SZTJB v Minister for Immigration
[2016] FCCA 2158
•26 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTJB v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2158 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal failed to consider a particular social group or to consider extortion claim or applied the incorrect test, asked itself incorrect questions or failed to ask the correct questions – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2A), 36(2)(aa), 424AA, 424A |
| Cases cited: Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33 SZTAL v Minister for Immigration and Border Protection & Anor [2015] FCCA 64 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 |
| Applicant: | SZTJB |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2416 of 2013 |
| Judgment of: | Judge Barnes |
| Hearing date: | 8 December 2015 |
| Date of Last Submission: | 11 December 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2416 of 2013
| SZTJB |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 12 September 2013 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka, applied for a protection visa on or about 23 November 2012. In a statutory declaration provided in support of his application, the Applicant claimed to be a Hindu Tamil from Udappu in the north-western province of Sri Lanka who had worked as a fisherman until approximately 2008 and thereafter as a prawn farm worker.
The Applicant claimed that when he was approximately eight or nine years of age, his father had been detained and beaten by the Sri Lankan “forces” on suspicion of being a member of the LTTE. He also claimed that since the defeat of the LTTE, many Tamils, including himself, had been required to obtain fishing passes from the Sri Lankan “forces”. He claimed that from approximately 2009 the Sri Lankan Navy often came to his workplace and interrogated him. He believed that this was because of his race and the likelihood that he would be connected with the LTTE.
The Applicant claimed that in late May 2012 he was arrested by two CID officers on suspicion that he was attempting to flee Sri Lanka illegally, detained for three days, interrogated and beaten. He claimed he was also asked to pay the CID officers 80,000 rupees. He claimed he was taken to court, but released after two unknown persons signed a document. The Applicant claimed that he was able to raise 20,000 rupees and that he gave this to the CID officers when he attended the court hearing. He claimed that the officers beat him and asked him for the rest of the money and threatened to press false charges claiming that he was an LTTE member unless he provided the rest of the money. The Applicant claimed that the court case was ongoing. He also believed that the CID would continue to extort money in the form of a bribe, even if he paid the remaining 60,000 rupees.
The Applicant claimed to fear being jailed for allegedly attempting to flee Sri Lanka. He claimed that the prison authorities did not treat inmates, especially Tamil inmates, humanely. He claimed to fear being seriously harmed if placed in jail in Sri Lanka and that it was well-known that several Tamils had been tortured in Sri Lankan jails.
The Applicant also claimed to believe he would be at risk of being targeted by the Sri Lankan CID and other authorities on the basis of an imputed political opinion due to false allegations that the CID may raise against him and also for reason of being a Tamil. He claimed that these were the reasons he fled Sri Lanka in June 2012.
He also claimed that the fact he fled Sri Lanka illegally and had claimed asylum in a western country placed him at risk of harm if returned to Sri Lanka.
The application was refused and the Applicant sought review by the Tribunal. His then representative provided written submissions to the Tribunal on 4 May 2013, 3 June 2013, and 4 September 2013.
On 23 May 2013 the Applicant attended a Tribunal hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.
In addition, by letter of 29 August 2013 the Tribunal invited the Applicant to comment on an aspect of a Department of Foreign Affairs and Trade (DFAT) country information report for Sri Lanka dated 31 July 2013 in relation to returnees being prosecuted for illegal departure under the Sri Lankan Immigration and Emigration Act. The Applicant submitted a response through his representative on 4 September 2013.
The Tribunal Decision
As indicated, on 12 September 2013 the Tribunal affirmed the delegate’s decision.
In its reasons for decision the Tribunal summarised the claims made by the Applicant in support of his protection visa application, in his interview with the delegate and in oral and written claims to the Tribunal.
After referring to relevant country information, the Tribunal found, for reasons which it gave, that the Applicant was not a witness of truth and that the account of events on which his protection claims were based was false. It identified the concerns which led it to this conclusion.
The Tribunal referred to its account of the discussion with the Applicant at the hearing of his knowledge about the status of the claimed court proceedings against him. He claimed that the proceedings were ongoing. However, the Tribunal found that the Applicant’s evidence in this respect was “unconvincing, mobile, and vague”.
The Tribunal had recorded that the Applicant had claimed that he attended court three days after he was detained, was released on bail and attended court again on 8 June 2012 when the matter was adjourned until 19 November 2012. He left Sri Lanka in June 2012. The Tribunal recorded that when asked what had happened to the court case since he left Sri Lanka “while he said a friend told him the case would come before the court in June 2013, he also, a number of times said that he did not know what was happening with the court case since he left Sri Lanka”.
The Tribunal continued:
88. Indeed, he said he did not even try to find out what happened after the case came before the court in November 2012. It was really only when pressed and when the Tribunal put to him its concerns that he would not know and not try to find out what happened to the court case that he then put forward the evidence about a warrant being issued if he missed three consecutive hearings.
89. Even then, initially, he claimed not to know which two hearings he had missed before then claiming, after again being pressed, that one date was November 2012 and the other was either April or May. That is a different account from the one he initially put forward that he did not know what was happening with his court case.
The Tribunal did not accept the Applicant’s explanation that he had not initially given this evidence to the Tribunal because it was only after the November 2012 hearing that the authorities went in search of him. It had regard to the fact that the Applicant had been questioned closely about his knowledge of the status of the court case and could easily have said in his initial evidence that he had missed two court hearings and that if he missed the next one in June 2013 an arrest warrant would be issued.
The Tribunal was of the view that regardless of when the authorities went to look for the Applicant, the prospect of an arrest warrant being issued was a significant development and one that the Applicant could reasonably be expected to put forward when first questioned about the court case. It did not accept the Applicant’s claim that because he was in Australia there was no need to make inquiries about the court proceedings, given the significance of the court case to his protection claims.
The Tribunal also had regard to concerns in relation to the Applicant’s evidence about court documents he had provided to the Tribunal. He had told the Tribunal that he could not read these documents because they were not in Tamil. The Tribunal found that the Applicant’s claim at the hearing that he had not asked anyone to assist him to comprehend the content of these documents was “extraordinary”. It observed that the Applicant had not claimed that there was no one available to assist him, but rather that he understood the documents proved his case, that there was no need for someone to read them to him and that he just assumed that the Tribunal would have translations done of these documents. The Tribunal found such explanations unconvincing and not credible. It was of the view that if the Applicant was truly the subject of court proceedings which placed his safety at risk in Sri Lanka, he would have sought the assistance of someone to tell him what these documents said.
