SZTEV v Minister for Immigration
[2014] FCCA 1774
•18 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTEV v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1774 |
| Catchwords: ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all aspects of the applicant’s claims, reached an incorrect factual conclusion, failed to consider a claim and did not apply the correct test. |
| Legislation: Migration Act 1958, ss.36, 425, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 |
| Applicant: | SZTEV |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1942 of 2013 |
| Judgment of: | Judge Cameron |
| Hearing date: | 5 August 2014 |
| Date of Last Submission: | 5 August 2014 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1942 of 2013
| SZTEV |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 17 May 2012. On 22 August 2012 he lodged an application for a protection visa with what is now the Department of Immigration and Border Protection, alleging that he feared persecution in Sri Lanka primarily because of his race. On 6 November 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. He was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
In these judicial review proceedings the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for a protection visa. As summarised by the Tribunal, the applicant relevantly made the following claims.
In a statutory declaration in support of his protection visa application the applicant claimed:
a)he is an ethnic Tamil and a Hindu born in Trincomalee in Sri Lanka;
b)in 2006 while on his way to work in Udappu he was apprehended, detained and mistreated by the Sri Lankan army because they suspected that he was a Liberation Tigers of Tamil Eelam (“LTTE”) supporter;
c)the army continued periodically to detain and mistreat him until 2008 when he went into hiding. After he went into hiding, they continued to look for him at his parents-in-law’s home. In April 2012 some Sinhalese people, whom he believed were from the army, attended his in-law’s home asking for him and he believed if he had remained in Sri Lanka they would have harmed him; and
d)he feared that if he returned to Sri Lanka he would be harmed because he is a Tamil and a Hindu and because the army suspected that he was involved with the LTTE (on the basis that he was from Trincomalee).
The applicant made the following additional claims at a Tribunal hearing on 17 January 2013:
a)he had worked as a fisherman in Sri Lanka and had been harassed by other Sinhalese fishermen who told him he could not work in his home area. As a result, in 2005 he went to work in Udappu, a Tamil area. He stayed at the home of the parents of a woman he had met before and eventually married;
b)when he was detained by the army in 2006, he was told that if he came under suspicion again he would be arrested again;
c)to avoid arrest, after his release he moved to Erakenni. While there the army visited him, told him to kneel, and asked him why he had left Udappu. They did not detain him but visited the place he was living;
d)after three months in Erakenni he returned to Udappu for a few weeks. While there he was detained by the army for a few hours, beaten and questioned about where and why he had been in hiding. He was told that when the army told him to go to them he had to comply. After that he only returned to Udappu once or twice each year and only stayed for one or two weeks;
e)after Erakenni he lived in Kachavelli. He left there because he would have been rounded up and would have had to register to live there longer. He was never taken to an army camp but had been told to kneel and asked to produce his identity card which indicated he was from Trincomalee;
f)when he lived in Erakenni and Kachavelli, which were both in Trincomalee, he was beaten by the army and they “enquired” him because he was a young Tamil male;
g)he had also lived in Mullaitivu for six months where he was able to find work fishing. The army and navy would ask him for fish and if he did not have any he was threatened;
h)between 2006 and 2008 when he returned to Udappu to visit his family the army picked him up, mistreated him and detained him on three occasions. The last occasion they did that was in 2008. From then he avoided the army by staying inside and only staying for one or two week during each visit;
i)the army had picked him up from his parent-in-law’s home once. After he started moving around Sri Lanka the army had visited his parents-in-law asking about his whereabouts on three occasions. The army had been looking for him because they had asked him to report to them but he had not;
j)whenever he had gone through army checkpoints he had been stopped and his identity card checked. The army would say they were suspicious of him and that they had been asked to enquire about him. They said that he was moving from place to place, had come from Trincomalee and it looked like he had a problem in Udappu. They did not refer to him being taken by the army in Udappu and never said that he had not reported to the army there, just that they had some complaint about him;
k)in April 2012 the army visited his father-in-law and told him that they were looking for him, that his life was not guaranteed and that if they saw him they would catch him. The following day he fled to Trincomalee and hid there until he left Sri Lanka. The army had continued to visit his parents-in-law after he left Sri Lanka;
l)it was not safe for him to return to Sri Lanka and he would be harmed for having left the country illegally. He was also afraid of everyone in Sri Lanka and particularly the army because he had not reported to them as requested; and
m)the driver of the boat on which he arrived in Australia had told him not to tell anyone of his identity. He did not know that person’s identity and had not told anyone about it.
