SZTVG v Minister for Immigration

[2016] FCCA 616

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTVG v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 616

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal – Whether the Tribunal misunderstood the Applicant’s claims – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.36(2A), 46A, 91R, 477

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19
Minister for Immigration and Border Protection v WZAPN& Anor (2015) 254 CLR 610; [2015] HCA 22
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63
SZTEQ v Minister for Immigration and Border Protection (2015) 321 ALR 44; [2015] FCAFC 39
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZTVG

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 223 of 2014

Judgment of: Judge Barnes

Hearing date: 16 April 2015

Date of Last Submission: 4 July 2015

Delivered at: Sydney

Delivered on: 24 March 2016

REPRESENTATION

The Applicant: In person

Counsel for the Respondents: Mr Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 223 of 2014

SZTVG

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) dated 19 December 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant a protection visa to the Applicant. 

2. The Applicant, a citizen of Sri Lanka, arrived in Australia in June 2012 as an irregular maritime arrival. The Minister exercised his power under s.46A(2) of the Migration Act 1958 (Cth) (the Act) to permit the Applicant to make a visa application. On 16 November 2012 he lodged his application for a protection visa. The application was refused by a delegate of the First Respondent. The Applicant sought review by the Tribunal. He attended a Tribunal hearing.

3. The Applicant claimed to have a well-founded fear of persecution on the basis of his Tamil ethnicity and/or his residence in a Tamil area and on the basis that he would be imputed to hold a political opinion in favour of the Liberation Tigers of Tamil Eelam (the “LTTE”) having regard, in particular, to his brother-in-law’s involvement with the LTTE and past claimed events in Sri Lanka.  He also claimed that the authorities would have an adverse interest in him as a returned Tamil, a failed asylum seeker and as a consequence of his illegal departure from Sri Lanka. 

Tribunal Decision

1. In its reasons for decision the Tribunal recorded the Applicant’s claims that he was a Tamil from the north of Sri Lanka who had travelled to Australia with his brother-in-law (K).  He claimed that his family was not involved with the LTTE during the war in Sri Lanka.  However in 2006 his sister married K (who, he later discovered, had been involved with the LTTE) and went to live in another part of Sri Lanka.  

2. He claimed that his family received news in June 2009 that his sister, K and K’s family had been detained in a refugee camp after the cessation of hostilities.  He claimed that he went to the refugee camp and was able to obtain the release of his sister and her in-laws after paying money but that he was unable to secure the release of K who, he was advised, had been arrested.  According to his sister, her husband had been taken away in a van with five other detainees and she had heard no more about him. 

3. The Applicant claimed that two weeks later the local police came to his home, questioned his sister about her husband’s whereabouts and activities and threatened and slapped him.  He was told to attend the police station the next day, but did not do so.

4. The Tribunal recorded that the Applicant claimed to the Department that in June 2011 K’s cousin told the family that K had been released.  The Applicant told the Tribunal that K came to his home.  He told them he had been in detention in a camp for two years and had been tortured.  He did not tell them how he got out of the camp.  The Applicant claimed he told K that the police and army had been looking for him while he was detained. 

5. The Applicant also claimed that in July 2011 (after K had left the Applicant’s family home) he was detained by the police for three days, beaten and interrogated about K’s whereabouts.  He was released after his uncle spoke to the police.  He claimed that the police also searched his house.

6. The Applicant told the Department that in September 2011 his brother had been taken by the police, but that he was released when the Applicant reported to the police station.  The Applicant claimed that he was detained for five days at this time, beaten, verbally abused and questioned about K.  He claimed that after his family paid money he was released, that he was told to report once a month, and that he did so for two months but then went to Jaffna.  He told the Department he went to Jaffna to study. 

7. According to the Applicant, after two months the police came to his house looking for him because he had not been reporting.  He was told to return and report, which he told the Department he did.  However he told the Tribunal he did not report.  He claimed that he felt threatened and so decided to leave Sri Lanka.  He claimed that after he left for Australia, the police made inquiries of his parents. 

8. The Applicant claimed that he was recognisable anywhere as a Tamil and that he could not relocate within Sri Lanka. He told the Department he feared being tortured and killed because he had disobeyed police orders not to leave his home area and because he left the country illegally.  He claimed that his brother-in-law was now in Australia so the police would be of the view that they had co-operated together.  He told the Tribunal he feared being arrested and detained for two to five years because he had not answered the police correctly and because of his brother-in-law. 

9. The Applicant’s adviser claimed that the Applicant sought protection on the basis of ethnicity, imputed political opinion and membership of a particular social group and that he met the complementary protection criterion, facing detention, deprivation of liberty, torture and possibly death.  

10. In its findings and reasons the Tribunal accepted that the Applicant was a Tamil fisherman from the Udappu area of Sri Lanka whose sister had married K and had gone to live with K’s family in Kilinochchi.  It also accepted that in June 2009 the Applicant and his family received news that his sister, her husband K and K’s parents had been taken to a camp and that the Applicant and his family had organised the release of his sister and her in-laws, but that K had been taken to another camp where he was detained for a further two years.  Having regard to country information indicating that the region in which K lived was a region of high LTTE activity during the war and the fact that at the end of the war many people from this region were placed in camps the Tribunal also accepted that K was involved in some way with the LTTE.

