SZTZY v Minister for Immigration

[2017] FCCA 2891

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTZY v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2891

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – whether the Tribunal failed to consider evidence or claims – whether the Tribunal erred in consideration of “intention” in relation to the complementary protection criterion – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 424A, 425(1)

Cases cited:

Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
SZSPE v Minister for Immigration and Border Protection & Anor [2014] FCA 267

SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978

Applicant: SZTZY

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 606 of 2014

Judgment of: Judge Barnes

Hearing date: 26 February 2016

Date of Last Submission: 10 October 2017

Delivered at: Sydney

Delivered on: 24 November 2017

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Ms Francois

Solicitors for the Respondents: Clayton Utz

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 606 of 2014

SZTZY

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 13 February 2014.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. 

2. The Applicant, a Sri Lankan citizen of Tamil ethnicity, arrived in Australia in July 2012.  On 9 November 2012 he applied for a protection visa. 

3. The Applicant claimed that between 2007 and 2011 he left and returned to Sri Lanka several times, travelling on his own passport, including travelling to and staying in Tanzania until the authorities located him, attempting to travel to Canada in 2010 on a fraudulent Canadian visa which was detected in Singapore, going to India on a three month visa in 2011 and then to Nepal, where he spent six months.  He claimed he had been unsuccessfully attempting to seek protection. 

4. The Applicant claimed that in 2010 he had paid bribes to his agent to avoid being detained by immigration officials on his return to Sri Lanka.  He claimed that while in Sri Lanka in 2010 he was questioned and interrogated by the CID and required to report to the police station when asked.  He also claimed he returned to Sri Lanka in February 2012 after his passport was taken by his agent who had cheated him.  He returned to Chilaw in Sri Lanka and in May 2012 he returned to his hometown of Jaffna where his mother lived.  He claimed that while he was in Jaffna members of the CID visited his mother’s house to inquire about his past whereabouts.  He claimed that they suspected that he had some involvement with the Liberation Tigers of Tamil Eelam (the LTTE) and that they had threatened to shoot him if they found out their suspicions were correct.  He claimed he then decided to leave Sri Lanka again. 

5. The Applicant claimed that because of his ethnicity he feared anti-Tamil groups like the Eelam People’s Democratic Party (the EPDP), as well as the police and the Sri Lankan authorities.  He claimed to fear serious harm from Sri Lankan government authorities, including the CID and the Sri Lankan police, as they suspected that he was involved with the LTTE because he was a young Tamil male from Jaffna.  He also claimed to fear harm from the authorities as a failed asylum seeker and because he was a young male Tamil who had left Sri Lanka illegally. 

6. The Applicant provided supporting documentation.  He attended an interview.  His application was refused by the delegate. 

7. The Applicant sought review by the Tribunal.  In a pre-hearing submission his representative claimed that the Applicant feared persecution because of his Tamil race, his imputed political opinion of support for the LTTE in opposition to the government of Sri Lanka by virtue of being a young Tamil male from Jaffna and his membership of the particular social groups of “young Tamil males from Jaffna” and “failed asylum seekers returning to Sri Lanka”.  It was submitted that the Applicant would be perceived to be opposed to the Sri Lankan government and to support the LTTE by virtue of his Tamil ethnicity, his status as a young Tamil male from Jaffna, his time spent living in the Vanni area in Sri Lanka, the past assistance his family gave to a young man shot by the EPDP, his long absences from his home town and his status as a failed asylum seeker. 

8. The Applicant attended a Tribunal hearing on 5 June 2013.  The only evidence before the Court of what occurred in the Tribunal hearing is the account in the Tribunal reasons for decision. 

9. In a post-hearing submission to the Tribunal the Applicant’s representative addressed issues raised at the hearing and also advised that the Applicant had instructed that there was an “incident” while he was on his way to Darwin in a boat in which he was travelling with both Tamils and Sinhalese.  It was claimed he had been involved in an altercation with Sinhalese crew members (who may have been Sri Lankan Navy personnel) and that he was threatened as a result.  He also claimed the Tamils were on the lower level of the boat with very limited access to food, warm clothing and bathroom facilities and that they had experienced a lot of discrimination from the Sinhalese, including threats and physical abuse.  It was submitted that the problems experienced by the Applicant with the Sinhalese during the 15 day journey were indicative of the societal discrimination by Sinhalese towards Tamils in Sri Lanka.  The representative also referred to country information regarding violence to and discrimination against Tamils. 