On 15 January, 18 January and 28 April 2013 the applicant’s representatives provided written submissions to the Tribunal. Those submissions were not set out separately in the Tribunal’s decision record but were, where relevant, incorporated into its reasoning.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons.
The Tribunal found that the applicant was not a witness of truth and that his account of the events on which his protection claims were based was false. It did not believe any of the applicant’s claims of harm he had allegedly suffered in Sri Lanka or of the Sri Lankan army’s interest in him. In this connection the Tribunal:
a)had difficulty accepting that the applicant would have returned to his parents-in-law’s home and remained there for one or two weeks at a time when he claimed that he was wanted by the army in Udappu. Even though it accepted that the applicant might have wanted to see his family, the Tribunal did not believe that he would have stayed for one or two weeks knowing that the army could come at any time;
b)noted that the applicant’s evidence in the earlier stages of his application was that he started living in other places other than Udappu in 2008 but at its hearing he said that he had started living in different places to avoid the army from as early as 2006, after he was first detained. It found that the discrepancy in the applicant’s evidence was significant and that it would have reasonably expected him to recall when he had stopped living in Udappu to avoid being picked up and mistreated by the army. The Tribunal did not accept the explanations given by the applicant in his evidence and in his representatives’ submissions on that issue, namely that the version of events he gave to the Tribunal was the correct; that in his statutory declaration he had claimed that after 2008 he had moved around “more often”, indicating that he had been living in other places before 2008; that he had moved around before 2008 when the six month fishing season in Udappu finished; and that he had stated in his protection visa application that he had lived in Udappu until 2008 because he had been moving around and Udappu had been his permanent address;
c)noted that the applicant’s evidence at his departmental interview was that when he had been living in Trincomalee and Mullaitivu, he had been captured by the army several times and told that he was of interest to them because he had not reported to the army in Udappu. However, at the Tribunal hearing the applicant made no mention of being asked when he was stopped in other parts of Sri Lanka or when he was passing through checkpoints why he had not reported to the army in Udappu. The Tribunal noted that when it raised the inconsistency, the applicant’s representatives submitted that it was basing its finding on information contained in the delegate’s decision and that the information recorded in that decision had been misunderstood or misinterpreted and the applicant might have been confused or mistaken when responding to the delegate’s questioning. The Tribunal noted that it had listened to the audio recording of the delegate’s interview and that its understanding of the applicant’s evidence came from listening to that recording rather than from the comments made by the delegate in the decision. The Tribunal therefore found that the evidence the applicant had given to the delegate and to it was inconsistent and it did not accept that those discrepancies had been caused by confusion, mistakes, misunderstandings or misinterpretation;
d)noted a claim made in the applicant’s representatives’ submissions of 15 January 2013 that while living in Trincomalee between 2008 and 2012 the applicant had been detained for an hour by the army, questioned and physically assaulted because he was suspected of having LTTE links. It noted that the applicant had not made that claim in his statutory declaration, entry interview or departmental interview and that at its hearing he stated that he had never been taken away by the army while in Trincomalee in that period before later saying that he had been beaten and questioned by the army because he was a young Tamil male. The Tribunal was willing to overlook that omission at the entry interview and delegate’s interview and the initial omission at its hearing on the basis, as submitted on behalf of the applicant, that he had not been specifically asked about the issue in detail. It also accepted that the reference in the submissions that the applicant had been “taken away” for enquiries by the army was a misunderstanding on the part of the author of the submissions. However, the Tribunal found that there was no explanation for the applicant’s failure to make the claim in his statutory declaration. It found that given that he stated in that declaration that he had left Udappu because he feared being detained by the army, it expected that if he had been detained by the army in the other places he went to, he would have mentioned it; and
e)found that, contrary to the applicant’s representatives’ submissions, its concerns about the applicant’s credibility were not related to minor inconsistencies and it rejected the submission that it had been imposing unreasonably high expectations on the precision of the applicant’s evidence. The Tribunal considered whether the discrepancies in the applicant’s claims might have arisen from genuine lapses of memory, nervousness, the different questioning and purposes of the interviews he had attended and interpreting issues but it found that none of those explanations, or any others raised in his representatives’ submissions, explained or excused the discrepancies.