In addition, the Tribunal had regard to the fact that the Applicant had not referred to any court case in his entry interview. It acknowledged the conditions under which an entry interview would be conducted and the constraints that this would place on an applicant in relating protection claims in detail. Nonetheless it expected that, were the Applicant relating a truthful account, he would have said at his entry interview that after being released from detention by the CID he was taken to court and that he had to return to court subsequently. It acknowledged that there was a reference in the record of the entry interview to the Applicant saying that if he wanted to “close the case” he would have to pay money, but did not consider that this equated with advancing a claim to have been taken to court, to have had to return there and to have left Sri Lanka while court proceedings against him were outstanding.
The Tribunal acknowledged that when it invited the Applicant to comment on or respond to this issue pursuant to s.424AA of Migration Act 1958 (Cth) (the Act), he had claimed that he was asked to give brief information only in the entry interview and that due to stress he may have omitted a few things. It nonetheless considered that this would not have prevented him from putting forward a very fundamental and rudimentary aspect of his protection claims, namely being taken to court and having court proceedings in Sri Lanka outstanding.
The Tribunal concluded that, considering these concerns cumulatively, the Applicant was not a witness of truth and that the account of events on which his protection claims were based was false. Accordingly the Tribunal disbelieved the Applicant’s claims regarding his alleged arrest, detention, accusation and confession in relation to attempting to depart Sri Lanka illegally; that he was photographed in detention by a journalist; that he was taken to court, granted bail, had money extorted from him by police and attended court in June 2012; that he was required to attend court on any occasion thereafter; or that the authorities had looked for him after he left Sri Lanka.
Further, because it found that the Applicant was not a witness of truth, the Tribunal disbelieved his claim that when he was 9 or 10 he and his brother and father had been taken and held by the Army for a few hours and questioned on suspicion of support for the LTTE or that his father was beaten or, as he claimed in the entry interview, that they were questioned by police before they lost contact with his father.
The Tribunal also found that there was no credible evidence that the Applicant was harmed by or had difficulties with the Army, Navy, or any other agency of the Sri Lankan government or related paramilitary groups (or anyone else).
Insofar as the Applicant had claimed that he needed a fishing pass and that the Navy would often interrogate him on suspicion of helping the LTTE, the Tribunal observed that it had clarified these claims at the hearing and that while the Applicant said the pass was to go fishing, he had not otherwise had difficulties with the authorities. In any event, it had regard to the fact that his evidence was that he ceased fishing in 2008 and thereafter earned a living working on a prawn farm, showing his identity card to authorities when asked for it and that he did not claim to have difficulties with the authorities beyond that.
The Tribunal had regard to the fact that at the hearing the Applicant had produced a number of untranslated documents. He told the Tribunal that one document had been written by his fishing club in Udappu and asserted that he was arrested, held in detention and was the subject of court proceedings. He claimed that the remainder of the documents related to the court proceedings and were submitted to corroborate his claim about being arrested and the subject of a court case. The Tribunal recorded that it had told the Applicant it could not consider these documents without English translations and that after the hearing the Applicant’s representative submitted a bundle of documents in English and Sinhalese “without any specific commentary as to what these documents were about beyond the general claim that they indicated the applicant was the subject of court proceedings in relation to the suspicion he was attempting to leave the country illegally”.
The Tribunal considered the documents in English which indicated that they were issued by a court in Sri Lanka and that in May 2012 over 100 people were arrested on suspicion of trying to leave the country illegally. Seven people were named as being responsible for organising a people smuggling venture. It also recorded that other documents included some arguments from people who appeared to be representing those accused of people smuggling; an allegation that one of the accused had attempted to intimidate the family of a police officer working on the case; and a list of names, including the Applicant’s name, which was said to indicate that he was one of the people arrested.
The Tribunal found that, while it had carefully considered the assertions in the court documents and the letter from the fishing club which purported to corroborate the Applicant’s claims, these documents and the assertions therein did not overcome the concerns the Tribunal held about the Applicant’s credibility which had led it to find that he was not a witness of truth. Accordingly the Tribunal did not give weight to these documents.
Insofar as the Applicant had mentioned at his entry interview that he had a cousin in Australia who had left Sri Lanka illegally, the Tribunal recorded that he did not claim to fear harm on that ground. While he had mentioned that a “Mr Y” who was also in Australia was involved in the same court proceedings, as the Tribunal did not believe the Applicant’s claims that he was the subject of court proceedings in Sri Lanka, it disbelieved his claims about seeing Mr Y at the headquarters of the CID or in court.
The Tribunal continued:
113. The Tribunal finds credible no more than that the applicant is a Tamil man from Udappu where his sister and relatives live. The Tribunal accepts that he has a brother who lives in Dubai who went there to work. The Tribunal accepts that his mother is deceased and his father lives somewhere else in Sri Lanka.
114. The Tribunal accepts the applicant completed his education up until year 10; he worked as a fisherman and then gained work on a prawn farm. He left Sri Lanka illegally. There is no credible evidence that the Sri Lankan authorities or anyone else in Sri Lanka wishes to apprehend and harm the applicant. There is no credible evidence before the Tribunal as to why the applicant left Sri Lanka and why he does not wish to return there.
The Tribunal nonetheless considered the risk of harm to the Applicant in the future. It addressed his claim that he feared harm as a Tamil but was of the view, on the basis of country information, that Tamils, including those who came from areas previously controlled by the LTTE, did not suffer harm for those reasons alone. It considered that the risk of such a person suffering harm for those reasons alone was remote. While the Tribunal was aware of the government practice of using informants, it considered this would only “be applied” to those who came within risk profiles described by the UNHCR, in particular those with some connection to the LTTE. It considered that the risk of this occurring to a Tamil without such connections was remote.
The Tribunal then considered the risk for the Applicant returning to Sri Lanka as a failed asylum seeker and after leaving the country illegally. In that context it considered allegations about harm to Tamils who had returned to Sri Lanka, including after making unsuccessful asylum applications. It had regard to the fact that DFAT and British authorities had been unable to substantiate such allegations. Overall, the Tribunal the found that there was no substantiated reliable information that Tamils who returned to Sri Lanka after seeking asylum abroad, including those who left the country illegally, suffered harm solely on those grounds.
The Tribunal acknowledged that country information indicated that on arrival returnees would be interviewed at the airport and as soon as possible brought before a Magistrate in relation to departing illegally, and that, depending on the time of return, such persons may be briefly detained in remand before being brought to the court. The Tribunal was of the view that country information indicated that for departing the country illegally, the returnee would be granted bail and would eventually receive a fine. It noted that according to country information Tamils were treated the same way as anybody else and found that there was no reliable substantiated evidence that Tamils suffered harm or maltreatment in this process.
