SZTJK v Minister for Immigration

[2014] FCCA 1558

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTJK v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1558

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A, 425

Minister for Immigration and Citizenship v SZIAI(2009) 83 ALR 1123; [2009] HCA 39
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47
SZSGAv Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection and Another (2013) 138 ALD 26; [2013] FCAFC 125

Applicant: SZTJK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2447 of 2013

Judgment of: Judge Barnes

Hearing date: 9 July 2014

Delivered at: Sydney

Delivered on: 9 July 2014

REPRESENTATION

Applicant: In Person

Solicitor for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 2447 of 2013

SZTJK

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Background

1. This is an application for review of a decision of the Refugee Review Tribunal dated 24 September 2013.  The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The applicant, a citizen of Sri Lanka of Tamil ethnicity, arrived in Australia in June 2012 as an irregular maritime arrival.  In an entry interview conducted on 5 July 2012 the Applicant claimed that he had left Sri Lanka because his father had been involved with the LTTE (Liberation Tigers of Tamil Eelam) and the Sri Lankan Army wrongly suspected that he had also had some involvement with the LTTE.  He claimed his father had been mistreated by the army who threatened that the Applicant would be killed if he did not report on a regular basis.

3. The Applicant claimed that he had been detained by the army for a week in 2011 and that the army constantly interfered in their daily lives because of his father’s involvement with LTTE.

4. After the Minister for Immigration lifted the bar under s.46A of the Migration Act 1958 (Cth) (the Act) on lodgement of a valid visa application by an offshore entry person, the Applicant lodged a protection visa application.

5. In support of his protection visa application, the Applicant provided a statutory declaration of 25 October 2012 in which he set out his claims.  He reiterated the claim that his father was a supporter of the LTTE who had assisted them as a driver until 2009.  He claimed that after the war in Sri Lanka ended the authorities had detained, interrogated and mistreated his father and then required him to report weekly. 

6. The Applicant claimed that due to physical injuries his father was unable to report so the Applicant began to report for him, that on one occasion he was unable to do so because of exams and when he attended the next week he was punched and one of his teeth was broken.  He claimed that thereafter his father reported to the army and was told that the Applicant was suspected of being an LTTE supporter as well.  He also made claims about the army coming to their home and accusing him and his father of supporting the LTTE.  He claimed that he hid at his aunt’s house and began moving between his aunt’s house and another place, that he stopped going to school and that he left Sri Lanka to seek protection in June 2012. 

7. The Applicant claimed to fear that if he returned to Sri Lanka that he would be killed by the authorities who would believe he was involved with the LTTE and because of his Tamil ethnicity.  He claimed he had been told by his family that the authorities had come to their home to look for him many times since he had left Sri Lanka.

8. Under the heading Complementary Protection the Applicant claimed that anyone targeted by the authorities faced a serious risk of harm, including torture or death and that as someone who had been specifically targeted by the authorities he would face such harm and that this amounted to significant harm. 

9. The Applicant was invited to and attended an interview with a Departmental delegate.  The delegate refused his application, finding that the Applicant’s claim that the authorities believed him to be a member of the LTTE and were actively searching for him was not credible. 

10. The delegate also considered the Applicant’s other claims, but concluded that, considering those claims individually and cumulatively, any vulnerabilities arising from his Tamil ethnicity, his claimed membership of the particular social group of young Tamil men from the north, his illegal departure and its impact on his return as a failed asylum seeker did not give rise to a real chance of persecution. 

11. Having found that there was no real chance of the Applicant facing persecution or serious harm for reason of his Tamil ethnicity, his membership of a particular social group, his illegal departure or being a failed asylum seeker, and that neither the Applicant nor his agent had raised any other claims apart from those claims, the delegate concluded that there was no real risk of the Applicant facing significant harm under s.36(2A) of the Act if he returned to Sri Lanka.

12. The Applicant sought review of the delegate’s decision by the Tribunal.  The Tribunal invited him to attend a hearing.  The Applicant indicated that he would attend and also requested that the Tribunal take oral evidence from two named persons. 

