whether the Tribunal misconstrued or misapplied the law in relation to complementary protection and the definition of cruel or inhuman treatment or punishment or otherwise failed to ask the right question – whether the Tribunal failed to respond to an aspect of the Applicant’s claim – whether the Tribunal failed to apply the ‘real chance’ test – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65, 414, 425, 430 |
| Applicant: | SZSZV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1463 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 18 March 2014 |
| Date of last submission: | 11 April 2014 |
| Delivered at: | Sydney |
| Delivered on: | 20 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J. King |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Ms R. Francois |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 1463 of 2013
| SZSZV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal dated 21 May 2013. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka, arrived in Australia as an irregular maritime arrival on 11 April 2012. He applied for a protection visa on 2 July 2012. He claimed that he was a Tamil who had owned a successful jewellery business in Sri Lanka, although during the civil war in Sri Lanka he had to move from his home town to live with his uncle and in 2007 he was “forcibly displaced” and detained in a refugee camp. However the Applicant claimed that the problems that caused him to fear for his life and seek protection did not occur until 2011.
In essence, in his entry interview the Applicant claimed that in about September or October 2011 he had received threatening phone calls from paramilitaries who demanded money or jewels and threatened to abduct and kill him if he did not pay them. He claimed to believe that he was targeted because he was perceived to be a wealthy Tamil.
The Applicant elaborated on his claims in a statutory declaration. He claimed he went into hiding in October 2011 in fear of the paramilitaries, but that in December 2011 men tried to invade the home where he was living. He suspected a local Karuna group was involved with the paramilitary group that had threatened him. He claimed to fear the Sri Lankan authorities and paramilitary groups.
The Applicant attended a Departmental interview. His advisor provided written submissions in which it was claimed that the Applicant feared harm as a wealthy Tamil businessman and as a failed Sri Lankan asylum seeker.
On 12 October 2012 the Applicant’s application for a protection visa was refused. He sought review by the Tribunal. His advisor made further detailed written submissions in which it was claimed that the Applicant feared harm due to his Tamil ethnicity and his imputed anti-government and pro-LTTE political opinion by virtue of his ethnicity, his perceived status as a wealthy Tamil businessman, his illegal departure from Sri Lanka and his unsuccessful application for asylum in Australia.
The Applicant attended a Tribunal hearing on 21 February 2013. A transcript of the hearing is in evidence before the Court as an annexure to an affidavit of Jenny Falconer. After the Tribunal hearing the Applicant’s advisor provided further submissions and country information to the Tribunal.
The Tribunal Decision
On 21 May 2013 the Tribunal affirmed the decision to refuse the Applicant’s protection visa application. It summarised the Applicant’s claims as follows:
His express claims and those arising on the evidence are that he faces serious and/or significant harm in Sri Lanka which he claims will be inflicted by the Sri Lankan authorities and/or paramilitary groups for reason of: his Tamil race; his imputed anti-government and pro-LTTE political opinion; his membership of a particular social groups characterised by his representative as “Tamils who are perceived as wealthy” and/or “failed asylum seekers”. Specifically he claims to fear harm from paramilitaries comprising of the Eelam People’s Democratic Party (EPDP), the Karuna Group/Tamil Makkal Viduthalai Pullikal (TMVP) and the People’s Liberation Organisation of Tamil Eelam (PLOTE), who he claims have, and will continue, to adversely target him as a perceived wealthy Tamil.
The Tribunal accepted that the Applicant was a Hindu Tamil from Sri Lanka who had lived in Batticaloa, Jaffna and Colombo at various times and that he was a goldsmith by profession who had managed a jewellery business in Jaffna. It summarised the Applicant’s claims about extortion attempts and threats between September and October 2011. However it found that the details of these claimed encounters had varied significantly over time and that significant aspects of the Applicant’s claims and evidence were “problematic”. In particular, the Tribunal found that the details of the claims in the Applicant’s entry interview, statutory declaration and evidence at the Tribunal hearing were not consistent.
In considering the claimed extortion attempts the Tribunal also had regard to the fact that, despite the Applicant’s claims that he had received around 25 calls threatening his life and safety, he had continued to work and sleep at his store, kept the store open and continued to keep gold on the premises, but that his evidence revealed no attempts by any of the claimed extortionists to approach him face to face or to enter his shop to take money or goods from him. The Tribunal found that this raised doubt about the truth of the Applicant’s claims to have been targeted for extortion.
In addition, the Tribunal had regard to the Applicant’s evidence that the caller making the demands had not addressed how payment should be made, to the fact that the Applicant had not changed the telephone number on which he claimed he had received the threats and to the fact that his wife continued to live in their home in Batticaloa (where the Karuna group that the Applicant thought was behind the threats was active). The Tribunal found that these matters raised doubts about the truth of the Applicant’s claimed fear of targeted harm in 2011, as did other specified inconsistencies and “problematic” aspects of the Applicant’s evidence about the content of the telephone calls, when he was threatened and when the issue of abduction was raised. The Tribunal was not satisfied that the Applicant had been the subject of any targeted extortion attempt in Sri Lanka.
The Tribunal accepted that an attempted home invasion occurred in December 2011, but was not satisfied that there was a connection between the claimed extortion attempts and this incident. It found that the claim that the perpetrators were the extortionists was speculative and had regard to the fact that it was not satisfied that the Applicant had received the claimed threatening calls. The Tribunal was not satisfied that the home invasion was anything other than an “opportunistic and isolated incident” unconnected to any targeted attempt to extort or harm the Applicant for a Convention reason.
The Tribunal concluded that it was not satisfied that the Applicant had any adverse profile in Sri Lanka at the time of his departure in 2012 (including with the authorities and/or paramilitaries he had identified) or that he (or any of his family members) had been specifically targeted for harm in Sri Lanka, including for a Convention reason.
The Tribunal nonetheless considered whether, despite the absence of any adverse profile at the time he left Sri Lanka, the Applicant was at risk of harm in Sri Lanka in the reasonably foreseeable future. In this context it addressed the contention of the Applicant’s advisor that the Applicant faced a real chance of persecution in Sri Lanka on the basis of his membership of the particular social group of “Tamils who are perceived as wealthy” and/or “Tamils who are perceived to be wealthy business owners”. The Tribunal found that while this claim was supported in part by the Applicant’s claimed past experiences of extortion, it was not satisfied that such incidents had actually occurred.
Beyond this, the Tribunal acknowledged that there were reports from reliable independent sources of extortion and other targeting of wealthy Tamils in Sri Lanka (including with the involvement of paramilitary groups and the potential complicity of elements of the authorities) but found that:
While independent reports such as those excerpted by the applicant’s representative form part of the body of evidence to be taken into account by the Tribunal, generalized reports and information are not determinative of what may await an applicant in the reasonably foreseeable future. Such an assessment must necessarily be informed also by what is accepted of the applicant’s own circumstances.
The Tribunal had regard to the Applicant’s particular circumstances, including its findings that no member of his family had had any adverse encounters or experienced problems in Sri Lanka in connection with the family’s perceived wealth, ethnicity or otherwise apart from one attempted home invasion. The Tribunal considered that the evidence before it suggested that the Applicant, his family and property were not of adverse interest to any person or entity in Sri Lanka, despite the Applicant’s perceived wealth and ethnicity.
While the Tribunal accepted that some cases of extortion of wealthy Tamils in Sri Lanka had been reported, it was not satisfied that this information, in combination with what it accepted of the circumstances of the Applicant and his family, indicated that there was a real chance of him experiencing that type of harm or any other harm amounting to serious harm in connection with being part of either of the suggested particular social groups.
The Tribunal also addressed the contention that being a “failed asylum seeker”, including being “processed” by the Sri Lankan authorities upon the Applicant’s return to Sri Lanka, gave rise to a real chance of serious harm for a Convention reason. As discussed further below in relation to Ground One it referred to the fact that excerpts from a range of independent sources had been provided in support of this claim. It accepted that Sri Lankan government sources had made recent statements linking unlawful arrivals in Australia by boat with attempts to discredit the Sri Lankan government and linking illegal movements of Sri Lankans by boat with terrorists, drug traffickers and human smugglers. However the Tribunal considered that such information suggested that the focus of the Sri Lankan government’s concern was on the trafficking networks and organisers, rather than on the individuals who travelled to Australia by boat.
In relation to the Applicant’s claims about “processing” on return to Sri Lanka as a Tamil failed asylum seeker, the Tribunal had regard to what it described as consistent recent country information (to which it referred) to the effect that the “screening process” upon return to Sri Lanka (which it described) was the same for all returnees (voluntary or escorted) including failed asylum seekers and was not impacted by ethnicity.
On balance, the Tribunal accepted that as a returnee to Sri Lanka the Applicant would go through a process that would bring him into contact with Sri Lankan authorities. However it was not satisfied on the evidence before it that being a returned “failed asylum seeker, even with the characteristic of being a Tamil male with links to a former LTTE stronghold location” would give rise to differential treatment for a Convention reason or that such treatment as the Applicant would experience on his return would amount to or lead to serious harm either at the airport, on return to his village “or at any point in the reasonably foreseeable future” in Sri Lanka.
The Tribunal also addressed the Applicant’s claim that his Tamil ethnicity or race gave rise to a real chance of serious harm in the reasonably foreseeable future if he returned to Sri Lanka. It had regard to information from independent sources submitted by the Applicant’s advisor regarding “tensions” and the treatment of Tamils in Sri Lanka, informed by what it accepted of the Applicant’s own circumstances, in particular the absence of any past difficulties experienced by him or by his family due to ethnicity.
Insofar as it was claimed that the Applicant’s Tamil ethnicity imputed him with a political opinion linked to the LTTE and opposed to the Sri Lankan authorities, the Tribunal was not satisfied on the Applicant’s evidence that he or his family had ever had a connection to the LTTE or any paramilitary or political movement in Sri Lanka or that they had even been questioned on suspicion of such links. It concluded that the imputation of political opinion claim appeared entirely speculative and baseless.
The Tribunal was not satisfied that the Applicant’s Tamil ethnicity and/or profile as a Tamil male from a former LTTE stronghold conferred on him an actual or imputed political opinion linked to the LTTE or opposed to the authorities as claimed or otherwise gave rise to an adverse profile such that the Applicant would face a real chance of serious harm in Sri Lanka in the reasonably foreseeable future.
