SZTDU v Minister for Immigration
[2015] FCCA 1615
•15 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTDU v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1615 |
| Catchwords: MIGRATION – Application for review of the decision of the Refugee Review Tribunal – whether Tribunal misconstrued or misapplied applicable law – whether Tribunal failed to take into account a relevant consideration – whether Tribunal failed to deal with a claim or component integer of a claim – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 46A, 55, 91R, 476 |
| SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZTDU |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1797 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 15 May 2014 |
| Date of Last Submission: | 10 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 15 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Ms A Mitchelmore |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application made on 1 August 2013 and amended on 10 February 2014 and further amended on 23 April 2014 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $ 13,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1797 of 2013
| SZTDU |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 1 August 2013 and amended on 10 February 2014 and further amended on 23 April 2014 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 June 2013 which affirmed the decision of the Minister’s delegate to refuse a protection visa to the applicant.
Background
The evidence before the Court is contained in a bundle of relevant documents filed by the Minister in these proceedings (“Court Book” – “CB”) and the affidavit of Ms J Falconer, Administration Assistant, of 7 February 2014 which annexed a copy of the transcript of the Hearing before the Tribunal (“T”).
The following is relevant background. The applicant is a citizen of Sri Lanka who arrived in Australia on 20 June 2012 as an “Irregular Maritime Arrival” (CB 1). The applicant attended an “entry interview” on 22 August 2012 with an immigration official (CB 1 to CB 20).
At this interview the applicant claimed that he had had to leave Sri Lanka because he supported the “Tamil National Party” (“TNP”) in an election in April 2010. The applicant claimed, as a result of this support at the election, and because he “did not support other parties”, an “armed group” of unidentified men had come into his house and broken things, threatened him and beaten him. After this event, the applicant claimed that these men, again, came to his house, and the homes of various family members “every month, every two months” (CB 14).
The applicant claimed to be a member of the “Hindu Youth Committee” (“HYC”) and was told that if the TNP were successful, the Committee would receive help. The applicant further claimed that he had experienced problems with the Sri Lankan army from 1988 to 1994, and that they had asked his father if the LTTE had visited him. The applicant claimed that during this period the army had beaten both the applicant, and his father, at various times, which resulted in “disablement” (CB 14).
The Minister lifted the s.46A bar on 4 September 2012. The applicant applied for a protection visa on 13 November 2012 (CB 30 to CB 103). He attached a Statutory Declaration to his application (CB 62 to CB 66). In this the applicant claimed that in April 2010 he joined the “Tamil National Alliance” (“TNA”) (I note previously the applicant had stated he joined the “Tamil National Party – TNP”, see [2] of the applicant’s Statutory Declaration). His claims, as set out in this document can be summarised as follows:
1)
The applicant claimed that he was “happy to volunteer” for the TNA in the election, through erecting advertising material, organising TNA events and attending meetings, as it was for “the best interest of Tamils in the Batticaloa District”. The applicant supported the successful candidate in his area for the TNA
([3] ‑ [5] of the applicant’s Statutory Declaration).
2)The applicant further described the incident that he had earlier recounted, that on or around 15 April 2010 he was attacked by a group of 15 armed men who variously spoke Tamil and Singhalese. The applicant believed these men were associated with the Tamil Makkal Viduthalai Pulikal (“TMVP”) who were political opponents to the TNA, and associated with the armed “Karuna” group. The applicant was questioned in regard to his support of the TNA and told to stop his support or that he, his family, and friends would be shot. He was beaten and guns were pointed at him ([6] – [9] of the applicant’s Statutory Declaration).
3)Three days after the above mentioned attack, two men on a motorbike stopped outside his house. Assuming that these men were from the Karuna Group, the applicant feared further harassment and made plans to go into hiding in the evenings, to leave Sri Lanka, and sent his wife and family to stay with her family ([10] of the applicant’s Statutory Declaration).
4)The applicant claimed that in July 2010 his wife was threatened and demands were made of her of his location ([11] of the applicant’s Statutory Declaration).
5)The applicant further claimed that in relation to the “new” national elections in September 2012, he had ceased his public involvement and support of the TNA due to the threats made against him but was still associated with the Hindu Youth Committee who continued to support the TNA ([14] of the applicant’s Statutory Declaration).
6)On arrival in Australia, the applicant was informed by his wife that armed men had come to his home and demanded information of his location. Threats were made against the applicant ([16] of the applicant’s Statutory Declaration).
7)The applicant feared for his, and his family’s, safety due to the TNA’s victory in the elections. He believed that if he returned to Sri Lanka he will be captured by the Sri Lankan authorities and interrogated as to the reason for his departure, and suspicion would fall on him as he may have provided information about the authorities to their opponents ([17] of the applicant’s Statutory Declaration).
The applicant’s protection visa application was refused by the Minister’s delegate on 7 February 2013 (CB 108 to CB 135). The delegate summarised the applicant’s written claims (CB 119 to CB 121). The delegate discussed various issues with the applicant at the protection visa interview (CB 121 to CB 122). The applicant confirmed his support of the TNA prior to the parliamentary election, stating that he set up “meetings and put up posters” for the TNA and that was the “extent of his involvement” in that election (CB 121.7), and that he “did no other work in any way for the TNA” (CB 122.2). The applicant stated, in regard to the 2012 election in Sri Lanka, that he “was not particularly interested in politics and had only assisted the TNA the one time” (CB 122.2).
The delegate found that the applicant had fabricated his claims to obtain a positive immigration outcome (CB 123.4). The delegate further found that the applicant’s involvement with the TNA was “low level” and “limited” to a short period, and that the risk to the applicant was remote rather than real (CB 128.5 and CB 130). The delegate found that the applicant had refrained from participating in political activities after April 2010, due to a “lack of interest in politics rather than out of any fear of harm” (CB 128.10).
The Tribunal
The applicant applied for review to the Tribunal on 4 March 2013 (CB 137 to CB 142). The applicant’s representative made written submissions to the Tribunal prior to the hearing (CB 185 to CB 216). The submissions provided further information in relation to the applicant’s claims based on the April 2010 elections ([20] – [23] at CB 189), the alleged events of 15 April 2010 and subsequent encounters with people from the TMVP ([24] at CB 189 to [37] at CB 191).
The submissions provided further information about the applicant’s involvement with the HYC (see [7] - [8] at CB 186, [12] at CB 187, [14] at CB 188 and [42] at CB 192). The submissions set out the applicant’s claims as to whether he had a well-founded fear of persecution for reasons of his race and imputed political opinion ([56] at CB 194 to [62] at CB 198), actual political opinion (with the TNA) ([63] at CB 198 to [66] at CB 199) and membership of a particular social group as a failed asylum seeker ([67] at CB 199 to [72] at CB 203).
The submissions advanced a claim under the complementary protection provisions that the applicant feared arrest, detention and torture on return to Sri Lanka, that any interaction with Sri Lanka’s interrogation process and prison system would result in the applicant experiencing significant harm in the form of torture, cruel or inhuman treatment or punishment and/or degrading treatment or punishment ([73] at CB 203 to [74] at CB 210 – it appears that the submissions have been renumbered at CB 204 from [73] back to [58]). The submissions make reference to Articles 34 and 35 of the Immigrants and Emigrants Act No. 31 of 2006 (“the I and E Act”) which provide for the control of, inter alia, departures from Sri Lanka. The submissions also set out the terms of the violation of these articles for a returnee including a “mandatory fine and imprisonment”. The fine being between 50,000 and 200,000 rupees and imprisonment for a period between 1-5 years ([79] – [81] at CB 213).
The applicant attended a hearing before the Tribunal on 28 May 2013 (CB 217). On 31 May 2013, the applicant’s representative provided further written submissions to the Tribunal after the hearing (CB 220 to CB 225). These submissions addressed the applicant’s inconsistent statements as to the affiliation of the attackers in relation to the 15 April 2010 incident ([2] at CB 221).
The submissions were also directed to country information indicating that failed asylum seekers returned to Sri Lanka are not targeted unless they are known to have links with the LTTE ([13] at CB 223). At [16] (at CB 224) of the post hearing written submissions, the applicant’s representative suggested that although returnees to Sri Lanka are routinely detained and released on bail, this was due to “inadequate facilities” to detain all returnees. The applicant submitted that this may change in the reasonably foreseeable future as an increase in military spending will be directed towards “addressing the inadequacies of housing returnees” due to the perceived threat of these returnees having links with the LTTE or other paramilitary organisations. The applicant referred to an article “Unprecedented military budget in Sri Lanka” in a footnote in this submission (CB 224).
