SZTBE v Minister for Immigration & Border Protection

[2014] FCCA 1288

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBE v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1288

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to consider all the applicant’s claims – whether the Refugee Review Tribunal failed to consider all the applicant’s evidence, particularly country information – whether the Refugee Review Tribunal erred in its consideration of complementary protection as to whether that applicant was at risk of significant harm as defined in ss.36(2A) and 5(1) of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 424AA, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16

Applicant: SZTBE

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1594 of 2013

Judgment of: Judge Emmett

Hearing date: 22 May 2014

Date of Last Submission: 22 May 2014

Delivered at: Sydney

Delivered on: 19 June 2014

REPRESENTATION

Counsel for the Applicant: Mr James King

Solicitors for the Applicant: (Fragomen)

Solicitors for the Respondents: Mr Andrus Markus (Australian Government Solicitor)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1594 of 2013

SZTBE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 7 June 2013 and handed down on 11 June    2013 (“the RRT ”).

2. The applicant claims to be a citizen of Sri Lanka and Hindu faith and Tamil ethnicity. The applicant claims to fear harm in Sri Lanka on the basis of his ethnicity; his religion; his imputed political opinion of support for the Liberation Tigers of Tamil Elam (“LTTE”); his opposition to the Sri Lankan Government; or, his membership of a particular social group, being a Tamil business owner and a failed asylum seeker.

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 11 April 2012 as an unauthorised maritime arrival, having departed illegally from Sri Lanka.

2. On 30 June 2012, the applicant lodged an application for a Protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 12 October 2012, the Delegate refused the applicant’s application for a Protection visa.

4. On 14 November 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 7 June 2013, the RRT affirmed the decision of the Delegate not to grant a Protection visa.

6. On 12 July 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa)  a non-citizen in Australia (other than a 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.”

6. Section 36(2A) of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:

   “424A  Information and invitation given in writing by Tribunal

   (1)  Subject to subsections (2A) and (3), the Tribunal must:

   (a)  give to the Applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.

   425  Tribunal must invite Applicant to appear

   (1)  The Tribunal must invite the Applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

9. Section 424AA of the Act permits the RRT to give orally to an applicant clear particulars of any information that the RRT considers would be the reason or part of the reason for affirming the decision under review. The RRT must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The RRT must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.

10. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

11. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)The applicant began living with a woman (“N”) in the beginning of 2009. N’s husband disappeared in 2005. The applicant is now N’s husband and provider.

   b)At the end of 2007, Sri Lankan security forces regained control of the district in which the applicant lived. Prior to this time, the area was deeply infiltrated by the LTTE.

   c)Following the Sri Lankan security forces taking control of the applicant’s home district, the applicant moved to Valaichenai District in search of better employment opportunities. The applicant opened a grocery store on the main street, which became profitable after two years of trading.

   d)At the end of 2009, the applicant began to become a victim of harassment by the security forces and paramilitary groups which were operating in the area. The applicant would frequently be approached by groups of men who would take his goods without paying. The applicant believed the men were members of either the Karuna Fation or Tamil Makkal Viduthalai Pulikal (“TMVP”). The men would threaten the applicant by showing him their weapons.

   e)The applicant believed that he was targeted because he was a Tamil and the proprietor of a successful business. Further, the applicant believed that the fact that he came from an area which was controlled by the LTTE was a reason for him being targeted.

   f)In addition, the applicant believed he was being targeted for his involvement in a police inquiry two years previously when the applicant assisted N in searching for her husband when he suddenly disappeared. The applicant suspected that a paramilitary group was involved in the disappearance of N’s husband.

   g)The applicant approached a humanitarian group called Manithaurumai Kankaanippu Kulu for assistance in N’s husband’s disappearance. A letter was sent to the police by Manithaurumai Kankaanippu Kulu, however no action was taken.

   h)The harassment experienced by the applicant continued over the next fifteen months, but suddenly increased when N began receiving threatening phone calls at the applicant’s house.

   i)In May 2011, the applicant received a phone call from N. N was extremely concerned for the applicant, as she had just received an anonymous phone call accusing the applicant of concealing weapons in his house. The anonymous caller verbally abused N and told her that she should assist them in finding the weapons or else the applicant would be hurt, as would N’s children.

