SZTCU v Minister for Immigration & Anor

[2014] FCCA 1600

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCU v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1600

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all the applicant’s claims and failed to take all relevant considerations into account.

Legislation:

Migration Act 1958, ss.5, 36, 91R, 474, 499

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630

Applicant: SZTCU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1708 of 2013

Judgment of: Judge Cameron

Hearing date: 23 May 2014

Date of Last Submission: 23 May 2014

Delivered at: Sydney

Delivered on: 28 July 2014

REPRESENTATION

Counsel for the Applicant: Mr D. Godwin

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1708 of 2013

SZTCU

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 18 May 2012.  On 23 August 2012 he lodged an application for a protection visa in which he alleged that he feared persecution in Sri Lanka because of his ethnicity and membership of a particular social group.  On 29 October 2012 that application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa were set out in the Tribunal’s decision. Relevant factual allegations are summarised below.

2. The applicant made the following claims in a statement attached to his protection visa application:

   a)the Sri Lankan Army (“SLA”) occupied his family home between 1997 and 2000.  He left Sri Lanka because the SLA considered his family to be enemies as a result of his mother’s numerous official attempts to recover their home;

   b)since 2000 the SLA had subjected him and his family to various forms of harassment, including calling their names loudly in the street at night and harassing him on his way to school;

   c)he also left Sri Lanka because of the activities of parties like the Eelam People’s Democratic Party and paramilitary groups which acted extra-judicially and with impunity.  The groups had abducted many young Tamil men his age using white vans and he knew it was just a matter of time before they targeted him;

   d)after he left Sri Lanka, Criminal Investigation Department (“CID”) officers made frequent visits to his home and harassed his family with questions about his whereabouts;

   e)if he returned to Sri Lanka he would be prosecuted and harmed by the government for having left the country illegally.  He would also be harmed by the SLA and the paramilitary groups; and

   f)as a Tamil, if he complained to the police his complaint would be forwarded to the paramilitary groups who would retaliate against him brutally.

3. The applicant’s advisers provided the Tribunal with submissions dated 10 January 2013.  They submitted that:

   a)the applicant and his family were strong supporters of the Tamil National Alliance (“TNA”).  Together with a TNA member of parliament, the applicant’s mother was a member of a temple committee and as a result had become involved in helping to set up meetings for the party during an election campaign;

   b)the applicant had frequently been approached by members of the paramilitary groups, particularly while travelling to and from university, and as a result he withdrew from his studies;

   c)on a number of occasions some men had gone to the applicant’s home area at night and called out his and his brother’s names.  This had last occurred on 1 May 2012, just prior to the applicant’s departure from Sri Lanka.  The applicant did not know who the men were but believed they were linked to the SLA or the paramilitary groups;

   d)the increasing power of the paramilitary groups had led, in the applicant’s home area, to an increase in extortion, physical harassment, violence, abductions of young Tamil men and the killing of Tamils;

   e)the applicant had a well-founded fear of persecution based on his race and his membership of the particular social group of failed asylum seekers. The applicant also held a fear based on his actual or imputed political opinion as someone perceived to be an opponent of the Sri Lankan government, someone who had acted in opposition to it, its agents or paramilitary groups operating in his area, or as a perceived Liberation Tigers of Tamil Eelam (“LTTE”) sympathiser; and

   f)there was a real risk that as a Tamil male who had left Sri Lanka illegally, the applicant would be subjected to significant harm.  The applicant’s advisers referred to country information about the situation in Sri Lanka, the use of torture by Sri Lankan officials, the penalties faced by persons who departed Sri Lanka illegally and the treatment of Tamil returnees.

4. In his oral evidence before the delegate and the Tribunal the applicant reiterated his claims and added that he was afraid that the paramilitary groups operating in his home area would forcibly recruit him and that his refusal to co-operate with them would result in him being harassed, beaten and possibly killed.  The applicant also told the Tribunal that:

   a)he believed that the paramilitary groups operating in his home area targeted young men at university;

   b)his family home was burnt down in 2002 and he and his family suspected that the SLA had been responsible.  His family had had to leave their home while it was repaired;

   c)he had been detained by the SLA, most recently when he was studying for his ordinary level certificate (in 2005 or 2006); and

   d)there was an SLA camp near his home.