In addition, for reasons it gave which had regard to the Applicant’s evidence and country information, the Tribunal did not accept that, either alone or in combination, the Applicant’s Tamil ethnicity, his perceived status as a wealthy Tamil businessman, his illegal departure from Sri Lanka and/or his status as a Tamil failed asylum seeker imputed him with any political opinion linked to the LTTE and opposed to the Sri Lankan authorities. It was not satisfied that the Applicant had or would be imputed with any political opinion giving rise to a real chance of serious harm in Sri Lanka in the reasonably foreseeable future.
The Tribunal addressed the consequences of the Applicant’s apparent illegal departure from Sri Lanka on the basis that the evidence before it indicated that he had departed Sri Lanka illegally by boat and without a passport. It accepted that the Applicant’s return to Sri Lanka without his passport would alert the Sri Lankan authorities to his breach of the country’s immigration and emigration laws. It therefore considered whether any Convention-based claim for protection arose as a result.
The Tribunal found that recent and apparently consistent independent information indicated that under standardised procedures applicable to all returnees to Sri Lanka, regardless of their ethnicity or the circumstances of their departure, returnees were routinely subjected to interviews and security clearances upon arrival at the airport that could take some hours. It accepted that those with outstanding arrest warrants, the subject of security interest alerts or involved in people smuggling may be subjected to additional questioning.
The Tribunal continued (at paragraph 49):
Under recently tightened procedures those returnees who are believed to have left the country in breach of the law on immigration and emigration are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or a public holiday the returnee is placed in the remand section of Negombo Prison and may remain there for some days until a bail hearing is available. Conditions in remand have been described in media reports as being overcrowded although there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The penalties eventually imposed on returnees by the courts for illegal departure have involved fines ranging up to Rs 100,000. Independent news sources as recent as 21 March 2013 report that around 936 men have been returned to Sri Lanka from Australia since offshore processing was restarted in August 2012, 735 of them against their will. While the same sources noted acts of intimidation against some returnees with particular political profiles, the report did not identify any serious or significant harm faced by returnees from Australia, including those who had breached laws regarding illegal departure. (Footnotes omitted).
The Tribunal concluded that the Sri Lankan laws and processes in question were laws of general application and was not satisfied that the available evidence indicated any differential or discriminatory treatment for a Convention reason in the processes or treatment related to or arising from illegal departure from Sri Lanka.
It was not satisfied that as a returnee who had departed Sri Lanka illegally the Applicant would be subject to any harm, the essential and significant reason for that harm being a Convention motivation, or that the information before it identified a real chance of serious harm in connection with the treatment of a returned Tamil who was known to have departed Sri Lanka illegally. The Tribunal was not satisfied that the Applicant met the Refugees Convention criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (the Act).
The Tribunal also considered whether the Applicant met the criterion for complementary protection. It found (at paragraphs 52 – 54):
It is submitted that, if the applicant is not found to be a refugee, he is eligible for Complementary Protection. The written submissions made by his representative excerpt extensive array of general country information including in respect of: prison conditions in Sri Lanka; the treatment of failed asylum seekers and returnees; and Sri Lanka’s laws regarding illegal departure and prevention of terrorism.
To the extent that the applicant’s claims to be eligible for Complimentary (sic) Protection in connection with the claimed treatment of failed asylum seekers returned to Sri Lanka, on the basis of the information referred to under “Particular Social Group – “Failed asylum seekers”, including the concerns cited regarding the reliability and detail of reports of harm faced by returnees to Sri Lanka including failed asylum seekers, and the limited insight such reports provide regarding what awaits a person in the applicant’s circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that the treatment faced by returned failed asylum seekers, including those who are Tamil males from Udappu, gives rise to a real risk of significant harm as contemplated by section 36(2A) of the Act.
Further, on the basis of independent sources referred to under “illegal departure”, and on the basis that the Tribunal accepts that the applicant will be viewed by the Sri Lankan authorities to be a person who departed Sri Lanka illegally (by boat and without a passport), the Tribunal is also satisfied that he will be questioned by the Sri Lankan authorities at the airport and in consultation with his local police authorities. The Tribunal is not satisfied that he has any adverse profile which will be revealed throughout or in connection with that process. The Tribunal accepts that the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant. The Tribunal accepts that returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given. The weight of country information also indicates that the applicant will be subject to a fine but not a custodial sentence for his illegal departure from Sri Lanka, and on that basis the Tribunal considers that the prospect of the applicant being detained for a prolonged period of time to be remote. Further, the Tribunal notes that, despite the large numbers of reported involuntary returnees to Sri Lanka, including Tamils males from Australia and including a large number who departed Sri Lanka illegally by boat, and despite the high level media interest in those returnees, there has been no reporting of such returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the act.
On balance, the Tribunal was not satisfied that being a person who had departed Sri Lanka illegally (even when considered cumulatively with what was accepted of the Applicant’s claimed risk profile and having regard to the “independent information sources excerpted by [his] representative”) involved or created a real risk of treatment amounting to significant harm as contemplated by s.36(2A) of the Act. It was not satisfied on the information before it that there were substantial grounds for believing that as a necessary and foreseeable consequence of removal to Sri Lanka the Applicant faced a real risk of being arbitrarily deprived of his life; the death penalty being carried out; being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment for any reason claimed or arising on the evidence, including cumulatively.
On the material before it the Tribunal was not satisfied that the Applicant met the complementary protection criterion within s.36(2)(aa) of the Act. It affirmed the delegate’s decision.
This Application
The Applicant sought review of the Tribunal decision by Application filed on 25 June 2013 containing one ground. An Amended Application containing two grounds of review was filed on 16 January 2014.
Somewhat confusingly, the Applicant’s pre-hearing written submissions addressed what was said to be a proposed amended application filed on 24 January 2014 and contended that the jurisdictional error alleged by the Applicant could be expressed by four distinct points which, however, did not correlate with the two grounds in the Amended Application filed on 16 January 2014. There was no proposed amended application filed on 24 January 2014.
However, the solicitors for the First Respondent acknowledged that in addition to a copy of the Amended Application filed on 16 January 2014, a second amended application had been served on them. This second amended application also identified two grounds of review: misconstruction or misapplication of the applicable law or otherwise failing to ask the right question and a failure to comply with s.425(1) of the Act). The Applicant did not address s.425 ground in his written submissions.
The First Respondent’s written submissions addressed the two grounds in the second amended application because it was understood to be the “proposed amended application”, as well as what were understood to be new unpleaded grounds raised in the Applicant’s written submissions.
At the hearing Counsel for the Applicant stated that in his written submissions he had sought to raise one ground in addition to the grounds in the “proposed amended application” that had been served on the Minister’s solicitors. However he then sought leave to file a Further Amended Application raising four “grounds” which were said to reflect the “points” outlined in the written submissions.
The manner in which the grounds relied on by the Applicant “emerged” may have contributed to a degree of repetition and circularity in the parties’ submissions (reflected in the reasons that follow). However counsel for the First Respondent addressed the “points” raised by the Applicant in oral submissions and did not oppose the grant of leave to the Applicant to file a Further Amended Application relying on those four “points” (provided the Minister had liberty to apply). In these circumstances, despite my concern about a lack of clarity in relation to the grounds relied on at the time of written submissions, leave was granted. A Further Amended Application containing four grounds was filed after the hearing. The First Respondent did not exercise liberty to apply.
After the hearing the parties advised that a question as to the utility of granting the relief sought was no longer in issue and that the Applicant no longer sought declaratory relief.
The Applicant now relies on the Further Amended Application filed on 19 March 2014. It contains four grounds.
Ground one
Ground one in the Further Amended Application is that:
The Tribunal’s “review” under s 414 of the Act miscarried insofar as the Tribunal failed to consider important evidence relied on by the applicant as to the conditions he faces in Sri Lankan prisons.
Particulars
a. UK Home Office operational guidance note dated April 2012, concluding that “[c]onditions 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”. (CB248-249 [195])
b. Report by the UN Committee against Torture dated November 2011:
i. noting “consistent allegations of widespread use of torture and other cruel, inhuman or degrading treatment of suspects in police custody … perpetrated by State actors”;
ii. expressing concern at “the deplorable levels of overcrowding and poor conditions prevailing at police stations and prisons, especially the lack of hygiene, inadequate medical care, the non-separation of convicted and remand prisoners …”; (CB249 [196])
c. Country report on human rights practices in Sri Lanka by the US Department of State dated May 2012:
i. “Prison conditions were poor and did not meet international standards due to overcrowding and the lack of sanitary facilities”;
ii. “More than 13,000 of these prisoners either were awaiting or undergoing trial … More than 1,000 prisoners awaiting trial had spent over two years in remand. Trial delays often were caused by lengthy legal procedures, large numbers of detainees, judicial inefficiency, and corruption. Legal advocacy groups asserted that it was common for the length of detention to equal or exceed the sentence for the alleged crime.” (CB250 [199])
The Applicant submitted that the Tribunal’s review had “miscarried” because in its reasons for decision it did not refer to what was said to be a substantial body of evidence referred to in the advisor’s written submissions to the Tribunal and relied on by the Applicant. It was clarified in oral submissions that the evidence in question consisted of the extracts from the 2012 UK Home Office Guidance Note, the November 2011 UN Committee Against Torture Report and the May 2012 US Department of State Country Report on human rights practices in Sri Lanka. This is now set out in the particulars to Ground One in the Further Amended Application.
The Applicant submitted that this evidence indicated that conditions in Sri Lankan prisons were likely to reach the “threshold” in Article 3 of the European Convention on Human Rights (European Convention) for inhuman or degrading treatment or punishment which is in “materially identical” terms to Article 7 of the International Convention on Civil and Political Rights (ICCPR). The evidence was said to be important to the Applicant’s claims about the conditions he faced in Sri Lankan prisons and hence relevant to whether he met the complementary protection criterion for a protection visa in s.36(2)(aa) of the Act which is as follows:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) 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;
Significant harm is defined in s.36(2A) of the Act as follows:
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 particularised evidence about conditions in prison and police custody in Sri Lanka was said to be of particular relevance to the Applicant’s claims to fear “significant harm” of the type described in s.36(2A)(c), (d) and (e) of the Act.
Counsel for the Applicant pointed out that the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s.5(1) of the Act incorporate references to the International Covenant on Civil and Political Rights (referred to as the ICCPR) 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.
and
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.
Article 7 of the ICCPR provides that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
The Applicant submitted (relevant to Grounds One and Two) that as acts or omissions that were “not inconsistent with Article 7 of the Covenant” were excluded from the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s.5(1) of the Act, international decisions in relation to Article 7 of the ICCPR or Article 3 of the European Convention on Human Rights were of guidance in relation to what constituted cruel or inhuman treatment or degrading treatment or punishment for the purposes of the complementary protection criterion.