The Tribunal acknowledged that, according to DFAT, the penalties for illegal departure could be a fine and a prison sentence, but on the basis of country information cited, was of the view that prison sentences were more likely to be imposed on those involved in people smuggling. It also had regard to the fact that, according to the DFAT report of 31 July 2013, the Sri Lankan government had stated that no-one had been given a custodial sentence for departing Sri Lanka illegally.
The Tribunal also considered evidence about the likely range of fines for illegal departure from Sri Lanka. On the information before it the Tribunal was satisfied that while from November 2012 the Sri Lankan government had begun charging people for offences relating to illegal departure, the risk of any Tamil returnee who unsuccessfully sought asylum abroad being given a jail sentence for illegal departure was remote. It was satisfied that a fine was the most likely outcome. It found that the imposition of a fine within the range set out in country information did not amount to serious harm. Accordingly, the Tribunal considered that the risk of a Tamil suffering harm in Sri Lanka as a returnee after seeking asylum abroad and leaving the country illegally (and suffering harm solely due to those factors) was remote.
The Tribunal considered in detail the submissions and claims of the Applicant and his representative in relation to risk. It referred to the discussion of country information at the hearing. It also indicated that it had considered media reports produced by the Applicant at the hearing, which were untranslated but were said to indicate that failed asylum seekers had been maltreated on return to Sri Lanka. It also referred to the representative’s response to country information put to the Applicant and to the written submissions.
The Tribunal accepted that the Sri Lankan government and those acting on its behalf committed human rights violations. However it was of the view that the Tamils who were the victims of those abuses and for whom there was a real chance of suffering serious harm were those who came within the risk profiles specified by the UNHCR, in particular those suspected of involvement with the LTTE. The Tribunal acknowledged that such profiles were not exhaustive, but was not satisfied that there was a real chance that the Applicant would suffer serious harm just because he was a Tamil of a certain age from a certain part of the country, in circumstances where it had disbelieved his claims to have been harmed in Sri Lanka in the past.
The Tribunal was of the view that country information relied on by the Applicant’s representative was out of date. It preferred more recent country information and later UNHCR Guidelines mentioned in the decision.
The Tribunal acknowledged the claims that paramilitary groups committed kidnappings or abductions for ransom and criminal activity, but found that the Applicant was never harmed by such groups while in Sri Lanka. It considered that the risk of him being the victim of such harm was remote.
The Tribunal had regard to a reference to the Army using violence against Tamil protestors in a village in August 2011, consistent with its understanding that the Sri Lankan government wished to control real or perceived dissent. However it found that the Applicant himself was never involved in protests against the government and that he had evinced no intention to do so on return to Sri Lanka.
The Tribunal also considered the claims that the conflict could re-emerge and the situation deteriorate for Tamils, but was not persuaded that in the reasonably foreseeable future there was a real chance that this Applicant would suffer serious harm.
The Tribunal acknowledged submissions and country information about the military and naval presence and activities in the north and east of Sri Lanka, but found that there was no credible evidence that the Applicant was harmed by the military or anybody else in Sri Lanka before he came to Australia. It accepted that he may well come in contact with the authorities on return, but found that this did not alter its view that there was not a real chance he would suffer serious harm for being a Tamil man of a certain age from a certain part of Sri Lanka.
The Tribunal also addressed claims that there was a process of “Sinhalisation” of Tamil areas and discrimination against Tamils, but assessed these claims against the Applicant’s own circumstances, including his education and employment as a fisherman and on a prawn farm and the fact that he had a home in which to live. The Tribunal considered that the Applicant could return to his village, find accommodation and resume his life in Sri Lanka as previously, including obtaining any requisite official documents he may need. It found that there was not a real chance he would suffer serious harm on these grounds.
The Tribunal did not accept that the Applicant was at risk because he did not speak Sinhalese and was living in an area surrounded by Sinhalese people, as there was no credible evidence he had been harmed by anyone in Sri Lanka and he had received an education and secured employment when he lived there.
The Tribunal did not accept that because the Applicant sought asylum in Australia he would be perceived as an opponent of the government and a supporter of the LTTE for which he would suffer serious harm, either on arrival at the airport in the process of being questioned or thereafter. It considered the claims made in support of this argument, but had regard to country information (which it cited). It did not accept that simply having spent time in Australia and sought asylum here was such that on return the Applicant would be suspected of involvement with the LTTE or perceived as an opponent of the government and harmed on that basis.
The Tribunal was not satisfied that any maltreatment of Tamils on arrival or thereafter occurred simply because those people were Tamils who were failed asylum seekers and had left the country illegally. It addressed the Applicant’s submissions in that respect.
The Tribunal continued:
152. The Tribunal does not accept that simply by having spent time in Australia and sought asylum here, on return to Sri Lanka the applicant will be suspected of involvement with the LTTE or perceived as an opponent of the government and harmed on that basis.
153. The Tribunal, earlier in this decision, discussed claims made that Tamils who went back to Sri Lanka had been maltreated either on arrival or after leaving the airport and the Tribunal is not satisfied that this occurred simply because those people were Tamils who were also failed asylum seekers and had left the country illegally.
154. The allegations put forward to the Tribunal contain insufficient detail to enable the Tribunal to be satisfied that such persons were harmed because of their ethnicity and after unsuccessfully seeking asylum in another country. In those cases where detail is provided it indicates that there was some other factor in the background of the person concerned that led to them being harmed (such as having a previous adverse record with the authorities or actual involvement with the LTTE). The applicant is not such a person.
155. The Tribunal acknowledges the possibility that the authorities could inflict harm on someone being questioned at the airport on arrival; on checkpoints somewhere in the country or in contact with the authorities be it for registration purposes or while released on bail.
156. However, for the reasons given above, the Tribunal finds that there is no substantiated reliable country information demonstrating that failed Tamil asylum seekers are harmed on return to Sri Lanka because they are Tamils who left the country illegally and unsuccessfully sought asylum. The Tribunal does not accept that any fears a returnee may have when being questioned on arrival at the airport amount to serious harm.
The Tribunal considered issues the Applicant’s representative had raised about the reliability of DFAT and UNHCR information, but observed that there was widespread coverage of human rights practices in Sri Lanka. It was of the view that if Tamils sent back to Sri Lanka as failed asylum seekers who left illegally were harmed on these grounds alone, there would be reliable reports to substantiate this, but that there were none.
The Tribunal also addressed the complaint that the Tribunal was relying on country information provided to DFAT from the Sri Lankan government, but had regard to inquiries made by DFAT and its view that allegations of maltreatment of returnees on the basis claimed were not substantiated, regardless of what information the Sri Lankan government itself disseminated.