5. At some point the applicant also said that his mother and two brothers were still living in their family home.

The Tribunal’s decision and reasons

1. The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal did not accept that the applicant would face any harm in the future because of his family’s dispute with the SLA concerning its occupation of their family home because:

   i)the applicant had last been detained by the SLA in 2005 or 2006.  Given the applicant’s evidence that there was an SLA camp near his home, the Tribunal found the fact that the applicant had not been harmed or mistreated by the SLA since 2005 or 2006 indicated that he was not of interest to them;

   ii)the applicant’s family had been living in the family home for over a decade and his mother and two brothers still did.  The Tribunal found that this cast doubt on the applicant’s claims that his family had been singled out for adverse action by the SLA while living in their family home;

   iii)the Tribunal did not accept that the SLA would have knocked on the applicant’s door at night over a period of time; and

   iv)for the reasons it gave for its finding that the applicant would not face harm from the SLA summarised above at (i) and (ii), the Tribunal also did not accept that at the time the applicant left Sri Lanka he or his family had been imputed with an anti-government opinion because of his mother’s actions in contesting the SLA’s occupation of their home;

   b)the Tribunal accepted that paramilitary groups had a powerful presence in eastern Sri Lanka but found that the applicant had not been singled out by those groups because they had wanted him to join them or for any other reason.  The Tribunal:

   i)found the applicant’s evidence that the paramilitary groups in his home area had threatened him, had forcibly sought to recruit him and had continuously harassed him was extremely vague, unconvincing and lacking in relevant and persuasive detail.  It doubted the credibility of his claims to have been subject to intimidation or threats of harm or to otherwise have been singled out for harm by paramilitary groups operating in his area;

   ii)did not accept that paramilitary groups, the SLA or any other groups had targeted the applicant by knocking on his door at night.  It found that if the applicant had been a person of adverse interest to those groups they would have taken steps to confront him directly;

   iii)noted that other than his claims that unidentified groups had knocked on his door at night, the applicant had not provided evidence about how the paramilitary groups had threatened him with serious harm for refusing to join them; and

   iv)found the applicant’s evidence about why he stopped attending university vague and lacking in detail and it did not accept that he had stopped attending university because of threats or harassment from paramilitary groups;

   c)the Tribunal found that the applicant’s evidence did not indicate that he was of adverse interest to the Sri Lankan authorities when he left Sri Lanka and, on that basis, it did not accept as credible his claim that the authorities had visited his home fifteen to twenty times since his departure.  While it was prepared to accept that the CID might have visited the applicant’s home on one occasion after identifying him as one of the many young men who had left Sri Lanka on a boat bound for Australia, the Tribunal did not accept that the simple fact that the authorities had visited the applicant’s home supported a conclusion that they would seek to harm him if he returned to Sri Lanka.  The Tribunal also did not accept that the applicant’s family members were of adverse interest to the authorities or paramilitary groups at the time he left Sri Lanka or that they had been harmed by the authorities or paramilitary groups after the applicant left for Australia;

   d)the Tribunal found that the applicant did not have the profile of a Tamil person who was at risk of being targeted by the authorities in Sri Lanka for any actual or imputed political opinion.  The Tribunal:

   i)found, based on the applicant’s evidence that he had never been involved in political activities, that he had had no involvement in political activities in Sri Lanka;

   ii)noted that whilst paramilitary groups in the applicant’s home district had intimidated TNA candidates and voters in the lead-up to the provincial elections, the applicant had not claimed that his mother and family members had faced harm in the past.  Given the applicant’s evidence about his mother’s very limited involvement in politics, it found the suggestion that he would face harm because of his imputed support of the TNA extremely speculative;

   iii)found, based on the evidence before it, that the applicant and his family were not strong supporters of the TNA.  It noted that the applicant had not claimed to have experienced harm in the past as a result of his mother’s limited support of a TNA candidate and considered the suggestion that he might do in the future to be extremely speculative;

   iv)noted that the applicant had not claimed to have a well-founded fear of persecution because of his prior political science studies; and