13. Prior to the hearing, the Applicant’s advisor provided the Tribunal with detailed written submissions and extracts from independent country information.  The advisor summarised the Applicant’s claims as a claim to fear persecution based on his Tamil race, his imputed political opinion of support for the LTTE in opposition to the Government and his membership of particular social groups of returning failed asylum seekers, young Tamil men from the north of Sri Lanka and relatives of his father. 

14. In relation to the complementary protection criterion it was claimed that the Applicant feared he would be killed, physically abused or seriously discriminated against in a manner that would threaten his ability to subsist and hence that he would suffer significant harm within the Act.  In particular, the advisor submitted that Sri Lankan Tamils perceived to hold anti-government sentiments may be subjected to detention and torture on return.  The claimed fear of exposure to significant harm in the future was put on the basis that the Applicant and other members of his family had been significantly harmed in the past, that he would continue to be perceived as a Tamil and a political opponent of the Government on return, that the independent country information confirmed the types of significant harm he claimed to fear were frequently visited upon Tamils and perceived opponents of the regime and that there had been no improvement in the treatment of Tamils or perceived opponents of the regime since the Applicant’s departure from Sri Lanka.

15. In addition, the Applicant’s advisor provided a copy of a letter dated 25 February 2013 from a registered psychologist indicating that the Applicant had begun counselling in order to process the trauma and other related issues he had experienced in Sri Lanka and that he appeared to be suffering from generalised anxiety disorder. 

16. The advisor also provided to the Tribunal a document headed “diagnosis ticket” in relation to a patient with the same family name as the Applicant, dated 26 June 2010.  It referred to investigation and treatment for what was described as a “gun short (sic) injury of (R) side for Arm”. 

17. The Applicant attended the Tribunal hearing on 26 April 2013.  The only evidence before the Court of what occurred at the hearing is the Tribunal’s account in its reasons for decision. 

18. On 20 September 2013 the Tribunal wrote to the Applicant to give him an opportunity to comment on recent country information on which the Tribunal stated it intended to rely, being an extract from a Country Information Report from the Department of Foreign Affairs and Trade (DFAT) dated 31 July 2013, with respect to returnees being prosecuted under the Sri Lankan Immigration and Emigration Act for illegal departure. The information set out in the letter referred to provisions in the Sri Lankan legislation that allowed for a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees and to advice from the Attorney General’s Department that no one to date had been given a custodial sentence for departing Sri Lanka illegally and that fines of around 5,000 rupees had been imposed in one court and up to 50,000 rupees in another court.

19. On 23 September 2013 the Applicant’s advisor responded, indicating that the Applicant had instructed that to his knowledge many people who had left Sri Lanka illegally were detained on return and that the government did not allow this to become common knowledge.  He claimed that a friend who had returned to Sri Lanka from Norway was asked to attend CID offices and tortured there and that he feared that if he returned he would be requested to attend the CID offices and would not be released. 

20. It was submitted that the nominally applied punishments under the Sri Lankan law were not an accurate guide as to what would actually occur, particularly in relation to members of minority groups who had departed Sri Lanka illegally.  Concern was expressed about the Tribunal relying on information from the Sri Lankan authorities or from diplomatic posts or staff.  It was also submitted that the means utilised by the authorities to punish those who had departed illegally were not proportionate to the nature of the offence concerned and that those perceived to oppose the regime were singled out and discriminated against in the application of laws that were ostensibly of general application. 

The Tribunal Decision

1. On 24 September 2013 the Tribunal affirmed the delegate’s decision not to grant the Applicant a protection visa.  The Tribunal summarised the claims made by the Applicant in writing and orally, including at the Tribunal hearing.  The Tribunal also referred in some detail to the independent country information. 