It was contended that the Applicant’s claims before the Tribunal included claims, made by his advisor on his behalf, that he feared “significant harm” as a result of sanctions arising from, inherent in or incidental to the operation of the Sri Lankan Prevention of Terrorism Act (the PTA) and/or the Immigrants and Emigrants Act (the IEA). There was said to be evidence before the Tribunal that the PTA provided for detention of those suspected of being involved in any unlawful activity for a 90 day period (which could be extended) before charges were laid and that under the IEA a term of imprisonment of between one and five years (as well as a fine) could be imposed on those prosecuted for illegal departure from Sri Lanka.
It was submitted that the harm arising from the application of lawful sanctions under the IEA or the PTA would result in acts and/or omissions inconsistent with the rights and obligations prescribed by the ICCPR and the European Convention. This was said to be relevant, insofar as the proper construction of s.36(2)(aa) of the Act and the provisions in the Act which gave content to the expression “significant harm”, was “informed” by Australia’s international obligations under the ICCPR and the jurisprudence in relation to the “materially identical provision” in Article 3 of the European Convention (see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 at [70], [135] and [192] per Lander and Gordon JJ, at [310] and [313] per Besanko and Jagot JJ and at [378] per Flick J applying Plaintiff M61/2010E v The Commonwealth of Australia and Others (2010) 243 CLR 319 at 339; [2010] HCA 41 at [27]).
According to the Applicant the particularised evidence was relied on in relation to his claim that he feared harm by reason of conduct amounting to cruel or inhuman treatment or punishment should he be imprisoned or held on remand for any length of time. His advisor had submitted that these items of information (and other cited material) indicated that there were substantial grounds for believing that if the Applicant was returned to Sri Lanka he would be subjected to the types of harm described in s.36(2A)(c), (d) and (e) of the Act.
The Applicant contended that European decisions in relation to Article 7 of the ICCPR had recognised that a range of prison or detention conditions constituted cruel, inhuman or degrading treatment or punishment in breach of Article 7 (such as extremely cramped or unsanitary conditions, exposure to cold or inadequate ventilation or lighting, lack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate exercise and denial of medical treatment) and that the country information particularised in Ground One which identified the existence of such conditions in Sri Lankan prisons had been ignored by the Tribunal.
It was acknowledged that the Tribunal had found that the Applicant may be remanded in prison for a few days in conditions which were cramped, uncomfortable and unpleasant. However it was submitted that it appeared from the Tribunal’s reasons for decision (in particular in paragraph 54 set out at [30] above and its earlier discussion in paragraph 49 set out at [27] above) that the Tribunal had not considered the particularised evidence in relation to Sri Lankan prison conditions, even though the Tribunal had accepted that the Applicant would be viewed by the Sri Lankan authorities as a person who had departed Sri Lanka illegally. The Applicant pointed out that the evidence particularised in this ground was not referred to in the Tribunal reasons. Rather, the Tribunal found that there had not been reports that returnees held (in prison) awaiting bail hearings had been subject to torture or other forms of deliberate mistreatment (at paragraph 49) and that there had been “no reporting of [involuntary returnees to Sri Lanka, including Tamil males from Australia] … being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment” (at paragraph 54).
The Applicant submitted that, in contrast to the Tribunal’s finding, the part of the UK Home Office Guidance Note (in particular 1(a)) extracted in the Applicant’s advisor’s submissions to the Tribunal of 15 February 2013 made the point that the very poor conditions in prisons and police custody in Sri Lanka (and levels of overcrowding, unsanitary conditions, lack of food and incidents of torture) were likely to reach the threshold in Article 3 of the European Convention and Article 7 of the ICCPR. It was contended that this evidence had been relied on by the Applicant in support of the proposition that conditions in Sri Lankan prisons were inconsistent with the international obligation not to subject a person to cruel or inhuman treatment or punishment (as prohibited by Article 3 of the European Convention and Article 7 of the ICCPR) but that it had been ignored by the Tribunal.
It was also submitted that the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) Report (now extracted in particular (b) to Ground One) had been relied on by the Applicant’s advisor in relation to the claim that the Applicant faced a real risk of significant harm given inhuman prison conditions in Sri Lanka, insofar as the Report described reported allegations regarding the widespread use of torture and other cruel, inhuman or degrading treatment of persons in custody and expressed concern about deplorable overcrowding and poor conditions in Sri Lankan police stations and prisons, especially the lack of hygiene, inadequate medical care and the non-separation of convicted and remand prisoners. The Applicant’s advisor had submitted that such prison conditions demonstrated a gross pattern of human rights violations in prisons which would amount to significant harm.
This evidence was said to be important because of the Applicant’s claim to fear harm in Sri Lankan prisons which was in violation of the ICCPR prohibition on inhuman treatment or punishment. It was submitted that this evidence was not addressed by the Tribunal’s findings about conditions in such prisons.
Further, it was submitted that the Tribunal had failed to consider the evidence in the May 2012 US Department of State, Country Report for Sri Lanka (now in particular 1(c)) that prison conditions in Sri Lanka were poor and did not meet international standards due to overcrowding and the lack of sanitary facilities; that periods of pre-charge and/or pre-trial imprisonment on remand in Sri Lanka were lengthy; as to a large number of prisoners on remand; suggesting that it was common for the time on remand to equal or exceed the sentence for an alleged crime; and in relation to the reasons for trial delays.
The Applicant submitted that the Tribunal’s reasons did not demonstrate any weighing of the reports relied on by him as “demonstrating the deplorable conditions in Sri Lankan prisons and the failure of those conditions to meet international standards”. Rather, it was submitted that the “totality” of the Tribunal’s findings in this respect appeared to be that the Applicant may be remanded for a few days in conditions that were cramped, uncomfortable and unpleasant and that although conditions in remand were described as being overcrowded “there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment”. It was contended that the Tribunal had not determined whether any other conditions asserted by the Applicant prevailed in Sri Lankan prisons or whether the conditions which it found prevailed amounted to cruel or inhuman treatment or punishment or degrading treatment or punishment within the statutory definitions.
The Applicant pointed out that the only media report about conditions in remand (cited in footnote 17 in paragraph 49 of the Tribunal reasons for decision) was an article from the Sydney Morning Herald. It was submitted that, given the importance of the particularised items of evidence to the Applicant’s claims to fear significant harm in prison in Sri Lanka as a person who had departed Sri Lanka illegally, it was incumbent on the Tribunal, as part of its review, to give consideration to the international reports providing evidence that, as stated by the UK Home Office, conditions in Sri Lankan prisons did not meet international standards.
The Applicant submitted that Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547; [2013] FCAFC 114 supported three propositions: first, that the Tribunal’s duty to review the application under s.414 of the Act required it to form, for itself and on the material before it, the requisite state of satisfaction under s.65 of the Act in respect of the criteria for a visa in issue before it (at [32] and see [34]); secondly, that as the “review” 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 the home country] for him if he were to be returned there” (at [38]) that the review would miscarry where the Tribunal’s reasons did not permit the Court to infer that the Tribunal had formed the requisite state of satisfaction; and thirdly that where the alleged error was a failure to consider evidentiary material, the “fundamental question” involved an evaluation of “the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error” (at [70]) (and see Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 and Minister for Immigration and Border Protection v SZSRS and Another (2014) 309 ALR 67; [2014] FCAFC 16).
In MZYTS the Full Court of the Federal Court held (at [49] – [50]) that:
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
We do not accept the Minister’s submission. The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
The Applicant submitted that in accordance with these principles it was apparent that the Tribunal had fallen into error in failing to consider the evidence in question. It was contended that the Court was entitled to infer that the reasons of the Tribunal set out the findings of fact that it considered material to its decision and that the reasons represented what the Tribunal itself considered important and material (see MZYTS at [49] – [50] and SZSRS). It was pointed out that in MZYTS the absence of reference by the Tribunal to certain evidence had permitted an inference to be drawn that the Tribunal had not undertaken the process of weighing evidence and preferring some items of evidence over others.
It was submitted that, similarly, in this case an inference should be drawn that as there was no reference by the Tribunal to the evidence in question the Tribunal had not “weighed and preferred” the evidence referred to in the particulars to Ground One. It was acknowledged that there was evidence to the contrary before the Tribunal, but submitted that the Tribunal had fallen into error by failing to explain why it preferred evidence that was contrary to that relied on by the Applicant (see MZYTS at [50]) and that in the absence of a finding of fact clearly expressing a preference for one body of evidence over the other it could not be inferred that the Tribunal must have considered and rejected the evidence relied on by the Applicant.
The importance of the particularised evidence to the review was said to be such that this gave rise to a jurisdictional error. It was submitted that had the Tribunal accepted this evidence it would have been dispositive of the Applicant’s case in his favour and hence that the Tribunal was obliged to consider this material in line with the approach in MZYTS. In particular, the Applicant contended that it was incumbent on the Tribunal as part of its review to consider the international reports that provided evidence that conditions in Sri Lankan prisons did not meet international standards and whether returning the Applicant to those conditions would involve a violation of Australia’s international obligations under the ICCPR that were said to be imported into the complementary protection provisions in the Migration Act.
In written submissions the First Respondent addressed what at that time was understood to be a contention that the Tribunal review had “miscarried” because the Tribunal had erred in stating that there was no evidence before it of mistreatment of returnees from Australia to Sri Lanka to the level required to enliven complementary protection obligations. It was submitted that the evidence before the Tribunal in relation to such returnees was consistent with and supported this finding, whereas the evidence referred to in the Applicant’s written submissions (subsequently included in the particulars to Ground One) was generic and not to the point, as it did not deal with how the police and the courts treated minor breaches of the IEA. It was submitted that any ground of review asserting that the Tribunal had failed to give proper, genuine and realistic consideration to the material did not arise (cf D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187 at [270] – [271] per Basten JA with whom Bathurst CJ agreed).
The First Respondent submitted that insofar as this ground (and/or what became Ground Two in the Further Amended Application) proceeded on the premise that the proper construction of the complementary protection criterion in the Act was informed by Australia’s international obligations under various international instruments, such premise was flawed. It was submitted that in Minister for Immigration and Citizenship v MZYYL and Another (2012) 207 FCR 211; [2012] FCAFC 147 (at [18] – [20]) Lander, Jessup and Gordon JJ had held that this was not the case and that the Full Court in SZQRB did not hold otherwise. It was also contended that any consideration by the European Human Rights Committee of Article 3 of the European Convention was simply not relevant.