The submissions were also directed towards the applicant’s involvement with the TNA and whether his involvement was limited to the assistance he provided in April 2010, and that he was unlikely to be continued to be imputed with a pro-TNA political opinion ([18] at CB 224).
On 27 June 2013, the Tribunal affirmed the decision of the Minister’s delegate to refuse the grant of a protection visa to the applicant (CB 229 to CB 248).
The Tribunal summarised the nature of the applicant’s claims [4] – [5] (at CB 230). The Tribunal found that some aspects of his claims and evidence were consistent over time, but that “significant aspects” of the applicant’s claims and evidence were “problematic” and “highly lacking in credibility”([10] at CB 231).
The Tribunal discussed the applicant’s Statutory Declaration with him and the relevance of the September 2012 elections to the applicant, who was in Australia at the time. The Tribunal noted that the applicant responded that he did not have any intention of being involved in any future elections after April 2010, that he had no idea what the September 2012 elections were about and that he had “no ongoing interest in politics”. He added further that he had only supported the TNA in 2010 because “they said they would support” the HYC ([17] at CB 232 to CB 233).
The Tribunal found, in relation to the applicant’s claims to fear harm because of his support for the TNA, that he had some, “albeit very minor”, involvement with TNA activities in April 2010. The Tribunal found that this involvement with the TNA was “incidental to his involvement in the HYC” and “comprised putting up some posters, attending meetings and encouraging friends and family, privately, to support the TNA” ([19] at CB 233). Further, the Tribunal was satisfied that the applicant had not been a member of any political, military or paramilitary movement in Sri Lanka, had not been involved with the TNA beyond the scope of his activities in April 2010 and that ([19] at CB 233):
“…he has no ongoing interest in or support for any political movement in Sri Lanka, has not kept up to date with elections in Sri Lanka as he has no ongoing interest in politics and no particular political opinions he wishes to express or support in the reasonably foreseeable future.”
The Tribunal accepted that the applicant was involved with the HYC until shortly before his arrival in Australia but was not satisfied, on the evidence before it, that this involvement had imputed him in the past, or would impute him in the reasonably foreseeable future, with a profile that would give rise to a real risk of serious harm in Sri Lanka ([20] at CB 234).
The Tribunal had “significant and cumulative concerns” about the applicant’s account of the events on 15 April 2010 ([21] at CB 234). The Tribunal considered that the claimed willingness of the applicant’s pregnant wife and children to return to their home within days after the alleged event “cast doubt on the truth of significant aspects of his claims and evidence” ([21] at CB 234 to [23] at CB 235). The Tribunal found the applicant’s varied evidence as to when he returned home and as to what he saw on 15 April 2010 to further “cast doubt on his credibility” ([22] at CB 234 to CB 235).
While the Tribunal accepted that supporters, members and candidates of the TNA have been adversely targeted in the recent past for intimidation and harm around election times, the Tribunal found that due to the applicant’s low level of involvement with the TNA, he would not have any actual or imputed profile as a TNA supporter ([25] at CB 235 to CB 236). Despite the applicant’s representative’s attempts to explain discrepancies in the applicant’s evidence in regards to the 15 April 2010 incident, the Tribunal was not able to be satisfied that the events of 15 April 2010 occurred, that he was singled out as a TNA supporter or that he was adversely approached or monitored. The Tribunal was not satisfied that the applicant had any adverse profile with anyone at the time he left Sri Lanka for any of the reasons claimed, or for any other reason arising on the evidence ([26] at CB 236).
The Tribunal turned to consider whether there was a risk of harm in the reasonably foreseeable future if he returned to Sri Lanka ([27] at CB 236). In this context, it assessed any consequences flowing from his Tamil ethnicity and found that it did not give rise to a well-founded fear of persecution ([28] at CB 236 to [31] at CB 237).
The Tribunal assessed his claim to face a real chance of serious harm because of his actual and imputed political opinions and support for the TNA ([32] at CB 237 to CB 238).
The Tribunal noted, in its consideration of the above claim, that independent sources identified the targeted intimidation of TNA supporters and members at elections times, which suggested that such people may face targeted intimidation in future elections. However, the Tribunal found that ([32] at CB 237):
“…the applicant expressly told the Tribunal that he has no ongoing interest in politics and demonstrated being unaware of significant political events impacting Sri Lanka, such as the nature of the September 2012 elections.”
The Tribunal found on the evidence, and its earlier findings, that it could not be satisfied that the applicant had any desire to express any political opinions or support any political movements in the reasonably foreseeable future, or that he faced a real chance of serious harm in connection with any actual or imputed links or support for the TNA in the reasonably foreseeable future ([32] at CB 237 to CB 238).
The Tribunal also considered whether the applicant faced a real chance of serious harm because he was a failed asylum seeker who had departed Sri Lanka illegally ([33] at CB 238 to [45] at CB 242).
The Tribunal had regard to various country information in its consideration of this claim, which it said indicated that standardised procedures related to all cases, regardless of a person’s ethnicity or circumstances of departure. These procedures involved routine interviews at the airport when a person arrives, by various state departments, including police and security checks and clearances ([43] at CB 241).
The Tribunal noted the following ([44] at CB 241):
“Under recently tightened procedures those returnees who are believed to have left the country in breach of Sri Lanka’s laws on immigration and emigration are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. Conditions in remand have been described in media reports as being overcrowded, although there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The penalties eventually imposed on returnees by the courts for illegal departure have involved fines ranging up to Rs 100,000.”
The Tribunal was unable to be satisfied that the treatment faced by illegally departed Sri Lankan returnees, either at the airport or on remand for a bail hearing, or when being dealt with by the Sri Lankan Courts, amounted to persecution involving serious harm. Further, the Tribunal could not be satisfied that it gave rise to a real chance of such harm in the reasonably foreseeable future, even when assessed cumulatively with what it accepted of the applicant’s personal profile and circumstances ([45] at CB 241 to CB 242).
The Tribunal was also not satisfied, based on the evidence before it, that there were 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 ([48] at CB 242).
The Tribunal accepted that the applicant would be questioned by the relevant Sri Lankan authorities as a person who had departed Sri Lanka illegally but that no adverse profile would be revealed throughout this process. Further, the Tribunal accepted that returnees may be remanded in prison conditions which are “cramped, uncomfortable and unpleasant”. It held that this was for a short duration of a few days, while waiting to come before the Courts for a bail application, which were “routinely” granted ([49] at CB 242 to CB 243).
The Tribunal found that the prospect of the applicant being detained for a prolonged period of time to be remote due its earlier findings, and also, due to the weight of country information which indicated that the applicant would be subject to a fine, and not a custodial sentence for his illegal departure. The Tribunal also noted that
“reporting to date does not provide substantial grounds for believing that…such returnees face a real risk of being exposed to acts or omissions amounting to significant harm” ([49] at CB 243).
Application before the Court
The grounds of the further amended application are in the following terms:
“1. The Tribunal fell into jurisdictional error by misconstruing or misapplying the applicable law, 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’: [49].
b. The Tribunal found that there have been reports that Negombo prison is ‘overcrowded’ [44], 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’: [44].
c. As a matter of law, overcrowding can amount to ‘cruel or inhuman treatment’ within the meaning of ss 5 and 36(2A), even if the pain or suffering is limited to ‘a few days’. That was not the Tribunal’s construction of ss 5 and 36(2A) of the Act, because that construction is inconsistent with the findings in subparagraphs (a) and (b) above.
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’: [49] and probably only ‘a few days’: [49]; and
ii. bail ‘is routinely given’: [44], ‘although a family member is also required to provide surety.’ [44].
e. The finding in subparagraph (d)(i) involved an error in the construction of ss 5 and 36(2A) of the Act, because cruel or inhuman treatment for a period of only a few days does not on that basis cease to be cruel or inhuman treatment. The Tribunal failed to make the findings of fact necessary to form a state of satisfaction about whether there is a real risk the various elements of the definition of ‘cruel or inhuman treatment’ in s 5 would be present or not present in the applicant’s case.
f. Further or in the alternative, 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 member was unable to or unwilling to provide the surety necessary to see the applicant released from the cruel 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) of the Act, or failed to apply the ‘what if I’m wrong test’ to its conclusion that the applicant would be detained for ‘a few days’ given the evidence before the Tribunal that Sri Lankan law imposes a mandatory sentence of imprisonment for at least one year.