2. In its findings and reasons the Tribunal indicated that it had a number of concerns about the Applicant’s credibility.  It set out these concerns in some detail.  It had regard to the Applicant’s inconsistent evidence at the hearing about the CID coming to his home, in particular as to when and on how many occasions that occurred.  It detailed the inconsistencies and changes in the Applicant’s evidence when these issues were raised with him at the hearing.  The Tribunal found that the Applicant had given inconsistent evidence about an important aspect of his account, being how many times the CID came to his home after he was released from detention and ceased reporting to them and, in particular, when the CID made a threat that they would shoot him if they saw him.  The Tribunal found that the Applicant’s inconsistent evidence on this important matter for which he gave no explanation reflected poorly on his credibility. 

3. The Tribunal also had regard to its concern about aspects of the Applicant’s evidence that he hid from the CID but that he nonetheless engaged in everyday activities, such as attending school and working.  It detailed the Applicant’s evidence and his explanations when these issues were raised with him at the hearing.  The Tribunal found that while the Applicant claimed to have been in hiding from the CID, at the same time he had undertaken activities and behaved in a way that was not consistent with someone truly in hiding and that he had done so in a way that placed him at risk of coming to the attention of the CID.  The Tribunal considered the Applicant’s explanation, but was not convinced that he was truly in hiding in fear of being apprehended and shot by the CID given the way that he had behaved in undertaking exams and employment. 

4. In addition, the Tribunal also had regard to inconsistencies between the Applicant’s claims in his statutory declaration made at the time of his protection visa application and his account to the Tribunal at the hearing.  It referred to the fact that it had put to the Applicant that while he told the Tribunal that he had been detained by the CID for a week, stripped naked and beaten, these claims had not been made in his statutory declaration.  It recorded that it had also put to the Applicant at the hearing the fact that his statutory declaration did not mention the CID going to his parent’s home and threatening he would be shot if they saw him.  Rather, in the statutory declaration he had referred to threats being made to his father. 

5. The Tribunal considered the Applicant’s explanations, including that his advisor may have contributed to mistakes in the evidence.  The Tribunal acknowledged that the Applicant did mention being detained for one week in his entry interview, but found that this did not excuse the absence of any mention of such an important matter in his statutory declaration.  It found his explanations for the discrepancies in the accounts unconvincing.  It did not accept that shame and embarrassment had prevented the Applicant from mentioning at least his claim that he was beaten with sticks and belts as he had told the Tribunal at the hearing. 

6. In considering the Applicant’s credibility the Tribunal also had regard to the fact that the Applicant was receiving counselling from a psychologist and the assessment of the psychologist.  It acknowledged that the Applicant would be anxious about his status in Australia and the wellbeing of his parents in Sri Lanka.  However the Tribunal found that these matters did not excuse or explain the Applicant’s failure at the Tribunal hearing to give consistent evidence about an important aspect of his account or explain incongruous and implausible aspects of his account or significant discrepancies between his account to the Tribunal and in his statutory declaration. 

7. Considered cumulatively these concerns led the Tribunal to find that the Applicant was not a witness of truth and that the account of events on which his protection claims were based was false. 

8. The Tribunal also found that it was satisfied from the Applicant’s demeanour at the hearing that, notwithstanding his anxiety disorder, he was able to comprehend the proceedings and was given a meaningful opportunity to present evidence and give arguments. 

9. The Tribunal explained that it had decided not to telephone the suggested witnesses who had not appeared at the Tribunal hearing, as they could only give evidence as to what the Applicant had told them and were not in Sri Lanka at the time the events on which the Applicant relied for protection had occurred.  The Tribunal  found that as it had concluded that the Applicant’s account of events was false, having other persons relate what the Applicant had told them would not demonstrate the veracity of his claims.  The Tribunal also found that anything these people could say about the general situation in Sri Lanka would be anecdotal, that the Applicant’s advisor had put forward a large amount of information about Sri Lanka and that there was no purpose in telephoning these potential witnesses to hear their general impressions about the situation in Sri Lanka.  No issue is taken with this aspect of the Tribunal procedure in these proceedings. 