In oral submissions, Counsel for the First Respondent canvassed the evidence before the Tribunal in some detail and submitted that when regard was had to the Tribunal decision and to all the material before the Tribunal it was apparent that it had correctly identified all the claims made by and on behalf of the Applicant and that it was aware of the country information relied on by the Applicant (including in relation to prison conditions in Sri Lanka and allegations of mistreatment of suspects in police custody). It was submitted that the Tribunal also had regard to the inability of government bodies to verify general allegations about the use of torture and other significant harm and that it was apparent that the Tribunal did not accept that general statements about prison conditions for prisoners generally were relevant to what would happen to the Applicant as a returned asylum seeker who had left Sri Lanka illegally. The First Respondent submitted that the Tribunal had not ignored the evidence relied on by the Applicant, but rather that it had preferred more recent, detailed and relevant evidence (cf MZYTS).
Counsel for the First Respondent pointed out that on the basis of independent information that the Tribunal had cited (including more recent information about procedures on return to Sri Lanka in relation to illegal departees), the Tribunal had accepted that the Applicant may be remanded in prison for a few days “in conditions which are cramped, uncomfortable and unpleasant” but, having regard to “the weight of country information”, had found that the prospect of the Applicant being detained for a prolonged period of time was remote. Moreover, the Tribunal had addressed the definition of “significant harm” in the Migration Act but had found that there had been no reporting of such returnees being arbitrarily deprived of their life; of the death penalty being carried out on them; or of such returnees being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to amount to degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A) of the Act.
It was pointed out that the Tribunal had acknowledged that the Applicant’s advisor had provided excerpts from “a range of general independent sources” in support of his submissions about a risk of harm to the Applicant as a failed asylum seeker and in being “processed” by authorities on return to Sri Lanka. However the Tribunal was said to have preferred specific recent advice from the Department of Foreign Affairs and Trade (DFAT) in relation to the processing of returnees, including failed asylum seekers, to Sri Lanka, consistent with cited reports from other governments as well as independent news sources.
In addition, in the context of considering the complementary protection criterion the Tribunal was said to have correctly identified and considered the claims made by the Applicant. It referred to the submissions made by the Applicant’s representative, which it acknowledged excerpted an “extensive array of general country information, including in respect of prison conditions in Sri Lanka” (emphasis added), as well as the treatment of failed asylum seekers and returnees and Sri Lanka’s laws regarding illegal departure and prevention of terrorism.
Thus, in contrast to the position in MZYTS the Tribunal in this case was said to have relied on material consisting of country information and media reports that was more up-to-date than the material relied on by the Applicant and that was specifically relevant to the circumstances of failed asylum seekers who were forcibly returned from Australia. In particular, it was said to be apparent from its reasoning that the Tribunal did not accept that statements about prison conditions generally for prisoners in Sri Lanka were relevant to the Applicant, given its conclusion that he may only be remanded for a short time, that bail was routinely given and that the likely penalty was a fine.
The First Respondent submitted that while the Tribunal did not discuss in detail the “extensive array of general country information, including in respect of prison conditions in Sri Lanka” cited by the Applicant’s advisor (in particular the items referred to in the particulars to this ground) it was clear that the Tribunal had a larger body of evidence before it, as was acknowledged in its reasons and detailed in the footnotes to its decision. In these circumstances it was submitted that the Tribunal’s preference for evidence that was more detailed, relevant and up-to-date than that cited by the Applicant did not render this a case in which the Tribunal had ignored evidence put before it in a manner constituting jurisdictional error.
Consideration
As explained in the Applicant’s submissions, this ground relates to whether the Tribunal’s review “miscarried” on the basis that it failed to consider the three particularised items of evidence in its consideration of whether the Applicant met the complementary protection criterion. Such evidence was said to be “important”, having regard to the claims the Applicant was said to have made as to the conditions he faced in Sri Lankan prisons. It was contended that it could be inferred from the Tribunal’s failure to refer to this evidence in its reasons that the Tribunal had ignored it.
This ground is not made out.
The Applicant contended that information about prison conditions in Sri Lanka which would meet the threshold for breach of Article 3 of the European Convention (and hence Article 7 of the ICCPR) was important to the exercise of the Tribunal’s function because the Applicant’s claim was that he would be subjected to prison conditions that did not meet international standards (in particular the ICCPR). However, (as discussed further below in relation to Ground Two) the Applicant’s claim was, relevantly, that he met the complementary protection criterion. While such criterion reflects and seeks to give effect to Australia’s international obligations (see SZQRB at [70]), what was in issue was whether the harm the Applicant claimed to fear was within the statutory definition of conduct constituting “significant harm” (see ss.5(1) and 36(2A) of the Act). The question of whether conditions in Sri Lankan prisons met international standards (including the European Convention and the ICCPR) was not determinative in relation to whether harm was within the Migration Act definitions of “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”. These definitions do not simply adopt the “standards” of Article 7 of the ICCPR or Article 3 of the European Convention. Rather, they define the acts or omissions that satisfy the definitions, but exclude acts or omissions not inconsistent with Article 7 of the ICCPR or arising only from lawful sanctions that are not inconsistent with the Articles of the ICCPR.
In MZYTS the Full Court of the Federal Court concluded that the Tribunal had failed to form the state of satisfaction required for the purposes of the review in respect of the criterion in s.36(2)(a) of the Act in circumstances where its reasons did not disclose any consciousness or consideration of circumstances prevailing in Zimbabwe (the visa applicant’s home country) notwithstanding the centrality of such matters to his clearly articulated claim to fear persecution in changed circumstances in Zimbabwe. The centrality of the matters in question and the absence of reference to such matters in the Tribunal reasons led Kenny, Griffiths and Mortimer JJ in MZYTS to infer that the Tribunal had not considered those matters (at [62]). This was said to amount to a failure to consider the claim advanced by the visa applicant and hence a failure to perform the Tribunal’s statutory task (ibid and see [63]).
In rejecting the proposition that any error was merely of a factual nature, the Court in MZYTS did not accept that the distinction between a “relevant consideration” and a “mere failure to deal with evidence” was “as encompassing” or that the line was “as bright” (at [64]) as the Minister had submitted (at [64]). However, the visa applicant’s contention in MZYTS was not simply that the Tribunal failed to take into account a piece of evidence, but rather that it did not perform its statutory task because it failed to determine his claim about the increased risk to him on return to Zimbabwe from early 2011 on because of the election cycle and consequent political violence and his political status. Such an analysis was said (at [67] – [70]) to be consistent with Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30, Minister for Immigration and Citizenship v SZJSS and Others (2010) 243 CLR 164; [2010] HCA 48, Kirkv Industrial Relations Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 and with the principles outlined by Robertson J in SZRKT (at [98] – [111]). In that context it was explained that ignoring relevant material may demonstrate a failure by the Tribunal to perform the statutory task “because of the nature of the claims made and the nature of the material ignored” (MZYTS at [68]) and see SZRKT at [97]). However, as Robertson J was said to have accepted in SZRKT, the “fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error” (MZYTS at [70]).
Moreover, in MZYTS it was accepted that an applicant had the burden of persuading the Court to draw an inference that there had been a failure to deal with a claim or to consider a matter the Tribunal was obliged to consider (at [53]). Their Honours acknowledged (at [49]) that:
The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
In rejecting a submission that the Tribunal had not ignored recent or significant material centrally relevant to the decision, but had simply preferred other material probative of the question about what would happen to the applicant on return to Zimbabwe, their Honours had regard to whether the material in question was “apparently pertinent” stating (at [50]):
The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
Subsequently in SZSRS Katzmann, Griffiths and Wigney JJ acknowledged (at [29]) that:
The approach favoured in SZRKT - disp6 and MZYTS is that the distinction between claims and evidence might be a useful tool of analysis but is not itself the fundamental question. The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.
Their Honours addressed the significance of the fact that the Tribunal’s reasons in SZSRS had made no reference to material said to have been overlooked, stating (at [33] – [34]):
The Tribunal is required by s 430 to set out its findings on questions of fact it considers to be material, together with the evidence and other material on which those findings were based. In these circumstances, a Court considering a challenge to the Tribunal’s decision is generally entitled to infer that any matter not mentioned in the reasons was, at the very least, not considered by the Tribunal to be material to its review: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 and SZGUR.
The fact that a matter is not referred to in the Tribunal’s reasons, however, does not necessarily mean the matter was not considered by the Tribunal at all: SZGUR at [31]. The Tribunal may have considered the matter but found it not to be material. Likewise, the fact that particular evidence is not referred to in the Tribunal’s reasons does not necessarily mean that the material was overlooked. The Tribunal may have considered it but given it no weight and therefore not relied on it in arriving at its findings of material fact. But where a particular matter, or particular evidence, is not referred to in the Tribunal’s reasons, the findings and evidence that the Tribunal has set out in its reasons may be used as a basis for inferring that the matter or evidence in question was not considered at all. The issue is whether the particular matter or evidence that has been omitted from the reasons can be sensibly understood as a matter considered, but not mentioned because it was not material. In some cases, having regard to the nature of the applicant’s claims and the findings and evidence set out in the reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the reasons, even if it were then rejected or given little or no weight: MZYTS at [52].
Such principles are of relevance in relation to the issue of whether the Tribunal “overlooked”, and in that sense failed to consider, the extracted items of country information in the particulars to Ground One.
While the Tribunal did not refer expressly to any of the particularised items in its reasons for decision, that does not necessarily mean that the items or aspects of the Applicant’s claims were not considered (SZSRS at [33]). The issue of what inference should be drawn from the absence of express reference to these particular items is to be considered in light of the claims made by the Applicant and by his advisor on his behalf, the Tribunal’s findings and the evidence referred to in its reasons and the importance of the particularised extracts of independent country information to the exercise of the Tribunal’s function.
The particularised information related to conditions in general for prisoners and for those held on remand long term in prison and police custody in Sri Lanka and included allegations of poor conditions, torture and other mistreatment, and lengthy periods of detention on remand for prisoners. The reports in question were published between November 2011 and May 2012. None of the particularised extracts referred specifically to the situation of returned failed asylum seekers or those who had departed Sri Lanka illegally.
In his initial entry interview and statutory declaration of 2 July 2012 the Applicant did not raise any claims to fear imprisonment. His advisor’s submission to the Department of 10 August 2012 cited various items of independent country information (including the November 2012 UNCAT Report regarding ongoing allegations about widespread use of torture despite the end of the Sri Lankan conflict) in support of the claim that as a failed Sri Lankan asylum seeker the Applicant faced detention, arrest and torture amounting to a real risk of significant harm on return to Sri Lanka.