2. The Tribunal engaged in jurisdictional error by finding, or in respect of its finding, that the applicant told the Tribunal that he had no ongoing interest in politics.
Particulars
a. The Tribunal found that the applicant expressly told the Tribunal that he had no ongoing interest in politics (CB237[32]; see also CB233[19]).
b. This finding was significant to the Tribunal’s Decision in that it was relied upon by the Tribunal when finding that it was not satisfied on the evidence before it that the applicant had any desire to express or support any political opinions or movements in the reasonably foreseeable future or that he otherwise faced a real chance of serious harm in connection with any actual or imputed links or support for the TNA in the reasonably foreseeable future (CB237-238[32]).
c. This finding was a critical finding made in the absence of evidence because the applicant did not, as claimed by the Tribunal, at any stage expressly telling the Tribunal that he had no ongoing interest in politics. The applicant’s oral evidence to the Tribunal was that he helped the TNA because its members told him that they would support the Hindu Youth Society and that apart from that he did not have any interest in Sri Lankan elections (and his written evidence also gave reasons for supporting the TNA) (Transcript at p 29).
d. Further and in the alternative, the Tribunal failed to take into account a relevant consideration; namely the applicant’s evidence to the Tribunal that he had no interest in the Sri Lankan elections apart from the TNA members telling him that they would support the Hindu Youth Society.
e. Further and in the alternative, the Tribunal misconstrued a component integer of the applicant’s claim. The applicant claimed that he had no interest in the Sri Lankan elections apart from the TNA members telling him that they would support the Hindu Youth Society, whereas the Tribunal misconstrued this as a claim that the applicant had no ongoing interest in politics at all.
3. The Tribunal engaged in jurisdictional error by failing to correctly construe and deal with a claim or component integer expressly raised by the applicant or otherwise squarely raised on the material before it and/or it failed to take into account a relevant consideration.
Particulars
a. The applicant claimed that the Sri Lankan government had recently increased military spending, with the consequence that the prospects of the applicant (as a returnee) being released on bail pending resolution of charges laid against him for illegal departure would be reduced (because that money would be spent on addressing the inadequacies of housing returnees): see CB244[16].
b. The Tribunal did not consider and address the claim or component integer thereof, or relevant consideration, identified in subparagraph (a).
4. The Tribunal engaged in jurisdictional error by failing to correctly construe and deal with a claim or component integer before it or otherwise carry out its statutory function under the Act in accordance with the law.
Particulars
a. The applicant claimed that torture was an interrogation and investigation method used in Sri Lanka and was used to elicit confessions or for extortion purposes, which enlivened the complementary protection provisions under the Act: see, for example, CB204[59]-[65].
b. When considering the complementary protection claims, the Tribunal accepted that the applicant would be subjected to a questioning process upon his return to Sri Lanka: CB242[49].
c. The Tribunal, however, failed to make findings as to what the questioning process would entail and, in particular, deal with the claim before it concerning the use of torture in that process or address the evidence advanced by the applicant in this regard: see CB242[49].
d. Further and in the alternative, although the Tribunal made findings as to whether the applicant had any adverse profile that would be revealed through the questioning process, the Tribunal failed to consider whether the questioning process itself would involve conduct that enlivened Australia’s complementary protection obligations.
e. In the premises, the Tribunal failed to address a claim before it or otherwise failed to carry out its statutory function under the Act.
5. The Tribunal engaged in jurisdictional error by failing to correctly construe and deal with a claim or component integer expressly raised by the applicant or otherwise squarely raised on the material before it and/or it failed to take into account a relevant consideration and/or failed to attend to its statutory task in accordance with the law.
Particulars
a. The applicant claimed that, under the applicable Sri Lankan law applying to illegal departees, he faced a mandatory period of detention of 1-5 years and a fine of 50,000 to 200,000 rupees (eg CB213[79]-[81]) and adduced material in support of this claim (namely the terms of articles 34 and 35 of the Immigrants and Emigrants Act No. 31 of 2006).
b. The Tribunal when finding that the penalties eventually imposed involved fines ranging up to 100,000 rupees and not a custodial sentence did not consider the applicant’s material concerning the quantum of the fine or the imposition of mandatory detention at all (particularly the terms of the relevant law itself).
c. In the premises, the Tribunal failed to take into account a relevant consideration (being the terms of articles 34 and 35 of the Immigrants and Emigrants Act No. 31 of 2006) or otherwise failed to attend to its statutory task in accordance with the law.
d. Further and in the alternative, the Tribunal failed to ask itself the correct question or apply the right test; viz whether the penalty it accepted might be imposed (a fine of up to 100,000 rupees):
i. Operated in a discriminatory manner or otherwise amounted to persecution for a Convention related reason or significant harm;
ii. Was appropriate and adapted to achieving some legitimate object of the country.”
Consideration
Ground Two
Given the manner in which the applicant explained and developed his case before the Court, it is convenient to start with consideration of ground two. This ground asserts that the Tribunal fell into jurisdictional error in relation to its finding that the applicant told the Tribunal that he had no ongoing interest in politics.
The applicant had claimed to fear harm if he were to return to Sri Lanka because “political opinions” would be imputed to him as a result of his Tamil ethnicity, his “illegal” departure from Sri Lanka, his application for asylum in Australia and his support for the TNA in an election in April 2010 which had led to armed men harassing him.
The Tribunal dealt with the matter of the political opinion and the TNA at [32]of its decision record (at CB 237):
“It is claimed that the applicant faces a real chance of serious harm in Sri Lanka in connection with his actual and his imputed political opinions and support for the TNA. This has been discussed at length in the Tribunal’s considerations of the applicant’s past circumstances in Sri Lanka. The Tribunal also notes the applicant’s representative’s post-hearing submissions on this point which are largely premised on the applicant having already attracted adverse interest for his TNA links. However, as reasoned in detail in the Tribunal’s considerations of the applicant’s claimed past circumstances in Sri Lanka above, the Tribunal is not satisfied that the applicant was ever singled out for adverse treatment or harm as a TNA supporter, or that his home was invaded on 15 April 2010 in connection with his imputed or actual support for the TNA, or that his home was subsequently approached or monitored by anyone in connection with any actual or imputed TNA links as he has claimed. Nor is the Tribunal satisfied, on the evidence before it, that he was ever adversely approached or that he had any profile as a person suspected of being involved with or a supporter of the TNA such that he was or would, in the reasonably foreseeable future, face a real chance of serious harm. His express evidence to the Tribunal revealed that neither he or his family have any current or past links to any military, paramilitary or political movement in Sri Lanka, other than his brief and low level involvement with the TNA in 2010. While the Tribunal notes that independent sources identify targeted intimidation of TNA supporters and members at election times, suggesting that such members and supporters may face targeted intimidation in future elections, the applicant expressly told the Tribunal that he has no ongoing interest in politics and demonstrated being unaware of significant political events impacting Sri Lanka, such as the nature of the September 2012 elections. The Tribunal is not satisfied on the evidence before it that the applicant has any desire to express or support any political opinions or movements in the reasonably foreseeable future, or that he faces a real chance of future intimidation or any form of serious harm as a future supporter or member of the TNA. The Tribunal is not satisfied that he faces a real chance of serious harm in connection with any actual or imputed links or support for the TNA in the reasonably foreseeable future.”
[Emphasis added.]
Central to the applicant’s complaint now is that he asserts that he did not say this to the Tribunal (see emphasis at [36] above). The Tribunal fell into jurisdictional error, therefore, in its subsequent finding that the applicant had no ongoing interest in politics.
The applicant refers to the following from the transcript of the Tribunal hearing (at T29):
“[Tribunal]: So have you retained any interest in the TNA or in the elections in Sri Lanka?
[Applicant]: It’s only that one month during the election campaign I help them and after that I stop going and I not be, I didn’t involve with any of the activities after that, because of my fear.