10. As to the medical record that referred to the applicant’s father receiving medical treatment in June 2010 for an injury to his arm, the Tribunal pointed out that the Applicant himself said the information in this document was inaccurate in that it referred to an injury from a gunshot and not from detention as the Applicant claimed had occurred.  The Tribunal found that this document did not overcome its concerns about the Applicant’s credibility.  It did not give the document evidentiary weight. 

11. In these circumstances the Tribunal concluded that it did not believe the Applicant’s claims about past events in Sri Lanka, in particular about his father’s claimed involvement with and assistance to the LTTE,  the  response of the authorities and their treatment of the father or of the Applicant.  It did not accept that the Applicant had been detained for a week and mistreated or that the authorities were looking for him.  It found that there was no credible evidence as to why the Applicant left Sri Lanka and why he did not wish to return there and no credible evidence that the authorities or anyone in Sri Lanka had harmed the Applicant or that they wished to do so. 

12. Under the heading “The assessment of risk” the Tribunal considered the particular claims made for and on behalf of the Applicant. It found that there was country information that the primary victims of human rights abuses by the Sri Lankan government or those acting on its behalf were people perceived as opponents.  It inferred from this information that Tamils (including those who came from areas previously controlled by the LTTE) did not suffer harm for being a Tamil alone and that the risk of harm to a Tamil who did not come within a risk profile such as having some connection with the LTTE was remote.

13. The Tribunal also considered the risk to the Applicant returning to Sri Lanka as a failed asylum seeker who had left the country illegally.  It referred to allegations that returning Tamils, including those who had made unsuccessful asylum applications, had been mistreated either on arrival or at some time thereafter.  It recorded that some of the persons concerned appeared to be people with a previous adverse record with the authorities, including those with some link to the LTTE.  However the Tribunal had regard to information that DFAT and British authorities were unable to substantiate allegations of mistreatment of Tamils who had returned to Sri Lanka.  The Tribunal considered that overall there was no substantiated reliable information that Tamils who returned to Sri Lanka after seeking asylum abroad (including that those who left illegally) suffered harm solely on those grounds.

14. The Tribunal accepted that the country information indicated that on arrival returnees would be interviewed at the airport to establish identity and that as soon as possible they would be brought before a magistrate in relation to departing Sri Lanka illegally.  The Tribunal acknowledged that, depending on the day the returnee arrived at the airport, such a person may be briefly detained in remand before being brought before the court.  It was of the view that country information indicated that for departing illegally the returnee would be granted bail and would eventually receive a fine. It took into consideration information that Tamils were treated the same way as anybody else in this process and found that there was no reliable substantiated evidence that Tamils suffered harm or maltreatment in this process.

15. While the Tribunal acknowledged that the potential penalties for illegal departure from Sri Lanka included a prison sentence, on the basis of country information it found that such sentences were more likely to be imposed on those involved in people smuggling.  It also found that the court may not grant bail where the returnee was the facilitator or organiser of people smuggling.  The Tribunal had regard to the DFAT country information of 31 July 2013 that it had put to the Applicant, including information that no one had been given a custodial sentence simply for departing Sri Lanka illegally and as to the level of fines that had been imposed.

16. On the information before it, the Tribunal was satisfied that while the Sri Lankan government had, at least since late 2012, been charging people for offences relating to illegal departure, the risk of any Tamil returnee who unsuccessfully sought asylum abroad being given a jail sentence in Sri Lanka for their illegal departure was remote.  It was satisfied that a fine was the most likely outcome and found that the imposition of a fine within the range referred to in the country information did not amount to serious harm.  On this basis the Tribunal concluded that the risk of a Tamil suffering serious harm in Sri Lanka as a returnee after seeking asylum and leaving the country illegally (and suffering harm solely due to those factors) was remote.