Under the heading “Complementary Protection” the advisor’s submission to the Tribunal of 15 February 2013 referred to a 2012 crackdown on asylum seekers departing Sri Lanka and detention of would-be asylum seekers. The submission also referred to reports of the detention of returned failed asylum seekers. In the context of a submission that there was a real risk that the Applicant faced significant harm within s.36(2A) of the Act it was claimed that as a consequence of the application of the PTA and the IEA the Applicant faced harm as a result of sanctions arising from, inherent in, or incidental to the operation of this legislation. The advisor referred to the three items of particularised information in support of the proposition that significant harm arising from the application of lawful sanctions under either the PTA or the IEA would result in acts and/or omissions “inconsistent with the rights or obligations prescribed by the Covenant”.
The advisor also referred to other country information in support of the proposition that the Applicant would be detained for 90 days without charge and that he may be charged and potentially convicted and imprisoned for one to five years for having departed Sri Lanka illegally. These circumstances were said to constitute substantial grounds for believing there was a real risk of significant harm within ss.36(2A)(c), (d) and (e) of the Act. Relevantly, reliance was placed on the three items of particularised information in support of the proposition that there was a real risk the Applicant faced conditions and treatment in Sri Lankan prisons that would constitute significant harm within s.36(2A)(c), (d) and (e).
In its reasons for decision the Tribunal stated that its assessment was informed by the Department’s file, documents provided in support of the protection visa application, the review application relating to the Applicant, its assessment of the Applicant’s evidence at the hearing as well as the advisor’s post-hearing submission (which addressed concerns that arose at the hearing). It appears from the Court Book that the advisor’s submission of 15 February 2013 was the only document provided in support of the review application (apart from the post-hearing submission and attached information). The Tribunal stated that it had had regard to this material and to other material available to it from a range of sources “referred to, where relevant, in its consideration below”.
Moreover, after finding that it was not satisfied that the Applicant had any adverse profile in Sri Lanka, including with the authorities at the time of his departure in 2012, the Tribunal made the point (at paragraph 24) (albeit in the context of considering the Applicant’s claims to fear extortion) that:
While independent reports such as those excerpted by the applicant’s representative form part of the body of evidence to be taken into account by the Tribunal, generalized reports and information are not determinative of what may await an applicant in the reasonably foreseeable future. Such an assessment must necessarily be informed also by what is accepted of the applicant’s own circumstances.
Consistent with this approach, when the Tribunal considered the advisor’s submission that the Applicant feared harm as a member of the particular social group of “failed asylum seekers”, it acknowledged that this claim extended to a claim of harm while being “processed” by the authorities. It addressed country information in support of this proposition as follows:
In support of that submission, the applicant’s representative excerpted a range of general independent sources, including reports by Human Rights Watch, Amnesty International, and Freedom From Torture. The information submitted also refers to the UK High Court’s recent stay of deportations of failed Tamil asylum seekers and to comments from the Sri Lankan High Commissioner to Australia linking Tamil boat arrivals with an LTTE campaign to discredit the Sri Lankan Government. (Emphasis added).
One of the items of country information cited by the advisor in this respect was the UNCAT Report extracted in particular 1(b) to this Ground.
The Tribunal accepted that Sri Lankan Government sources had made statements linking unlawful boat arrivals in Australia with attempts to discredit the Sri Lankan Government and linking illegal movements of Sri Lankans by boat to terrorists, drug traffickers, and human smugglers. However the Tribunal was of the view that this information suggested that the Sri Lankan government was concerned with trafficking networks and organisers rather than with individuals who travelled to Australia by boat. Moreover, the Tribunal did not accept that the Applicant faced a lengthy period of detention or imprisonment (and hence lengthy exposure to overcrowding, other poor prison conditions and/or mistreatment). The Tribunal had regard to an August 2011 Report from the Immigration and Refugee Board of Canada (the IRBC) in its consideration of the consequences of the Applicant’s illegal departure from Sri Lanka. This Report specifically related to the treatment of Tamil returnees to Sri Lanka, including failed asylum seekers and the “repercussions upon return, for not having proper government authorisation to leave the country such as a passport”. The IRBC Report cited information from the Canadian High Commission in Colombo to the effect that the screening process was the same for all persons returning to Sri Lanka, whether voluntarily or by escort, and was not impacted by ethnicity. The Tribunal recorded that the IRBC Report described the process at that time as involving detention while police records were checked which “may take 24-48 hours to complete depending on the day of the week a person arrives in Colombo” but observed that, according to the IRBC, following such admission process deported Sri Lankan nationals were free to enter the country.
The Tribunal was of the view that what it regarded as recent advice from DFAT provided “a consistent account of the process involving returnees, including failed asylum seekers, to Sri Lanka”. In footnotes to its decision it referred to six DFAT Reports from September 2009 to March 2013.
The Tribunal also acknowledged that information provided to the IRBC by various human rights organisations and lawyers suggested that failed asylum seekers were subjected to special questioning at the airport and almost always detained, sometimes for a few hours and sometimes for months until security clearance was obtained. However it took into account contrary advice from the Canadian High Commission as at August 2011 to the effect that it was aware of only four cases of persons having been detained upon arrival in Sri Lanka and the information that those cases had involved outstanding criminal charges in Sri Lanka, and were not related to the returnees’ overseas asylum claims or their ethnicity. It had regard to the advice that the screening process for all returnees remained the same.
Moreover, the Tribunal expressed its mindfulness of “alternative information” provided by human rights groups and reputable organisations regarding the treatment of returnees to Sri Lanka, including failed Tamil asylum seekers, which suggested that they were at risk of serious or significant harm on their return because of having sought asylum abroad. Some items and sources were cited as of particular note. However the Tribunal found that an October 2012 Report by the UK Home Office which highlighted concerns in relation to the detail and accuracy of such information was of significance.
As set out above, having considered information which related specifically to the situation of returned failed asylum seekers, the Tribunal found that “on balance” it accepted that as a returnee the Applicant would go through a process which would bring him into contact with the Sri Lankan authorities, but was not satisfied that being a returned failed asylum seeker, even with characteristics of being a Tamil male with links to a former LTTE stronghold location, would give rise to differential treatment for a Convention reason or that the treatment the Applicant would experience on his return would amount to serious harm “at any point” in the reasonably foreseeable future in Sri Lanka.
While these findings related to the situation of failed asylum seekers and the Refugees Convention criterion, the Tribunal’s consideration of independent country information about the treatment of returnees to Sri Lanka in that context forms part of the background to its subsequent consideration of the risk of harm to the Applicant as a person who departed Sri Lanka illegally, both in relation to the Refugees Convention criterion and the complementary protection criterion. In particular, it is clear that the Tribunal did not accept that there was a real chance or real risk that the Applicant would face more than short term detention on arrival in Sri Lanka by reason of being a failed asylum seeker.
While the Applicant had not expressly claimed that he departed Sri Lanka illegally, the Tribunal was of the view that the evidence before it indicated that he left without his passport and by boat. The Tribunal accepted that the Applicant’s return to Sri Lanka without his passport would alert the authorities to his breach of Sri Lanka’s immigration and emigration laws. It therefore considered whether any Convention-based claim for protection (or claim under the complementary protection criterion) arose from those circumstances.
In that context the Tribunal again referred to “recent” information from DFAT (the Reports from September 2009 to March 2013 cited earlier in its reasons for decision) said to appear to be consistent with reporting from other governments as well as independent news sources (and in this context it referred to the 2011 IRBC Report as well as to a Press Report of 26 June 2011 to the effect that the South Asia Regional Director of the UK Border Agency had expressed the view that there was no evidence of safety issues on return for deportees). In addition, the Tribunal referred to a Sydney Morning Herald article of 8 December 2012 (a copy of which is contained in the Supplementary Court Book). Relevantly, that article, by Ben Doherty, reported on treatment of a “batch” of Sri Lankan failed asylum seekers returned to Sri Lanka from Australia. While all these returned failed asylum seekers were said to have been imprisoned, the article explained that their evidence was that after arrival in Sri Lanka on a Friday afternoon they were interviewed and on Saturday were taken by bus to Negombo Prison where, according to one returnee, they were put in “with the murderers and the drug addicts” and they “slept on the floor in line, our bodies pressed up against each other. We could not roll over.” Another returnee, in another cell, claimed that “some nights, we had to take turn sleeping because [there was] no space. One would sit up while the other slept on the ground. If you had money, you could pay a bribe to get more space”. However the article explained that after three nights in prison all 50 returnees had appeared in court and that all were granted bail.
The Sydney Morning Herald article also reported remarks by a lawyer representing failed asylum seekers and by the CEO of the Refugee Council of Australia suggesting that while those caught leaving Sri Lanka and those returned by Australia faced the same charge, those intercepted (leaving) by Sri Lankan authorities faced “far harsher treatment” and could “spend months in prison”, whereas (relevant to the Applicant’s situation) those returned from Australia were “released sooner, depending on their history and the interest Sri Lanka’s authorities have in them”. In this context it was suggested that some returnees spent up to a fortnight in jail, while others were released in days and, if found guilty of leaving the country improperly, were fined.
Relevantly, the Tribunal found that this recent information indicated “in summary” that under standardised procedures which applied to all cases, regardless of the person’s ethnicity, or the circumstances in which they left the country, returnees were routinely interviewed at the airport on arrival in processes involving police and security clearances and checks with the person’s local police station that may take some hours. It was accepted that if such checks revealed outstanding arrest warrants for prior criminal offences, that the person was on an immigration watch list or of security interest, or there was evidence of involvement in people smuggling, they may be subject to further questioning. The Tribunal accepted (in paragraph 49 set out at [27] above) that under recently tightened procedures (and it is apparent that this is a reference to a change in procedures in November 2012 which post-dated the information particularised in Ground One), returnees who were believed to have left Sri Lanka in breach of the IEA were arrested at the airport and brought before a court to apply for bail. Bail was said to be routinely given on the applicant’s own recognisance, although a family member was also required to provide surety. The Tribunal accepted that if the arrival occurred over a weekend or on a public holiday, the returnee would be placed in the remand section of Negombo Prison and may remain there for some days until time for a bail hearing was available. The Tribunal also acknowledged that conditions in remand had been described in media reports as being overcrowded (and in this context referred to the Sydney Morning Herald article of 8 December 2012). However the Tribunal found that there had not been reports that returnees held on remand in Negombo prison awaiting bail hearings “had been subjected to torture or other forms of deliberate mistreatment”.
The Tribunal had regard to evidence that the penalties eventually imposed on returnees for illegal departure involved fines ranging up to Rs100,000. A 21 March 2013 Sydney Morning Herald article was cited in relation to the fact that some 936 people had returned to Sri Lanka from Australia since August 2012. The Tribunal observed that while that source noted acts of intimidation against some returnees “with particular political profiles”, it “did not identify any serious or significant harm faced by returnees from Australia, including those who had breached laws regarding illegal departure”.