11. However, the Tribunal did not accept that K’s detention had led to the Applicant being questioned, beaten and detained as claimed.  It found that his claims in this regard appeared “illogical and unfeasible” and that there were a number of key inconsistencies in his evidence.  The Tribunal did not accept that two weeks after the release of the Applicant’s sister, the Udappu police and army came to the house, questioned the sister, threatened the Applicant, took him to the police station for questioning and required him to report the next day.  It had regard to the fact that on the Applicant’s evidence, K had just been detained, so that there was no need to question his family about K’s whereabouts.  It did not accept that the local police may not have known that K had just been detained and that this raised an issue as to how the police would have known about K at all.  The Tribunal also had regard to inconsistencies in the Applicant’s evidence in this respect (which it detailed), including whether the people who came to his house were civilians or police and army officers, and whether he was assaulted.  The Tribunal also found that the claim in the adviser’s submission of 16 May 2013 (that K had “escaped” and that the authorities were trying to establish what information the Applicant had) was contradicted by the Applicant’s statement of 9 November 2012 and his evidence to the Tribunal that K was in detention in 2009.  The Tribunal considered the Applicant’s explanation that he initially told Immigration that K was in detention and later said he had escaped, but that he then found out that K was in a camp.  The Tribunal found that the Applicant’s contradictory evidence in this regard led to a conclusion that it was fabricated. 

12. The Tribunal accepted that the Applicant’s brother-in-law K was released in June 2011 and visited the Applicant’s family home for a brief period.  It did not accept that the Applicant was questioned about K in July 2011.  It found there were illogical aspects to this claim and that the Applicant’s evidence about the circumstances was inconsistent.  The Tribunal did not accept that the authorities would question the Applicant about K so soon after K’s release, particularly as country information indicated that it was usual for released cadres to have reporting requirements in their own place of residence.  Nor did it accept the adviser’s submission that this was a tactic of the authorities to find out more about K, as they had had a lengthy period of time (while K was detained) to find out information.  In addition, the Tribunal had regard to the fact that this incident was said to have taken place in 2011, which was well after the end of the war.  While it accepted, on the basis of country information, that cadres who had been released had been monitored, it did not accept that a few weeks after such a release a family member would be detained for three days and questioned about the releasee’s whereabouts.  The Tribunal also had regard to inconsistencies in the Applicant’s written and oral evidence about K’s release, including where K went after he was released.

13. The Tribunal did not accept the Applicant’s claim that he was questioned, interrogated and detained in September 2011 as it did not accept that he was questioned in June/July 2009 or July 2011 or that the authorities were looking for K.  It did not accept his claims that he was detained for five days, ill-treated, beaten, verbally abused or interrogated, asked to report once a month, or that when he was in Jaffna studying he had to return to Udappu to report because the police told his father he had to do so.  Nor did the Tribunal accept the Applicant’s evidence that he did not report from March to June 2012, that he was in hiding at a friend’s place and working irregularly or that the police went to his home once in May 2012 but could not find him.  The Tribunal had regard to the fact that Udappu was a small place.  It was of the view that if the Applicant was working and staying with friends, the authorities could have found him had they wanted to do so.

14. The Tribunal did not accept that the Applicant did not know more details of K’s involvement with the LTTE, the camps he was kept in and the details of his release, given their family relationship and the fact that his claims were based on his K’s activities and he and K were living together in Australia.  It did not accept that the Applicant had still not found out pertinent details about his brother-in-law’s life and found that his evidence in this regard led to doubts about his credibility in general. 

15. In making its findings the Tribunal accepted that the Applicant was a young man who had travelled to Australia under difficult circumstances, that he had spent time in detention and was a long way from his family and familiar surroundings.  It acknowledged that these factors, as well as nervousness about the process, could lead to stress and anxiety which could impact on presentation of evidence, in particular confusion as to dates, sequence and other matters.  However, even taking these matters into account and accepting that some of the inconsistencies may be caused by “human error”, the Tribunal was not satisfied when considering the evidence cumulatively that the Applicant’s claims were credible. 

16. The Tribunal did not accept that the Applicant had suffered serious harm in the Convention sense in the past in Sri Lanka or that he was a person in whom the police, the CID, military or security agencies had any adverse interest for any reason prior to his departure.  Nor did it accept that those authorities would have an adverse interest in the Applicant in the future. 

17. It was of the view that the only relevant change in the Applicant’s circumstances since his departure was that he had left Sri Lanka through irregular and unofficial channels, entered Australia without a valid visa and had claimed protection here. 

18. Before considering those circumstances, the Tribunal expressly considered the Applicant’s claim that he would be perceived to have a connection to or association with the LTTE.  It acknowledged that Tamils with an actual or perceived association with the LTTE (and sometimes their family members) were at particular risk of adverse attention by the Sri Lankan authorities.  However the Tribunal did not accept that the Applicant or any member of his immediate family ever had any involvement or association with the LTTE or that they were ever suspected of having such involvement by any government agency or group, the police or the CID. 

19. The Tribunal considered whether the Applicant would be suspected of being connected to or associated with the LTTE because his brother-in-law was involved in some way with the LTTE.  However it had regard to the fact that it had not accepted that there had been any serious harm to the Applicant on this basis in the past and the fact that, apart from one week in 2011 after his release, the brother-in-law had not lived in the Applicant’s region.  In addition, there was no evidence that K was a high-ranking cadre and, indeed, the Applicant advised that he did not know the level of K’s involvement with the LTTE.  The Tribunal concluded that as K was not living in the Applicant’s immediate family surrounds or in any way closely connected to the family during the war, it did not accept that the Applicant would face any serious harm in the reasonably foreseeable future because of the connection to his brother-in-law K. 