10. By letter dated 10 October 2013 the Tribunal invited the Applicant to provide “recent relevant information” given the passage of time since his post-hearing submission and to address issues about his claims about events that occurred on the boat on which he travelled to Australia.  The Applicant’s representative responded with a further submission. 

11. On 21 October 2013 the Tribunal advised the Applicant, through his representative, that in accordance with Ministerial Direction No. 56 it must have regard to a DFAT Country Information Report on Sri Lanka dated 31 July 2013 (a copy of which it provided to the representative).  On 28 October 2013 the Applicant’s representative made a further written submission responding to this information and addressing issues raised in the DFAT report. 

12. The Tribunal subsequently wrote to the Applicant inviting him to comment on information pursuant to s.424A of the Migration Act 1958 (Cth) (the Act). The Applicant’s representative responded by letter of 9 December 2013.

Tribunal Decision

1. In its reasons for decision the Tribunal summarised the Applicant’s claims and his evidence at the hearing in some detail.  

2. In its consideration of the Applicant’s claims, the Tribunal first addressed the Applicant’s claim that in 2006 a young man was shot and injured by men from the EPDP, a pro-Government paramilitary group, and was subsequently taken to hospital on the Applicant’s motorcycle.  He was later told the victim was a member of the LTTE.  The Applicant claimed that thereafter people from the EPDP came looking for him and that the EPDP had ongoing suspicions about whether he supported the LTTE.  He also claimed to fear that the EPDP would have passed his name on to the authorities. 

3. The Tribunal accepted that the Applicant was a 30 year old Tamil from the Jaffna district of Sri Lanka.  Despite expressing some doubt about the veracity of his claim that his motorcycle had been used to convey a young Tamil man to hospital in August 2006 after a shooting by members of the EPDP (in light of changes in his evidence and a lack of clarity in the claim), the Tribunal accepted that the Applicant’s motorcycle may have been borrowed as he claimed.  It also accepted that a priest who had provided a supporting letter may have believed the matters asserted in his letter about this incident.  However, as the Applicant told the Tribunal that the priest only knew about his problems since 2006 because he and his mother and brother had told the priest, the Tribunal did not consider that the priest was a reliable and independent source of evidence in this respect. 

4. The Tribunal also accepted that it was not implausible that the EPDP might have visited the Applicant’s family home in August 2006.  However it was not satisfied that the Applicant was of any interest to the EPDP thereafter.  It was of the view that the general reliability of the Applicant’s claim to be of ongoing interest to the EPDP was undermined by his late claim that the Tamil who was killed and others who were injured in the claimed 2006 incident were senior members of the LTTE who were planning an attack.  It recorded that this aspect of the claim had been raised for the first time to the Tribunal.  While the Applicant had explained that he only found out that the men were LTTE members in 2012, the Tribunal had regard to the absence of any mention of this aspect of the claim in the detailed account in the Applicant’s written and oral evidence to the Department referred to in the delegate’s decision of April 2013 and the fact that he did not claim to have ever mentioned it to the Department.  The Tribunal found that the late introduction of this significant claim cast serious doubt on its veracity.  While the Tribunal accepted that it was possible that people were attacked by the EPDP if they were suspected of some link with the LTTE, it did not accept that the victims in the claimed 2006 incident were senior members of the LTTE who were planning an attack.  It was satisfied that this claim was untrue.

5. In addition, the Tribunal found it illogical that the EPDP would have any serious ongoing suspicions about the Applicant, given that he was not previously known to them as a supporter of the LTTE.  It was of the view that the unplanned use of the Applicant’s motorbike to take an injured man to hospital provided little basis for suspecting he was involved with the LTTE.  The Tribunal found that if members of the EPDP did visit the family home in the month in which the 2006 incident occurred as claimed, the fact that they never returned suggested that they recognised that it provided no basis for suspecting that the Applicant was involved with the LTTE. 