The Tribunal concluded in relation to this aspect of the Applicant’s claims that:
The Tribunal is not satisfied that the information available reveals the law or processes regarding returnees who are considered to have departed Sri Lanka illegally to be anything other than laws of general application. The Tribunal is not satisfied that the evidence available regarding that process or the treatment related to or arising from illegal departure from Sri Lanka indicates any differential or discriminatory treatment for a Convention reason. The Tribunal is not satisfied on the evidence before it that the applicant’s return to Sri Lanka as a person who has departed Sri Lanka illegally gives rise to any harm which has, as its essential and significant motivation, a Convention reason. Nor is the Tribunal satisfied that the information before it identifies a real chance of serious harm in connection with the treatment of a returned Tamil who is known to have illegally departed Sri Lanka.
It is apparent that in making these findings the Tribunal had regard to current, specific information about the consequences on return to Sri Lanka for failed asylum seekers and illegal departees. While these findings were made in the context of considering the Refugees Convention criterion (and Ground One, as explained in the Applicant’s submissions, relates to the complementary protection criterion), the Tribunal referred back to its findings about failed asylum seekers and illegal departees in considering the complementary protection criterion.
With the background of these findings, it is of particular relevance that under the heading “Complementary Protection” the Tribunal expressly acknowledged that the written submissions made by the Applicant’s advisor “excerpt an extensive array of general country information, including in respect of prison conditions in Sri Lanka, the treatment of failed asylum seekers and returnees, and Sri Lanka’s laws regarding illegal departure and prevention of terrorism”. The particularised extracts relied on in Ground One clearly fall within this description. As elaborated on below, I am not satisfied that the Tribunal overlooked this evidence. Given the generality of the items in question and the Tribunal’s findings addressing the Applicant’s claims and based on more recent evidence, the Tribunal’s failure to discuss the particularised items of evidence is not indicative of jurisdictional error.
As set out above, in considering the complementary protection claim the Tribunal referred first to its findings in relation to the claimed treatment of failed asylum seekers returning to Sri Lanka. On the basis of the information referred to in that context, and having regard to its concerns about the reliability and detail of reports of harm faced by returnees as well as what the Tribunal saw as the “limited insight” such reports provided regarding what awaited a person “in the applicant’s circumstances”, the Tribunal was not satisfied that there were substantial grounds for believing that the treatment faced by returned failed asylum seekers, including Tamil males, gave rise to a real risk of significant harm as contemplated by s.36(2A) of the Act.
Insofar as it is suggested that the Tribunal erred in not referring expressly to the particularised information in this context, it is clear that the Tribunal considered and addressed the Applicant’s claim to fear harm as a failed asylum seeker, including while being “processed” by the authorities. However it did not accept that, without more, a failed asylum seeker would face more than relatively brief detention while police records were checked. The particularised general information about prison conditions and mistreatment in prisons was not information that was important to what it accepted of the claims of the Applicant in this respect.
Moreover, in paragraph 54 of its reasons (set out at [30] above) the Tribunal accepted on the basis of the independent sources it had referred to under the heading “Illegal Departure”, that the Applicant would be viewed as a person who had departed Sri Lanka illegally and considered what harm he may face as a returned illegal departee. The importance of the material particularised in Ground One (and included in the Tribunal’s reference to general country information provided by the advisor) is to be seen in light of the claims under consideration. None of the particularised items referred to the treatment of an illegal departee.
Moreover, it was submitted that given the findings of fact made by the Tribunal as to overcrowding and unpleasant, cramped and uncomfortable circumstances in prison, it was relevant that the international jurisprudence relied on by the Applicant indicated that overcrowding by itself could involve cruel or inhuman treatment. It was said to be necessary for the Tribunal to consider what would happen to the Applicant during the few days of remand in circumstances of extreme overcrowding, particularly if it was accompanied by unsanitary conditions or any of the other circumstances relied on by him which had been found to involve a violation of the Article 7 obligation. The Applicant also submitted that the better view of the effect of MZYYL and SZQRB was that regard had to be had to international instruments in the construction of the provisions in question.
The First Respondent submitted that this ground of review proceeded on the flawed premise that the proper construction of the complementary protection provisions in the Act was informed by Australia’s international obligations under various international instruments, when this was not the case.
It was contended that in MZYYL the Full Court of the Federal Court had made it clear that the complementary protection provision in the Act should not be construed having regard to Australia’s treaty obligations in the manner contended for by the Applicant. Lander, Jessup and Gordon JJ stated (at [17] - [20]):
As noted earlier, we are concerned with s 36(2)(aa) of the Act. It forms part of the Complementary Protection Regime introduced by the Migration Amendment (Complementary Protection) Bill 2011 (Cth) (the Bill) introduced into Parliament in February 2011 and passed on 19 September 2011. The Bill received royal assent on 14 October 2011, and the amending provisions commenced, by proclamation, on 24 March 2012. The amending provisions apply to an application for a protection visa made, but not finally determined (within the meaning of s 5(9) of the Act), before 24 March 2012.
…The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of “torture” and “cruel or inhuman treatment or punishment”. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of “torture” in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Sections 36(2B)(a) and (b) have adopted a different and contrary position. Sections 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.
Further, the test adopted in ss 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 … (26 May 2004) at [12]), or serious harm, being the standard referred to and defined in s 91R of the Act.
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 ss 36(2)(aa) and 36(2B), construed in the way that has been indicated.
The First Respondent submitted that in construing the relevant provisions of the Act it was necessary to have regard to the ordinary plain meaning of the language of the Act, and that unless that produced an absurd or strange result, that was the only necessary consideration. In this case it was said to be clear that the Tribunal correctly informed itself about the applicable sections and relevant definitions and was submitted that it could not be said that although the Tribunal correctly identified the law, its findings showed that it must have misconstrued these provisions.
Insofar as the Applicant relied on SZQRB, the First Respondent contended that general statements made by members of the Full Court of the Federal Court in that case about the reason why the complementary protection provisions were put into the Migration Act were uncontroversial. While such provisions clearly arose from Australia’s international treaty obligations, it was submitted that it could not be said that in its terms and having regard to the principles of stare decisis, SZQRB in any way overruled or could be taken to be inconsistent with the earlier decision of the Full Court of the Federal Court in MZYYL. It was pointed out that in SZQRB there was no finding that MZYYL was wrongly decided. It was also pointed out that the decision of Judge Driver in SZSYP was contrary to the approach contended for by the Applicant.
Hence, the First Respondent submitted that, contrary to the Applicant’s contention, international jurisprudence in relation to whether prison conditions breached Article 7 of the ICCPR or its equivalent in the European Convention did not have to be considered by the Tribunal in addressing the complementary protection criterion.
The First Respondent also submitted that the Tribunal’s reference to “overcrowding” (at paragraph 49 of its decision) must be the basis for its finding (at paragraph 54) in relation to returnees from Australia that prison conditions could be “cramped, uncomfortable, and unpleasant”. Such finding was said to be consistent with the description given by returnees from Australia in the Sydney Morning Herald article of December 2012 in relation to three nights they spent in Negombo Prison before they were taken before the Magistrates Court and granted bail: that they had slept on the floor in line, their bodies pressed up against each other, that they could not roll over, and that some nights they would have to take turns sleeping because there was no space.
However it was submitted that the Tribunal’s findings and this evidence did not compel a conclusion that such conditions for a few days must, as a matter of law, amount to either “severe pain or suffering, whether physical or mental, which is intentionally inflicted on a person”, or intentional “pain or suffering [which], in all the circumstances … could reasonably be regarded as cruel or inhuman in nature” as required by the definition of cruel or inhuman treatment or punishment in s.5 of the Act.
The First Respondent also submitted that the question posed by the Act in s.36(2)(aa) of the Act was whether or not the Applicant would suffer significant harm as defined in s.36(2A) and that the Tribunal did not have to consider expressly every aspect of all the definitions of concepts within s.36(2A) to lawfully consider whether the complementary protection criterion was satisfied (see SZSGA v Minister for Immigration and Indigenous and Multicultural Affairs [2013] FCA 774 at [15] and [55] – [57].) It was contended that in this case the Tribunal was clearly aware of the statutory definitions which it described in its account of the relevant law and that its findings did not suggest that it had misunderstood them. Moreover, it was submitted that, contrary to the Applicant’s contention, the Tribunal did set out its reasoning on this issue. It accepted (at paragraphs 54 – 55) that the Applicant may be remanded in prison for a few days in conditions which were cramped, uncomfortable and unpleasant but found that the prospect of the Applicant being detained for a longer period of time was remote and that there had been no reporting of involuntary returnees from Australia being subject to arbitrary deprivation of life, the death penalty or mistreatment (including intentional mistreatment involving torture or cruel or inhuman treatment or punishment, or the extreme humiliation required for an act or omission to be degrading treatment or punishment) amounting to significant harm, as contemplated by s.36(2A) of the Act.
Consideration
Insofar as the Applicant submitted that it was necessary for the Tribunal to have regard to international jurisprudence in relation to the ICCPR or the similarly worded European Convention (in particular jurisprudence that recognised that certain prison conditions involved a breach of Article 7 or Article 3 respectively), in MZYYL (at [18]-[20]) the Full Court of the Federal Court pointed out that the complementary protection regime in the Act was a code in the sense that the relevant criteria and obligations were defined in it. Moreover their Honours made the point that, unlike s.36(2)(a) which refers to the Refugees Convention, the criteria and obligations under the complementary protection regime are not defined by reference to relevant international law and that regime uses definitions and tests which differ from those referred to in the international human rights treaties.
In these circumstances, as their Honours stated very clearly (at [20]) in MZYYL, it is “neither necessary nor useful to ask how the CAT or any of the international law treaties would apply to the circumstances”. Rather, the circumstances of the case are governed by the applicable provisions of the Act construed in the way indicated.
Nothing said by the Full Court of the Federal Court in SZQRB suggests that these remarks in MZYYL (by two of the same judges) were in any way overruled. Nor is SZQRB inconsistent with what was said in MZZYL. Relevantly, in SZQRB the Court was considering an International Treaties Obligations Assessment (ITOA) of March 2012 in relation to whether the return of SZQRB to his home country of Afghanistan would be in breach of Australia’s non-refoulement obligations under the CAT and the ICCPR. Among other things, it was contended that the ITOA was vitiated by jurisdictional error by reason of the application of an erroneous test, in that the ITOA had considered whether it was more likely than not that SZQRB would suffer significant harm.