20. The Tribunal addressed the Applicant’s claim that he would be imputed with an adverse political opinion and perceived as being an LTTE sympathiser or supporter because he was a young male Tamil from Udappu.  It had regard to country information (including UNHCR Guidelines) in this respect, but found that the weight of independent information did not indicate that in the recent past the government had imputed an adverse political opinion or perceived a person to be an LTTE sympathiser or supporter simply because the person was Tamil or a young male Tamil from Udappu.  Similarly, the Tribunal did not accept that the authorities would impute the Applicant with an adverse political opinion and perceive him to be an LTTE sympathiser or supporter because of his ethnicity or religion (Hindu) or his age or residence in Udappu. 

21. The Tribunal considered whether the Sri Lankan authorities would perceive that the Applicant had an LTTE association or connection because he had travelled to Australia by irregular methods and had claimed asylum.  It was prepared to accept that in the event that the Applicant was returned to Sri Lanka, the authorities would come to know that he had left the country by boat without permission and that in the circumstances it was reasonable to assume that the authorities would deduce that the Applicant had claimed protection in Australia.  The Tribunal also accepted, on the basis of country information, that the authorities suspected some asylum seekers of having LTTE links and that it was reasonable to infer that the authorities would closely scrutinise the details of returned Tamils in such circumstances, including the Applicant.  However, it found that the independent information before it did not indicate that the authorities necessarily imputed an adverse political opinion or an association with the LTTE to a person on the basis that he or she had departed illegally and returned as a failed asylum seeker.  Having regard to the country information and the Applicant’s evidence, circumstances and submissions, the Tribunal did not accept that in the Applicant’s particular circumstances the authorities would perceive him to be an LTTE supporter or sympathiser or to have links to the LTTE or impute to him an adverse political opinion because he travelled to Australia by irregular methods and claimed asylum. 

22. The Tribunal also observed that as it did not accept that the Applicant was required by the authorities to stay in his village, it also did not accept that he would be at an increased risk because he ignored commands to stay in his village. 

23. The Tribunal considered all of the factors it had discussed in combination, but did not accept that in the Applicant’s circumstances and with his particular attributes, the authorities would suspect he was connected or linked to the LTTE or that he was an LTTE supporter or sympathiser and impute him with an adverse political opinion or profile. 

24. The Tribunal then considered the Applicant’s claims to fear persecution on account of his Tamil ethnicity or because of his residence in a Tamil area. It found that while country information, including that referred to in the adviser’s submissions, indicated that the situation for the Tamil minority had seen little improvement since the end of the conflict in 2009, it did not indicate that in the recent past Tamils had been targeted or imputed with an adverse political opinion or had suffered serious harm simply because of the fact that they were Tamils. It accepted that the Applicant would return to a difficult life in Udappu, that there may be some security issues living under a government that sometimes had little respect for Tamil citizens and that there may be some restrictions on his freedom of movement. However on the totality of the evidence, the Tribunal did not accept that the Applicant or any member of his family would be subject to discrimination that would affect their capacity to subsist or cause them to suffer significant economic harm nor that they would be denied access to services. It did not accept that the Applicant or any member of his family would be subject to harm that would amount to serious harm for the purposes of s.91R of the Act for any of the claimed reasons.

25. In relation to the Applicant’s claim to fear serious harm from the authorities as a returned Tamil or failed asylum seeker, the Tribunal accepted that the Sri Lankan authorities would become aware of the Applicant’s details, as it would be necessary for the Australian government to facilitate his return with the assistance of the Sri Lankan Consulate because he did not possess a valid travel document.  It considered it plausible that the authorities would deduce or infer that the Applicant had made a claim for protection that had been refused.  The Tribunal considered it likely that the authorities would closely scrutinise the details of Tamils (such as the Applicant) returning from Australia.  It found that independent evidence indicated that on arrival at the airport in Colombo, the Applicant would be questioned by the immigration authorities, the CID, and potentially by the SIS.  The Tribunal also accepted that information indicated that, as part of the return procedure, inquiries about the Applicant were likely to be made with the police and military in his home area.  However, as it did not accept that the Applicant was previously or currently a person in whom the authorities or police had any interest, that he had suffered any past harm from the police or that he would be perceived to be associated with or a sympathiser of the LTTE, the Tribunal did not accept there was a real chance such inquiries would lead to the Applicant suffering serious harm or that he would be subjected to serious harm during the interview process or while being processed at the airport.  For the same reasons, the Tribunal did not accept that in the event the Applicant was subject to “follow-up” questioning from the authorities on his return to Udappu, there was a real chance he would be subjected to serious harm. 

1. The Tribunal accepted that independent evidence indicated that the Applicant might be prosecuted in Sri Lanka for his irregular departure.  It referred to a discussion at the hearing of country information indicating that since December 2012 the Sri Lankan government had been prosecuting its citizens for irregular departure.  The Tribunal accepted that if returned to Sri Lanka, the Applicant would be charged under the Immigrants and Emigrants Act of 2006 and taken before a magistrate.  However the Tribunal found that on its face, this law was a law that applied equally to all persons, that it was not discriminatory in its terms and that country information indicated that such law was not being selectively enforced or applied in a discriminatory way, but applied to all those who departed Sri Lanka from an unofficial port without a valid travel document. 

2. The Tribunal concluded that this Act was a law of general application that was not being selectively enforced or applied by the authorities and that in being prosecuted under that law, there was not a real chance the Applicant would suffer persecution. 