   j)Three days after the anonymous phone call, six men forcefully entered the applicant’s house at around 10.00pm. The men were dressed in black, some spoke Sinhalese and others Tamil. The applicant could not tell whether they belonged to the Karuna Faction or the TMVP.

   k)The men verbally abused the applicant and N and demanded to know where the applicant had hidden the weapon. The applicant denied possessing a weapon and eventually the men left the house but threatened to return.

   l)The men returned on a monthly basis, verbally abused the applicant and N, intimidated and threatened them. They demanded 50 lakhs (approximately 500,000 rupees) in the absence of the applicant producing a weapon.

   m)In October 2011, the abuse from the men became more violent. N was physically assaulted and the applicant was restrained and forced to watch.

   n)In December 2011, the applicant was forcefully abducted from his house, blindfolded and driven away by the men. The men again demanded money before releasing the applicant on the side of the road.

   o)On 17 January 2012, the applicant was given a deadline of 15 March 2012 to produce the 50 lakhs to the men. They warned the applicant that this was the last occasion on which the applicant would be asked for the money. The applicant made preparations to flee the area, selling the goods in his shop and collecting money from creditors.

   p)On 2 March 2012, the applicant fled to Colombo with N and her children.

   q)The applicant claims that if he were to return to Sri Lanka he faced harm including arrest, detention and death. He fears harm from the Sri Lankan authorities, the Karuna Faction or the TMVP.

The Delegate’s decision

1. On 15 October 2013, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

2. The Delegate considered the applicant’s claim that he would be imputed as supporter of the LTTE by virtue of having lived in an LTTE infiltrated area. The Delegate rejected this claim, noting the applicant’s admission that he had never had any association with the LTTE. The Delegate accepted that the applicant was likely only of interest to paramilitary groups when it became apparent that his business had become profitable.

3. The Delegate found the applicant’s claims to have been subjected to ongoing harassment, extortion and intimidation from local paramilitaries as being largely credible. However, the Delegate found that the applicant’s claims in relation to the escalation of that harassment which led him to flee Sri Lanka as not credible.

4. The Delegate was not satisfied that the applicant would be targeted on return to Sri Lanka for reason of his Tamil ethnicity, nor would he be likely to targeted for reason of an imputed support of the LTTE. The Delegate noted that the applicant had resided in Eastern Sri Lanka for the last decade of the civil war without encountering any significant problems.

5. The Delegate found that the applicant would not face persecutory harm on the basis that he may be identified as a failed asylum seeker.

The RRT’s review and decision

1. On 14 November 2011, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 4 February 2013, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing on 28 March 2013 to give oral evidence and present arguments.

3. On 26 March 2013, the applicant attended the RRT hearing and gave evidence.

4. The RRT noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.

5. The RRT expressed serious concerns as to the applicant’s credibility and reliability as a witness and as to the overall truth of his claimed circumstances in Sri Lanka.

6. The RRT noted that the applicant intentionally omitted from his evidence to the Department any mention of the wife, to whom he has been legally married since February 2002, or their two biological children, all of whom remain in Sri Lanka.

7. The applicant’s reliability as a witness was further undermined by his vague, evasive and changing responses to a range of questions put to him by the RRT which gave the impression that he was not forthcoming in his evidence.

8. The RRT noted that in his written claims the applicant indicated that he had an active role in searching for N’s husband and reporting his disappearance to police. However, the applicant demonstrated little, if any, knowledge of the circumstances of N’s husband’s disappearance. The RRT found that, had the applicant actually had any involvement in assisting N investigate and report the claimed disappearance of her husband, he would have been able to demonstrate some knowledge at least of some aspects of the circumstances in which N’s husband disappeared. As a result, the RRT found that the applicant was not of adverse interest to anyone for that reason.

9. The RRT put to the applicant that he and N appeared to have remained in the same location for around one year despite claiming to have received continued threats to their lives and safety. The applicant replied that he had made some attempts to move. When queried by the RRT as to what steps he had taken, the applicant replied that he had “thought about” moving. The applicant gave evidence that he was never physically harmed but that he had given up approximately 100,000 rupees worth of goods from his store in response to demands. Despite this, his evidence was that his store still operated with a healthy profit.

10. The applicant further informed the RRT that, at no time while he was living in Sri Lanka, was his legal wife or biological children adversely targeted. The RRT considered that these factors cumulatively cast doubt on the truth of the applicant’s claims overall, including that he was adversely pursued by anyone in Sri Lanka in connection with his race and/or wealth and/or claimed profile before leaving Sri Lanka for Australia in 2012.