   v)observed that the applicant gave evidence that neither he nor his family members had ever been involved or suspected by the authorities of any involvement with the LTTE.  It noted statements made by the Sri Lankan government suggesting that it believed that some asylum seekers who had arrived in Australia had links with the LTTE.  In that connection, whilst accepting that on the applicant’s return the Sri Lankan authorities might conclude that he had applied for protection in Australia because of the circumstances of his departure and subject him to scrutiny and questioning, the Tribunal did not accept that the applicant’s background, including his Tamil ethnicity, place of origin, family background and activities in Sri Lanka, would cause him to be imputed with an adverse political opinion on the basis of a suspicion or perception that he or his family members were involved with the LTTE;

   e)the Tribunal did not accept that the applicant would face harm because of his ethnicity or membership of the particular social groups of young Tamil men, young Tamil men from Eastern Sri Lanka or young Tamil university students.  In this connection, the Tribunal noted that:

   i)the latest United Nations High Commissioner for Refugees Guidelines (“UNHCR Guidelines”) before it indicated that simply being a Tamil or a Tamil living in an area formerly under the control of the LTTE was insufficient to warrant international protection. Based on that information, while it accepted that Tamils in Sri Lanka still faced discrimination, the Tribunal did not accept that if the applicant returned there there was a real chance that the discrimination would rise to the level of serious harm for the purposes of s.91R of the Act; and

   ii)the applicant did not fall within the groups of people identified by the UNHCR Guidelines as facing an elevated risk of harm from paramilitary groups and security forces – namely persons suspected of links with the LTTE, opposition politicians and political activists, journalists, human rights activists, witnesses of human rights violations and victims of human rights violations seeking justice, women and children in certain circumstances and homosexual and transgender persons.  It further noted that the UNHCR Guidelines did not identify young Tamil men from the east or young Tamil university students as facing an elevated level of risk of harm from paramilitary groups;

   f)the Tribunal accepted that if the applicant returned to Sri Lanka he would be charged under that country’s immigration and emigration law because he had left by boat without a passport.  However, it found that that law was a law of general application and was not expressed in terms which were discriminatory on their face or disclosed a discriminatory intent.  The Tribunal noted country information which indicated that returnees who had breached the immigration laws were only detained for a brief period of time.  It further noted that country information indicated that the ultimate punishment for those returnees was most probably a fine and not a custodial sentence.  The Tribunal then concluded that the short detention and fine the applicant would face would not amount to persecution for a Convention reason because it would be the result of enforcement of a generally applicable law.  It also concluded that he would not be subjected to harsher punishment or face serious or significant harm whilst detained on remand.  It accepted that the conditions of detention the applicant would face would be crowded, cramped and unpleasant but, having regard to the applicant’s characteristics, the duration of the detention and the country information about Sri Lanka’s prison conditions, it was not satisfied that the harm he would face would amount to significant harm;

   g)the Tribunal accepted that as a failed asylum seeker forcibly returned to Sri Lanka the applicant would be questioned at the airport by immigration authorities, the CID and the state intelligence service.  However, based on country information about the interview processes the applicant would face, its finding that he had not had an adverse profile when he left Sri Lanka, his personal circumstances and his history, the Tribunal did not consider that that there was a real chance that he would suffer harm during the interview and questioning process which he would face at the airport.  It did not accept that country information supported the applicant’s claim that he would be imputed with a pro-LTTE opinion because of his status as a failed asylum seeker and the method by which he had departed Sri Lanka;

   h)the Tribunal accepted that the applicant might be contacted by the authorities for registration after he returned to his village and that there was a lack of monitoring of the treatment of returnees after they returned to their home towns.  However, it did not accept that the lack of monitoring supported a conclusion that the applicant would face serious harm and found his claim in this regard to be speculative; and

   i)while accepting that some Tamil returnees had faced arrest, interrogation and torture, the Tribunal found that country information did not indicate that all Tamils returning from the West were at risk of such harm. It found that to attract that mistreatment persons had to have engaged in some sort of activity or to have some history which brought them within one of the groups identified by the UNHCR Guidelines as being at risk, or to have otherwise come to the adverse attention of the Sri Lankan authorities because of their political or criminal activity. While accepting that the applicant would be subjected to official scrutiny and some level of social stigmatisation on his return to Sri Lanka, the Tribunal found that any discrimination or difficulties he would face as a Tamil failed asylum seeker would not amount to serious harm for the purposes of s.91R of the Act.