6. The Tribunal had regard to evidence from cited sources that the EPDP was providing intelligence to the Sri Lankan government at the time of the 2006 incident.  It was satisfied that if the EPDP had suspected the Applicant of supporting the LTTE, it would have passed his name on to the Sri Lankan authorities.  However the Applicant’s evidence was that he was never questioned by government agents about links with the LTTE, despite repeatedly travelling in and out of the country both before and after the war and despite the fact he had registered with the police in two different places in Sri Lanka.  The Tribunal was satisfied that the EPDP never gave the Applicant’s name to the Sri Lankan authorities and found that the most obvious inference to be drawn from this was that the Applicant was not suspected of any involvement with the LTTE. 

7. The Tribunal also had regard to the fact that the Applicant’s claims that the EPDP had an ongoing interest in him had been very vague (in ways it described).  It also found it significant that the Applicant’s claim that his mother had heard from other people that the EPDP were making inquiries about him after his arrival in Australia was not made until the Tribunal hearing.  The Tribunal was not satisfied that this was true. 

8. The Tribunal considered it far-fetched to think that the fact of an incident in early 2013 in which the Applicant’s brothers and friends had been involved in a fight in Jaffna (which he alleged the EPDP may have been behind) indicated that the EPDP had the Applicant in mind some six years after the incident involving the bike.  The Tribunal was satisfied from the Applicant’s account of this 2013 incident that there were local tensions at the time that led to the fight and that it was unrelated to any suspicions about the Applicant.

9. The Tribunal was not satisfied that the EPDP had any suspicions that the Applicant is or was a supporter of the LTTE. 

10. The Tribunal was also satisfied that prior to his departure for Australia the Applicant was under no greater suspicion from the Sri Lankan authorities than other politically-inactive Tamils from the North.  It had regard to his evidence about the behaviour of the authorities towards him which it found made it obvious that the authorities had no specific information about the Applicant from which they might have inferred that he had an anti-government opinion or actively supported the LTTE.  It found that this remained the case after the war’s end.  It also had regard to the fact that the Applicant was able to travel in and out of Sri Lanka “in his own identity”, including after he was deported from Singapore, and the fact that he had been issued with a new passport and travel document.  It found that, on his evidence, the authorities had showed no interest in where the Applicant had been, whether he had been in contact with LTTE supporters abroad or whether he had applied for asylum. 

11. The Tribunal accepted that after the Applicant moved to Colombo in 2007 soldiers had asked his mother about his whereabouts.  Such enquiry was said to be consistent with the intense monitoring by security forces in Jaffna at the time.  However the Tribunal found that the fact that the SLA made no further inquiries and the Applicant travelled unhindered in and out of the country and registered with the police in two places illustrated that he was under no suspicion by the state of supporting the LTTE or of being involved in anti-government activities. 

12. The Tribunal was satisfied that, prior to his journey to Australia in 2012, the Applicant was not under suspicion by either Sri Lankan authorities or by the paramilitary EPDP of involvement with the LTTE or in any anti-government activities.  It was also satisfied that he had not been subjected to any serious harm.  The Tribunal noted that the Applicant had not previously sought asylum in any country he visited or made inquiries about doing so.  It inferred from this that the purpose of the Applicant’s earlier travel was not to seek protection from serious harm in Sri Lanka. 

13. The Tribunal considered the Applicant’s claims that in the future he would be suspected by the Sri Lankan authorities of involvement with or support for the LTTE for a number of reasons.  It recorded that the reasons for such suspicion were variously said to be because the Applicant was a Tamil; a “young Tamil male”; a “young Tamil male from Jaffna”; because in 1996 his family had lived in Vanni, which was an LTTE stronghold during the war; because his family had assisted a young man shot by the EPDP; because of his long absences from his home town; and as a failed asylum seeker from Australia.  He also claimed to fear the EPDP would kill him.

14. The Tribunal accepted that the Applicant was treated with suspicion in Chilaw (where he lived from 2008 to 2010 and again from February to May 2012) as a Tamil from the north and that he was interrogated at a police station on one occasion in 2010 having been picked up because he was a Tamil from Jaffna.  The Tribunal found that if the Applicant was also “beaten up” on this occasion, as he claimed at the hearing, it was not satisfied this was an instance of serious harm.  It had regard to the fact that he did not make such a claim in his statutory declaration in support of his protection visa application and that his description of his subsequent contacts with the police had referred to him being “hassled”, with the police wanting bribes, but that he had not characterised his treatment as serious harm.  It found that this was consistent with the Applicant’s return to Sri Lanka for several months in 2012 before coming to Australia. 