The Tribunal also addressed the representative’s submission that the Applicant could be held in remand for some period, and that given the poor conditions in remand, the maltreatment of prisoners, and the use of torture in interrogation in detention, he would suffer harm. It found:
162. The Tribunal prefers the reports of DFAT in that generally returnees are processed at the airport and brought before a magistrate as soon as possible. While the Tribunal acknowledges the possibility of a returnee being held in remand briefly before being brought before a magistrate and acknowledging conditions in prisons as well as the prevalence of the maltreatment of those in detention the Tribunal considers this possibility does not equate with a real chance of suffering serious harm.
163. This is confirmed by the fact that there remains no substantiated reliable country information that Tamils sent back to Sri Lanka suffer harm because they left the country illegally and returned there as failed asylum seekers from Australia or any other Western country.
The Tribunal rejected the claim that the Applicant would receive a jail sentence for his illegal departure and thus suffer the poor conditions and torture said to occur in Sri Lankan jails. It found on the information before it that the risk of the Applicant receiving a jail sentence because of his illegal departure was remote, that he would receive a fine, most likely within the range specified in country information for illegal departure, and that the imposition of such a fine did not amount to serious harm (let alone for a Convention reason). It found that no claim had been made that the Applicant could not afford to pay such a fine, and that having to do so did not amount to serious harm.
The Tribunal also considered the fact the Applicant was Hindu, but observed that he made no claim to be at risk because of religion and that there was no credible evidence that he was ever harmed on that ground.
The Tribunal continued:
168. It was claimed that the applicant belongs to particular social groups (Tamils from the north and northeast; failed Tamil asylum seekers; Tamils who left Sri Lanka illegally and Tamils in Udappu “suspected” by the CID).
169. The Tribunal does not accept that the applicant belongs to a particular social group of Tamils in some way suspected by the CID as there is no credible evidence to support that claim. The Tribunal does not need to determine whether the other social groups exist because the Tribunal is satisfied that the risk of the applicant suffering serious harm based on the characteristics that define these groups is remote.
170. The Tribunal has set out above its reasons for finding that the risk of the applicant suffering harm because he is a Tamil man of a certain age from a certain part of Sri Lanka, who left Sri Lanka illegally and will return there as a failed asylum seeker is remote.
The Tribunal addressed other submissions for the Applicant, including the claim that the Applicant was of Indian heritage and would be harmed because Tamils in India supported the cause of the LTTE, but reiterated its conclusion that there was no credible evidence that the Applicant had suffered past harm in Sri Lanka from the authorities or anyone else and concluded that the risk of him suffering harm because he was a Tamil man from Udappu who left the country illegally and was a failed asylum seeker was remote.
The Tribunal considered the cumulative combination of all facets of the Applicant’s claims to be at risk of harm in Sri Lanka, but found for the reasons given that there was not a real chance he would suffer harm in Sri Lanka. It concluded that he did not have a well-founded fear of persecution based on any Convention ground.
The Tribunal then turned to consider the complementary protection criterion. It found, for the reasons it had given for finding that the Applicant did not have a well-founded fear of persecution, that there was not a real risk he would suffer significant harm in Sri Lanka. The Tribunal continued:
177. For the reasons given above, the Tribunal finds that the risk of the applicant suffering harm (let alone significant harm) because he is a Tamil man from Udappu who left the country illegally and will return there as a failed asylum seeker from Australia is remote.
178. The possibility of the applicant being briefly held in remand in poor conditions in a Sri Lankan prison before being brought before a magistrate does not equate with a real risk of suffering significant harm as defined in the Act.
179. The risk of the applicant receiving a jail sentence because of his illegal departure, as discussed above, is remote. The applicant will receive a fine within the range discussed in country information above and this does not amount to significant harm as defined in the Act. Having to pay that fine also does not amount to significant harm; the applicant, at any rate, not making any claim that he was unable to pay a fine.
Accordingly, the Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant’s removal from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. The Tribunal affirmed the decision under review.
These Proceedings
The Applicant sought review by application filed in this court on 8 October 2013. At the request of the parties the original hearing date was postponed to await the outcome of other proceedings.
At the hearing, counsel for the Applicant sought to clarify aspects of the grounds relied on in the Further Amended Application. The Applicant was given leave to file a Further Further Amended Application after the hearing reflecting the grounds relied on at the hearing.
Ground 1
Ground 1 in the Further Further Amended Application is as follows (errors in original):
The Tribunal committed jurisdictional error when it failed to consider particular social group properly deal with Applicant’s particular social groups advanced by the Applicant.
Particulars
The Tribunal did not look at the claim put by the Applicant; alternatively looked at general group (CB289 at [167] - [169]) and has not properly identified and dealt with the social group put by the Applicant and assess the cumulative effect of the attributes.
In written submissions the Applicant contended that he had clearly articulated that he feared harm from various persons, both on the basis of a perceived connection to the LTTE and for a financial reason “being imputed with someone capable of payment of bribes to the extortionists” (sic), but that the Tribunal had not taken these issues into account by considering whether the Applicant feared harm as a member of a particular social group which included the characteristic of the ability to pay bribes to extortionists.
Apart from the Applicant’s claims to fear future extortion by the CID, the contention that he had clearly articulated a claim to be a member of a social group including the attribute of an ability to pay bribes relied on part of the representative’s submission sent to the Tribunal on 4 May 2013 at CB 161-162 which discussed independent country information in relation to what was described as the “threat from Tamil paramilitary groups”. This part of the representative’s submission included a reference to country information stating that particular Tamil paramilitary groups were involved in activities which included extortion and abductions and that they carried out such acts with impunity and with the support of the government and authorities. It was claimed by the representative that Tamils residing in the north and east of Sri Lanka were particularly vulnerable, while those who were perceived to be wealthy and were suspected of having links with the LTTE were at a higher level of risk of being targeted by these groups.
In oral submissions Mr Kumar, counsel for the Applicant, explained that his contention was that the Tribunal had made a general assessment in relation to the risk for Tamils returning from Sri Lanka, rather than considering the Applicant’s claim as a claim to fear harm (including extortion) as a member of a particular social group with attributes (listed in the written submissions filed in these proceedings) of: young male; from east/north; of Tamil ethnicity; fisherman; ability to pay bribes to extortionists; persons likely to be perceived, suspected or to be “imputed of” having some allegiance to the LTTE or so imputed as residents of a former LTTE controlled area; who left the country illegally/without documents; and imputed with or possibly holding views opposed to their treatment by the government of Sri Lanka.