1. The Tribunal addressed in some detail the submissions and claims made by and on behalf of the Applicant, including in relation to the general situation in Sri Lanka and the impact for Tamils.  It acknowledged claims about the prevalence of human rights violations by the Sri Lankan government and related authorities, but found that while Tamils may be a disproportionate number of the victims of such abuses, it did not accept that there was a real chance the Applicant would suffer serious harm because he was a young Tamil man from a certain part of Sri Lanka.  The Tribunal reached this conclusion on the basis that Tamils who came within UNHCR risk profiles were the victims of human rights violations and there was a real chance of suffering serious harm for them, but that the Applicant did not come within any of these risk profiles.  In particular, the Tribunal found that the Applicant was not within the risk profile of someone suspected of involvement with the LTTE, as his claims about his father’s involvement with that group was not credible.  The Tribunal recognised that the UNHCR risk profiles were not exhaustive.  It stated that it had considered the Applicant’s case on its own merits, but found there was no credible evidence he had been harmed by anyone in Sri Lanka or that the authorities or anyone else wanted to apprehend and harm him on return.

2. The Tribunal found that the risk of the Applicant suffering harm from criminal groups was remote.  It found no credible evidence that he had ever been harassed by the authorities or adversely affected by the military presence or circumstances in his part of Sri Lanka.  It had regard to the fact that he did not claim that he could not practise his Hindu religion in Sri Lanka and nor did he claim that he had been harmed for doing so.  While it acknowledged the outstanding grievances held by Tamils towards the Sri Lankan government, the Tribunal found it highly speculative to claim that the situation would deteriorate in the reasonably foreseeable future to the point where it could be said there was a real chance the Applicant would suffer serious harm.

3. The Tribunal considered in some detail the submissions and claims made about the risk for the Applicant on return to Sri Lanka as a failed asylum seeker who had illegally departed the country.  It referred to claims that Tamils returning in such circumstances had been maltreated by the authorities on arrival or thereafter and to the claim that this may happen to the Applicant as a Tamil and as someone perceived as being involved with the LTTE because he left illegally.  However the Tribunal found that such claims were unsubstantiated.  It referred to country information relied on by the Applicant’s advisor, but concluded that it remained of the view that there was no reliable substantiated country information that Tamils sent back to Sri Lanka were harmed because of their attempt to seek asylum in another country (including Australia) and because of their illegal departure.  That was said to include the risk of the Applicant being harmed while being questioned on arrival at the airport or at some stage after he left the airport and returned to his native area. 

4. The Tribunal rejected the claim that a suspicion of involvement with the LTTE would arise because of the Applicant’s illegal departure and unsuccessful asylum claim (as distinct from being within an UNCHR risk profile).  It found the risk of the Applicant being harmed on return to Sri Lanka either in the process of being questioned at the airport or at some point thereafter was remote.  It also rejected the suggestion that the Applicant’s claims that he had been told about two returnees who had been taken away by the authorities satisfied it that this would occur to the Applicant on the grounds on which he claimed to be at risk. 

5. The Tribunal considered submissions and country information about maltreatment of Tamil prisoners in jails in Sri Lanka and the claim that Tamils could be held in detention for long periods to be investigated.  However, based on cited country information it found that on return the Applicant may be held briefly (not for long periods) in remand before being brought before a magistrate to be granted bail in relation to illegal departure.  The Tribunal acknowledged that there were difficult conditions in jail in Sri Lanka, but found that the possibility of the Applicant being held in remand did not equate with a real chance of suffering serious harm.  It also found that the risk of him receiving a prison sentence for his illegal departure was remote; that a fine would be imposed (most likely within the range discussed in country information) and that this did not amount to serious harm, let alone to harm for a Refugees Convention ground.  The Tribunal also found that that no claim had been made or evidence advanced that the Applicant would be unable to pay the fine or that having to do so would amount to serious harm. 

6. The Tribunal found the advisor’s reliance on other decisions of the Tribunal was unhelpful, as those decisions related to applicants with risk profiles not possessed by the Applicant.  The Tribunal rejected the advisor’s criticism of information from DFAT.  It saw no basis for the assertion that the content of DFAT information was no more than false information from the Sri Lanka government.  It also stated that it had considered information provided by UNHCR based on independent sources.  While the Tribunal acknowledged that people in Sri Lanka suffered human rights abuses, it found that victims were more likely to be people described in the UNCHR risk profiles and that the risk of the Applicant suffering serious harm was remote. 