11. Based on the evidence before it, the RRT was not satisfied that the applicant was truthful with respect to his claimed circumstances in Sri Lanka prior to departure. The RRT was not satisfied that the applicant had been abducted as claimed, or that he was required to pay 50 lakhs to groups, such as the Karuna Group, the TMVP or any other person or entity. While the RRT accepted that requests for money and instances of thieving of goods were experienced by the applicant at his store between 2007 and 2012, the RRT was not satisfied that the applicant otherwise experienced any targeted adverse attention. The RRT was not satisfied that the applicant’s profile in Sri Lanka gave rise to a real chance of serious harm for a Convention-related reason in the reasonably foreseeable future.

12. In particular, the RRT was not satisfied on the evidence before it that the applicant would face a real chance of harm amounting to serious harm in the reasonably foreseeable future by reason of his ethnicity or any imputed political opinion of support for the LTTE.

13. The RRT also considered whether the applicant faced harm upon return to Sri Lanka as a failed asylum seeker. The RRT accepted that the applicant would, as a returnee, go through a process which would bring him into contact with Sri Lankan authorities. However, the RRT was not satisfied that being a failed asylum seeker, or in combination with his other claims,  the applicant would be persecuted for a Convention-related reason.

14. The RRT was not satisfied that the applicant faced a well-founded fear of persecution for a Convention-related reason in Sri Lanka in the reasonably foreseeable future and that therefore, the applicant was not a refugee for the purposes of s.36(2)(a) of the Act.

15. The RRT considered whether the applicant met the complementary protection criterion pursuant to s.36(2)(aa) of the Act, however found that the harm faced by the applicant did not amount to significant harm as contemplated by s.36(2A) of the Act. Accordingly, the RRT found that the applicant did not meet the complementary protection criterion.

16. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Mr James King, of counsel.

2. Mr King confirmed that the applicant relied on the grounds contained in a Further Amended Application, filed on 8 May 2014, as follows:

   “1. The Tribunal’s “review” under s.414 of the Migration Act 1958 (Cth) 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. Report by ACAT-France and the Asian Legal Resource Centre into the use of torture and ill-treatment in Sri Lanka following the end of hostilities, dated 26 June 2012. (CB 206 [136]

   b. Country report on human rights practices in Sri Lanka by the US Department of State dated 24 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’ (CB 207 [137].

   c. Report by the UN Committee against Torture dated 8 December 2011, 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’ (CB 207 [138]).

   d. 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’. (CB201 [122])

   2. The Tribunal fell into jurisdictional error by misconstruing or misapplying the applicable law, being s.36(2A) of the Act and the definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act, or otherwise failing to ask itself the right question.

   Particulars

   a. The Tribunal accepted that “the applicant may be remanded in [Negombo] prison for a few days in conditions which are cramped, uncomfortable and unpleasant”: [47].

   b. The Tribunal found that there have been reports that Negombo prison is ‘overcrowded’: [42], but also found that ‘there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment’: [42].

   c. As a matter of law, overcrowding can amount to cruel and inhuman treatment. If that was the Tribunal’s construction of s.36(2A) and the definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Act, being the correct construction, it could not have made the findings in subparagraphs (a) and (b) because they would have been inconsistent.

   d. The Tribunal went on to exclude a real risk of cruel and inhuman treatment by the following two findings:

   i. that “the prospect of the applicant being detained for a prolonged period of time [is] remote”: [47] and probably only “a few days”: [47]; and

   ii. bail “is routinely given”: [47], “although a family member is also required to provide surety” [42].

   e. The finding in subparagraph (d)(i) involved an error in the construction of s.36(2A) and the definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act, because cruel and inhuman treatment for a period of only a few days does not on that basis cease to be cruel and inhuman treatment. The Tribunal was required to apply the statutory tests in the definition in s.5(1).

   f. Alternatively, the finding in subparagraph (d)(ii) involved an error in so far as the Tribunal failed to ask itself whether the applicant faced a real risk of significant harm if a family members [sic] was unable to or unwilling to provide the surety necessary to see the applicant released from the ruel and inhuman conditions.

   g. In view of the findings accepted by the Tribunal in subparagraphs (a), (b) and (d), the Tribunal misconstrued s.36(2A) and/or the definition of “cruel and inhuman treatment or punishment” of the Act.