Proceedings in this Court

1. In his further amended application the applicant alleged:

   1.The Tribunal failed to address a submission centrally relevant to the decision being made

   Particulars

   The RRT made no reference or finding in respect of the applicant’s submission that he faced torture which would be intentionally inflicted to either:

   - punish him for being alleged to have committed the offence of departing Sri Lanka illegally; or

   - obtain information from him in relation to his reasons for leaving Sri Lanka and information provided as part of his asylum claim to Australian authorities;

   or, his detention was owing to his Tamil ethnicity and therefore for a reason based on discrimination.

   2.There was a failure by the Tribunal to engage in “an active intellectual process” in resolving the issues raised by the claim that the applicant faced torture in detention. 

   3.The RRT erred in its understanding of the applicable law on what was degrading treatment or punishment and cruel or inhuman treatment or punishment.  It accordingly failed to address the correct test when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment.

   4.The RRT failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958.

   Particulars

   The RRT failed to take into account the PAM 3 Protection Visas complementary protection guidelines when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment.

   5.     The RRT failed to take into account a relevant consideration

   Particulars

   The applicant repeats the particulars to ground 4.

Relevant Legislation

1. Section 36 of the Act relevantly provides:

   (1)     There is a class of visas to be known as protection visas.

   …

   (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 receivingcountry, there is a real risk that the non-citizen will suffer significant harm; or

   …

   (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.

2. Section 5(1) of the Act relevantly states:

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

3. Section 499 of the Act relevantly provides:

   (1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

   (a)     the performance of those functions; or

   (b)     the exercise of those powers.

   …

   (2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

   (2A)A person or body must comply with a direction under subsection (1).

   …

Grounds 1 and 2

1. The applicant alleged that the Tribunal failed to consider an integer of his claim, namely that he would face torture in detention if returned to Sri Lanka.

2. The applicant submitted, by way of background, that he had claimed to the Tribunal that he would be at risk of harm in Sri Lanka because he had left illegally, that he would be prosecuted for that conduct and that there had been increasing reports of failed asylum seekers, particularly young and middle-aged Tamil men, having been subjected to various forms of serious harm upon returning to Sri Lanka.  He observed that the delegate had recorded at page 12 of her decision:

   The applicant claims that should he return to Sri Lanka he would likely [sic] face imprisonment, arbitrary detention, beatings, or [be] subject to arbitrary deprivation of life by the Sri Lankan authorises [sic] or associated paramilitary groups because he left Sri Lanka illegally and because he is Tamil. 

3. He also referred to his advisers’ submission to the Tribunal dated 10 January 2013 which referred to country information concerning Sri Lankan Tamils returning to Sri Lanka and to the additional scrutiny to which they were subject:

   While the above information relates to the UK, we believe that given the current stigma that has been attached to Tamils undertaking the highly publicised and controversial journey to Australia by boat and that there is also a very active Tamil Diaspora community in Australia, that similar interest would be attached to Tamils returning as failed asylum seekers from Australia.

   and

   The above supports that [sic] those who have travelled to Australia in the same way as [the applicant] are likely of being [sic] seen by the authorities as LTTE supporters or as a “foot soldier” for the LTTE or pro-LTTE diaspora.

4. The applicant submitted that he had claimed that because he was a member of the Tamil diaspora he would be subject to additional screening and the risk of detention.  He submitted in the latter regard that he had claimed that detainees in Sri Lanka, even if only detained for ordinary criminal offences, were at risk of torture by the authorities as a means of extracting confessions or information for use in criminal proceedings.  He submitted that torture was endemic in Sri Lankan prisons, and occurred not just because a prisoner was suspected of supporting the LTTE, with the consequence that all detainees were at risk.

5. Page 9 of the advisers’ submission to the Tribunal dated 10 January 2013 cited a report of the United Nations Committee against Torture.  The applicant’s advisers relevantly said:

   There continues [sic] to remain credible reports of the widespread use of torture by state agents towards individuals being held in police custody.  As was noted in a report published by the United Nation’s Committee Against Torture (UNCAT) published in December 2011:

   Notwithstanding the new circumstances prevailing since the defeat of the Liberation Tigers of Tamil Eelam (LTTE) and the end of the military conflict that had consumed the country for nearly 30 years, and the State party’s public commitment to the Committee that it has a zero-tolerance policy on torture as a matter of State policy and practice, the Committee remains seriously concerned about the continued and consistent allegations of widespread use of torture and other cruel, inhuman or degrading treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings.  The Committee is further concerned at reports that suggest that torture and ill-treatment perpetrated by State actors, both the military and the police, have continued in many parts of the country after the conflict ended in May 2009 and is still occurring in 2011.