3. The Tribunal accepted that available sources indicated that after being charged on return to Sri Lanka, it was possible the Applicant might spend a few days in custody on remand before being brought before a magistrate and that the conditions in remand cells were below international standards, being overcrowded, dark, unclean and cramped. However the Tribunal found that the country information did not indicate that returnees detained in such circumstances had been subjected to any physical harm or threats of harm on remand and that while the conditions on remand might cause the Applicant to suffer discomfort, it did not accept that in his particular circumstances and with his attributes there was a real chance he would suffer serious harm for any reason. Insofar as there would be a loss of liberty while on remand, the Tribunal found that this would arise through the operation of a law of general application and did not amount to persecution for the purposes of s.91R of the Act.

4. The Tribunal also considered the issue of bail and the ultimate sentence that might be imposed on the Applicant in relation to his irregular departure.  It concluded that the information before it did not indicate that these aspects of the prosecution process were being applied in a selective or discriminatory manner.  The Tribunal did not accept the Applicant would suffer persecution through the application of either such aspect of the prosecution process.  Insofar as the Applicant claimed he would be mistreated while serving a prison sentence or while on remand, the Tribunal found that independent information indicated that while a prison sentence was a possibility, it was more likely that a fine of a specified amount would be ordered and that having regard to the Applicant’s circumstances as a first offender with no criminal record and no involvement in people smuggling who was not of adverse interest to the CID, the chance of a custodial sentence was remote.  Hence the Tribunal did not accept there was a real chance the Applicant would be imprisoned or mistreated or suffer serious harm while in prison as claimed or that he would be harmed by the army or police when he returned to his hometown. 

5. For all these reasons, the Tribunal did not accept there was a real chance the Applicant would suffer persecution through being charged and prosecuted under the Immigrants and Emigrants Act of 2006 for his illegal departure. 

6. The Tribunal concluded that it had considered each of the individual claims cumulatively, but was not satisfied that the Applicant met the Refugees Convention criterion. 

7. The Tribunal also considered the complementary protection criterion but in light of its earlier reasons (which it described) considered that there were no substantial grounds for believing there was a real risk the Applicant would suffer significant harm if removed from Australia to Sri Lanka because he would be perceived to be a LTTE supporter or through his connection with his brother-in-law. The Tribunal had regard to its earlier reasons in concluding that there were no substantial grounds for believing there was a real risk the Applicant would suffer significant harm from the authorities because of his Tamil ethnicity or residence in a Tamil area. It found that the evidence before it did not indicate that any possible future discrimination or treatment the Applicant might suffer would reach the level of severity necessary to amount to significant harm for the purposes of s.36(2A) of the Act.

8. With regard to the Applicant’s claims to fear harm because he would be returned as a failed Tamil asylum seeker or Tamil returnee from a Western country (including the claim that he would be imputed with an adverse anti-government political opinion), the Tribunal found, in light of its earlier reasons, that there were no substantial grounds for believing there was a real risk the Applicant would suffer significant harm on this basis.  It expressly considered the claim that the Applicant might suffer harm through the interview process on arrival or on return to his village but, having regard to its earlier reasons, concluded that there were no substantial grounds for believing there was a real risk the Applicant would suffer significant harm on that basis. 

9. While the Tribunal accepted there may be some restrictions on the Applicant’s movement as a Tamil and some discrimination from non-Tamil community members, it was not satisfied that such discrimination would amount to significant harm as defined in the Act. 

10. The Tribunal considered whether through the application and operation of the Immigrants and Emigrants Act of 2006 there were substantial grounds for believing there was a real risk the Applicant would suffer significant harm. It had regard to its earlier reasons and its conclusion that there was not a real chance the Applicant would suffer harm during the interview process in relation to his return or during a period of remand of up to four days. The Tribunal concluded that there were no substantial grounds for believing that there was a real risk the Applicant would suffer significant harm on such basis. The Tribunal recorded that in making this finding it had considered whether spending up to four days and nights in a remand cell with conditions that fell below international standards could constitute torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the Act and had had regard to policy considerations concerning prison conditions. On the evidence before it, the Tribunal was not satisfied that there were substantial grounds to consider that there was a real risk that being in overcrowded, dark, unclean and cramped conditions for four days and nights would constitute an act or omission that in the Applicant’s particular circumstances and with his attributes, would cause him pain and suffering that could be characterised as cruel or inhuman treatment or punishment inconsistent with Article 7 of the International Covenant on Civil and Political Rights, or cause him extreme humiliation that constituted degrading treatment or punishment inconsistent with this Article, or cause him severe pain or suffering that could be characterised as torture. It concluded that it did not accept that being in a remand cell in those conditions for that period would cause the Applicant, in his particular circumstances and with his attributes, to suffer harm which could constitute significant harm within the meaning of s.36(2A) of the Act.

11. The Tribunal reiterated that available sources indicated that bail was routinely granted on a personal guarantee and a guarantee from a family member.  It was of the view, having regard to the Applicant’s evidence, his background and circumstances as a person with no criminal record or involvement with people smuggling who was not of adverse interest to the CID and had the support of his family, that the Applicant would be granted bail and that there were no substantial grounds for believing there was a real risk he would suffer significant harm on that basis. 