[Tribunal]: Well there’s involvement and there’s interest. I’m just trying to gauge what your interest is. A lot of Tamil people do take a very keen interest in what’s happening with the Sri Lankan election, especially after 2009.
[Applicant]: See I helped them because they told me they will support our Society, so apart from that, individually, I didn’t have any interest.”
The applicant submitted that on a fair reading he did not disavow any interest in politics such that it could be said he would not assist the TNA in the future. He submitted that it was his evidence that he stopped helping the TNA because of his fear, not his lack of interest. Further, that he did have an interest in the TNA because of their support for the Hindu Youth Committee (“our society”). The applicant asserts jurisdictional error on a number of bases.
First, that there was no evidence to support what is said to be the Tribunal’s finding that “the applicant expressly told the Tribunal that he has no ongoing interest in politics…” ([32] at CB 237 to CB 239 and see [36] above). The applicant relied on SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 (at [18] – [30], and see in particular at [25]), SZEPQ v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 133 (at [7] – [10]) and Minister for Immigration and Multicultural and Indigenous Affairs v VOAO & VOAP [2005] FCAFC 50 (“VOAO”) (at [5] – [13]), for the proposition that jurisdictional error is revealed where there is no material before the Tribunal to support the finding made by the Tribunal.
Second, he asserted in this case that there was material before the Tribunal to support the contrary conclusion. That is, that he did have an ongoing interest in politics. This leads to the second basis on which the applicant asserted jurisdictional error. The applicant submitted that this complaint can also be seen as a failure to take into account relevant material. That is, the Tribunal failed to take into account the applicant’s evidence that he ceased his involvement with the TNA because of his fear, not because of a lack of interest in politics. The applicant relied on VOAO to argue that jurisdictional error is revealed where there is no evidence for a finding and, in fact, there is evidence to the contrary.
Third, the applicant submitted that the Tribunal’s error can also be characterised as a misconstruction of a component integer of the applicant’s claim and that as a consequence, jurisdictional error is revealed because the Tribunal failed to properly consider a claim made by the applicant (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (“NABE (No 2)”), Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 24 and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”) ).
The resolution of the applicant’s ground relies on a proper and contextual understanding of the Tribunal’s reasoning and findings, in relation to the applicant’s claims, and how the claims arose from the applicant’s evidence generally, and his relevant oral evidence to the Tribunal.
The impugned part of the Tribunal’s analysis is at [32] (at CB 237.9) (see [36] above). That entire paragraph deals with the applicant’s claim to fear harm on return to Sri Lanka because of his actual, or imputed, political opinion and his support for the TNA. That is, the Tribunal’s analysis was focussed on the claim to fear serious harm for reason of political opinion.
It is important to note that while the applicant’s claim to fear harm on this basis was directed to the reasonably foreseeable future, he relied on claimed past events to base the likelihood of such harm occurring in the future.
To an extent, therefore, what is addressed at [32] (at CB 237) must be seen in light of the Tribunal’s reasoning and findings at [13] (at CB 232) to [26] (at CB 236) when it addressed the applicant’s claims in relation to past events in Sri Lanka.
The applicant claimed to have attracted the interest, in the past, of the Sri Lankan authorities because of his claimed links with the TNA. He claimed that following elections in 2010 his home was invaded by 15 armed men, whom he assumed were part of the “Karuna Group”, and who told him not to support the TNA. The applicant claimed that a number of other events constituting harassment also occurred
([13] – [16] at CB 232).
The applicant had also claimed in a Statutory Declaration that during the September 2012 elections he feared the Karuna Group and ceased publicly supporting the TNA ([17] at CB 232 to CB 233).
The Tribunal noted that the applicant was in Australia during that time, and when this was put to the applicant at the hearing, he responded that he had not been involved in any elections since 2010. Despite submissions from his representative to the contrary, the applicant confirmed that after 2010 he had no intention of being involved in any elections.
Of relevance, is the following, as set out in the Tribunal’s decision record ([19] at CB 233):
“Based on all the evidence before it, including cumulatively, the Tribunal is satisfied that the applicant had some, albeit very minor, involvement in TNA linked activities around the April 2010 elections in Batticaloa; his involvement in such activities was incidental to his involvement in the HYC and comprised putting up some posters, attending meetings and encouraging family and friends, privately, to support the TNA; he has never been a member of any political, military or paramilitary movement in Sri Lanka, including the TNA and LTTE; he has not been involved in any TNA activities other than the four weeks or so in around April 2010 when he participated in some TNA activities; he has not been involved in any political activities other than during those four weeks in April 2010; and he has no ongoing interest in or support for any political movement in Sri Lanka, has not kept up to date with elections in Sri Lanka as he has no ongoing interest in politics and no particular political opinions he wishes to express or support in the reasonably foreseeable future.”
The applicant gave evidence that he supported the TNA in 2010 because of his involvement with the HYC. That involvement was the focus of the applicant’s interest. The applicant’s evidence was that his involvement with the HYC continued after April 2010 until one month before he left to come to Australia.
The Tribunal accepted that TNA members had been adversely targeted by the Sri Lankan authorities. However, it found that, on the evidence, the applicant’s involvement with the TNA was at a very low level and did not in the past, and would not in the future, result in any actual or imputed political profile as a TNA supporter for the applicant. The Tribunal found that the claimed events of April 2010 had not occurred. This was based on the “totality of the cumulative concerns” identified in its analysis ([25] at CB 235 to CB 236).
As stated above, the impugned finding is that “the applicant expressly told the Tribunal [at the hearing] that he has no ongoing interest in politics”. The applicant says he made no such express statement.
There is a distinction to be made between what the applicant now submitted he meant in what he relevantly said at the Tribunal hearing, and whether it was reasonably open to the Tribunal on that evidence to find that he did say what the Tribunal found he said.
As a preliminary point, however, it is important to understand the relevant context, and how the evidence emerged before the Tribunal at the hearing. This requires attention to the transcript of the hearing before the Tribunal at a point earlier than the part which gave rise to the impugned finding (at T28).
The applicant’s claim was that he had been involved in the 2010 elections and that in an earlier written statement he had “referred” to the 2012 elections. In particular, that he had feared the Karuna Group, who had made threats to him, and he had, therefore, ceased publicly supporting the TNA.
The Tribunal asked for clarification because by the time of the 2012 elections, the applicant had already been in Australia for some four months. When specifically asked whether he had been involved in any elections after 2010, the applicant answered that he had not.
Despite the reference to the 2012 elections in his written statement, the applicant confirmed to the Tribunal that he “didn’t know anything about that election because after 2010, I didn’t involve in the elections” (T29.1). This followed the applicant’s confirmation that after April 2010, he had no intention of being involved in any future elections (T28.9).
The applicant now says that a fair reading of what appears at T29 is that he told the Tribunal that he stopped supporting the TNA “because of my fear”, not because he had no interest in politics.
What is missing in the applicant’s argument now is the relevance of the applicant’s reference to his fear, the context in which that fear was raised before the Tribunal, and how the Tribunal dealt with it.
The reference to “my fear” (at T29) can only be understood as a reference to the applicant’s claimed fear, said to arise from the events of April 2010, the claimed harassment from 15 armed men, and that he lived in hiding until 10 days before he left for Australia in May 2012.
The Tribunal found that the events of April 2010 did not occur. That finding, and the findings that informed it, were all reasonably open to the Tribunal on what was before it (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal gave extensive reasons as to why it rejected the applicant’s claims in this regard (see [13] at CB 232 to [20] at CB 234 and in particular [21] at CB 234 to [26] at CB 236).
What the Tribunal set out in the impugned part of its reasoning (at [32] at CB 237 to CB 238), must be understood in that context. The Tribunal had already set out its findings about the applicant’s claims as to past events. At [32] (at CB 237 to CB 238), the Tribunal sought to address the specific claim regarding fear said to arise from his support for the TNA.
I agree with the Minister that it was open to the Tribunal, on the evidence before it, to take the view that the applicant had said he had no ongoing interest in politics, in the sense of an ongoing interest in supporting the TNA. Noting that it was also his evidence that that claimed support in 2010 was a product of his interest in the HYC, and not necessarily because of any interest in the TNA itself. It was also his evidence, at the Tribunal hearing, that his family had no history of any involvement with politics, and that his past involvement with the TNA was derived from the interest in the HYC.