6. The applicant also referred to the following passage at pages 15-16 his advisers’ submission to the Tribunal dated 10 January 2013:

   Available information therefore supports that as a necessary and foreseeable consequence of [the applicant’s] removal that he would face a real risk of torture or degrading treatment or punishment.

   Firstly, [the applicant] would face a real risk of harm of a type that would constitute torture as defined under s36(2A)(c) of the Act on the basis that:

   ·   The findings of the UN CAT support that Sri Lanka’s state agents are currently committing acts or omissions involving “severe pain or suffering” whether physical or mental towards Sri Lankans currently being detained in its prisons and detention centres;

   ·   This harm would be intentionally inflicted on [the applicant] for at least one of the reasons prescribed under S5(1) including either that it would be used to punish him for committing or being alleged to have committed the offence of departing Sri Lanka illegally, to obtain information from him in relation to his reasons for leaving Sri Lanka and information provided as part of his asylum claim to Australian authorities or owing to his Tamil ethnicity and therefore for a reason based on discrimination that is inconsistent with Article 1 of the ICCPR; and

   ·   Torture is prohibited under the Sri Lankan Constitution pursuant to Article 11, even though State Actors may carry it out illegally with impunity.  The use of any form of torture, particularly against detainees held as a punishment for the offence of departing Sri Lanka illegally, could not then be considered as “inherent in, or incidental to:, lawful sanctions in Sri Lanka.  …

   (Emphasis in original)

7. The applicant submitted that the Tribunal had not considered the issues raised in that part of his advisers’ submission and that this was demonstrated by para.92 of the Tribunal’s decision where it was said:

   I have found the applicant was not of any interest to the Sri Lankan authorities or their agents for any reason at the time he left Sri Lanka. In light of these findings, and having regard to the country information before me, including the latest UNHCR Guidelines, which do not suggest all Tamil returnees are at risk of torture, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his return to Sri Lanka, there is a real risk that the applicant will suffer torture or be otherwise subject to mistreatment amounting to ‘significant harm’ if he is remanded in custody for a short period upon his return.

8. The applicant submitted that the Tribunal had not assessed the risk that, while he was in detention, he might be tortured:

   a)to punish him for committing or being alleged to have committed the offence of departing Sri Lanka illegally;

   b)to obtain information from him in relation to his reasons for leaving Sri Lanka;

   c)to obtain information from him concerning “information provided as part of his asylum claim to Australian authorities”; or

   d)because he was a Tamil.

   He argued that only if these claims were assessed could the Tribunal determine whether or not the Sri Lankan authorities might seek to use torture on him to further its objectives and investigations.

9. He submitted that instead of considering the risk to him of being detained and then tortured as part of the alleged endemic practice and because of his particular characteristics, the Tribunal had focused on its conclusion that he had not been of any interest to the Sri Lankan authorities when he left that country and its finding that not all Tamil returnees were at risk of torture.  He submitted that the Tribunal had not addressed the basis of his claim for complementary protection.

Consideration

1. It should be noted at the outset that in para.93 of its reasons the Tribunal recorded that it had considered the submission of 10 January 2013.  It should therefore not lightly be concluded that part of that submission was not considered. 

2. The emphasis in the applicant’s submissions concerning the first and second allegations in this proceeding was on para.92 of the Tribunal’s reasons.  However, other passages relevant to those grounds appeared earlier in the Tribunal’s decision record and they must also be considered when the Tribunal’s reasoning is examined.  In particular, at para.81 the Tribunal described the applicant as:

   … a Tamil man who left Sri Lanka illegally and sought asylum in Australia,

   which was the applicant’s “profile”, for the purposes of the Tribunal’s decision. At para.82 the Tribunal stated that country information available to it did not indicate that persons would be mistreated in Sri Lanka simply because they were Tamil, although they might be at risk if they had come to attention for political or criminal activity or if they had engaged in some sort of activity or had a history which brought them within one of the groups which the UNHCR Guidelines suggested were at risk.  Significantly, the Tribunal said at para.82:

   To the extent there are reports referred to in the applicant’s submissions which suggest that some persons have arbitrarily been detained and tortured or subject to abduction or extortion simply for because of their profile as a Tamil returned failed asylum seeker, I do not consider these reports provide sufficient detail about those who have suffered to enable me to conclude that simply seeking asylum and returning from the West, even if the person is Tamil and even if they departed Sri Lanka via irregular means, gives rise to a real chance that such harm will occur.