12. The Tribunal acknowledged that an ultimate penalty of a prison sentence was a possibility, but found that it was more likely that a fine would be imposed and did not accept that there were substantial grounds to consider the Applicant would be given a custodial sentence.  Having regard to the weight of independent information and the Applicant’s particular circumstances and on the evidence and information before it, the Tribunal found that the Applicant would be ordered to pay a fine and would not receive a custodial sentence for his illegal departure and that hence the prospect of him being detained for a prolonged period was remote.  It also found that the risk of him not being able to pay a fine of between SLR10,000 and SLR100,000 was remote, having regard to his evidence and information, including his membership of his family, his history of employment and his capacity to work in the future.  Accordingly, the Tribunal was not satisfied that there were substantial grounds for believing there was a real risk the Applicant would suffer significant harm on that basis. 

13. The Tribunal concluded that the Applicant did not meet the complementary protection criterion.  It affirmed the delegate’s decision.

These Proceedings

1. The Applicant sought review by application filed in this Court on 31 January 2014. The application was filed shortly outside the period provided for in s.477(1) of the Act. The First Respondent did not oppose an extension of time. Given the explanation provided by the Applicant, the court made an order under s.477(2) extending the time for making the application up to and including 31 January 2014.

2. In his Application the Applicant claimed generally that the Tribunal exceeded its jurisdiction.  He contended that the Tribunal had not sufficiently put to him for his comment adverse information on which it relied to refuse his application.  He indicated that he intended to file further details of his grounds of review after obtaining legal advice.  The Applicant did not file an amended application, affidavit evidence or any written submissions prior to the hearing. 

3. In the affidavit accompanying his review application, the Applicant explained that he did not agree with the Tribunal decision.  In this respect, he seeks impermissible merits review. 

4. In oral submissions the Applicant took issue with the fact that in its decision the Tribunal had said that his brother-in-law was released by the authorities.  He claimed that he had told the Tribunal that his brother-in-law had escaped from custody and that this was the reason why he had faced problems in Sri Lanka.  He appeared to assert that the Tribunal had misunderstood his claims.

5. The Applicant claimed that he had not been in a position to file a transcript of the Tribunal hearing to establish his claims about what he told the Tribunal within the time provided because he had not been provided with a copy of the compact disc of the Tribunal hearing within that time.  I allowed him time after the hearing to file a transcript and written submissions addressing the relevance of the transcript and made orders for the Respondent to file written submissions in response.   

6. The Applicant filed a transcript of the Tribunal hearing, but did not file any written submissions in relation to the use to which the transcript ought to be put in determining whether the Tribunal fell into jurisdictional error.  He did not explain the basis for his assertions that the Tribunal had misunderstood his claims or failed to put information to him adequately. 

7. As the First Respondent submitted, it is apparent that the Applicant is concerned about whether the Tribunal had misunderstood his claims about whether his brother-in-law had escaped or had been released from custody.  As the Applicant is self-represented I have considered this issue having regard to all the material before the court.  

8. In its reasons for decision the Tribunal had regard to an inconsistency in the evidence in relation to whether the brother-in-law had been released from custody or escaped.  The Tribunal found that the contradictory evidence in this regard led to a conclusion it was being fabricated.  As discussed below, this finding does not reveal a misunderstanding of the Applicant’s claims. 

9. In the entry interview conducted shortly after the Applicant’s arrival in Australia, he claimed he had been told at the refugee camp that K had been arrested, but did not address whether his brother-in-law had later escaped or was released from custody. 

10. In a statutory declaration sworn on 9 November 2012, the Applicant claimed that when he and family members went to the refugee camp in 2009, they realised his brother-in-law was not there, but did not know his whereabouts.  He again claimed that his sister (and her mother-in-law) said that K had been taken with five other people in a van. He also claimed that when his sister was questioned by police two weeks later, she said that her husband had been taken away from the camp by the military.  He claimed that the local Udappu police did not know this and had wanted to know where the brother-in-law was because they thought he would have come to Udappu with the Applicant’s sister.  Relevantly, the Applicant also claimed that in June 2011, when his brother-in-law came to their house, he told them that in 2009 he had been taken to another camp and tortured and that after his “release” he had gone to live in his cousin’s house before coming to the Applicant’s house. 

11. Similarly, in a written submission of 16 November 2012 the Applicant’s migration agent also claimed that when the Applicant and his family went to get his sister, brother-in-law and his family released from the refugee camp, the brother-in-law was not released as he “had been removed along with five other people by the military to another camp”, and that in June 2011 the family had received information that the brother-in-law was alive and had been “released”. 

12. The Applicant attended a departmental interview on 14 May 2013.  According to the delegate, in the interview the Applicant claimed that his brother-in-law K was “released” from detention, but had indicated that he did not know when this had occurred as he did not discuss the detention with K.  The delegate recorded that she put to the Applicant that it seemed unlikely that if the police had detained K in 2009 they would question the Applicant about his whereabouts.  The delegate also indicated as K had later been released by the army, it was not clear why K would not speak to the police and clarify the issue. 

13. However, on 16 May 2013 the Applicant’s adviser sent an email to the delegate seeking to clarify issues raised at the interview.  It was claimed that while at the refugee camp K and four other Tamils had been arbitrarily removed, questioned and tortured by the Army; that the 2009 visitors to the Applicant’s home asking about K’s whereabouts were most likely CID; and that “[t]he applicant was unaware and so was his family that at that time the brother in law had managed to escape from the area he had been held in and was in hiding.” (emphasis added)

14. The adviser also claimed that the CID “did not disclose that [K] had managed to escape” as they were trying to establish what information, if any, the Applicant and his family had. 

15. Later in the submission the adviser claimed the Applicant’s problems commenced in 2009 when K “escaped from the camp”.  The adviser elaborated on claimed events of 2011.