7. For reasons given, the Tribunal found that there was no reliable substantiated country information that Tamils returning to Sri Lanka as failed asylum seekers who left the country illegally were harmed on these grounds alone.  It found that the Applicant would be questioned at the airport on arrival, that the inquiries would be conducted as quickly as possible, that he would be brought before a magistrate without delay and then granted bail.  The Tribunal reiterated that the risk of the Applicant receiving a jail sentence because of his illegal departure and being harmed in that manner was remote for the reasons given.  It went on to reject his claims to fear harm as a member of particular social groups of failed asylum seekers, young Tamil men from the north or relatives of the Applicant’s father.  The Tribunal concluded that, considered cumulatively or separately, there was not a real chance that the Applicant would suffer serious harm in Sri Lanka on the grounds put forward. 

8. Under the heading Complementary Protection the Tribunal considered the complementary protection criterion in the Act, which it had set out earlier in its reasons for decision.  It observed that in essence the grounds advanced as to why the Applicant met the complementary protection criterion were the same as those grounds on which it was claimed that his fear of persecution was well-founded.  Having dealt with all those grounds the Tribunal recorded that for the same reasons that the Applicant’s fear of persecution was not well-founded, it found that there was not a real risk that he would suffer significant harm in Sri Lanka.  In particular, for the same reasons as those given, the Tribunal found that there was not a real risk that the Applicant would suffer significant harm in Sri Lanka because he was a Tamil from a certain part of the country who left illegally and would return as a failed asylum seeker from Australia.  It regarded the risk of the Applicant suffering harm, let alone significant harm, on these grounds was remote.  The Tribunal also found, for the reasons given, that the risk of the Applicant suffering harm from criminal gangs was remote. 

9. While it acknowledged country information about poor conditions in Sri Lankan prisons, the Tribunal found that the possibility of the Applicant being held in remand briefly did not equate with a real risk of suffering significant harm as defined in the Act.  It reiterated that the risk of the Applicant receiving a jail sentence because of his illegal departure was remote.  It found that he would receive a fine, that the imposition of a fine within the range discussed did not amount to significant harm and that no claim was made or evidence advanced that the Applicant could not pay such fine or that having to do so would lead to him suffering significant harm. 

10. 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 he would suffer significant harm.  It affirmed the decision not to grant the Applicant a protection visa. 

This Application

1. The Applicant sought review of the Tribunal decision by application filed on 10 October 2013.  An Amended Application was filed on 13 January 2014.  The Applicant confirmed today that the only ground on which he sought to rely was the ground in the Amended Application which is as follows: 

   The RRT did not consider my potential right to complementary protection although it has accepted the risks faced by young Tamils returning to Sri Lanka as failed asylum seekers that would face a real risk of significant harm.  The RRT has accepted that I would be questioned and detained upon my return but it did not apply the correct test required by section 36(2)(aa).  Therefore, the RRT did not exercise its jurisdiction. 

2. The Applicant takes issue with the Tribunal’s application of the complementary protection criterion. Section 36(2)(aa) of the Act applies where the Minister has substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country there is a real risk that the non-citizen will suffer significant harm. Significant harm is defined in s.36(2A) as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. It is subject to the limitation in s.36(2B) of the Act.

3. First, insofar as this is a contention that the Tribunal did not consider the Applicant’s claim to complementary protection at all, such claim is not made out.  Clearly, as set out above, in its reasons for decision the Tribunal understood that the Applicant claimed protection not only on the basis of the Refugees Convention but also on the basis that he met the criterion for complementary protection.  As set out above, the Tribunal considered such a claim. 

4. Secondly, insofar as the contention is that the Tribunal accepted that Tamils returning to Sri Lanka as failed asylum seekers would face a real risk of significant harm, the Tribunal did not accept that young Tamils returning to Sri Lanka as failed asylum seekers would face a real risk of significant harm for those reasons.  The Tribunal was of the view that there was no reliable substantiated country information that Tamils sent back to Sri Lanka were harmed because of their attempt to seek asylum in another country (including Australia) and because of their illegal departure.  The Tribunal specifically found that this included the risk of either being harmed while being questioned on arrival at the airport or at some stage after the Applicant had left the airport, including after return to his home area.