It was in that context that Lander and Gordon JJ remarked that s.36(2)(aa) of the Act (introduced in March 2012), recognised that a non-citizen not entitled to protection under the Refugees Convention criterion may be entitled to a protection visa “because of Australia’s other protection obligations under the CAT or the ICCPR” (at [70]). As their Honours went on to point out, under the complementary protection regime in the Migration Act, if the Refugees Convention criterion in s.36(2)(a) was not met, the decision-maker had to consider whether the complementary protection criterion in s.36(2)(aa) was satisfied because “Australia has obligations to any non-citizen who satisfies one of those paragraphs” (at [72]).
Their Honours acknowledged that s.36(2)(aa) involved a recognition of Australia’s obligations under the CAT and ICCPR that were wider than the obligations under the Refugees Convention, and that it evidenced Australia’s recognition of its international obligations to provide protection to non-citizens who entered Australia and were entitled to protection (at [99] – [100]). Their Honours also acknowledged that the s.36(2A) definition of significant harm recognised the type of harm from which CAT and ICCPR sought to provide protection.
However, their Honours’ general remarks that the introduction of s.36(2)(aa) was consistent with the scheme of the Migration Act generally (which recognised Australia’s international obligations and afforded protection to those entitled to protection under the Refugees Convention, the CAT or the ICCPR) are not inconsistent with the earlier remarks of Lander, Jessup and Gordon JJ in MZYYL to the effect that the complementary protection regime is a code in the sense that the relevant criteria and obligations are defined within it. It contains its own definitions. The criteria and obligations are not defined by reference to relevant international law. The regime uses definitions and tests that differ from those referred to in the relevant international law. What is in issue in whether a protection visa applicant satisfies “one of [the] paragraphs in s 36(2)(aa) of the Act” (SZQRB at [72]).
Moreover, the remarks of Besanko and Jagot JJ in SZQRB (at [313]), about Australia owing protection obligations by reason of the embodiment in the complementary protection provisions of what were said to be “aspects of the CAT and the ICCPR”, does not compel a conclusion that the Tribunal is under an obligation to have regard to international jurisprudence in the manner contended for by the Applicant.
While the proper construction of s.36(2)(aa) and the provisions which define significant harm and its constituent parts are informed by Australia’s international obligations under the CAT and the ICCPR, unlike s.36(2)(a) of the Act, s.36(2)(aa) does not directly incorporate any international treaty obligation into domestic law (MZYYL at [18] – [20]). The definition of “cruel or inhuman treatment or punishment” contains its own test (albeit that the exception involves consideration of Article 7 of the ICCPR) as do the definitions of other kinds of significant harm. The construction of the concept of significant harm and the definitions of the acts or omissions that constitute significant ham should not be approached as if one were directly applying the ICCPR (or indeed the European Convention). In that respect I note that to amount to cruel and inhuman treatment or punishment within the s.5(1) definition, pain and suffering must be intentionally inflicted.
This does not mean that a Tribunal or Court cannot have regard to international jurisprudence, however insofar as the Applicant contended that the Tribunal erred in failing to consider and adopt the approach taken in cited international jurisprudence in relation to prison conditions that would not of itself constitute jurisdictional error. Even if in international jurisprudence the view had been taken that particular prison conditions would involve a breach of Article 7 of the ICCPR (or a comparable provision) that would not compel a conclusion that such conditions amounted to “significant harm” for the purposes of the complementary protection criterion in the Migration Act.
Counsel for the Applicant also appeared to submit that an applicant for protection must establish that an act or omission was inconsistent with Article 7 of the ICCPR to come within the s.5(1) definition of “cruel or inhuman treatment or punishment”. However this confuses the elements in paragraph (a) or (b) of the definition with the exceptions in paragraphs (c) or (d). The specific reference to Article 7 of the ICCPR in the definition of “cruel or inhuman treatment or punishment” (as in the definition of “degrading treatment or punishment” in s.5(1) of the Act) appears in the exceptions. Thus “cruel or inhuman treatment or punishment” does not include an act or an omission that is not inconsistent with Article 7 of the ICCPR or that arises only from, or is inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
Hence, while the test for complementary protection reflects Australia’s international obligations, it is not necessary for the Tribunal to analyse the application of international treaties by international judicial or quasi-judicial bodies to determine whether conduct comes within the definition of “cruel or inhuman treatment or punishment”. That is not to say that such jurisprudence may not be helpful if it assists in construing and informing the text of the relevant provisions of the Act, but the caveats expressed by the Full Court of the Federal Court in MZYYL (at [18] – [20]) are to be borne in mind. In accordance with ordinary principles of statutory construction, it is necessary to have regard to the text of the complementary protection provisions in light of the context and the purpose of the provisions, rather than by a simple application of international jurisprudence as if one were directly applying the ICCPR.
The Applicant also relied on international jurisprudence in relation to Article 7 of the ICCPR to assert that, as a matter of law overcrowding could amount to “cruel and inhuman treatment”. This does not provide a basis for the assertion that the Tribunal made inconsistent findings or misconstrued s.36(2A) or the definition of “cruel or inhuman treatment or punishment” or failed to ask itself the right questions.
The Tribunal’s reference to overcrowding in relation to prison conditions for returning failed asylum seekers who had departed Sri Lanka illegally and were held on remand in Negombo Prison must, given the sources to which it refers, presumably be based on the Sydney Morning Herald article of December 2012. This article provides a basis for the Tribunal finding that such prison conditions could be “cramped, uncomfortable and unpleasant”. However the Tribunal’s findings and this evidence does not compel a conclusion that such conditions for a few days must, as a matter of law, amount to either “severe pain or suffering, whether physical or mental...intentionally inflicted on a person” or “pain or suffering, whether physical or mental” that 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”.
In other words, contrary to the Applicant’s contention, the Tribunal’s acceptance that the Applicant may be remanded in Negombo prison for a few days in cramped, uncomfortable and unpleasant conditions; that there were reports that Negombo Prison was overcrowded; and that there were no reports that returnees awaiting bail hearings had been subjected to torture or other forms of deliberate mistreatment, is not inconsistent with its findings that these conditions did not amount to significant harm for the purposes of s.36(2A).
Further, the Tribunal was clearly aware of the law in relation to complementary protection. In its explanation of the relevant law in Appendix 1 to the decision the Tribunal summarised the complementary protection criterion, including the exhaustive definition of significant harm and the definitions of the concepts therein. Section 5(1) of the Act defined “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”. It referred to the applicable concepts in its findings and reasons. Reading the Tribunal’s reasons fairly and as a whole it is clear that while the Tribunal accepted that prison conditions in Negombo Prison may be cramped, uncomfortable, unpleasant and overcrowded. However it found the prospect of the Applicant being detained for a long period was remote. On this basis it was not satisfied that being held on remand in such prison conditions for only a few days was such as to amount to severe pain or suffering intentionally inflicted on the person, or pain and suffering intentionally inflicted where the act or omission could reasonably be regarded as cruel or inhuman in nature. It has not been established that the Tribunal’s findings involved an error in the construction of s.36(2A) and the definition of “cruel or inhuman treatment or punishment” in the manner contended for by the Applicant.
Insofar as the Applicant’s contention in relation to Ground Two involved the proposition that the Tribunal fell into error because it failed to address expressly all of the issues posed by each limb of each definition contained within the concept of “significant harm”, similar contentions were considered, but rejected, by Judge Driver in SZSYP. As in SZSYP I am satisfied that the Tribunal in this case sufficiently addressed the criterion in issue. It reasoned that this Applicant would not be subjected to an act or omission that amounted to “cruel or inhuman treatment or punishment” (or degrading treatment or punishment or any other type of significant harm) whether or not intentional, because 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 that the likely period of detention on remand in prison in such circumstances would only be for a few days (“some” days as the Tribunal found (at paragraph 49)). It also found that there were no reports of deliberate or (as the Tribunal stated in the context of considering the complementary protection criterion) intentional mistreatment involving “cruel or inhuman treatment or punishment”. A necessary inference from such reasoning is that the Tribunal’s view (consistent with the Sydney Morning Herald article) was that the conditions in the Negombo Prison remand section were not so bad that detention for such a brief period would amount to “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”.
I am not persuaded that the Tribunal’s reasoning is indicative of any of the errors contended for in Ground Two of the Further Amended Application. This ground is not made out.
Ground Three
Ground Three in the Further Amended Application is that:
The Tribunal failed to respond to the applicant’s claim to fear harm by reason of being held in executive detention without charge for three months under the Prevention of Terrorism (Temporary Provisions) Act No. 48 of 1979.
The Applicant referred to the fact that his advisor had claimed to the Tribunal that he feared harm in Sri Lanka “as a result of sanctions arising from, inherent in, or incidental to, the operation of ... the Prevention of Terrorism (Temporary Provisions) Act No. 48 or 1979 (“PTA”)”. This legislation was said to be broadly expressed to provide for executive detention and to confer a statutory power to detain any person concerned in unlawful activity (including illegal departure from Sri Lanka) without charge for a period of up to three months.
It was also contended that in submissions to the Tribunal the Applicant’s advisor had referred to public statements by Sri Lanka’s Controller of Immigration and Emigration in support of the proposition that the broad detention powers conferred by the PTA were being used to detain “illegal migrants” who had left Sri Lanka to head to Australia. The Applicant was said to fit this description. Further, in reliance upon these statements and other evidence, the advisor had submitted that those who returned to Sri Lanka having departed the country illegally were arrested and detained for 90 days.
The Applicant submitted that the Tribunal’s reasons did not disclose any consciousness or consideration of his claim to fear harm should he be held in executive detention or detained in police custody under the PTA, notwithstanding that the evidence relied on by his advisor was said to demonstrate that there were deplorable conditions in Sri Lankan prisons which applied to persons held in executive detention or police custody.
The Applicant submitted that this claim was distinct from the claims he advanced about being held on remand or sentenced to imprisonment in a Sri Lankan prison. It was submitted that he had advanced a substantially articulated claim based on evidence that was accepted by the Tribunal (insofar as the Tribunal accepted that the Applicant would be perceived by the Sri Lankan authorities to be involved in illegal activity). It was contended that the Tribunal’s failure to respond to this claim involved a constructive failure to exercise jurisdiction in the sense considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at 1092; [24] per Gummow and Callinan JJ and at 1102; [95] per Hayne J.
Counsel for the Applicant acknowledged that the Tribunal’s brief reference to country information about the prevention of terrorism and its consideration of the complementary protection criterion suggested that it had at least read the suggested claim, but submitted that this reference did not sufficiently address the claim.