16. It was also claimed that the Applicant instructed that he had been “evasive” because K had previously instructed him not to reveal any details in case it caused problems for his family in Sri Lanka.

17. In her decision, the delegate considered the Applicant’s claims about K’s release and the adviser’s claims that he escaped but that this was intentionally not disclosed by the CID.  The delegate did not accept this explanation in light of the Applicant’s contrary evidence, including that K “was released from the camp” (not “escaped” as the agent claimed) and other concerns.

18. After the Applicant sought review by the Tribunal, his adviser provided a further written submission of 27 August 2013 in which it was submitted that although the Applicant did not know the dates of the capture and “release” of his brother-in-law by the authorities, this should not affect his credibility.  It was contended that it was not implausible that the police would have asked the Applicant about his brother-in-law’s whereabouts and would intentionally fail to disclose his “release” in order to extract more information from the Applicant.  It was submitted that it had not been suggested that the brother-in-law had “escaped”, as follows:

    17.  The delegate incorrectly relied on a supposed discrepancy between our submissions dated 16 November 2012 and the applicant’s Protection Visa interview differed regarding the circumstances of [K]’s release from the military camp.  It is submitted that there was no discrepancy between the two accounts; the applicant claimed in his Protection Visa interview that his brother in law was released from the camp as did our submission, it was not suggested that his brother in law had escaped.  The delegate’s reliance on such a discrepancy to suggest the applicant was not credible and that he had not been detained or interrogated is therefore flawed and must not be relied upon.  

19. It is apparent from the transcript of the Tribunal hearing that the Tribunal was aware of and discussed with the Applicant the issue of whether his brother-in-law had escaped or had been released and that it noted on a number of occasions that the evidence for and on behalf of the Applicant in this regard was inconsistent.  This questioning is not indicative of a misunderstanding of the Applicant’s claims. 

20. For example, in the course of the Tribunal hearing (Transcript page 11, lines 33 to 36), the Applicant gave evidence that his sister had told him that they had been captured and taken to the camp and that her husband had then been taken to another place, but that she did not know his whereabouts.  She later told the Applicant that K was involved in the LTTE as a member.  At Transcript page 12, lines 36 to 42, the hearing proceeded as follows:

    Q.  So, [K], he was then taken to another camp?

    A.  My sister told me the army, they took him to some other place, but she didn’t know where they took him. 

    Q.  But when [K] was released, did he then tell you where he’d been?

    A.  No, he didn’t say anything to me. 

    The Applicant did not dispute that K had been “released”. 

21. The Tribunal went on to question the Applicant about the fact that he was now living with his brother-in-law in Australia and asked whether K had told him that he was taken from the refugee camp to another camp.  The Applicant said that his brother-in-law had said that the family was taken to a particular camp, but had not told him where he was taken.  The Applicant claimed he had not pressed K to disclose this information.  The Applicant agreed (Transcript page 13, lines 22 to 24) that he did not know what happened to K after he was taken from the first camp. 

22. After the Applicant explained his claim that uniformed men from the police and army had visited his home in mid-2009, the Tribunal asked the Applicant why the police and army would have asked him or his sister where the brother-in-law was if he had been taken to another camp.  The Applicant responded (p.14, line 46):

    So they came with the suspicion that he might have came to - along with us here.  So, when they came and questioned us we told them, no, and he didn’t come along with us, and they asked me to come the next day to the police station, we didn’t go, and after that they [indistinct] question me or my sister or anything about my brother-in-law so they may come to know that he has been taken to [indistinct] camp. 

1. At page 16 of the Transcript, the Applicant claimed that his brother-in-law had been in detention in a camp for two years before he came to their home in 2011 but that he had not told the Applicant where he was held.

2. At page 17 of the Transcript (lines 30 to 34) in the context of discussing the claim that the brother-in-law came to the Applicant’s home in 2011, the Tribunal put to the Applicant country information about people who had been “released” from camps, indicating that many of them had to report to police stations in their local area when they were released, to which the Applicant responded (contrary to his original claims about K being released):

   Yeah, that’s true but I don’t know how he came out of the camp; he didn’t tell me, so he has been searched. (emphasis added)

3. In this part of his evidence the Applicant did not claim that K had escaped from custody.

4. At page 18 of the Transcript (lines 37-38), the Tribunal asked the Applicant why he thought the police were interested in K if the war was over, it was 2011 and they had “just released him”, to which the Applicant responded (lines 39-46):

   Maybe we don’t know what’s going on currently in my country, you know, but after the war the people who are released from the camp, they’ve been targeted by these authorities and, you know, they’ve been captured again, they have been taken and declined again and extorting money from them or their lands from them, so these things were happening.  So, due to that, my brother-in-law had been targeted as well and they were looking for him.

5. The Applicant did not take issue with the Tribunal’s implicit suggestion that his claim was that K had been “released” from a camp. 

6. Towards the end of the hearing the Tribunal raised with the Applicant a number of issues pursuant to s.424AA of the Act, including (at p.26, lines 19 to 32), the fact that at the departmental interview he had claimed that he did not know his brother-in-law’s full name, where he lived, his level of involvement with LTTE, what he did for a living and “when he was detained or released”.  It acknowledged that some of these matters had been referred to in the hearing.  The Tribunal put to the Applicant that it did not appear feasible that he would not know these details about his brother-in-law if he was living with him and talked to him on the telephone “after he was released and had seen him after he was released”.