It was conceded that it could not be said that the Tribunal did not consider any particular social group at all, but submitted that the Tribunal had failed to identify and deal with this particular social group which was said to have been advanced by the Applicant. It was pointed out that the Tribunal was obliged to deal with a discrete basis for protection put forward by the Applicant in accordance with the principles considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [24], [95]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42].
It was submitted that the Applicant had advanced a claim that was to the effect that he was a member of a distinct particular social group with the asserted attributes which the Tribunal had not considered. It was contended that the Tribunal had failed to identify the suggested particular social group, failed to assess the risk of persecution against that group and that the attributes identified by counsel for the Applicant had not been given proper consideration by the Tribunal. In particular, it was submitted that potential extortion for financial motivation was a characteristic or a claim or integer of the Applicant’s claims that had not been considered by the Tribunal (as contended in grounds 1 and 3 of the Further Further Amended Application).
It was also contended that the Tribunal had denied the Applicant procedural fairness and that it had made a decision that turned on what was said to be an “unidentified social group”, instead of clearly identifying and dealing with the relevant particular social groups the Applicant was advancing.
As the First Respondent submitted, ground 1 is not made out. In the written submissions provided to the Tribunal on 4 May 2013, the Applicant’s representative expressly identified the particular social groups to which the Applicant claimed to belong. At CB 142 the Applicant was said to be at risk of being targeted by the CID and other authorities as a member of the “particular social group of Tamils who fled Sri Lanka illegally and have sought asylum in Australia”. Later in the submissions, the Applicant was said to fear persecution as a “[m]ember of a particular social group of failed asylum seekers returning from a western country (if returned to Sri Lanka at the present time)” and also as a member of the particular social group of “[y]oung Tamil fishermen from Udappu” (CB 157). The representative’s submission did not clearly articulate a claim of the nature suggested in this ground.
There is no transcript of the Tribunal hearing in evidence before the court, but nothing in the Tribunal’s account of the hearing or in the other material before the court supports the present contention that the Applicant claimed that he was a member of a particular social group with the attributes now suggested in the Applicant’s written submissions. There is also no evidence that he claimed that he had a characteristic of members of such a suggested group being a financial status such that he would be considered able to pay bribes to extortionists and hence was liable to extortion.
Furthermore, it is apparent from the Tribunal reasons for decision that it considered the particular social groups that were advanced in the representative’s written submissions. In addition (apparently on the basis of all the material before it, including the evidence at the Tribunal hearing), the Tribunal considered other possible particular social groups to which it was claimed that the Applicant belonged, namely “Tamils from the north and northeast”; “failed Tamil asylum seekers”; “Tamils who left Sri Lanka illegally” and “Tamils in Udappu “suspected” by the CID” (see paragraphs 168-169 of the Tribunal decision set out at [53] above).
The Tribunal dealt with these claims. It did not accept that the Applicant belonged to a particular social group of Tamils in some way suspected by the CID as there was no credible evidence to support that claim. It found that it did not need to determine whether the other posited particular social groups existed because it was satisfied that the risk of the Applicant suffering serious harm based on the characteristics that defined those groups was remote. It also found, for detailed reasons, that the risk of the Applicant suffering harm because he was a Tamil man of a certain age from Udappu in Sri Lanka, who left Sri Lanka illegally and would return there as a failed asylum seeker was remote. In this way it sufficiently addressed the particular social groups advanced by the Applicant.
Because the Tribunal rejected the underlying factual basis for the Applicant’s claims to fear harm based on past events and because it was not satisfied that the risk of the Applicant suffering serious harm based on the characteristics that defined certain of the asserted particular social groups, it was not necessary for it to consider whether all of the particular social groups advanced by the Applicant existed (SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78]). It did not err in proceeding on that basis.
Insofar as the Applicant intended to assert that the Tribunal failed to consider his claimed attributes, such a claim cannot be sustained on a fair reading of the Tribunal decision. Not only did the Tribunal expressly address the Applicant’s claimed membership of particular groups as set out above, it also undertook a cumulative assessment of all of his characteristics and those of his factual claims which it accepted.
Moreover, contrary to the Applicant’s assertion, it has not been established that there was a claim that arose squarely on the material before the Tribunal that the Applicant feared harm as a member of a particular social group with characteristics specified in the submissions in relation to ground 1, in particular with the characteristic of “ability to pay bribes to extortionists”. There is no evidence that the Applicant made a claim that his financial position, or any other attribute, attracted such an imputation. The reference in the country information cited in his representative’s written submissions in relation to the prospect of extortion of affluent Tamils is not such as to clearly or squarely give rise to a claim that the Applicant feared harm as a member of a particular social group including such a characteristic (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263). This is particularly so given that the Applicant’s representative expressly articulated the particular social groups to which the Applicant claimed to belong.
Moreover, as the First Respondent submitted, having made an adverse credibility finding which was reasonably open to it on the material before it for the reasons which it gave, the Tribunal rejected the entirety of the Applicant’s claims of past extortion, including his claimed outstanding liability for an amount said to have been demanded by the CID, as well as the associated claims about past events and also any claim about actual or imputed links to the LTTE. The Tribunal found that there was no credible evidence that the Sri Lankan authorities, or anyone else in Sri Lanka, wished to apprehend and harm the Applicant or as to why the Applicant left Sri Lanka and why he did not wish to return there. Having made such general findings, the Tribunal dealt with the particular social groups to which the Applicant claimed to belong, both individually and on a cumulative basis, insofar as it was necessary to do so.
In submissions this ground was also said to assert a failure to consider integers of the Applicant’s claims. There is nothing in the material before the court to support such a contention. It is apparent that the attributes identified in paragraph 14 of the Applicant’s written submissions are not sourced from written submissions made by the Applicant to the Department or the Tribunal. It has not been established that the Applicant made the asserted claim about his ability or perceived ability to pay bribes to extortionists. The claim that he made about past extortion was rejected in its entirety. In that context, the Tribunal not only dealt with and rejected the Applicant’s claims regarding past events, including the claimed extortion attempt, but also addressed any claim that this would lead to a risk of harm in the future.
Finally, there is nothing in the material before the court to support any claim of a lack of procedural fairness on the part of the Tribunal in reasoning as it did.
Ground 1 is not made out.
Ground 2
Ground 2 was not pressed.
Ground 3
Ground 3 in the Further Further Amended Application is as follows (errors in original):
The Tribunal committed jurisdictional error when it failed to properly assess that the Applicant would be at risk of harm from extortionists (such as other authorities (CB49.2)) and conflated the finding by extrapolating its findings as to the historical position as future findings and has not assessed the Applicant’s claim that there would be extortion attempt as a Tamil (and false allegations) in foreseeable future and whether the State protection available and / or made finding in the absence of the evidence nor engage in active intellectual process.