   3. The Tribunal failed to apply the ‘real chance’ test in relation to the applicant’s claim to fear a sentence of mandatory imprisonment for a period of between one year and five years. The Tribunal did not make such findings necessary to exclude a real chance that the Sri Lankan judicial officers might sentence the applicant in accordance with Sri Lankan Law.

   4. The Tribunal failed to comply with s.425(1) of the Act.

   Particulars

   a. The Tribunal found that the applicant may be “remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant, returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given.”

   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”: [42] and [47].

   c. The Tribunal implicitly concluded or assumed 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.

   d. The “issues arising in relation to the decision under review” therefore included whether the applicant or his family or someone else would be able and willing to provide the surety required for the applicant’s bail so as to cause him to be released from the overcrowded prison.

   e. The Tribunal’s conclusion or assumption that the applicant or his family or someone else would be able and willing to provide the surety required for the applicant’s bail was ‘adverse’ to the applicant and was ‘not obviously… open on the known material’ SZBEL v Minister for Immigration and Citizenship (2006)228 CLR 142 at [29], citing Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592.

   f .The Tribunal did not give the applicant “the opportunity of ascertaining” that the issue or opportunity “to be informed of the nature and content of adverse material” in relation to that issue: SZBEL v Minister for Immigration and Citizenship (2006) CLR 152 at [32].”\

Ground 1

1. Ground 1 asserts that the RRT failed to consider important evidence relied on by the applicant as to conditions in Sri Lankan prisons.

2. Mr King submitted that the RRT ignored certain country information provided by the applicant in support of his claim that he would suffer significant harm in Sri Lanka if he returned there as a failed asylum seeker.

3. Mr King submitted that the RRT either failed to have regard to certain material, or if it did have regard to the materials, it misapplied the relevant test in considering whether there was a real risk that the applicant would suffer cruel or inhuman treatment or punishment upon his return to Sri Lanka as a failed asylum seeker.

4. In particular, Mr King submitted that the RRT did not have regard to the applicant’s written submission, dated 20 March 2013, provided by the applicant’s migration agent to the RRT in support of the applicant’s claims. The written submission referred to the defeat of the LTTE in or around May 2009 after years of civil war. The submission stated that, without the LTTE support, members of the Karuna Faction or TMVP were able to extort wealthy Tamils, such as the applicant, secure in the knowledge that the security forces would not assist the Tamils making complaints.

5. The submission also referred to the applicant’s claim of past threats in relation to his wife and his abduction in late December 2011. The submission noted that on 2 March 2012, the applicant and his family fled to Colombo in Sri Lanka, which he left by boat on 25 March 2012 en route to Australia

6. The submission then addressed the applicant’s claim to fear harm by reason of his Tamil race and pro-LTTE political opinion. In support, the submission referred in detail to country information that culminated in a submission that the RRT should accept that the applicant is at risk of persecution on return to Sri Lanka by reason of his race, the pro-LTTE political opinion attributed to ethnic Tamils and his threats from paramilitary organisations.

7. The submission also referred to the applicant’s claim to fear harm by membership of a particular social group, being Tamil businessmen and failed asylum seekers. Again, the submission referred to detailed country information in support.

8. The submission also addressed complementary protection. In doing so, the RRT referred to art.45(1)(b) of the Sri Lankan Immigrants and Emigrants Act 1949. That act has the effect that any person who leaves Sri Lanka illegally is guilty of an offence under the Act and, upon conviction, be liable to imprisonment of a term not less than one year and not more than five years, and to a fine. The submission stated that the applicant was in breach of art.45(1)(b) of that act.

9. However, the submission also referred to country information that suggested that such sanctions are seldom enforced, are outdated, and are superseded by recent media reports from November 2012.

10. The submission states that the applicant was at real risk of harm upon return to Sri Lanka; and that conditions in prisons and police custody are very poor and involve overcrowding, unsanitary conditions, lack of food and incidents of torture.

11. The submission stated that given the prevalence of torture, cruel or degrading conditions in Sri Lankan prisons, the RRT should accept that there is a real risk that the applicant would face significant harm.