7. The Applicant claimed to be telling the truth, that his brother-in-law had not disclosed personal information to him or talked about his involvement in the LTTE.  He claimed that their relationship was strained.  He did not take issue with the Tribunal’s reference to the “release” of K. 

8. Critically, as pointed out in submissions for the Minister, at pages 28- 29 of the Transcript, the Tribunal referred to the fact that in the email of 16 May 2013 his adviser had stated that the Applicant and his family had been unaware that his brother-in-law had managed to “escape” from the area he had been held in and was in hiding and that the men in civilian clothes, presumably CID, did not disclose that K had “escaped”.  The Tribunal put to the Applicant that this information was relevant because he had told the Tribunal at the hearing and in his own statements that his brother-in-law “was in a camp in detention and said nothing about an escape”, so that this may lead the Tribunal to conclude he was not telling the truth about what in fact happened.

9. The Applicant’s response to this (at p.29, lines 9-16) was:

   I told you that I don’t know from which camp he was - he was kept in which camp and I don’t know anything about that, but the CID, they took me and they tortured me to find out the place that he is now.  I don’t know whether escaped from the camp or he was released from the camp; I don’t know anything about that.  And when I ask him after my interview here, he told me he has given all those information in his claims. (emphasis added)

10. The Applicant went on to claim to the Tribunal that the police, the army and the CID “suspected” his brother-in-law “might have escaped” from the camp and that this was the reason they tortured the Applicant, to find out where the brother-in-law was at the time.

11. The Tribunal then put to the Applicant (Transcript p.29, line 29; p.30, line 27) that what he was saying about “the escape” was different to the submission provided by his adviser in August 2013 (from which the Tribunal read extracts), in particular the submission that it was possible the military and the police did not communicate with each other in relation to the brother-in-law’s whereabouts so that the police were not aware he was detained and the submission that the Applicant had claimed in his protection visa interview that his brother-in-law had been “released” from the camp and that it was not suggested that the brother-in-law had escaped. 

12. The Tribunal put to the Applicant that (Transcript, p.30, lines 3-11):

    Also today you did not refer to an escape when you were giving your evidence about what happened, so that appears to be in contradiction to what is said in that submission by your advisor… on 16 May 2013. 

13. The Applicant sought clarification.  The Tribunal repeated (Transcript p.30, lines 15-27):

    …In summary what I have said is that, today in your evidence and also in your advisor’s recent submission of August 2013 you referred to the fact that [K], your brother-in-law, was in a camp, in a rehabilitation camp or in detention and there was no mention of an escape.

    However, in earlier evidence in May 2013 in a submission from your advisor you talk about him having escaped and being in hiding.  As this evidence has been inconsistent it may lead to a conclusion that it’s not credible evidence and I just wanted to give you a chance to comment or respond to that information.

    The Applicant responded (Transcript, p.30, lines 28-41):

    In immigration, they ask me, like, the name of the camp my brother-in-law was kept; I told them I don’t know and I don’t know anything about that.  Then I told them, later on I told them all, is that, it’s true, he was escaped, that’s what I came to know, but after I have spoken to my brother-in-law here, after that interview I spoken to him and then he was telling you today that he was a member of LTTE, he was kept in the camp. 

    In immigration, they actually emphasise me to answer the question what they are asking, to answer that question directly, so they didn’t ask me how he came from the camp, what happened to him and what he was doing; they asked me, in which camp he was kept and I told them I don’t know. 

14. He claimed he had told his lawyer he had not had the opportunity to speak in detail to the Department (in contrast to his opportunity at the Tribunal hearing) but that:

    The interview I had before the immigration, when they asked me, yes, he was escaped from the camp and that he told me and he accepted that too.  If he was released properly he not have given some documents if he wasn’t released from the [indistinct] centre, but he didn’t have anything like that. 

    The Applicant clarified that the brother-in-law would have been given some documents “if he was released properly” (Transcript p.31, line 12). 

15. The Applicant’s contention that it was apparent from the transcript of the Tribunal hearing that the Tribunal misunderstood his claim is not made out.  As the Tribunal recorded in its reasons for decision, it raised with the Applicant inconsistencies in the evidence about whether his brother-in-law had escaped or been released from the camp.  It understood that at one point in the Tribunal hearing the Applicant claimed K had escaped, but also that he had given inconsistent evidence in this respect.  In its findings and reasons it had regard to the contradictory evidence in this regard which led to a conclusion that it was being fabricated. 

16. The transcript of the Tribunal hearing considered together with all the other material before the court, does not establish that the Tribunal misunderstood the Applicant’s claim in this regard.  Rather, all the evidence before the court, including the transcript, indicates that the Tribunal was aware there was inconsistent evidence about whether the brother-in-law had escaped or had been released and that this was a factor the Tribunal took into account in rejecting the Applicant’s credibility.  It found that the contradictory evidence in this regard led to a conclusion that it was being fabricated.  The Tribunal’s failure to accept the Applicant’s claim that his brother-in-law had escaped from custody did not involve a misunderstanding of the Applicant’s claim or any integer of his claims such as to constitute or demonstrate a jurisdictional error.  

17. As claimed in the application, and explained in submissions, the Applicant also contended that information was not adequately put to him for comment at the Tribunal hearing, in that the Tribunal failed to put to him country information in relation to persons being held on remand as part of the procedure in relation to being charged under the Immigrants and Emigrants Act of 2006 for offences relating to departing Sri Lanka illegally. 

18. First, such independent county information is within the exception to s.424A(1) in s.424A(3)(a) of the Act.  The Tribunal was not obliged to put such information to the Applicant under s.424A(1) of the Act. 