3. Although those findings in paras.81 and 82 were made in the context of the applicant’s Convention-related claims, they also formed part of the basis for the Tribunal’s conclusion concerning his complementary protection claims.  At para.89 of its reasons, the Tribunal specifically relied on its findings on the applicant’s Convention-related claims to conclude that the applicant, with his profile, did not face a real risk of significant harm, the complementary protection test, during processing at the airport in Sri Lanka.

4. From that conclusion the Tribunal then moved to consider the consequences for the applicant of being charged, under the Immigrants and Emigrants Act 1949 (Sri Lanka), with having left Sri Lanka illegally.  Referring again to the applicant’s profile, the Tribunal said at para.90 that it was not persuaded that persons such as him faced a real risk of significant harm.  It then considered what might happen to the applicant were he remanded in custody and went on to state at para.91:

   I accept that the applicant will be questioned and briefly detained on remand in relation to penalties he will face for departing Sri Lanka illegally before ultimately being required to pay a fine for departing Sri Lanka in breach of the I & E Act. However, independent media reporting about the treatment of returnees does not, in my assessment, provide evidence that would support the conclusion that there is a real risk that returnees who are charged in relation to illegal departure will face significant harm whilst detained on remand.

5. Although the Tribunal then proceeded in para.92 to make the finding specifically relating to the applicant which is the subject of these asserted grounds of review, that was no more than a culmination of the reasoning which it had expressed in preceding paragraphs of which, for present purposes, para.91 is the most important.  In the context of the applicant’s Convention-related claims the Tribunal had already found in para.82 that a person with the applicant’s profile was not at risk of torture.  Consequently, its additional finding in para.91 that returning asylum seekers charged with departing Sri Lanka illegally would not face significant harm provided it with a sufficient basis to reach the finding expressed in para.92, that the applicant did not face a real risk of torture if remanded in custody in Sri Lanka. 

6. The Tribunal’s general rejection of the allegation that the applicant faced torture in detention because he was a Tamil who had left Sri Lanka illegally and sought asylum in Australia dealt sufficiently with the advisers’ submission of 10 January 2013 that the applicant would face significant harm:

   a)to punish him for committing or being alleged to have committed the offence of departing Sri Lanka illegally;

   b)to obtain information from him in relation to his reasons for leaving Sri Lanka;

   c)to obtain information from him concerning “information provided as part of his asylum claim to Australian authorities”; or

   d)because he was a Tamil.

   No greater specificity was required: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 at 641 [47].

7. I am not persuaded that the Tribunal did overlook the applicant’s claim to fear significant harm in Sri Lanka in the form of torture. 

Grounds 3-5

1. Grounds three to five of the application involved an allegation that the Tribunal failed to consider the applicant’s claim to fear cruel, inhuman or degrading treatment or punishment if he returned to Sri Lanka. The applicant submitted that in addition to being at risk of torture in detention he would be subjected, by reason of the poor conditions in Sri Lankan gaols, to cruel, inhuman or degrading treatment there.

2. The applicant submitted in connection with this allegation that s.499(2A) of the Act obliged the Tribunal to comply with Ministerial Direction No.56 which in turn required it to take into account, to the extent relevant, a section of Procedures Advice Manual 3 entitled “Complementary Protection Guidelines” (“CP Guidelines”). The applicant referred to:

   a)para.11 of the CP Guidelines which relevantly said:

   These types of significant harm [referred to in s.36(2A) of the Act] are those in relation to which a non-refoulement obligation may be owed to a non-citizen in Australia and are based on the General Comments and views of the United Nations Human Rights Committee (UNHRC) and the United Nations Committee against Torture (UNCAT);

   b)to para.14 which relevantly said:

   The terms ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are defined in s.5(1) of the Act. The definitions derive from, and require decision makers to turn their minds to, international jurisprudence;

   c)to para.22, which concerned “Pain or suffering and ‘reasonably regarded as cruel or inhuman in nature’ ” and relevantly said:

   Decision makers should interpret this part of the definition by reference to the international jurisprudence on the meaning of cruel or inhuman treatment or punishment in the context of Article 7 of the ICCPR;

   d)to para.25 which relevantly said:

   To meet the definition of degrading treatment or punishment, an act or omission must cause extreme humiliation.  It is intended that the meaning of the term “extreme humiliation” would be informed by international jurisprudence considering when treatment would constitute degrading treatment or punishment in breach of Article 7 of the ICCPR.