The Tribunal found that the applicant would not suffer harm in Sri Lanka because he was a Tamil. In this connection the Tribunal:
a)found that country information indicated that the primary victims of human right abuses by the Sri Lankan government or those acting on its behalf were those perceived as its opponents, described in the United Nations High Commissioner for Refugees (“UNHCR”) Guidelines as opposition politicians and activists, human rights activists and journalists. Based on that country information the Tribunal found that Tamils, including those from areas previously controlled by the LTTE, did not suffer harm for those reasons alone and that the risk of them suffering harm for those reasons alone was remote. It found that the government would only make informants of those who had some particular connection to the LTTE and that the risk of that happening to a Tamil without such connections was remote. The Tribunal noted that the UNHCR Guidelines made it clear that being a young Tamil male did not amount to a perceived link to the LTTE;
b)did not accept that the applicant would be perceived as supporting the LTTE just because of his ethnicity, his age, his sex or because of the areas he once lived and work in Sri Lanka. In making that finding the Tribunal referred to country information indicating that Tamils who were likely to be perceived as supporters of the LTTE were those who had actually had some involvement with the organisation. It went on to note that there was no evidence that the applicant or any member of his family had had such an involvement and that it had rejected the applicant’s claims that he had faced harm in the past based on perceived links to the LTTE;
c)acknowledged that the rights of Tamils to express their cultural, religious and linguistic identity might be eroded by the “Sinhalisation” occurring in Sri Lanka, which included the government helping Sinhalese families to resettle in traditionally Tamil areas. However, it found that the applicant had previously been able to find accommodation and employment in Sri Lanka and subsist. It therefore found that any “Sinhalisation” or discrimination against Tamils did not demonstrate that the applicant would suffer harm because he was a Tamil. The Tribunal also found that the applicant had not claimed that he could not practise his religion in Sri Lanka and that country information indicated that the government respected the right of freedom of religious practice; and
d)found that the army in the north and east of Sri Lanka might request prior permission for family celebrations and that security forces required Tamils to register household members. However, it found that that conduct fell short of demonstrating that the applicant would suffer harm on his return and that there was no credible evidence that he had been harmed by the army in the past.
The Tribunal found that the applicant would not suffer harm because he was a Tamil fisherman. In this regard:
a)the Tribunal noted the claim made on the applicant’s behalf that the army did not treat Tamil fisherman fairly and that the restrictions which would be imposed on his ability to work amounted to serious harm. It noted some country information referred to by the applicant’s representatives which indicated that the Sri Lankan navy had a pass system in the north of the country which required fisherman to submit their documents daily when going out on to the water and that that affected the livelihood opportunities for returnees. However, the Tribunal preferred advice from DFAT that the Sri Lankan Department of Fisheries was the only authority which issued fishing licences and that although the navy had issued passes during the conflict, it did not issue fishing licences. The Tribunal found that even if there were fishing restrictions in some areas, identity checks and the requirement to hold passes, the applicant had lived under that regime previously and had managed to subsist. It was not satisfied that the preferential treatment given to Sinhalese fisherman, the requirement to show identity documents or have a pass would prevent the applicant from being able to subsist as he had done previously. It found that there was no credible evidence that the applicant had suffered harm while working as a fisherman; and
b)while acknowledging that if the applicant resumed his work as a fisherman he would have to pass through checkpoints in Sri Lanka, the Tribunal found that the risk of him suffering harm for doing so because he is a Tamil and because of his work was remote. It found that there was no credible evidence that his freedom of movement had been restricted in any significant way and he had been able to pass through checkpoints and go to work and live in different areas. It was also not satisfied that he would be detained for lengthy periods at checkpoints.