5. The Tribunal found that the risk of the Applicant being harmed on return to Sri Lanka in the process of being questioned at the airport or at some point thereafter was remote.  For the same reasons it found that the risk of the Applicant suffering harm, let alone significant harm, on this basis was remote. 

6. In essence, it appears to be contended that, having accepted that certain risks may be faced by young Tamils returning to Sri Lanka and certain consequences occur, the Tribunal should have found that such consequences would amount to significant harm.  In this context the ground refers to the Tribunal’s acceptance that the Applicant would be questioned and detained upon his return to Sri Lanka.

7. The Tribunal did accept that the Applicant would be questioned after arrival at the airport and detained briefly on remand prior to appearing before a magistrate.  It was of the view that at that point the Applicant would be granted bail and that he would be subjected to a fine, not imprisonment.  It did not accept that this amounted to either serious harm or significant harm.  In particular, while it acknowledged country information about poor conditions in Sri Lankan prisons, the Tribunal found that the possibility of the Applicant being held in remand briefly did not equate to a real risk of him suffering significant harm as defined in the Act, that the risk of him receiving a jail sentence because of his illegal departure was remote and that the imposition of the likely fine did not amount to significant harm. 

8. The Tribunal reasons disclose that it set out and applied the correct test in relation to complementary protection. It assessed all the issues raised by the Applicant, including the prospect of being questioned and detained on return, and considered whether this gave rise to a real risk that he would suffer significant harm in Sri Lanka.

9. Given the Tribunal’s factual findings and adverse credibility finding made in the context of considering his Refugee Convention claims, it was open to the Tribunal to address the Applicant’s complementary protection claims in the manner that it did. The Tribunal did not simply dismiss the Applicant’s complementary protection claims in a shorthand form with no reference to any specific aspects of his claims. As well as referring to particular issues it also referred to its earlier findings that no harm as claimed had been suffered and that the risk of future harm was remote in the context of addressing the complementary protection criterion. Such findings were obviously relevant to the issue of whether the Minister had substantial grounds for believing that there was a risk of significant harm for the purposes of s.36(2)(aa) of the Act (see SZSHK v Minister for Immigration and Border Protection and Another (2013) 136 ALD 26; [2013] FCAFC 125 at [32] and SZSGAv Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [56]). The findings the Tribunal made in general terms in relation to complementary protection must be read in light of those earlier findings as well as the specific discussion of issues in the context of complementary protection.

10. Insofar as the Applicant may be seen as taking issue with the Tribunal’s rejection of his claim that Tamils returning to Sri Lanka as failed asylum seekers who left illegally were harmed on that basis, the Tribunal’s reasoning in that respect was open to it for, the reasons which it gave on the material before it.  The Tribunals findings in relation to credibility were a matter for it as the decision-maker.  Its assessment of country information was a factual matter for the Tribunal.  It is for the Tribunal to identify relevant material and to give it such weight as it considers appropriate.  No jurisdictional error has been suggested, let alone established, in relation to the Tribunal’s reasoning in that respect. 

11. In the hearing today I asked the Applicant to clarify the basis on which he took issue with the Tribunal decision.  Initially he claimed that he was not given the opportunity to address his case in relation to complementary protection.  That claim is not made out.  As indicated, the Applicant had the opportunity to put his case to the Tribunal, both orally and in writing.  I have referred to the Applicant’s statutory declaration and his advisor’s written submissions.  He attended and gave evidence at a Tribunal hearing.  In its reasons for decision the Tribunal referred in some detail to the submissions and claims about the risk to the Applicant on return to Sri Lanka as a Tamil failed asylum seeker who had departed the country illegally.  That discussion referred to claims made by the Applicant at the Tribunal hearing.  