12. In considering whether the applicant faced “significant harm” if returned to Sri Lanka, the submission provided details of further country information. That information included reports that returned failed asylum seekers are interrogated and detained in a prison on pre-trial remand awaiting a bail hearing.

13. The submission referred to the use of degrading treatment or punishment in interrogation and prisons as reflected in an article from the Sydney Morning Herald, a copy of which was tendered by the first respondent and marked Exhibit 2R. The submission also referred to anecdotal evidence regarding substandard prison conditions in Sri Lanka. Those conditions included prison overcrowding, sanitation gaps, insufficient water and that “poisonous snakes sometimes enter the cells and detainees are bitten”.

14. Other country information stated that “prison conditions were poor and did not meet international standards.” Further, that conditions were at “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 and the failure to keep adult detainees and juvenile offenders separate.”

15. The RRT identified with particularity a significant amount of country information. It was mindful that a number of human rights groups provided alternative information regarding the treatment of returnees in Sri Lanka, including failed Tamil asylum seekers, suggesting that they are at a risk of serious or significant harm on their return for reason of having sought asylum abroad. However, the RRT also had regard to country information which contested findings of those reports, noting that some of the allegations were anonymous and provided insufficient evidence.

16. Ultimately, the RRT found that, on balance, whilst it accepted that the applicant would go through a process on his return that would bring him into contact with Sri Lankan authorities, the RRT was not satisfied that being “a returned Tamil failed asylum seeker, singularly or in combination, accepted that the balance of the applicant’s personal or family profile would impute him with an opinion supportive of the LTTE or opposed to the Sri Lankan authorities or give rise to differential treatment for a convention reason”.

17. Further, the RRT was not satisfied that the process that the applicant faces on returning to Sri Lanka as a failed asylum seeker involves or gives rise to a real chance of serious harm, either at the airport in Sri Lanka or on the applicant’s return to his home in the reasonably foreseeable future in Sri Lanka. Ultimately, the RRT was not satisfied that the evidence before it revealed a chance of persecution involving serious harm in connection with the applicant’s failed asylum application.

18. In relation to the applicant’s illegal departure from Sri Lanka, the RRT noted that it considered whether the applicant faced Convention-linked serious harm in the reasonably foreseeable future for that reason. The RRT referred to particular country information, including much of the material referred to in the applicant’s migration agent’s submission.

19. Ultimately, the RRT found that upon return, bail is routinely given to illegal returnees on an accused’s own recognisance, although a family member is also required to provide surety. The RRT acknowledged that such a returnee may be placed in remand and that conditions in remand include overcrowding.

20. The RRT found that there were no reports before it of  returnees held on remand awaiting bail hearings being subjected to torture or other forms of deliberate mistreatment. The applicant submitted that such a finding was not open to the RRT on the evidence and material before it, given the country information reports referred to above.

21. However, none of those reports identify particular instances of returnees being subjected to torture or other forms of deliberate mistreatment while awaiting bail hearings. True it is that one of the reports cited in the migration agent’s submission referred to country information from UK Home Office, Operational Guidance Note: Sri Lanka, dated April 2012, which stated as follows:

    “Conditions in prisons and police custody are very poor and taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of torture, are likely to reach the article 3 threshold and the grant of humanitarian protection may be appropriate.”

22. As stated above, the RRT specifically acknowledged that a number of human rights groups suggested that failed asylum seekers are at risk of serious or significant harm on their return by reason of having sought asylum abroad.

23. The RRT found that the reports lacked substance and noted that United Nations High Commissioner for Refugees (“UNHCR”) carries out regular monitoring in the areas and seeks to ensure that returnees receive humanitarian assistance. The RRT noted that there was no systematic monitoring by the UNHCR of returnees to Sri Lanka.  The RRT found that it was highly speculative to suggest that the absence of systematic monitoring places limits on transparency and accountability, such that the absence of systematic monitoring could be said to support the existence of a chance of real harm for a particular reason.

24. The RRT also referred to a report, dated October 2012, by the UK Home Office which, inter alia, concluded that only two of thirteen individuals alleged that they had suffered mistreatment following return from the UK. In one of those cases, alleged mistreatment did not occur until six months after return when the individual stopped at a checkpoint.

25. In the circumstances, it was open to the RRT to find that there were no reports that returnees held awaiting bail hearings had been subjected to torture or other forms of deliberate mistreatment on the evidence and materials before it.