For the following reasons the Tribunal found that the risk that the applicant would suffer harm in Sri Lanka because he had left the country illegally and would be returning from Australia as a failed asylum seeker was remote:
a)the Tribunal noted country information which indicated that returnees who had departed the country illegally were only detained in remand for a brief period of time before being brought before a court and granted bail. It found that if the applicant was held in detention, he would only be in remand briefly, and even though it would be in poor conditions, his detention would not amount to serious harm. The Tribunal noted that country information indicated that Tamils were treated the same way as everybody else and that there was no reliable substantiated evidence that they suffered harm or were mistreated during that process. It further noted that country information indicated that prison sentences for illegally departing the country were more likely to be imposed on those involved in people smuggling and, on that basis, found that the risk of any Tamil failed asylum seeker being given a jail sentence for an illegal departure was remote. The Tribunal then concluded that the applicant would be given a fine for his illegal departure and that the amount of the fine would not amount to serious or significant harm. It found that the applicant would be able to provide for himself on return to Sri Lanka and pay whatever fine would be imposed on him;
b)the Tribunal acknowledged submissions made on behalf of the applicant that as a returnee he would have difficulties obtaining accommodation, employment and identity documents but it found that he had had accommodation and employment in Sri Lanka in the past and that there was no evidence that on his return he could not secure those and any identity documents he might need;
c)the Tribunal found that country information referred to by the applicant’s representatives about returnees from Great Britain who had been harmed in Sri Lanka did not indicate that Tamil failed asylum seekers were harmed for that reason alone. It found that the people referred to in that country information had previously had difficulties with the authorities. As it found that there was no credible evidence that the applicant had had any difficulties with the authorities in Sri Lanka, the Tribunal was not satisfied that he would suffer harm as a Tamil failed asylum seeker;
d)the Tribunal found that the UNHCR Guidelines did not state that failed asylum seekers who had left Sri Lanka illegally were suspected on that account of supporting the LTTE and that if it were so, there would have been reports of them being detained and mistreated but there were no such reliable reports. It also found that there were no reliable reports that Tamils who had sought asylum in Australia were perceived as opponents of the Sri Lankan government and were arrested on arrival, held in detention for a lengthy period and mistreated. The Tribunal found that while it might be that those who had criminal records or connections to the LTTE would face additional questioning and be detained on return, there was no credible evidence that the applicant had a criminal record or LTTE connections; and
e)the Tribunal acknowledged submissions that the applicant would be harmed when he returned to his home area but found that the UNHCR Guidelines did not include failed asylum seeker returnees in its profiles of those at risk. It said that, given the ample information about human rights violations in Sri Lanka, if Tamil failed asylum seeker returnees were harmed solely on that ground it expected that there would have been reliable reports on the issue. However, it noted that Department of Foreign Affairs and Trade (“DFAT”) information indicated that there were no such reports and found that the risk of the applicant suffering harm on that ground was remote.
The Tribunal noted country information which was referred to by the applicant’s representatives concerning the prevalence of poor prison conditions in Sri Lanka, the holding of people on remand for long periods, the restrictions on bail for those detained under prevention of terrorism laws and the denial of fair trials but it found that that information referred to Tamils alleged to be members of the LTTE. It referred to the applicant’s representatives’ submissions that failed asylum seekers sent back to Sri Lanka from Australia were held in poor prison conditions, that the penalty for illegal departure was imprisonment and a fine and that there was a chance that the applicant would be detained for a long time, either on remand or as a convicted prisoner. The Tribunal rejected those submissions and noted that country information indicated that Tamil returnees charged with illegal departure were questioned briefly at the airport and brought immediately before a court, or held briefly on remand, before being granted bail. It acknowledged the claims made about the prison conditions and prevalence of torture in Sri Lanka but found that the risk of the applicant suffering serious harm during the process after his arrival in Sri Lanka was remote. It further found that the possibility of the applicant being held in poor detention conditions for a brief period would not amount to a real risk of him suffering significant harm.
The Tribunal concluded that, considered cumulatively, the applicant’s characteristics would not lead him to suffer harm in Sri Lanka. It found that although the applicant claimed he was afraid of everyone in Sri Lanka, there was no credible evidence that he had been harmed by anyone there or that anyone wanted to harm him. It further found that although he had mentioned that the driver of the boat on which he had travelled had threatened him not to reveal that person’s identity, he had said he had not disclosed the person’s identity and there was no evidence that he would suffer harm on that basis.
Proceedings in this Court
In his amended application the applicant alleged:
Ground 1
The Tribunal committed jurisdictional error when it made findings without the supporting evidence would suffer serious harm in respect of complimentary visa protection (CB 318; RRT decision, p37 at [268]) and further erred when it failed to address “real risk” as to whether impositions of restrictions / conditions limiting the ability to fish (his former subsistence constituted “real risk” on ability to subsist) and the involvement of the government.