It is to be remembered that what the Tribunal was focussed on at [32] (at CB 237 to CB 238), was the applicant’s claim to fear harm on the basis of political (actual or imputed) opinion because of his claimed association with the TNA. The applicant made plain that he had helped the TNA (in 2010) “because they told me they will support our Society, [the HYU] so apart from that, individually, I didn’t have any interest” (T29.4).
A fair reading of the Tribunal’s analysis at [32] (at CB 237 to CB 238) is that it found that the applicant would not face harm in the future in Sri Lanka because of any perceived support for the TNA in the past. The Tribunal comprehensively rejected the applicant’s relevant claims to past events involving the TNA and the subsequent claimed harassment in the past.
As to the future, the Tribunal found that TNA members may face some intimidation. However, it also found that the applicant was not such a member, would not be perceived as such, and had no interest in the TNA in the past, other than the claim that they supported the HYC.
As to the Tribunal’s reference to “no ongoing interest” there is nothing in the relevant evidence that the applicant gave the Tribunal at the hearing to say he had any such ongoing interest. The Tribunal’s reference to the applicant “expressly” making such a statement must be read in the context from which it derived. That is, based on the applicant’s express evidence at the hearing (as opposed to what he said in his written statement, and for example, the reference to the 2012 elections), that evidence was to the effect, that the applicant had no ongoing interest in politics. I accept the Minister’s submission that what is set out at the impugned part of [32] (at CB 237 to CB 238) is the Tribunal’s understanding of the meaning of what the applicant told the Tribunal at the hearing.
It is also to be remembered that the issue the Tribunal was addressing at [32] (at CB 237 to CB 238), was, as is made plain at the beginning of that paragraph, the applicant’s representative’s post hearing submissions in support of the claim of fear of harm because of past support for the TNA, which the Tribunal said were “largely premised on the applicant having already attracted adverse interest for his TNA links.” A proposition that the Tribunal comprehensively rejected, and for which it gave reasons reasonably open to it on the evidence before it.
In all, therefore, I find that the factual premise for the applicant’s second ground, and on which the various assertions of jurisdictional error therein are based, is not made out. Ground two therefore does not reveal jurisdictional error.
Ground Three
In ground three, the applicant asserts that the Tribunal fell into legal error because it failed to correctly construe and consider a claim raised by the applicant’s representative, on his behalf, in submissions made after the hearing.
That submission is said to be as follows ([16] at CB 224):
“Although returnees are routinely detained and then released upon grant of bail, this is due simply to the inadequate facilities to detain the increasing volume of returnees. Given the recent increase in military spending by the Rajapaksa government it is reasonably foreseeable that governmental spending will be directed towards addressing the inadequacies of housing returnees given the perceived risk returnees may pose, should they be viewed as being associated with the LTTE, or other paramilitary organisations.”
I understood the applicant’s particular to the ground to be that the applicant made an express submission that on return to Sri Lanka as a failed asylum seeker, in the reasonably foreseeable future, there was a real chance that he would not be granted bail as readily as he would have in the past. This was because the problem leading to grants of bail in the past (a lack of funding for “holding” facilities) would be addressed by increased government spending.
The applicant’s argument was that there is nothing in the Tribunal’s analysis to show that the Tribunal engaged with this submission. The applicant pointed to the Tribunal’s relevant analysis concerning the matter of bail at [44] of its decision record (at CB 241 – see above at [28]).
The applicant argued that the Tribunal’s analysis, in relation to the question of the grant of bail, is framed with reference to the “present”, and not the reasonably foreseeable future. As the submissions were focussed on that future, the Tribunal failed to deal with that submission.
The applicant relied on what was said in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (“MZYTS”) at
[38]-[46], in particular at [38]-[39]:
“[38] That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. While it is most certainly the case that ‘[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason’, the Tribunal ‘must then decide whether that claim is made out’: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]. Evidence and material about what it was like for ‘ordinary’ MDC supporters and members in 2002, or 2007, or 2010 might give the most accurate picture, but that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same. The evaluation, in the context of a country like Zimbabwe and in the context of the very specific terms of the visa applicant’s claim, needed to include consciousness about the cycle of political violence around foreshadowed and/or actual elections, and other circumstances particular to both the visa applicant and to his country of nationality. This much is clear from the decision of the High Court in S395.
[39] The Tribunal’s reasons do not disclose that it understood and undertook this task. Rather, the reasons — including what is expressed and what is not — disclose the Tribunal did not assess in any real or active way what the situation would be in mid to late 2011 or thereafter for an ‘ordinary’ MDC supporter being returned to Zimbabwe. Nor do the reasons disclose any consciousness that what the visa applicant was articulating (through his own statements and the post-hearing submission of his adviser) was that there was an increased risk of generalised politically-motivated violence due to the foreshadowing by President Mugabe of new elections for later in 2011 and the breakdown of the transitional government’s authority; these events arising, critically, after the publication of the 2010 UK Border Agency fact-finding mission report.”
I understood that reliance to be for the proposition that jurisdictional error is revealed where the Tribunal does not give conscious consideration to country information advanced by the applicant in a post hearing submission. That is, country information raised as part of a claim to fear harm.
There is no doubt that a claim expressly made, or clearly arising, in submissions not addressed by the Tribunal, can lead to jurisdictional error (NABE (No 2 and Minister for Immigration and Citizenship v SZRKT [2013] FCA 317, (2013) 212 FCR 99 (“SZRKT”) and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (“SZSRS”)).
Attention, therefore, at first, must be directed to the submission, and to see if a claim, or an integer of a claim to fear harm was raised. That is, a claim expressly made or clearly arising, and an articulated substantive claim by the applicant, through his representative (Dranichnikov).
That part of the submissions relied on now by the applicant is found under the heading of “Failed Sri Lankan Asylum Seekers” ([13] at CB 223 to [17] at CB 224):
“[13] Should the Applicant be forcibly returned to Sri Lanka, he will be detained for questioning as a result of his status as a failed asylum seeker. The history of questioning is likely to be recorded in the Sri Lankan authorities’ records, as a result of Country information provided at paragraphs 73-89 of the Applicant’s written submission to the Tribunal demonstrates how the operation of art 45(1)(b) of the Immigrants and Emigrants Act provides substantial grounds for believing the Applicant would face a real risk of significant [harm].
[14] Further, paragraphs 70-72 of the Applicant’s written submission to the Tribunal demonstrates that despite the fact the Applicant has no direct link to the LTTE, it is necessary to consider the treatment (or mistreatment) he would face during interrogation in determining whether or not he was associated with the L TTE.
[15] Recent country information suggests that individuals who are suspected to have breached the Immigrants and Emigrants Act are routinely interviewed at the airport upon arrival by governmental agencies such as the Criminal Investigations Department (‘CID’) and the State Intelligence Service (‘SID’.) Should the Applicant be forced to return to Sri Lanka, he will be subsequently detained in a remand section of Negombo prison and held until bail is granted at a hearing which is generally scheduled within several days of initial detainment.
[16] Although returnees are routinely detained and then released upon grant of bail, this is due simply to the inadequate facilities to detain the increasing volume of returnees. Given the recent increase in military spending by the Rajapaksa government it is reasonably foreseeable that governmental spending will be directed towards addressing the inadequacies of housing returnees given the perceived risk returnees may pose, should they be viewed as being associated with the LTTE, or other paramilitary organisations.
[17] Given the prevalence of torture, cruel or inhuman and degrading treatment or punishment in Sri Lankan prisons (detailed in paragraphs 59-77 of the Applicant’s written submission to the Tribunal), the Tribunal should accept that there is a real risk the Applicant will face significant harm under Section 36(2A) of the Migration Act.”
[Footnotes omitted.] [Errors in the original.]
It is clear the focus of the above submissions is on what the representative says would likely happen to the applicant if he were to be “forcibly” returned to Sri Lanka. The submissions state that he would be detained for questioning and would face significant harm because of the operation of the I and E Act ([13] at CB 223).
Further, that that questioning (“interrogation”) would involve mistreatment to determine whether he had any LTTE links ([14] at CB 223). In addition, recent country information suggested that those suspected to have breached the I and E Act are routinely interviewed at the airport. In these circumstances, the applicant would be detained on arrival, and remain detained, until bail was granted ([15] at CB 223 to CB 224).