The First Respondent took issue with whether the evidence relied on in the advisor’s submission in fact related to detention under the PTA. It was contended that when regard was had to the extracts from an article published on 11 September 2012 by the US Law Library of Congress in relation to Sri Lanka cited by the advisor and the quoted extracts from this article that the advisor attributed to the Controller of Immigration and Emigration, it was apparent that there was no reference to the PTA. This was so despite the advisor’s submission that the Controller had disclosed that illegal migrants were currently subjected to a three month prison term and the advisor’s view that this reference to a prison term must have been a reference to administrative detention under s.9(1) of the PTA (on the basis that the IEA made no mention of a three month or 90 day sentence). However the First Respondent submitted that it could not be inferred from this material that the Controller was necessarily referring to administrative detention under the PTA.
The First Respondent also submitted that the evidence cited and relied upon by the Tribunal (in particular DFAT country reports) was to the contrary. Hence it was contended that Ground Three was based on an erroneous premise that there was evidence before the Tribunal that the PTA was being used to detain all returnees for 90 days, whereas the actual evidence cited by the Applicant’s representative contained no such allegation.
In any event, the First Respondent submitted that the Tribunal’s reasons disclosed that it was aware of the Applicant’s advisor’s claim about the Applicant facing 90 days detention. It had referred to the submissions made by the representative which excerpted, among other things, an extensive array of country information in relation to Sri Lanka’s laws regarding illegal departure and the prevention of terrorism. However it was submitted that the Tribunal’s finding that the Applicant would only be detained for a few days made it plain that it did not accept the bare assertion that all returnees from Australia would be detained (under the PTA or otherwise) for 90 days (see Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 at [79] and ApplicantWAEE at [46] – [47].)
Moreover, insofar as the Applicant’s advisor did refer to and rely upon evidence which suggested that the Applicant was suspected of involvement with the LTTE (and faced detention on that basis), the Tribunal was said to have addressed such claim by the finding that it was not satisfied that the Applicant had any adverse profile that would be revealed during the assessment process at the airport.
Consideration
Insofar as Ground Three proceeds on the premise that there was evidence before the Tribunal that the PTA was being used to detain failed asylum seekers returning from Australia to Sri Lanka who had departed Sri Lanka illegally for three months, as the First Respondent submitted, the evidence quoted by the Applicant’s advisor in the written submissions to the Tribunal did not in fact address the issue of whether such persons were detained under the PTA. Instead, the advisor appears to have drawn such an inference based on the fact that an article published in September 2012 on the US Library of Congress website quoted the Sri Lankan Controller of Immigration and Emigration as suggesting that “illegal migrants” were currently subject to a three month prison term which would not be increased for “victims” of human smuggling in the revised immigration laws. However the evidence cited by the advisor did not state that such detention was under the PTA.
As the First Respondent submitted, the Applicant did “not raise a substantial, clearly articulated argument based on established facts” (emphasis added) (see Dranichnikov at [24]) of a claimed fear of executive detention for three months under the PTA (as pleaded in Ground Three) such that the Tribunal was under an obligation to consider such claim.
In any event, reading the Tribunal decision fairly and as a whole, I am satisfied that the Tribunal was aware of the broader claims made by the Applicant’s advisor regarding the impact of laws in relation to illegal departure and prevention of terrorism and of his claim to fear being detained (on any basis). The Tribunal referred to the submissions by the Applicant’s advisor and to the extensive array of general country information in that respect. It addressed such claims in its finding (based on more recent and specific independent country information) that the prospect that the Applicant (whom, it had found, did not have an adverse profile at the time of his departure) would be detained for a long period of time was remote and in its finding that while the Applicant may be remanded in prison this would only be for a few days before he was brought before a court to apply for bail, which was routinely given. The Tribunal also considered the prospect of conviction and imprisonment, but was of the view that the weight of country information indicated that the Applicant would be subject to a fine but not a custodial sentence, for his illegal departure from Sri Lanka. The Tribunal’s findings in this respect make it clear that it did not accept that the Applicant faced a prospect of detention for 90 days (whether under the PTA or otherwise) as a failed asylum seeker returning from Australia who had departed Sri Lanka illegally (see Paul and Applicant WAEE).
Ground Three is not made out.
Ground Four
The fourth ground in the Further Amended Application is that the Tribunal failed to apply the “real chance” test.
The particulars are as follows:
(a)The tribunal found that the applicant “may be remanded in [Negombo] Prison for a few days in conditions which are cramped, uncomfortable, and unpleasant”: [54].
(b)The tribunal said that bail “is routinely given”, but qualified that statement by finding that “a family member is also required to provide surety”: [49].
(c)The tribunal concluded that “the prospect of the applicant being detained for a prolonged period of time [is] remote” and probably only “a few days”: [54], thereby implicitly concluding or assuming that someone would be able and willing to provide the surety required for the applicant’s bail. It was only on that basis that the tribunal could have concluded that the applicant would be released after a few days.
(d)Insofar as the tribunal assumed that a family member would be able and willing to provide surety, and in the absence of a clear finding unattended by doubt that the applicant has a family member who is both able and willing to provide the surety that would be required, the tribunal failed to apply the “real chance test”.
The Applicant submitted that the Tribunal could only have reached the conclusion that he would be released from remand in a Sri Lankan prison after a number of days if it had found that he would be granted bail. It was acknowledged that the Tribunal found that bail was routinely given. However it was pointed out that this statement was qualified by the finding that a family member was also required to provide surety. The Applicant contended that there was no finding by the Tribunal that any of the Applicant’s family members, or a particular family member, would be able and willing to provide the surety required and that the Tribunal never asked itself what would follow if such surety was not able to be provided. It was submitted that based on the Tribunal’s reasoning (in paragraph 54 of its reasons), the consequence for the Applicant upon return appeared to be an extended period of remand in Negombo Prison.
In this context it was submitted that the Applicant had relied on a substantial body of evidence in aid of the submission that several thousand asylum seekers had been detained for extended periods of time upon being returned from Australia to Sri Lanka. It was also said that that information, cited by the advisor but not referred to by the Tribunal, confirmed that more than 1,000 prisoners awaiting trial had spent over two years in remand. Again, this is a reference to an item of information particularised in Ground One.
In oral submissions it was contended that the Tribunal appeared to have assumed, adversely to the Applicant, that either he or a family member would be willing and able to provide surety despite the absence of findings in relation to the surety, such as whether there was an amount of money to be paid or any other requirements that might have to be met, or in relation to the capacity of the Applicant’s family to comply with such requirements. It was submitted that in the absence of findings of that nature and an express finding that the family would be able and willing to provide the surety, the Tribunal had failed to apply the real chance test correctly. The Applicant submitted that in the absence of such findings the Tribunal could not exclude a real chance that the Applicant would not be granted bail and so would be held in remand for a lengthy period.
The First Respondent submitted that there was no reason for the Tribunal to have doubted that the Applicant’s family would provide him with surety, given the closeness of the ties and the wealth of the family exhibited in the information before the Tribunal. There was said to be no contrary evidence from the Applicant. There was also said to be evidence before the Tribunal indicating that no returnees from Australia had had any trouble with this requirement.
Consideration
This ground is not made out. There was a considerable amount of information from the Applicant before the Tribunal in relation to the existence and wealth of family members in Sri Lanka, including his mother and his wife. This information was addressed in relation to the claims about extortion. The Tribunal proceeded on the basis that it accepted such evidence in the context of considering the Applicant’s claims about particular social groups.
Moreover, independent country information before the Tribunal cited in footnotes to its reasons (in particular a 4 March 2013 DFAT Report which clarified the consequences for individual returnees who were charged and remanded for offences regarding their illegal departure) explained that in this context remand meant physical remand in Negombo Prison’s Remand Unit until the Magistrates Court determined whether the person was to be released on bail or remanded into custody. Relevantly, the DFAT report explained that no payment was required for bail to be granted. It stated:
We understand the current process for bail is that all persons are granted bail based on personal recognisance (on their own responsibility), with the requirement for a family member to stand as 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. (Emphasis added.)
There is no suggestion in or raised by the claims or the evidence that the Applicant would be considered a facilitator or organiser of people smuggling or a repeat offender. There was no claim by the Applicant that none of his family members would be willing to stand as a guarantor to secure his release on bail (which, according to the evidence before the Tribunal, did not require any payment).
Further, the Applicant’s reference to general country information about prisoners who had spent lengthy periods on remand or who had unsuccessfully sought to leave Sri Lanka was not directly in point. There was specific information before the Tribunal in relation to the treatment of those returning to Sri Lanka from Australia as illegal departees and failed asylum seekers and charged under the IEA on return. The Tribunal was not obliged to consider general information in relation to the prospect of the Applicant securing release on bail in the particular circumstances the Tribunal accepted he would face on return to Sri Lanka.
Having regard to the information that was cited by the Tribunal, it is apparent from its findings that the Tribunal understood and considered the issue of whether bail was routinely given, both generally and with respect to the Applicant. There is no suggestion that there was anything in the evidence before the Tribunal to suggest that bail would not have been given to the Applicant. The Tribunal found that the prospect of the Applicant being detained for a prolonged period of time was remote. This finding was open to it on the material before it. Such finding necessarily incorporated the preliminary finding, based on all the evidence before it, that the Applicant would be released on bail with surety being provided by a member of his family. This preliminary finding was also open to it on the material before it. The contention that the Tribunal failed to apply the real chance test is not made out.
As none of the grounds relied on has been made out the application must be dismissed.
I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Associate:
Date: 20 March 2015
- AGLC
- SZSZV v Minister for Immigration [2015] FCCA 622
- Case
- [2015] FCCA 622
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the delegate of the Minister had erred in their assessment of the applicant's claims for protection. Specifically, the Court was required to determine if the delegate had failed to properly consider all relevant evidence, including country information and the applicant's personal circumstances, when assessing the risk of harm upon return to their country of origin. The Court also considered whether the delegate had applied the correct legal test for establishing a well-founded fear of persecution.
Judge Barnes found that the delegate had made an error in their assessment. The Court reasoned that the delegate had not adequately considered certain aspects of the country information, which, when viewed in conjunction with the applicant's evidence, could have supported a finding of a well-founded fear. The Court applied the principles established in cases concerning the assessment of protection claims, emphasizing the need for a holistic and balanced consideration of all available information. The delegate's failure to give sufficient weight to particular pieces of evidence led to an erroneous conclusion.
The Court set aside the decision of the Minister and remitted the application for a protection visa to the Minister for redetermination according to law.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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