Particulars
The Applicant claimed that the Applicant would suffer serious harm in being able to carry out fishing to sustain livelihood (CB 145, 213 – 214, 276-8). The Tribunal has extrapolated the previous situation of the Applicant rather than arrive at the finding based on evidence and did not address the issues raised.
Ground 2
The Tribunal committed jurisdictional error in reaching its conclusion in relation to the Applicant’s claim as to extent that the Applicant was he was [sic] in Udappu between 2005 and 2012.
Particulars
The Tribunal fell into jurisdictional error (CB 300; RRT decision, p19 - 21 at [114] - [124]) its reasoning illogical as it failed to apprehend the claim that the Applicant whilst working in this period treated Udappu as his home whilst working away from Udappu.
Ground 3
The Tribunal committed jurisdictional error when it failed to deal with the applicant’s claim persecution as a member of a particular social group and / or his political opinion “sinhalisation” / Buddhishization (CB 145; 149 - 150) of Tamil areas in Sri Lanka.
Particulars
The Tribunal failed to consider the issue of a particular social group t [sic] of which Applicant as young Tamil from Udappu area fell and holding views on “sinhalisation” of Tamil areas in Sri Lanka.
Ground 4
The Tribunal committed jurisdictional error when it simply focused on the likely outcome of detention and / or asked incorrect questions.
Particulars
The Tribunal failed to deal with the applicant’s claim that the totality of his situation would expose him to danger. The Tribunal simply focused on the country information and simply assessed the likely outcome based on country information (CB 316 - 317; at [240] – [257]) rather than look at totality of the Applicant’s claim and ignored that the questioning could reveal the background of the applicant and pose risks to the applicant.
At the hearing of this application the applicant also alleged that:
a)the Tribunal had not considered all the matters he had raised with it; and
b)he had been mentally distressed at the Tribunal hearing.
Ground 1
The first ground of the amended application alleged that the Tribunal:
a)erred in finding that the applicant did not satisfy the criteria for the grant of a protection visa on complementary protection grounds;
b)erred by failing to consider the risk posed to the applicant by the restrictions imposed on his ability to fish; and
c)reached a decision by reference only to Convention-related criteria and not by reference to complementary protection criteria.
In brief, the applicant alleged that the Tribunal did not consider his fishing rights claims in the complementary protection context.
The allegation referred to para.268 of the Tribunal’s reasons where it said:
The Tribunal acknowledges the submissions and country information put forward by the representative about Tamils suffering discrimination, favourable treatment given by the army to Sinhalese fishermen, possible difficulties the applicant may encounter as a Tamil fishermen trying to make a living from that (having to pass through checkpoints and present appropriate documentation to go fishing) and his Hindu religion but finds that the applicant will be able to resume his work as a fisherman as he did before he left Sri Lanka, resume living with his wife and her parents and any difficulties he encounters including discrimination will not amount to significant harm. He will be able to practice [sic] his religion in Sri Lanka.
Of the one-hundred and eighty-eight paragraphs of the Tribunal’s reasoning, only thirteen were concerned specifically with whether the applicant met the criteria for the grant of a protection visa on complementary protection grounds. Of those thirteen paragraphs, only para.268 dealt expressly with the applicant’s fishing rights claims. Nevertheless, earlier at para.260, the Tribunal had said:
The Tribunal finds that for the same reasons that there is not a real chance the applicant will suffer persecution based on any convention ground, there is not a real risk he will suffer significant harm in Sri Lanka.
In that paragraph, the Tribunal should be understood to have been adopting in the complementary protection context its reasoning for rejecting the applicant’s claims in the Convention-related context.
In that earlier discussion, the Tribunal had said that the applicant’s fishing rights claims were not made out on the facts and that he would be able to subsist as he had in the past. The Tribunal had also found earlier that there was no credible evidence that the applicant had suffered harassment or harm when he travelled in different areas of Sri Lanka to live and work as a fisherman.
That reasoning was as applicable to the complementary protection criteria as it had been to the Convention-related criteria and, for that reason, when considering complementary protection the Tribunal did not need to engage in any greater discussion of the issue than the reasoning it expressed.
The applicant might also have been alleging in the first ground of his amended application that the Tribunal erred by considering the likely risk to him of a return to Sri Lanka based on the assessment of his circumstances in Sri Lanka prior to his departure. However, it is not an error to attempt to consider whether a given event might occur in the future by reference to what may have occurred in the past: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559.
For these reasons, the first ground of the amended application is not made out.