In this context, the representative’s submissions then put forward the matters expressed in [16] (at CB 224). There, the representative made reference to certain country information to the effect that there had been a recent increase in military spending by the Sri Lankan government.
In light of the applicant’s reliance now on what was said in MZYTS, it is important to note that what is said at [16] (at CB 224) was the extent of the country information relied on by the representative in making that particular submission. The remainder is the representative’s argument, that given the government’s increased spending, it was reasonable to say that the funds would be directed to detention facilities, and that it was the inadequacy of those facilities that usually led to the grant of bail, as there was not enough room to house all relevant detainees. Therefore, the grant of bail in the future would be restricted.
There is no evidence that any of this subsequent reasoning (beyond the reference to increased military spending) was derived from any source of country information. It was speculation, and supposition, on the part of the representative.
Of course that, on its own, does not mean that what the representative said could not be in some circumstances seen as an express claim to fear harm, on the basis of the likelihood of bail being refused. But, in the consideration of whether MZYTS assists the applicant, it is important to note that what the representative said was not a presentation of country information, but the representative’s own observation or speculation. This situation is not analogous with MZYTS. This speculation is not “evidence and material” giving “the most accurate picture” of events in Sri Lanka (with reference to MZYTS at [38]).
In MZYTS, the Court’s consideration and decision focussed on the Tribunal’s obligation to have regard to the most recent country information available, and to which the applicant in that case, had made reference in his submissions to the Tribunal. This information was more recent than the information relied on by the Tribunal for its decision.
It is important to note that in MZYTS the Full Court found that the information provided in the post hearing submissions, in that case, was a body of more recent, detailed and relevant information than that relied on by the Tribunal, and provided by the visa applicant’s adviser.
In the current case, the country information referred to at [16] (at CB 224) of the representative’s submissions, on its own, says nothing about remand, the conditions on remand, or the likelihood of bail being granted to failed asylum seekers on return to Sri Lanka. As set out above, the country information merely reports on increased military spending. There was no information as to how that spending would be distributed, or that it would be used in the way opined by the representative. The representative’s submissions, therefore, are not of the character of the relevant post hearing submissions in MZYTS, such as to be caught by what was reasoned, and found, in that case.
In these circumstances, I agree with the Minister that MZYTS cannot, respectfully, be understood as proposing that the Tribunal was required to consider every submission made to it. As was said in SZRKT at [111] (with which the Full Court agreed in SZSRS at [54]):
“In my opinion there is no clear distinction in each case between claims and evidence: see SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24], set out at [69] above. The fundamental question must be the importance of the material to the exercise of the Tribunal’s function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.”
[Emphasis added.]
Also, as referred to above, as was said in MZYTS (at [38]):
“That task could not be lawfully undertaken without a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground in Zimbabwe for him if he were to be returned there. While it is most certainly the case that ‘[i]t is for the applicant to advance whatever evidence or argument she [or he] wishes to advance in support of her [or his] contention that she [or he] has a well-founded fear of persecution for a Convention reason’, Tribunal ‘must then decide whether that claim is made out’. Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187]. Evidence and material about what it was like for ‘ordinary’ MDC supporters and members in 2002, or 2007, or 2010 might give the most accurate picture, but that decision could only be made by the Tribunal after evaluation of all the pertinent material put forward by the visa applicant in support of the specific claim (and, of course, any contradictory information to which the Tribunal chose to make reference), including the most recent material and a decision about whether or not things had changed, were changing, were likely to change or had stayed much the same. The evaluation, in the context of a country like Zimbabwe and in the context of the very specific terms of the visa applicant’s claim, needed to include consciousness about the cycle of political violence around foreshadowed and/or actual elections, and other circumstances particular to both the visa applicant and to his country of nationality. This much is clear from the decision of the High Court in S395.”
[Emphasis added.]
I respectfully understand this to provide that the character and significance of the information that has been put to the Tribunal is of relevance in determining whether the Tribunal fell into error in not specifically mentioning this particular submission made to it by the representative.
In that light, the information about military spending, of itself, says nothing about the treatment that the applicant would likely face on return as a failed asylum seeker, or whether he would be given bail, or kept on remand. As stated above, the representative’s speculation, or opinion, cannot be said to be of the character of “…most likely to give the Tribunal an accurate picture of the ongoing circumstances on the ground” in Sri Lanka as it relates to remand, and the grant of bail, if the applicant “were to be returned there” (with reference to MZYTS at [38]). In this light, MZYTS does not assist the applicant. Ground two is not made out.
Ground One
Ground one of the application also derives from [44] of the Tribunal’s decision record (CB 241 – also see [28] above). The applicant stated that the Tribunal rejected his claim that he faced prolonged detention on return to Sri Lanka.
The Tribunal found, in relation to prosecutions for illegal departure (under the relevant Sri Lanka law on immigration and emigration), that ([44] at CB 241):
“…Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety…”
The applicant also noted that the Tribunal accepted that “the applicant may be remanded in prison for a few days in conditions which are cramped, uncomfortable and unpleasant” ([49] at CB 242 to CB 243).
The applicant argued that the Tribunal proceeded on the assumption, or even, implicitly found, that a family member of the applicant would provide surety for him such that he would be released on bail.
In oral submissions, the applicant explained his ground as follows. The Tribunal found that for bail to be granted (while this was routinely given) on an accused’s own recognisance, a family member is also required to give surety. This finding was said to be based on the Tribunal’s view of country information before it. The Tribunal then found that the applicant would be granted bail. The complaint was described as being that the Tribunal had made a “large leap” between the finding that bail is granted if a family member pays surety, to the finding that the applicant would be granted bail.
The applicant asserted the error of law to be, first, that there was no evidence for the second finding, in circumstances where the Tribunal made no finding as to whether or not a family member of the applicant could stand surety. Second, the Tribunal failed to take into account a relevant consideration when it ignored the first finding in making the second. Third, it did not properly deal with the claim before it, given it ignored its own finding.
The Minister referred to the relevant parts of the transcript of the Tribunal hearing, where the Tribunal discussed with the applicant country information concerning returned failed asylum seekers and the process that would likely be encountered at the airport by those who, like the applicant, left illegally. The information was that they would be detained for a few days and appear before a Court for a bail hearing. The Tribunal noted that in reported cases it seemed that bail was routinely given (T40.6 to T41.4).
The Minister’s submission was that the Tribunal, therefore, expressly drew the applicant’s attention to the matter of bail, and the fact that bail is routinely given. He was given the opportunity to respond to this (and other matters).
The only relevant response from the applicant is that made in the post hearing submissions. That is, as set out above, that bail may be more difficult to obtain in circumstances where increased military spending may be allocated to expanding detention facilities.
The applicant has now sought to characterise what the Tribunal set out in the impugned part of its decision record as being “findings” made by the Tribunal about the applicant’s claims, and specifically his claims concerning the question of bail on return to Sri Lanka.
The Tribunal accepted that the applicant had left Sri Lanka illegally by boat without a passport. What the Tribunal stated it was addressing under the heading of “Illegal departure” (CB 240) was whether the applicant faced serious harm “in the reasonably foreseeable future” in connection with that illegal departure ([42] at CB 241).
A fair reading of what follows at [43] and [44] of its decision record (at CB 241), and especially when read in light of the transcript of the Tribunal hearing and country information before the Tribunal, in my view, reveals that the Tribunal was setting out references to country information before it generally, on the question of what would happen to returnees who had left illegally, and as discussed with the applicant at the hearing.
That exposition needs to be seen in light of the applicant’s claims actually, or expressly made, or clearly arising, from his evidence, or submissions. The Tribunal specifically invited the applicant’s representative to make post hearing submissions. This invitation, made at the hearing before the Tribunal, immediately followed the references to the country information, although it was meant to be, and in light of the response by the representative taken to be, a more general invitation, than just to the comment on the country information (see T41.5).
In relation to returning failed asylum seekers, the representative’s submissions are at [13] – [17] (at CB 223 to CB 224). There is nothing here to indicate that the applicant made any claim that he would be unable to obtain bail because he had no family who could stand surety, or that they were unable, or unwilling, to do so.