Particulars
The Tribunal simply acknowledged the claim (CB 287 at [137]) but did not any did not properly assess as to whether the Applicant was at risk of harm from extortion attempts and the issue whether there was risk that there would be loss of liberty having found that there would be deprivation of liberty and address whether there was foreseeability of future deprivation of liberty.
Insofar as this ground refers in particulars to page 49 of the Courtbook this is a reference to paragraph 27 of the Applicant’s statutory declaration of 12 November 2012, which was as follows:
I believe the CID would continue to extort money in the form of a bribe even if I had settled the remaining sum of 60,000. I also believe that I would be at risk of being targeted by the Sri Lankan CID and other authorities for reason of being a Tamil and imputed political opinion due to false allegations that the CID may raise against me. There is no guarantee that the CID officers would not ask me for more money as I an innocent (sic) and a vulnerable Tamil from Udappu.
In oral submissions Mr Kumar explained that it was contended that the Tribunal should have assessed a claim that the Applicant would be at risk of extortion from authorities other than the CID. He explained that this ground did not take issue with the manner in which the Tribunal had dealt with the Applicant’s claims about a fear of harm from the CID. Rather, it was contended that a claim to fear harm (including extortion) by other authorities arose in circumstances where the Applicant had claimed to be a Tamil who was a returnee from a western country who had claimed to be the subject of past extortion.
In particular, the Applicant submitted that he had claimed to fear harm from the paramilitaries and that this claim was not confined to the perception that he would be imputed to be a supporter of the LTTE or formerly associated with the LTTE. It was submitted that the Applicant’s claims before the Tribunal included a claim that he would be perceived as having the ability to pay bribes. According to the Applicant’s written submissions in these proceedings such a claim was also said to have been made in the representative’s submissions of 4 May 2013 (at CB 167) as follows:
4. Failed Tamil Asylum Seeker returnee.
As a Tamil who has fled the country illegally and has made asylum claims in a western country, it is submitted that our client is at risk of being targeted for one or more convention reasons as the situation continues to remain fluid for failed Tamil asylum seeker returnees.
This part of the submission of 4 May 2013 also referred to country information said to highlight the dangers for Tamil failed asylum seekers returning to Sri Lanka, including that they may face intimidation and harassment by security forces, including the military, police, and intelligence officers, that some were being assaulted and imprisoned and that those suspected of involvement with the LTTE were being detained. It did not, however, refer to extortion. It may be that the Applicant intended to refer to the part of the submission of 4 May 2013 considered in relation to ground 1.
Counsel for the Applicant submitted that the Applicant had made a claim that he would be perceived as having the ability to pay bribes and that his extortion claim extended to the financial motives of the perpetrators and that this aspect of his claims had not been dealt with by the Tribunal. It was submitted that the Tribunal had simply acknowledged such a claim in its decision.
Counsel for the Applicant submitted that the Tribunal had not dealt with the claim that the Applicant was at risk from extortionists for a “financial motive” and that it had committed jurisdictional error when it “failed to properly assess that the Applicant would be at risk of harm from extortionists (such as other authorities) (CB49.2)) and conflated the finding by extrapolating its findings as to the historical position as future findings”, and that it had not “assessed the Applicant’s claim that there would be extortion attempt as a someone (sic) who could pay bribes in foreseeable future”.
This ground is not made out. First, insofar as the Applicant relied on a paragraph of his statutory declaration as the basis for the asserted claim, in that part of his declaration the Applicant claimed that he believed the CID would continue to extort money in the form of a bribe even if he paid the remaining amount he owed. The Tribunal clearly dealt with and rejected the Applicant’s claims regarding both the past events surrounding this claimed extortion attempt by the CID/police and any claim that this would form a basis for a risk of harm in the future. Insofar as the Applicant claimed more generally to fear “other authorities”, that claim was said to be for reason of being a Tamil (as well as on the basis of an imputed political opinion). Nothing in the Applicant’s statutory declaration clearly or squarely gave rise to a claim to fear extortion by other authorities (as distinct from a fear of being targeted for harm as a Tamil and on the basis of an imputed political opinion due to false allegations that the CID may make against him). The Applicant did not claim in his statutory declaration to fear extortion by other authorities.
The particulars suggest that the Tribunal acknowledged the claim in question in paragraph 137 of the Tribunal decision. However this part of the Tribunal decision (in which the Tribunal found that certain material relied on by the Applicant’s representative was out of date and preferred more recent information in finding that it was Tamils who came within UNHCR risk profiles for whom there was a real chance of suffering serious harm) does not support the Applicant’s contentions. It appears that the Applicant may have intended to refer to paragraph 138 of the Tribunal decision in which it was acknowledged that reference had been made by the Applicant’s representative to “paramilitary groups committing kidnappings or abductions for ransom and criminal activity”. This appears to be a reference to the part of the representative’s submission of 4 May 2013 discussed above in relation to ground 1. The Tribunal did acknowledge such claim. However it also went on to find that the Applicant was “never harmed by such groups when he lived in Sri Lanka”. In these circumstances, the Tribunal considered the risk of the Applicant being the victim of such harm to be remote. It did not fail to consider such claim.
Moreover the Tribunal dealt in some detail with the Applicant’s claims based on being a Tamil and his claims of having an imputed political opinion and also considered the other claims made in the submission of 4 May 2013. It also dealt generally with the risk of harm faced by the Applicant on the basis of the facts it accepted.
As the First Respondent submitted, the Tribunal comprehensively set out and made findings on all the integers of the Applicant’s claims, including those that arose squarely on the material before it. These included his claims of past extortion and harm. However it concluded that his claims about past events were not credible and that he was not a witness of truth. Credibility findings are a matter for the Tribunal par excellence and such findings were reasonably open to the Tribunal on the material before it for the reasons which it gave. Further, in assessing the risk of future harm to the Applicant, it was open to the Tribunal to consider its finding in relation to the Applicant’s claims of past harm (see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559; [1997] HCA 22). It did not “extrapolate” such findings in a manner indicative of jurisdictional error.
Contrary to the general contention in ground 3, there is no basis on which it can be asserted that the Tribunal made its findings in the absence of evidence. This is not a case in which it can be said that there was “an actual absence of any foundation in fact” for the Tribunal’s findings (see SZAPC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 995 at [57]). Nor was the Tribunal obliged to accept uncritically the Applicant’s claims. It is well-established that the weight to be given to the evidence provided in support of an applicant’s claims is a matter for the Tribunal to assess. There is nothing in the Tribunal’s decision to support the contention that the Tribunal failed to engage in an active, intellectual process in relation to any of the Applicant’s claims, let alone that it did so in a manner demonstrating jurisdictional error. Further, the issue of State protection referred to in this ground did not arise, given the Tribunal’s findings that the Applicant faced no real chance of harm.