15. The Tribunal found that it was satisfied that (at paragraph 83):

    … despite being a Tamil, a “young Tamil male”, a “young Tamil male from Jaffna”, a person whose family had lived in the Vanni, a person whose family had assisted a man shot by the EPDP, and a person who had had long absences from his home town, the applicant was not imputed with an anti-government or pro-LTTE political opinion for any of these reasons and was not being persecuted up to July 2012 when he most recently left Sri Lanka. 

16. The Tribunal therefore considered whether circumstances had changed since that time, such that the Applicant had a well-founded fear of persecution for one of the reasons in the Refugees Convention or met the complementary protection criterion. 

17. The Tribunal had regard to country information, in particular UNHCR 2012 Guidelines which indicated that Tamils “per se” were not a group “at risk”, and to the Applicant’s evidence that while his fear “arose from” being a Tamil, it was “more about” the suspicions he had been involved with the LTTE.  The Tribunal acknowledged that additional potential risk factors were the fact that on the Applicant’s return to Sri Lanka it would be known to the authorities that he had left Sri Lanka illegally without a travel document and that he had been in Australia and had sought asylum.  It also recognised that a further factor which differentiated the Applicant from many other Tamils being returned unwillingly from Australia to Sri Lanka, was his claim that he was involved in an altercation with Sinhalese crew members of the boat on which he travelled to Australia (who he claimed “may” have been Sri Lankan Navy personnel) and that he was threatened as a result.   

18. Having regard to the fact that the UNHCR Guidelines stated that Tamil’s “per se” were not at risk of serious harm in Sri Lanka, the Tribunal was not satisfied that if the Applicant returned to Sri Lanka he would have a well-founded fear of being persecuted for the Convention reason of his race. 

19. In addition, for reasons which it gave, the Tribunal was not satisfied that the Applicant had a well-founded fear of being persecuted because of a political opinion being imputed to him for any or all of the claimed reasons, that is, because he was a young Tamil male from Jaffna; because his family had lived in the Vanni; because he assisted a man shot by the EPDP; because of his long absences from his home town; as a failed asylum seeker returning to Sri Lanka and/or because of his illegal departure from Sri Lanka. 

20. While the Tribunal accepted the Applicant was a young Tamil male from Jaffna, it had regard to his past travel without difficulty, including the fact that he had been issued with a travel document in Nepal and allowed to re-enter Sri Lanka unhindered and to the fact that he said there was no official record indicating he was linked to the LTTE.  It also took into account the fact that the authorities had shown no suspicions about or interest in the Applicant despite the fact it would have been apparent to the authorities that he was a young Tamil male from Jaffna.  It had regard to the absence of evidence that the Applicant’s brothers (who also had such personal characteristics) were being persecuted on this basis and to the UNHCR Guidelines.  The Tribunal was not satisfied the Applicant would be imputed with a political opinion because he was a young Tamil male from Jaffna. 

1. On the evidence before it the Tribunal was satisfied that having lived in the Vanni in 1996 was no longer a factor that led the authorities to impute an anti-government or pro-LTTE political opinion to an individual and that it would not do so in the case of the Applicant. 

2. As indicated, despite the claim the Applicant assisted a man shot by the EPDP in 2006, the Tribunal was not satisfied the EPDP had any ongoing suspicions about or interest in the Applicant.  The Tribunal found the fact that the Applicant was never stopped or questioned on any of the several occasions he travelled in or out of Sri Lanka strongly indicated a lack of any suspicion about his political activities, either in Sri Lanka or abroad. 

3. The Tribunal accepted that it was plausible that security forces had visited the Applicant’s family home in 2012 and enquired about his whereabouts, but did not think that such an apparently routine enquiry indicated any particular suspicion about the Applicant’s activities while away from home.  It acknowledged there was country information as to the high presence of Sri Lankan military in the north and that all returning Tamils were subject to some checks and registration.  However, given the high number of internally displaced returning Tamils and the absence of any adverse information about the Applicant that might differentiate him from others, the Tribunal did not accept that the Applicant would be imputed with a political opinion and harmed as a result. 