As the Minister submits, it is not for the Tribunal to make out the applicant’s case for him (SZNOX v Minister for Immigration and Citizenship [2009] FCA 1233 and Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155). Nor is this a case where the Tribunal was obliged to make further inquiries as to the matter of bail.
It is also of note that the Tribunal ultimately found on the issue of harm and returnees ([45] at CB 241 to CB 242):
“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.”
[Emphasis added.]
Those circumstances were that the Tribunal “accepted” that he worked as a farmer in his family’s land “together with this mother and elder brother” until fifteen days before he came to Australia ([12] at CB 232). The applicant raised no claim that bail would be refused because his family was unable, or unwilling to stand surety for him. Ground one is not made out.
Ground Four
Ground four asserts that the Tribunal failed to understand or address the applicant’s claims, made in submissions, concerning torture on return to Sri Lanka. This was explained as follows. In submissions to the Tribunal, the applicant’s representative made reference to country information, and made a claim, that torture was a common interrogation method used in Sri Lanka, and was used to elicit confessions for extortion purposes (see [59] at CB 204 to [65] at CB 206).
The applicant submitted that this claim was made in connection to complementary protection. In this regard, I note that the relevant submissions at [59] (at CB 204) to [65] (at CB 206) (notwithstanding the unexplained paragraph numbering sequence – there is another set of paragraphs, [59] at CB 191 to [65] at CB 199, dealing with another topic) appear under the heading of “Does the applicant fear acts or omissions amounting to significant harm?” (CB 203).
The submissions emphasise that the claim was broader than an assertion that he would face torture for reason of ethnicity (race) or membership of a particular social group. Rather, that this was a broader claim that the Sri Lankan authorities engaged in torture for other purposes unrelated to the Refugees Convention and any claimed profile under that Convention.
The applicant noted that the Tribunal, with reference to complementary protection, accepted that the applicant “will be questioned by the Sri Lankan authorities…” ([49] at CB 242). However, the complaint is that it did not make findings as to what that questioning process involved.
The applicant relied on what was found in Minister for Immigration and Citizenship v SZQPA [2012] FCA 1025 for the proposition that the Tribunal “sidestepped” consideration of the claim as put. The Tribunal found that it was “…not satisfied that he has any adverse profile which will be revealed throughout that process” ([49] at CB 242 to CB 243) (that is, the process of questioning). The complaint is that the Tribunal did not consider whether he would be tortured in the process of questioning, and did not consider whether he would be at risk of being tortured into confessing for extortion purposes, as set out in the representative’s submissions.
In his submissions the applicant stressed that while the Tribunal made reference at [48] of its decision record (at CB 242) to the issue of “failed asylum seekers”, and “illegal departure”, and to the applicant’s submissions in this regard, its reasoning did not demonstrate “a consciousness” of how the applicant advanced this claim, specifically in respect of “torture”, and his evidence in support of it. The applicant relied on MZYTS at [38] – [64] and [72] – [74] to say that this reveals legal error.
In response, the Minister pointed to [4] (at CB 230) of the Tribunal’s decision, where, in setting out the applicant’s claims to fear harm, it made reference to the claim of returning failed asylum seekers. Here the Tribunal made specific mention of the claim “to fear significant harm in connection with his unsuccessful claim for asylum in the context of the use of torture, interrogations and conditions in prison” in Sri Lanka ([4] at CB 230).
In this light, it cannot be said that the Tribunal overlooked this particular integer of the applicant’s claim. The applicant’s argument now specifically focussed on what the Tribunal said under the heading of “Complementary Protection”. It is with this specific focus that the applicant sought to ground his argument that the Tribunal failed to give conscious consideration to the “issue” of torture.
However, what this attack does not take into account is that the Tribunal is not obliged to repeat findings of fact made, and expressed, elsewhere in its decision record that may also apply to the criterion at s.36(2)(aa) of the Act (SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 (“SZSGA”) and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 (“SZSHK”)). Of course, findings of fact arrived at on the basis of some Refugees Convention nexus (as opposed to such consideration arising from the findings of fact), would not be available in relation to the complementary protection criterion.
In this light, a fair reading of the totality of the Tribunal’s analysis reveals that it did give “conscious” consideration to the question of whether the applicant would face mistreatment on return to Sri Lanka as a failed asylum seeker who had departed illegally.
In this regard, the Tribunal referred to a large body of independent country information before it concerning “what may await the applicant on his return to Sri Lanka as a Tamil male who has unsuccessfully sought asylum abroad…” ([35] at CB 238 – see country information sources cited at CB 238 to CB 241).
It is important to note two matters. First, the Tribunal had regard to country information relied on by the applicant (see for example in footnotes, 8, 9 and 11 at CB 239 and CB 240 and see the applicant’s representative’s submissions at CB 200 to CB 201). This information was understood by the Tribunal to “have provided alternative information regarding the treatment of returnees to Sri Lanka, including failed Tamil asylum seekers” ([38] at CB 239) to that provided from other sources, which were said to “contest” the findings of these reports ([38] at CB 239).
The Tribunal compared this information and made findings “on balance”, as set out at [41] (at CB 240). It cannot be said, therefore, that the Tribunal failed to have regard to the country information referred to by the applicant’s representatives. It simply preferred, on balance, other country information.
Second, the main thrust of the applicant’s explanation for his ground is that the Tribunal did not consider this information in the context of complementary protection. This must be rejected. At [48] (CB 242) the Tribunal specifically stated that its findings, in relation to complementary protection, were “based on all the evidence before it” (at [48] at CB 242):
“…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 ‘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.”
I agree with the Minister that this establishes a link between the specific consideration of the applicant’s circumstances and the application of those circumstances, including the country information and findings made in relation to it, set out in some detail earlier in the decision as against the complementary protection criterion. This includes country information referred to in the representative’s submissions. The Tribunal was entitled to rely on these findings of fact expressed earlier in its decision record (SZSGA and SZSHK).
In any event, the Tribunal made clear, at that earlier point in its decision record, that the country information from a number of organisations, and as referred to in the representative’s submissions, provided alternative information that went to the issues of both “serious or significant harm” ([38] at CB 239).
This is again not a case, as in MZYTS, where the Tribunal relied on earlier country information in relation to complementary protection, and failed to take into account more recent information. It is a case where the Tribunal preferred what was said in some country information to what was said in other sources. It gave reasons for this ([39] – [41] at CB 239 to CB 240). The weight to be accorded to country information is for the Tribunal to determine (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). Ground four is not made out.
Ground Five
Ground five variously asserts jurisdictional error as either a failure by the Tribunal to deal with a claim, or relevant material, or a failure to ask the “correct question”. The ground concerns the alleged failure by the Tribunal to properly consider the relevant Sri Lankan legislation concerning illegal departures from Sri Lanka.
The applicant submitted that he claimed to the Tribunal, through his representative’s submissions, that as a returned failed asylum seeker who had departed Sri Lanka illegally, he would face a mandatory period of detention of one to five years, and a fine between 50,000 to 200,000 rupees (see representative’s submissions at [79] ‑ [81] at CB 213). This included specific reference to the I and E Act and, in particular, two articles in that legislation.
The applicant now directed attention to that part of the Tribunal’s reasoning at [49] (at CB 242 to CB 243):
“…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…”
The applicant’s argument was that the Tribunal did not identify what country information it was referring to. Further, that the reference to “weight of country information” (as it appears at [49] at CB 242 to CB 243) did not include a reference to the actual Sri Lankan legislation itself, which makes specific reference to the fine, and imprisonment, as described in the representative’s written submissions.
The applicant submitted that the Tribunal failed to deal with this claim and provided no reasoning as to why it preferred to rely on what were said to be “unspecified secondary sources”.
In an alternative argument, the applicant submitted that when it considered the “prosecution for unlawful departure” claim in the context of the Refugees Convention, the Tribunal found that penalties of up to 100,000 rupees would be imposed (see [44] at CB 241). The complaint is that having made that finding, the Tribunal proceeded on the basis that the claim had been dealt with.