   …

   The UNHRC has stated that ‘for punishment to be degrading, the humiliation or debasement involved must exceed a particular level and must, in any event, entail elements beyond the mere fact of deprivation of liberty.  For more information on when prison conditions may amount to degrading treatment or punishment, see Imprisonment/Prison conditions; and

   e)to para 29, entitled “About lawful sanctions”, which relevantly said:

   Imprisonment / Prison conditions

   …

   As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7.  The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state or health or other status of the victim.

   Examples of conditions which have been held to constitute breaches of Article 7 include:

   ·   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

   …

   The existence of one relevantly minor condition (for example, a small cell) may not be sufficient to breach Article 7.  However, the accumulation of a combination of poor or unreasonably restrictive conditions (for example, a small cell, overcrowding, prolonged detention and lack of opportunities for exercise) may raise the severity of the treatment above the necessary threshold.

   (References omitted)

1. The applicant submitted that in its reasons the Tribunal failed to refer to international jurisprudence or to demonstrate an awareness of the direction in the CP Guidelines that such jurisprudence be taken into account.  In that context he referred to para.87 of the Tribunal’s reasons where it was said:

   ‘Significant harm’ [for the purposes of the complementary protection tests] is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

   The applicant submitted that the Tribunal’s statement that the statutory definition was “exhaustive” indicated that it had not taken the CP Guidelines into account and had thus misunderstood the applicable law.

2. The applicant also referred to his advisers’ submissions to the Tribunal of 10 January 2013.  At pages 14 and 15 of those submissions the applicant’s advisers stated:

   The report by the UNCAT also details the degrading conditions faced by individuals held in detention in Sri Lanka as it noted:

   The Committee is concerned 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 and the failure to keep adult detainees and juvenile offenders separate, as reported by the Special Rapporteur on the question of torture [references omitted].  In this respect, the Committee regrets the absence of information provided by the State party on measures taken to improve conditions of detention for those held on remand and for convicted persons.

   The degrading conditions experienced by detainees would extend to those who have been arrested for offences including the illegal departure from Sri Lanka.  This has been confirmed in recent news articles on the fate of failed asylum seekers returned to Sri Lanka from Australia, like the one referred to above, that reports on the poor conditions including the overcrowding.

3. Later in that submission they argued:

   … [the applicant] would face a risk of harm of a type that would constitute degrading treatment or punishment as defined under s36(2A)(e) of the Act on the basis that:

   ·        The UN CAT’s recent report and other country information relating to the conditions faced by detainees in Sri Lanka supports there is [sic] substantial grounds for believing there is a real risk [the applicant] would face detention on his return and as a result would face a real risk of extreme humiliation that is unreasonable.  Such treatment, as referred to in the UN CAT report above, includes facing overcrowded conditions with a lack of proper hygiene and medical facilities.  This would go beyond the inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment.

   ·        The harm feared by [the applicant] would be intentionally inflicted on him in that the Sri Lankan authorities are either deliberately creating the conditions being faced by detainees in their detention centres or are deliberately failing to improve such conditions; and

   ·        Like torture, degrading treatment or punishment is also prohibited under the Sri Lankan Constitution pursuant to Article 11 and so the use of degrading treatment or punishment could not be seen to ever be inherent in or incident to any lawful sanction in Sri Lanka.  …

   (Emphasis in original)

4. The Tribunal’s findings on that issue were at paras.93 and 94 of its reasons:

   The applicant’s submissions of 10 January 2013 refer to the prison conditions in Sri Lanka and, I accept that, many reputable reports indicate that prison conditions in Sri Lanka do not meet basic international standards.  I accept that independent sources indicate that the conditions of detention the applicant will face whilst detained will be crowded, cramped and unpleasant. However, having regard to the characteristics of the victim, the duration of the detention, and the country information about prison conditions I am not satisfied that, in all the circumstances of the case it reaches the level of severity that amounts of ‘significant harm’ for the purpose of the complementary protection.