12. There is nothing in the material before the Court to support any claim that the Applicant was not given the opportunity to address his case in relation to complementary protection.  I note in that respect that the Applicant was represented at all times in the process before the delegate and the Tribunal and that it is for an Applicant to put evidence before the Tribunal in support of his claims.

13. Moreover, on a fair reading of the Tribunal reasons for decision it is apparent that the Tribunal had regard to submissions advanced for the Applicant by his advisor, to the country information provided by the advisor in support of those claims and also to other evidence before it from the Applicant as well as to country information which the Tribunal preferred.  In particular, the part of the Tribunal decision that dealt with submissions and claims about risk on return to Sri Lanka makes it apparent that the Applicant was given the opportunity to and did engage with the Tribunal in relation to this issue in the course of the Tribunal hearing, as well as in written submissions from his advisor.

14. The second contention by the Applicant was a reiteration of the submission that while the Tribunal accepted that he would be questioned on return and put into jail at the airport, the Tribunal did not then consider whether this gave rise to significant harm for the purposes of the complementary protection criterion.  It was submitted that the Tribunal did not consider whether being questioned or detained on return to Sri Lanka would amount to significant harm.

15. However, as set out above, the Tribunal engaged with this issue in some detail in the context of considering the Applicant’s Refugees Convention claims.  It then referred back to such findings in the context of its complementary protection findings.  This must be taken to include a reference to the Tribunal’s conclusion that there was no reliable substantiated country information that Tamils sent back to Sri Lanka were harmed because of their attempt to seek asylum in another country (including Australia) and because of their illegal departure and to its finding that this included the risk of either being harmed while being questioned on arrival or at some stage thereafter.  In addition, the Tribunal not only referred back to its findings about the impact of imprisonment on remand, it also specifically referred to such issues in the context of considering complementary protection, finding that the possibility of the Applicant being held in remand briefly did not equate with a real risk of him suffering significant harm.

16. These issues were dealt with by the Tribunal.  It has not been established that the Tribunal failed to consider the claims made by the Applicant in the context of complementary protection in the manner contended for in the amended application or in oral submissions today. 

17. The Applicant also contended that the Tribunal considered the position of returnees on some broad basis, but did not consider his individual situation.  That is not consistent with the Tribunal reasons for decision.  The Tribunal specifically considered the position of the Applicant, albeit by reference to country information in relation to what had occurred to other people, as well as rejecting his claims about past events on a credibility basis.  Its findings related specifically to the claims of the Applicant.

18. The Applicant submitted that the Tribunal did not “verify further”.  He explained that he expected more questions to be asked of him. This is not indicative of jurisdictional error. First, there is nothing in the Tribunal reasons for decision or otherwise in the material before the Court to indicate that the Tribunal failed to raise dispositive issues at the Tribunal hearing as required under s.425 of the Act, whether in relation to complementary protection or otherwise. Nor does the evidence before the Court support any wider contention that the Tribunal failed to afford the Applicant the opportunity at the hearing to give evidence and present arguments in relation to issues in relation to either his complementary protection or Refugees Convention claims.

1. Moreover, it is for an applicant to make out his case before the Tribunal.  Nothing in the material before the Court gave rise to an obligation on the Tribunal to investigate further in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 or in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155; [1985] FCA 47. The material before the Court did not raise issues in relation to a critical fact the existence of which was easily ascertained or readily available or obvious material such that the Tribunal was obliged to further investigate. No jurisdictional error is established on this basis.

2. In submissions in reply the Applicant referred to the fact that he was not legally represented for the purposes of this hearing.  That does not go to establish jurisdictional error.  The Minister’s written submissions address generally the Tribunal’s reasons for decision.  I have considered those submissions and also all the material before the Court.  No jurisdictional error is apparent either on the basis contended for by the Applicant or otherwise. 

3. Insofar as the Applicant more generally took issue with the Tribunal’s views of his claims that he would be harmed on return to Sri Lanka, he seeks merits review.  Merits review is not available in this Court. 

4. As no jurisdictional error has been established, the application must be dismissed.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  17 July 2014