Finally, insofar as necessary to do so in the context of considering the risk of harm to the Applicant as a Tamil returned failed asylum seeker who left Sri Lanka illegally, the Tribunal considered the possibility of brief detention on remand and whether that equated to a real chance of suffering serious or significant harm.
Ground 3 is not made out.
Ground 4
Ground 4 in the Further Further Amended Application is as follows (errors in original):
The Tribunal committed jurisdictional error in assessing that the Applicant would not suffer significant (CB 286 at [125]) harm upon return to the country in that AND / OR applied incorrect test in relation to detention or asked itself the incorrect questions or failed to ask correction questions:
...
(ii) Erred in assessment in finding that the Applicant would not suffer significant harm within the meaning of s 36(2A) and misconstrued s 91R in conjunction with s 5(1) as to cruel or inhuman treatment or punishment.
(iii) Failed to engage with and to apply PAM 3.
(iv) Correctly address the issue of intention for purposes of complementary protection.
Particulars
A The Tribunal failed to assess the harm such as risk of prison term as not falling within the section 36(2A).
B Failed to apply PAM 3 (even though RRT referred to it)
C. The Tribunal did not address the issue of intention.
This ground was initially said to raise issues considered by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. However after the decision of the High Court in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 the Applicant filed supplementary submissions which it was said were not “in support of WZAPN”. Despite this, the supplementary submissions referred to the decision of North J in WZAPN and maintained the submission that the Tribunal had erred in applying a qualitative assessment in relation to whether detention of the Applicant on remand would amount to significant harm.
However ground 4 was said to have been amended in light of “SZTAL developments” (which was a reference to the decision of Judge Driver in SZTAL v Minister for Immigration and Border Protection & Anor [2015] FCCA 64). At the time of the hearing judgment in the appeal from that decision had not been delivered. Mr Kumar explained that ground 4 was reagitating issues that had been considered by Judge Driver in SZTAL.
It was also submitted that the Tribunal had denied the Applicant procedural fairness on the basis that it had not put the issue of brief detention to him properly having regard to the delegate’s findings, notwithstanding that this was not a basis for ground 4 as pleaded.
It was acknowledged that in the context of considering complementary protection the Tribunal had found that the possibility of the Applicant being briefly held in remand in poor conditions in a Sri Lanka prison before being brought before a Magistrate did not equate with a real risk of suffering significant harm as defined in the Migration Act. However, it was submitted that the Tribunal had not embarked on separate fact finding for the purpose of considering the complementary protection criterion and had not engaged with PAM3 in relation to the Applicant’s detention other than making such findings. Despite this, it was also submitted that the Tribunal “complied with requirements of Direction No. 56 and PAM 3”. It appears that it may have been intended to assert that the Tribunal had not complied with the Direction and PAM3.
The Applicant referred generally to the introduction of the complementary protection criterion, the purpose of such a criterion as considered in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2013] FCAFC 33, the applicable test and the categories of harm within the expression “significant harm” for the purposes of the Migration Act.
It was submitted that, while the Tribunal had referred to Ministerial Direction No. 56 made under s.499 of the Act and had recognised that it was required to take account of policy guidelines prepared by the Department, in particular, the complementary protection and refugee law guidelines in PAM3 (the Guidelines), to the extent that they were relevant to the decision under consideration, the Tribunal had not considered the part of the Guidelines which stated: “In certain circumstances it may be appropriate to infer an intention to inflict pain or suffering if it is evident that pain or suffering was or may be knowingly inflicted” in its consideration of the Applicant’s claims. It was pointed out that the Tribunal had proceeded on this basis notwithstanding that it had concluded that if the Applicant was detained he may be briefly held in remand and that he had claimed that conditions in prisons were poor.
The Applicant submitted that as there were no express Tribunal findings with respect to the knowledge of the authorities as to the likelihood of harm to a detainee held on demand, this showed that the Tribunal had failed to take account of the complementary protection Guidelines in circumstances where the Applicant’s case as to whether pain or suffering would be intentionally inflicted upon him by imprisonment was necessarily a circumstantial one. Reliance was placed on the delegate’s reasons in support of the proposition that the Tribunal was bound to consider whether it was appropriate to infer an intention to inflict pain and suffering from the probable knowledge of those who would imprison the Applicant. This issue was said to be so critical to the Applicant’s claims in this respect that it ought to have been expressly addressed by the Tribunal.
In support of the contention that the Tribunal did not apply the correct test or misconstrued ss.5(1) and 36(2A) of the Migration Act, it was submitted that the foundation for the Tribunal’s consideration of these provisions was the Applicant’s claim to fear harm by being involuntarily placed in “poor” conditions in a Sri Lankan prison. It was pointed out that the Tribunal had accepted that illegal departure was an offence under Sri Lankan law and submitted that the Tribunal had found that the Applicant had committed that offence. It was further submitted (errors in original):
The delegate Tribunal expressly found that there shorter period of such remand. It is submitted that detention would involve pain or suffering caused by severe overcrowding and poor and insanitary conditions. The Tribunal said that the pain or suffering so caused would not be “intentionally” inflicted.
The conclusion involved legal error and involved the Tribunal misconstruing ss 5(1) and 36(2A) of the Act. The relevant intention could have been inferred from the knowledge of those who would imprison the applicant of the probable consequences of their actions. Sections 5(1) and 36(2A) did not require any different intention.
It was submitted that the critical question for the Tribunal was whether the suffering the Applicant faced in a Sri Lanka prison might be “intentionally inflicted” within the meaning of the relevant definitions in s.5(1) of the Act, which were said to depend upon identifying the acts or omissions by which suffering might be inflicted and making a finding about the intention of the person doing each such act or omission. The Applicant submitted that the Tribunal had failed to address the suffering faced if held on remand in the context of considering the complementary protection criterion.
The Applicant acknowledged that in SZTAL Judge Driver had reached the opposite conclusion to that contended for in these proceedings in relation to the concept of “intention” in the statutory definitions of conduct amounting to significant harm. Mr Kumar submitted that as SZTAL was on appeal it was appropriate that the court defer making a decision until the Full Court of the Federal Court had determined the appeal. It was suggested that the parties should then have the opportunity to make further written submissions. Mr Kumar conceded that if the appeal in SZTAL was dismissed, then the Applicant did not have “much of a case”.