19. In any event, in the Tribunal hearing the Tribunal put the effect of independent country information about returning asylum seekers to Sri Lanka to the Applicant in light of the fact that the adviser had referred in submissions to the Applicant’s fear of returning to Sri Lanka as a failed returning asylum seeker.  In particular, the Tribunal put to the Applicant (at p.32) that:

    … the country information indicates that people who have left Sri Lanka illegally will be charged under some legislation there, which is legislation that applies to all people who have left illegally, and there’s no information before the tribunal to indicate that that legislation is being applied in a discriminatory way.

    Also under that legislation people who have left illegally may have to spend a few days in custody on remand, however there’s no information to suggest that persons on remand are being seriously harmed, and so far it appears from the evidence that prison sentences are unlikely to be imposed, it’s more likely to be a fine.  So, so as this is a general law applying to everyone, it does not appear to fall under - as one of the convention reasons. 

20. Insofar as it was necessary for the Tribunal to raise such issues with the Applicant as dispositive issues for the purposes of s.425 of the Act (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63), it is apparent that it did so. No jurisdictional error is established on this basis.

21. More generally, there is nothing in the evidence to suggest that the Tribunal otherwise failed to comply with s.424A of the Act.  In addition to the independent country information, the Tribunal put to the Applicant clear particulars of several items of information, in particular aspects of his oral evidence to the delegate (as well as his adviser’s submissions), in accordance with s.424AA of the Act.  It was open to the Tribunal to put clear particulars of such information to the Applicant at the hearing under s.424AA of the Act.  It is apparent from the Transcript of the hearing that the Tribunal met the requirements of s.424AA in its entirety.  It is not apparent that the Tribunal failed to put to the Applicant any information that would enliven s.424A(1) of the Act.  In such circumstances it was not also obliged to put particulars of the information to him in writing (see s.424(2A) of the Act).   

22. In submissions, the Applicant also took issue with the Tribunal’s finding that if he returned to Sri Lanka he would be detained for four days.  He claimed that he was unaware of the information on which that conclusion was based, that he did not understand why the Tribunal had made that statement and that he had not had an opportunity to respond to it. 

23. The Tribunal’s finding in this respect was that the Applicant may be held in remand for up to four days.  As counsel for the Minister pointed out, in its reasons for decision the Tribunal referred to available sources  of country information as indicating that after being charged on return, it was possible the Applicant might spend a few days in custody on remand.  In Attachment B to the Tribunal decision, the Tribunal extracted relevant country information which provided a basis for such a finding.  It cannot be said that this finding was made in the absence of evidence. 

24. As indicated, the Tribunal was not obliged to put such independent country information to the Applicant under s.424A of the Act. It put the substance of the information about the application of Sri Lankan legislation in relation to illegal departures (including the possibility of having to spend a few days in custody on remand) to the Applicant at the hearing.  The Applicant had the opportunity to comment or respond, including (as the Tribunal informed him) to seek additional time to do so.  It was not necessary for the Tribunal to put the source of this information to the Applicant.  Moreover his adviser was given the opportunity to make a post-hearing submission.  No jurisdictional error is apparent in this respect. 

25. At the time of the hearing the circumstances of this case also appeared to raise an issue about the possible application of the reasoning of North J at first instance in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. The parties were given leave to file further written submissions following the decision of the High Court in Minister for Immigration and Border Protection v WZAPN& Anor (2015) 254 CLR 610; [2015] HCA 22. The First Respondent did so.

26. As the First Respondent pointed out, the Minister’s appeal was allowed. It was open to the Tribunal to engage in a qualitative assessment as to the severity of the consequences of detention on remand in considering whether the Applicant faced a real chance of serious harm constituted by a threat to his liberty under s.91R(2)(a) of the Act.

27. It has not been established that the Tribunal fell into jurisdictional error in finding that while the Applicant might be held on remand upon his return to Sri Lanka, this would not amount to serious harm (and see SZTEQ v Minister for Immigration and Border Protection (2015) 321 ALR 44; [2015] FCAFC 39 at [17]).

28. In light of the High Court’s decision in Minister for Immigration and Border Protection v WZAPN and the Tribunal’s finding that a period of remand did not amount to serious harm, it is unnecessary to consider the correctness of the Tribunal’s reasoning concerning the implementation of laws of general application.  However, as the First Respondent submitted, given the Tribunal’s conclusion that the law pertaining to illegal departure was applied to all persons who departed Sri Lanka illegally (and was not being selectively enforced or applied in a discriminatory way), it could not be said that the essential and significant reason (s.91R(1)(a) of the Act) for the enforcement of this law against the Applicant would be for a Convention reason.  The question of whether differential treatment of different individuals or groups was appropriate and adapted to achieving some legitimate government objective (see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19 at [29] and Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387; [2004] HCA 25 at [42] to [43]) did not arise as the Tribunal found that there was no differential treatment insofar as enforcement of the law was concerned.

29. Finally, the Applicant told the Court that his brother-in-law had returned to Sri Lanka and was in jail and that he (the Applicant) was now at risk of facing the same fate.  This seeks to raise events that have occurred after the Tribunal decision and is not such as to establish jurisdictional error on the part of the Tribunal.  However if the Applicant’s circumstances have changed this may be a matter that the Applicant wishes to raise with the Minister for Immigration.

30. As no jurisdictional error has been established on any of the bases contended for by the Applicant, the application must be dismissed.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 24 March 2016