4. The Tribunal also considered whether the Applicant had a well-founded fear of persecution by reason of being a “failed asylum seeker returning to Sri Lanka” and/or his “illegal departure” from Sri Lanka.  In this context the Tribunal accepted that “Tamil men returning to Sri Lanka as failed asylum seekers or something similar may exist in Sri Lanka as a particular social group”.  It considered country information and the Applicant’s submissions concerning returned asylum seekers.  It accepted that some of those who returned to Sri Lanka had experienced serious human rights abuses at the hands of the authorities, but was satisfied that those cases involved people suspected of LTTE links or who were criminal suspects.  It was not satisfied that this would be the case for the Applicant.  Nor did the Tribunal accept that the fact of the Applicant’s Tamil ethnicity would increase the risk that he would be harmed as a failed asylum seeker.

5. Based on country information about routine questioning of all ethnic groups and security checks, the Tribunal accepted that the Applicant would be subjected to scrutiny on re-entry to Sri Lanka.  It also accepted that returnees who had voluntarily returned to Sri Lanka were visited by the military or police at home after arrival and that if the Applicant was an involuntary returnee he would be more likely to receive such a visit.  However the Tribunal was not satisfied that the Applicant would be harmed under these circumstances unless the authorities had reason to “newly suspect” him of an association with the LTTE.  The Tribunal was of the view that there was no such suspicion in 2012, so that any reason to suspect the Applicant could only come from his having sought asylum abroad.  On the available evidence the Tribunal was not satisfied that merely seeking asylum in Australia might give rise to such a suspicion.  The Tribunal did not accept that the Applicant would suffer harm on return to Sri Lanka because of his membership of a particular social group such as returned Tamil failed asylum seekers. 

6. The Tribunal did accept that under tightened procedures adopted in 2012 returnees believed to have left Sri Lanka in breach of the Immigration and Emigration Act were, regardless of ethnicity, arrested at the airport and brought before a court to apply for bail. It continued (at paragraph 101):

   … This is a law of general application.  I accept this will apply to the applicant as he left Sri Lanka without his passport.  There is limited evidence before the tribunal as to how a person with this profile might be treated.  However for adults bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety.  The evidence indicates that if the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison for a few days until a bail hearing is available.  Conditions in remand have been described as dirty, cramped and uncomfortable, although there have been no reports that individuals awaiting bail hearings have been intentionally ill-treated. 

7. The Tribunal had regard to evidence about the likelihood of a fine and the level of such fine on conviction and found that there was insufficient evidence that such penalty would be applied in a discriminatory way towards the Applicant for any Convention reason.  The Tribunal was not satisfied that this would occur.  The Tribunal stated:

   103. Having considered the currently available information I am not satisfied that the treatment afforded returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution, or that that treatment would be for a Convention reason.  The applicant himself did not dispute this.  It follows I am not satisfied he would face persecutory treatment for such a reason if he were to return to Sri Lanka.

   104. There is not a real chance that the applicant would suffer harm on return to Sri Lanka because of his membership of a particular social group such as “Tamil men returning to Sri Lanka as failed asylum seekers”.

   105. Having considered the available information I am not satisfied that the treatment afforded returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to ‘serious harm’ to the applicant, and systematic and discriminatory conduct.  It follows that, on the basis of the current available evidence, I am not satisfied there is a real chance that the applicant would suffer persecution for his illegal departure if he were to return to Sri Lanka.

8. For these reasons the Tribunal found that the Applicant did not have a well-founded fear of being persecuted for a Convention reason in Sri Lanka.

9. The Tribunal considered the complementary protection criterion.  It reiterated that it had accepted that on return to Sri Lanka the Applicant would be questioned at the airport under circumstances described in a cited DFAT report.  It noted that he did not claim he would be significantly harmed there.  It was satisfied that this would not occur. 

10. The Tribunal accepted (at paragraphs 109 to 112) that because the Applicant had breached the Immigration and Emigration Act:

    109. … he will then be briefly detained on remand before being released on his own recognisance, again as DFAT describes in its 2013 report.  That report observes that for offences committed under the I&E Act, a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees may be applicable.  The Attorney-General’s Department advises that no one to date has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future.  The report does not refer to fines issued to people who have been returned to Sri Lanka, only to those who have attempted to leave. 