In written and oral submissions the First Respondent addressed the various issues raised, or apparently raised, by ground 4 as pursued by the Applicant. It was submitted that the issues in SZTAL were not relevant in this case; that given the Tribunal findings on the evidence it was under no obligation to make a distinct finding as to whether any poor conditions the Applicant might face in remand were intentionally inflicted and hence that the Applicant’s argument regarding the construction of “intentionally inflicted” were of no relevance; and that it had not been established that information had not been properly put to the Applicant. There was also said to be no failure by the Tribunal to have regard to the Guidelines insofar as they were relevant.
The First Respondent submitted that it was open to the Tribunal to address the Applicant’s complementary protection claims in the manner that it did having regard to its earlier findings. Finally, it was submitted that any continued reliance by the Applicant on the reasoning of North J in WZAPN was misplaced as such reasoning had been “overturned” by the High Court.
After the Full Court of the Federal Court published its reasons in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 dismissing the appeal, the solicitor for the First Respondent advised the court that the First Respondent did not seek an opportunity to make further submissions as a result. The Applicant did not seek to make any further submissions.
This ground is not made out.
First, insofar as the Applicant maintained a contention that information which indicated that he would only face a brief detention was not properly put to him, this is not made out. The only evidence before the court as to what occurred in the Tribunal hearing is the Tribunal’s reasons for decision. Such reasons suggest that this issue was discussed in some detail during the hearing. It was also the subject of detailed written submissions from the Applicant’s representative. There is no evidentiary basis for such a claim. If this was intended to be a claim based on s.424A of the Act, country information is within the exception in s.424A(3)(a) of the Act.
The issues raised by the Applicant addressed the Tribunal’s findings in relation to the complementary protection criterion, in particular in relation to the possibility of the Applicant experiencing poor conditions whilst held in remand. In considering the Refugees Convention criterion the Tribunal had acknowledged the possibility of a returnee who had departed illegally being held in remand briefly before being brought before a Magistrate and that there were poor conditions in prison as well as maltreatment of those in detention. However the Tribunal considered that this possibility did not equate with a real chance of suffering serious harm. It found that its view was confirmed by the fact that there was no substantiated, reliable country information that Tamils sent back to Sri Lanka suffered harm because they left the country illegally and returned there as failed asylum seekers from Australia or any other western country.
In considering complementary protection the Tribunal referred back to such earlier findings in accepting the possibility that the Applicant would be briefly held in remand in poor conditions in a Sri Lanka prison before being brought before a Magistrate.
The Tribunal not only found generally that there was not a risk of significant harm, but also that the risk of the Applicant suffering harm (let alone significant harm) because he was a Tamil man from Udappu who left the country illegally and would return there as a failed asylum seeker from Australia was remote. It is apparent that the Tribunal was making a broad finding as to the possibility of significant harm, rather than confining itself to application of the findings it had made in relation to the Refugees Convention criterion.
It is clear from this part of the Tribunal’s reasoning and its reasons for decision as a whole, that it was no part of the Tribunal’s findings that, although the Applicant would suffer “harm”, that harm would not be intentionally inflicted (cf SZTAL v Minister for Immigration and Border Protection & Anor [2015] FCCA 64 at [10] and [43]).
On a fair reading of the Tribunal decision it is clear that it was not satisfied that there was credible evidence to support a finding that by virtue of the possibility that the Applicant might be briefly held in remand in poor conditions, there was a real risk that he would suffer “harm” (let alone significant harm). This approach reveals no jurisdictional error (see SZTJK v Minister for Immigration and Border Protection & Anor [2014] FCCA 1558).
In light of such findings the Tribunal was under no obligation to make a distinct finding as to whether any poor conditions the Applicant might face in remand were intentionally inflicted. Hence it did not err in failing to address “intention” or “intentionally inflicted” or fall into error by failing to have regard to or engage with and apply the part of the PAM3 complementary protection Guidelines relating to intention. The Tribunal was only required to take into account the PAM3 Guidelines to the extent that they were relevant (as it acknowledged in its reasons for decision). In circumstances where the Tribunal expressly referred to the Guidelines and made no findings that could be said to compel any explicit consideration of this aspect of the Guidelines, it cannot be inferred that the Tribunal failed to comply with Ministerial Direction No. 56. Even if it could be inferred that the Tribunal considered the Guidelines to be irrelevant to its decision in the particular circumstances of the case, this would not establish jurisdictional error (and see SZTMD v Minister for Immigration and Border Protection & Anor (2015) 150 ALD 34; [2015] FCA 150 at [6]-[20]).
I also note that while the Tribunal acknowledged the explanation of the “risk threshold” in the complementary protection Guidelines, in considering s.36(2)(aa) it correctly proceeded on the basis that the “real risk” test imposed the same standard as the “real chance” test, consistent with the approach of the Full Court of the Federal Court in SZQRB.
Moreover, even if the issues as to the meaning of “intentionally inflicted” considered in SZTAL were of relevance, the appeal from the decision of Judge Driver was dismissed by the Full Court of the Federal Court. Mr Kumar had conceded that he could not maintain his contentions in this respect were this to occur. Having regard to the Tribunal decision, the grounds of appeal in SZTAL as well as the reasons of the Full Court of the Federal Court, the decision in SZTAL is of no assistance to the Applicant (and see the remarks of Buchanan J in SZTAL at [98]-[99]).
Insofar as the Applicant intended to take issue with the way in which the Tribunal dealt with the complementary protection criterion by reference to its findings in the context of considering the Refugees Convention criterion, as the First Respondent submitted, it was open to the Tribunal to proceed in the manner that it did (see SZSHK v Minister for Immigration and Border Protection (2013) 138 ALD 26, (2013) FCAFC 125 at [32] and SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]).
Finally, to the extent that the Applicant intended to maintain reliance on the reasoning of North J in WZAPN, any such reliance is misplaced, having regard to the fact that such reasoning was overturned by the High Court in WZAPN.
For the sake of completeness I note that at the hearing counsel for the Applicant appeared to raise an issue as to whether the experience of the Applicant as an illegal departee from Sri Lanka would be on the basis of the non-discriminatory enforcement of law of general application. Such an issue would normally be relevant to the Tribunal’s consideration of the Refugees Convention criterion, but appeared to be relied on in support of the contention that the Tribunal had erred in its consideration of the complementary protection criterion.
In any event, that was not the basis on which the Tribunal made its findings. As it found that there was no real risk of harm, whether or not any harm would be pursuant to a law of general application was beside the point (as was the issue of whether or not it would be intentionally inflicted).
As no jurisdictional error has been established on any of the bases relied on by the Applicant, the application must be dismissed.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 26 August 2016
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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