26. A fair reading of the RRT’s decision record makes clear that it was aware of the reports of poor conditions in Sri Lankan prisons. The RRT was not obliged to refer to every piece of country information to which it had regard and which it did not accept. It is well established that country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

27. Ultimately, the RRT made the following finding that was open to it on the evidence and material before it and for the reasons it gave:

    “43. Having considered the information before it, the Tribunal is not satisfied that the treatment faced by Sri Lankan returnees who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution involving serious harm or gives rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.”

28. In the circumstances, the RRT did not fail to consider the applicant’s evidence in relation to conditions in Sri Lanka. It was simply not persuaded by that evidence or submissions made on behalf of the applicant’s representative.

29. It is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

30. Accordingly, ground 1 is not made out.

Ground 2

1. Ground 2 asserts that the RRT misconstrued or misapplied s.36(2A) of the Act and the definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act.

2. Section 36(2A) of the Act is in the following terms:

   “(2A)  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.” (emphasis added)

3. Section 5(1) of the Act is in the following terms in its definition of “cruel and inhuman treatment or punishment”:

   ““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.” (emphasis added)

4. The RRT made the following findings in relation to complementary protection:

   “46. Based on all the evidence before it including: the evidence and submissions presented by and/or for the applicant; what is accepted of the applicant’s claimed circumstances; the independent information referred to under “Particular Social Group – Failed asylum seekers” and “Illegal departure’ above; 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 applicant faces a real risk of significant harm in Sri Lanka in the reasonably foreseeable future in connection with his failed application for asylum.

   47. Regarding his illegal departure from Sri Lanka, while the Tribunal accepts that as a person who departed Sri Lanka illegally, the applicant will be questioned by the Sri Lankan authorities at the airport and in consultation with his local police authorities, the Tribunal is not satisfied that he has any adverse profile which will be revealed throughout that process. The Tribunal accepts that: whilst the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant, returnees are only reported to be held in remand if they illegally departed Sri Lanka and for a short duration of a few days while waiting to be brought before a court to apply for bail, which is routinely given. The weight of country information also indicates the applicant will be subject to a fine but not a custodial sentence for his illegal departure from Sri Lanka, and on that basis the Tribunal finds that the prospect of the applicant being detained for a prolonged period of time to be remote. Further, the Tribunal notes that, despite the large numbers of reported involuntary returnees to Sri Lanka, including from Australia and including a large number who departed Sri Lanka illegally by boat, and despite the high level media interest in those returnees, there has been no reporting of such returnees being exposed to acts or omissions amounting to significant harm. Specifically, there has been no reporting of such returnees being arbitrarily deprived of their life or the death penalty being carried out on them, or of them being subjected to mistreatment including intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by section 36(2A) of the Act.”

5. The RRT accepted that the applicant would be questioned by Sri Lankan authorities at the airport and in consultation with local police authorities. However, the RRT was not satisfied that the applicant has any adverse profile which would be revealed through that process.

6. The RRT accepted that while the applicant may be remanded in prison for a few days in conditions which are “cramped, uncomfortable and unpleasant”, returnees who left Sri Lanka illegally are only held on remand for a short duration of a few days while waiting to be brought before a court for bail, which is routinely given.

7. The RRT found 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. On that basis, the RRT found that the prospect of the applicant being detained for a prolonged period of time to be remote.

8. The RRT referred specifically to large numbers of reported involuntary returnees to Sri Lanka, including from Australia, and who departed illegally by boat.  It noted that “there has been no reporting of such returnees being exposed to acts or omissions amounting to significant harm.”

9. The applicant submitted that it was not open to the RRT to find that there was no reporting of such returnees being exposed to acts or omissions amounting to significant harm, in light of the information provided in the migration agent’s submission referred to above.

10. However, it is clear from the RRT’s reasons that in considering significant harm, the RRT had regard to the particular definition in s.36(2A) of the Act in finding that there had been no reporting of such returnees being arbitrarily deprived of their life or of the death penalty being carried out upon them; or, of them being the subject of intentional mistreatment involving torture or cruel or inhuman treatment or punishment; or, extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated in s.36(2A) of the Act.

11. As stated above those findings were open to the RRT on the evidence and material before it and for the reasons it gave.