   I therefore do not accept that, having regard to my findings about the circumstances and duration of the detention the applicant will face, there is a real risk that the applicant will be subjected to pain and suffering that could reasonably be characterised as ‘cruel or inhuman treatment or punishment’ within the meaning of subsection 5(1) of the Act and nor do I accept that he will face conditions of detention which could reasonably be regarded as amounting to degrading treatment or punishment.

5. The applicant submitted that a further inference that the Tribunal had failed to consider the CP Guidelines could be drawn from the fact that those guidelines had a section on prison conditions, quoted above at [31], to which express reference was not made even though it referred to an international decision which dealt with a situation analogous to his own, involving extremely cramped and unsanitary prison conditions, and to another which dealt with threats of torture or death and a lack of water, adequately nutritious food, clothing, separate beds and opportunities for adequate exercise.  The applicant submitted that, absent references to that section of the CP Guidelines, the Court could not be satisfied that the Tribunal had engaged in an active intellectual process in relation to those guidelines.

6. The applicant also submitted that if the Tribunal had had regard to the CP Guidelines and the cases they cited, it could not have said, as it did at para.94 of its decision, that the prison conditions the applicant would face in Sri Lanka would not amount to cruel, inhuman or degrading punishment.

7. In summary, the applicant submitted that the Tribunal had:

   a)misunderstood the applicable law;

   b)failed to comply with Ministerial Direction No.56; and

   c)failed to take relevant considerations into account, namely international jurisprudence and the issues it raised. 

Consideration

1. In para.9 of its reasons the Tribunal said:

   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration.

   The Tribunal also referred to the CP Guidelines at para.10 of its decision when discussing the “real risk” test to be applied to the complementary protection criteria.  As with the Tribunal’s statement that it had considered the applicant’s advisers’ submissions of 10 January 2013, given that the Tribunal expressly referred to its obligations under the ministerial direction and the CP Guidelines, it should not lightly be inferred that the Tribunal failed to discharge those obligations. 

2. Dealing first with the applicant’s allegation that the Tribunal’s statement in para.87 of its reasons that the statutory definition was “exhaustive” indicated that it had not taken the CP Guidelines into account and had thus misunderstood the applicable law, I am not persuaded that it can be inferred from the way the Tribunal expressed itself in that paragraph that it did not consider the CP Guidelines. Those guidelines do not purport to define the component elements of “significant harm”. Rather, they discuss matters which may be taken into consideration when determining whether a particular circumstance amounts to significant harm. Consequently, the Tribunal was not wrong to say that the terms were defined by the statute, not least because s.499(2) subordinated the ministerial direction to the terms of the Act.

3. The applicant placed considerable emphasis on the fact that the CP Guidelines contained a section dealing specifically with imprisonment and prison conditions, those guidelines saying in para.29, as quoted earlier in these reasons:

   As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7.  The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.

   In the second and third sentences of para.93 of its reasons the Tribunal said:

   … I accept that independent sources indicate that the conditions of detention the applicant will face whilst detained will be crowded, cramped and unpleasant. However, having regard to the characteristics of the victim, the duration of the detention,  and the country information about prison conditions I am not satisfied that, in all the circumstances of the case it reaches the level of severity that amounts of ‘significant harm’ …

4. I infer from the choice of words in those latter sentences, particularly “victim” and “level of severity”, that the Tribunal had had regard to para.29 of the CP Guidelines.  As the international jurisprudence to which the applicant particularly referred was cited in that paragraph of the CP Guidelines, I conclude that the Tribunal’s consideration of that paragraph included a consideration of the international jurisprudence referred to there.  The Tribunal was not relevantly required to do more.  Neither the ministerial direction nor the CP Guidelines required the Tribunal to look first at the guidelines and then separately at international cases.  The guidelines simply required the Tribunal to have regard to international jurisprudence.  As that jurisprudence was set out in the guidelines themselves, the Tribunal discharged its relevant obligation by considering those guidelines.

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated.

2. Consequently, the application will be dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 28 July 2014