The applicant also asserted that the Tribunal fell into legal error because it did not consider whether the Sri Lankan law, as a law of general application, was appropriate and adapted to achieving some legitimate object. The applicant relied on Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 at 258 ‑ 259, Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at 302 ‑ 303, Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; 217 CLR 387 (“Applicant S”) at 402 ‑ 403, VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927; (2004) 81 ALD 332 at [47] and Minister for Immigration and Citizenship v SZNWC [2010] FCAFC 157; (2010) 190 FCR 23 at
[45] ‑ [51] and [38].
Further, the applicant argued that in relation to complementary protection, the Tribunal failed to asked whether the 100,000 rupee penalty, was a “cruel or inhuman punishment” (s.5 of the Act).
It is important to put the representative’s various submissions before the Tribunal, on which the applicant now relies for this ground, into context. The relevant claim as to harm or mistreatment if he were to return to Sri Lanka, made by the applicant, was that he would be harmed for reason of his race (Tamil), imputed political opinion, as he would be perceived as former member of the LTTE and as a failed asylum seeker, who he said, were treated as “former LTTE members and detained and interrogated” (see [20] – [22] at CB 65 in the applicant’s Statutory Declaration).
The representative’s post hearing written submissions address the question of the mistreatment on return of failed asylum seekers (see beginning at [13] at CB 223). Included in this is reference to the I and E Act, and that those suspected of breaching the provision of this Act are routinely interrogated upon arrival at the airport and detained on remand until bail is granted.
Within these later submissions are references to the submissions of 21 May 2013 (CB 185 to CB 216), which were submitted before the Tribunal hearing. The specific references to the I and E Act, and the operation of articles 34 and 35 of that Act, appear in the submissions under the heading “D. Is there a real risk the Applicant will suffer significant harm?” (see from CB 211 and specifically at [79] at CB 213).
Those references include some of the relevant terms of those articles (at [80] at CB 213) and the subsequent submission that the applicant contravened both those articles and would be liable to prosecution ([81] at CB 213).
In this context, the Minister referred to what relevantly was said at the hearing before the Tribunal (T40.5)
“[Tribunal]: Alright. Okay. But is there anything specific to having come to Australia or having lodged your application, having left Sri Lanka without a passport, is there anything that any of those factors, anything you fear specifically that relates to any of those factors?
[Applicant]: I don’t think because of these, actually these, I will face harm there, but I’m not sure. After I came over here in a month time, there were people who came searching for me.”
As to those who left illegally (T41):
“[Tribunal]: The information regarding people who are considered to have left illegally also suggests that people will be detained for a few days until they appear before the court for a bail hearing.
And in the cases that have been reported, it seems that bail is routinely given.
And we’re yet to see the outcome of the court cases relating to returnees from Australia.
So, there are many things to consider in that information and the Tribunal must consider it very carefully in the context of what is accepted of all of your circumstances.
But there are significant concerns about whether or not there is a Convention nexus for any of the treatment that will be faced on your return to Sri Lanka.”
As set out above, in relation to the applicant’s claim to fear harm as a failed asylum seeker who left Sri Lanka illegally, the Tribunal addressed this at [33] to [45] of its decision record (CB 238 to CB 242). The applicant in ground five focussed on one aspect of the claim (the I and E Act). However, the Tribunal’s decision must be read fairly, which includes being read holistically.
The Tribunal understood that the applicant’s claim was that he feared harm because he was a failed asylum seeker who had left Sri Lanka illegally. It was the representative’s submission before the Tribunal that these factors would “compound to impute the applicant with political opinions sympathetic to or linked with the LTTE and/or opposed to the Sri Lankan authorities” ([33] at CB 238).
In its analysis, the Tribunal had regard to the applicant’s relevant evidence at the hearing ([34] at CB 238), country information concerning the treatment of Tamil males who were failed asylum seekers ([35] at CB 238), and in particular, country information in the form of a DFAT advice that ([36] at CB 239):
“…has provided a consistent account of the process involving returnees, including failed asylum seekers, to Sri Lanka. The information set out under “Unlawful departure” below addresses additional procedures applicable to returnees considered to have departed Sri Lanka illegally.”
As set out above, in relation to ground four, the Tribunal then addressed country information from Amnesty International, Human Rights sources, and a UK Home Office Report which “contests the findings of these reports” ([37] at CB 239 to [39] at CB 240). This then led the Tribunal to the conclusion already referred to above (at [41] at CB 240).
The Tribunal then moved to its specific analysis of the matter of “Illegal Departure” (CB 240.10). The Tribunal considered various items of country information, which it said were “consistent”, that led to the conclusion that “standardised procedures” applied to all returnees ([43] at CB 241). In relation to those who left in “breach of Sri Lanka’s laws on immigration and emigration” ([44] at CB 241):
“Under recently tightened procedures those returnees who are believed to have left the country in breach of Sri Lanka’s laws on immigration and emigration are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. Conditions in remand have been described in media reports as being overcrowded, although there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The penalties eventually imposed on returnees by the courts for illegal departure have involved fines ranging up to Rs 100,000.”
In relation to the Refugees Convention the Tribunal concluded ([45] at CB 241 to CB 242):
“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.”
In relation to complementary protection, the Tribunal stated ([49] at CB 242 to CB 243):
“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, reporting to date does not provide substantial grounds for believing that of such returnees face a real risk of being exposed to acts or omissions amounting to significant harm comprising: 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.”
What arises from this is that the Tribunal had regard to a number of pieces of country information on the issue of failed Tamil asylum seekers who had left illegally without a passport and who were returning to Sri Lanka.
The applicant argued that the Tribunal’s reference to the “weight of country information” as it appears at [49] (at CB 242 to CB 243) does not identify what information the Tribunal was referring to. That, on a plain reading of the totality of its relevant analysis, must be rejected. The Tribunal did not need to repeat, at [49] of its decision record (at CB 242 to CB 243), the preceding analysis.
The applicant also complained that the Tribunal did not make reference to the specific provisions of the I and E Act. These were set out in the representative’s pre-hearing submissions. However, the Tribunal made specific reference to those submissions, and further specific reference to those submissions in consideration of the claim to fear harm arising from his illegal departure (see at [49] at CB 242 to CB 243). I agree with the Minister that this allows the inference that the Tribunal considered those matters but preferred the “weight” of other information before it as to the likelihood of harm. It was open to the Tribunal to make the findings in this regard that it did.
Further, given the Tribunal’s finding that the likely penalty would be a fine, and not a custodial sentence, and that such a fine did not amount to serious or significant harm ([45] at CB 241 to CB 242 and [49] at CB 242 to CB 243), the Tribunal was not obliged to consider whether “Sri Lanka’s laws on immigration and emigration” were discriminatory, and if so, whether the laws were appropriate, and operated to achieve the objective of these laws (see Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222, Applicant S at [42] and MZQAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 35 at [18]). Ground five is not made out.
Additional Matter
Following the hearing of this matter the Federal Court handed down judgment in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (“WZAPN”) (per North J). The parties were granted leave to make further written submissions on whether WZAPN was relevant to the question in this case, as to whether the Tribunal had fallen into jurisdictional error.
The applicant argued that it had. He relied on WZAPN at [42], and the Tribunal’s analysis at [45] (CB 241 to CB 242), to argue that the Tribunal fell into the same error identified in WZAPN, in that in assessing whether the detention of the applicant on return would amount to serious harm, the Tribunal engaged in a qualitative assessment of the degree and nature of the harm.
The Minister’s position was that WZAPN had been wrongly decided and that the matter was the subject of an application for special leave to the High Court. In any event, the Minister argued that the Tribunal made a separate and independent finding to that identified in WZAPN, relying on s.91R(1)(c) of the Act, and not s.91R(1)(b) of the Act, which was the subject of the consideration in WZAPN.
However, since receipt of those submissions the Full Federal Court has handed down judgment in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 (“SZTEQ”) per Robertson, Griffiths and Mortimer JJ (and, also, relevantly, SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41). The Full Court found that WZAPN was wrong on the issue relied on by the applicant now (see SZTEQ at [154]). This Court is bound by the later Federal Court judgments. Even if leave were granted to the applicant to amend his application, any reliance on WZAPN could not, therefore, assist him. Although WZAPN is before the High Court, no argument was put that the disposition of this matter should be delayed.
Conclusion
In all, none of the grounds reveal jurisdictional error. The application should be dismissed. I will make an order accordingly.
I certify that the preceding one hundred and fifty-seven (157) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Associate:
Date: 15 June 2015
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