12. Further, the applicant submitted that to describe the conditions in the Sri Lankan prison as “cramped, uncomfortable and unpleasant” suggests that the RRT has not had proper regard to the country information before it that provided specific detail that went beyond those descriptions. However, it was for the RRT to consider whether the conditions that the applicant may experience if he spent time in prison on remand amounted to cruel or inhuman treatment or punishment.

13. The RRT found the prospect of the applicant being detained for a prolonged period to be remote and found that he was likely only to be imprisoned for a few days.

14. The applicant submitted that cruel or inhuman treatment or punishment for a period of only a few days is sufficient to satisfy the definition of s.36(2A) of the Act. However, I do not accept that submission as a fair reading of the RRT’s reasons. The RRT did not make a finding that the applicant was at risk of cruel or inhuman treatment or punishment in a Sri Lankan prison for any length of time. The RRT found that the conditions in the prison “are cramped, uncomfortable and unpleasant”, but did not meet the definition of significant harm as defined in ss.36(2A) and 5(1) of the Act. Whilst it may have been open to the RRT to conclude otherwise, its finding was open to it on the evidence and material before it.

15. I do not accept the applicant’s submission that, because the RRT characterised the conditions in prison as “cramped, uncomfortable and unpleasant”, such a description demonstrated that the RRT had ignored the country information referred to in the migration agent’s submission as to the prison conditions referred to above in these reasons. As stated above, none of the reports provided in the submission suggested that there was any particular deprivation of life or any intentional mistreatment involving torture or cruel or inhuman treatment or punishment as is required in the definition of significant harm as defined in s.36(2A) and s.5(1) of the Act.

16. In the circumstances, the RRT’s findings and conclusions in relation to complementary protection were open to it on the basis of the evidence and materials before it and for the reasons it gave and there was no error in its construction and application of s.36(2A) and s.5(1) of the Act.

1. Insofar as ground 2 contends that the RRT was required to consider whether the applicant faced a real risk of significant harm if a family member was unable or unwilling to provide surety necessary to see that the applicant was released from the cruel and inhuman conditions, such an assertion misconstrues the RRT’s reasons. There was no evidence before the RRT to suggest that the applicant would not be able to provide surety and no claims were made by the applicant to that effect. There was no obligation on the RRT to make such inquiries in the absence of any assertion or claim by the applicant (see Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 405 per Kirby J; SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] per Selway J; NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [58]-[60] per Black CJ, French and Selway JJ )

2. In any event, the RRT accepted that the applicant may be held in remand for a short duration of a few days while waiting to be brought before a court to apply for bail, which it found to be routinely given. The finding that bail was routinely given was not confined to circumstances only where a family member was required to provide surety.

3. In oral submissions, Mr King suggested that cruel or inhuman treatment feared by the applicant was the intentional conduct of a sentencing judge in Sri Lanka. That also is not a claim made by the applicant on the evidence and material before the RRT and therefore there was no obligation on the RRT to consider it.

4. That applicant submitted that where a particular piece of evidence is not referred to by a tribunal in its decision, one is generally entitled to infer that such evidence was not referred to because the tribunal did not regard it as material (see Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16(“SZSRS”)).  However, SZSRS was considering whether or not a tribunal had failed to refer to a piece of evidence, being a particular letter, in its reasons. I do not accept that simply because the RRT did not refer to particular country information identified in the migration agent’s submission, that the RRT did not have regard to that information. A fair reading of the RRT’s decision record makes clear that the RRT was aware of country information to that effect. Moreover, the RRT clearly stated that it had regard to the evidence and submissions presented by the applicant.

5. I do not accept the applicant’s submission that the failure by the RRT to mention the specific country information to which the applicant referred in the migration agent’s submissions meant that it had not been taken into account by the RRT.

6. The material claimed by the applicant was that he would be subjected to cruel and inhuman treatment in the Sri Lankan prison. That claim was considered in detail by the RRT and the RRT’s decision record makes clear that it had regard to a significant amount of country information in considering that issue. None of the applicant’s material referred to in the migration agent’s submission made clear that there were reports of intentional acts within the prisons in terms of the definition of s.5(1) of “cruel and inhuman treatment”.

7. Accordingly, ground 2 is not made out.

Grounds 3 and 4

1. Grounds 3 and 4 were not pressed.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims in detail with the applicant at a hearing; and, had regard to all material provided in support, including all written submissions made by the applicant’s representative. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  19 June 2014