Ground 2
The second ground of the amended application alleged that the Tribunal erred in understanding the applicant’s claim that he regarded Udappu as his home in the periods when he was working elsewhere.
This allegation was related to the Tribunal’s conclusion that the applicant had given inconsistent versions of when he left Udappu to live and work in other parts of Sri Lanka. The applicant did not identify any form of legal error associated with that conclusion which might justify a finding of jurisdictional error, the essence of the allegation being a challenge to the Tribunal’s factual conclusion that the applicant had given it a version of events which was significantly at variance with the version he had supplied at earlier stages of the visa application process.
Even if the Tribunal had been mistaken in its factual conclusion, without more that does not support a finding of jurisdictional error on its part. Consequently, the second ground of the amended application is not made out.
Ground 3
The third ground of the amended application alleged that the Tribunal failed to consider a claim that the applicant feared persecution because of views he held concerning the “Sinhalisation” and “Buddhishization” of Tamil areas in Sri Lanka and, presumably, of his membership of a particular social group of people who held views on such issues similar to his own.
The applicant made no claim of that sort before the Tribunal, or at any earlier stage, and the existence of such a claim did not emerge tolerably clearly from the materials which were before the Tribunal.
The Tribunal did not err by not considering a claim which was neither made to it nor reasonably discernable from the materials before it.
Ground 4
In the fourth ground of the amended application the applicant alleged that the Tribunal failed to consider whether he faced a risk of harm while detained by the Sri Lankan authorities and, in doing so, failed to consider the entirety of the evidence he placed before it.
The Tribunal considered the applicant’s claims to fear harm on his return to Sri Lanka by reason that he was a failed asylum seeker who had left Sri Lanka illegally after it had already concluded that he was not a witness of truth and not at risk of harm for the various other reasons he advanced.
In para.240 of its reasons the Tribunal referred to the applicant’s claim that in the process of being questioned at the airport, held on remand and subsequently granted bail he was at risk of suffering harm given the widespread use of torture in Sri Lanka and the poor conditions in detention but rejected those claims. The Tribunal concluded in para.241 of its reasons that if the applicant were held in detention he would be in remand only briefly, albeit in poor conditions, and it was not of the view that that amounted to serious harm. It further concluded that the risk of the applicant suffering serious harm in that process was remote. In para.246 of its reasons the Tribunal reiterated that opinion in the context of the applicant’s submissions specifically concerning prison conditions in Sri Lanka.
In the context of complementary protection, the Tribunal referred to its reasons expressed when considering the applicant’s Convention-related claims and concluded that the risk of the applicant suffering significant harm in the process of being questioned at the airport, brought before a court and possibly detained on remand, granted bail and fined, was remote. In para.265 it said:
While conditions in detention in Sri Lanka may be poor the Tribunal is not satisfied that the possibility of the applicant being held for a brief period in such conditions amounts to a real risk of suffering significant harm as that term is defined in the Act.
For these reasons the fourth ground of the amended application is not made out.
Ground 5
The applicant’s allegation at the hearing of this application that the Tribunal had not considered all the matters which he had raised with it was not particularised, although he was invited to identify matters which he said the Tribunal had not taken into account. He said that the Tribunal did not understand that he had problems and that the Tribunal’s reasons did not reflect a consideration of everything he had said.
Absent identification of aspects of the applicant’s claims which he says were not considered by the Tribunal, this allegation lacks meaningful substance. In any event, the Tribunal’s decision appears to be a detailed and comprehensive summary of the material advanced by the applicant in his initial visa application, his interview with the delegate and his review before the Tribunal. It is not apparent that any material aspect of his claims was not cited or considered by the Tribunal and in the absence of any being specifically identified by the applicant, I find that the allegation is not made out.
Ground 6
Although the applicant alleged at the hearing of this application that he had been distressed during the Tribunal hearing, nothing in the Tribunal’s decision record supports that allegation. Further, the applicant was represented at the Tribunal hearing by his migration agent and it might be expected that, had the applicant been disabled in any material way from advancing his case, his agent would have advised the Tribunal accordingly, whether at its hearing or in one of the two written submissions lodged with the Tribunal following that hearing.
In the circumstances there is no basis to conclude that the applicant was denied the real and meaningful hearing impliedly guaranteed to him by s.425 of the Act.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Cameron
Associate:
Date: 18 August 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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