    110.  It has been argued that conditions in Sri Lankan jails are poor and that detainees are known to be subjected to torture and other forms of significant harm.  There is evidence to that effect.  For example DFAT noted in 2013 that Sri Lankan citizens of all ethnic groups have been tortured and/or abused by the police and security forces.  This includes reports of torture resulting in death.  Such allegations come from a wide range of actors, including political activists, suspects being investigated for criminal offences and civilians detained in all parts of Sri Lanka, including in relation to suspected LTTE connections.  While DFAT observes that there is no evidence “all” such reports are credible, that is not necessary.  The fact that such allegations are widespread and are consistent with evidence from numerous sources including the International Crisis Group regarding Sri Lanka’s very poor human rights record, satisfies me that some detainees in Sri Lanka are subjected to torture, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’.

    111.  I accept on the basis of the evidence that the applicant will be placed in the remand section of Negombo prison for no more than a few days until his bail hearing.  I accept that conditions in remand are dirty, cramped and uncomfortable for all but there have been no reliable reports that people returned from Australia have been subjected there to the treatment described above.  That may be attributable to the brevity of their detention or to some as yet other unknown factor, but in any case I am satisfied that if it were occurring it would have become unknown by now.     

    112. No evidence has been submitted, and I have no evidence from any source, that individuals awaiting these bail hearings have been subjected to torture, or to “cruel or inhuman treatment or punishment” as it is defined under the Complementary Protection criterion.  As to whether being held in dirty, cramped and uncomfortable conditions for up to a few days is “degrading treatment or punishment”, this is again exhaustively defined as “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable …”.  On the basis of the evidence I am not satisfied that the conditions the applicant will experience on remand will fall into this category.  There are no substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm while on remand. 

11. On the evidence before it the Tribunal was also not satisfied that a risk of significant harm to the Applicant by state agents may arise after release from remand.  It had regard to the absence of any past harm on the occasions the Applicant had re-entered Sri Lanka and the absence of evidence that Tamils returned to Sri Lanka from Australia (having left illegally and being failed asylum seekers) had been significantly harmed on return because they had such a profile. 

12. The Tribunal addressed the Applicant’s claims that there was an altercation with Sinhalese crew members or passengers on the boat on which he travelled to Australia and that he was threatened with being killed as a result.  It accepted, based on country information and the Applicant’s consistent claims, that “his evidence about the threats, and about the likely SLN background of the boat’s skipper and crew, are quite credible, and his fear of these men understandable”.  However it was satisfied that this claim did not bring the Applicant within the complementary protection criterion.  It had regard to the fact that the Applicant’s evidence was that although the Sinhalese on board knew he was from a particular place in Sri Lanka, none of them, whether crew or passengers, knew his surname or his home address in Sri Lanka.  Further, to his knowledge they were from the Negombo area, which was far from his home town in Jaffna.  In addition, the Tribunal had regard to evidence (put to the Applicant for comment after the Tribunal hearing) that four members of the Sri Lankan Navy had been arrested in August 2013 for allegedly trying to smuggle asylum seekers to Australia and had been taken into custody pending charges of assisting illegal emigration.  The Tribunal accepted that these people may not be the crew members who had threatened the Applicant, but found that this evidence indicated that the members of the crew who had threatened the Applicant were likely to be deterred from drawing attention to their illegal activities by harassing or harming him.

13. In addition, for the reasons given in relation to the Refugees Convention criterion, the Tribunal was not satisfied that the Applicant met the complementary protection criterion based on his claimed fears of being harmed by the Sri Lankan authorities or the EPDP.  The Tribunal affirmed the delegate’s decision. 

These Proceedings

1. The Applicant sought review by application filed in this court on 12 March 2014.  He now relies on an amended application filed on 29 January 2015.  The hearing of this matter was adjourned by consent to await then pending decisions of the Federal Court in Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069 and SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. After the resumed hearing, the parties were given the opportunity to make additional post-hearing submissions, including after the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

Whether failure to consider claims or evidence cumulatively

1. The first ground in the Amended Application is as follows:

   The RRT accepted that I am a Tamil from the North of Sri Lanka, I would be detained at the airport as a failed asylum seeker departed Sri Lanka illegally and I lived in the LTTE controlled areas but it has failed to consider cumulatively these facts along with the information before the RRT and the country information on Sri Lanka indicates that that (sic) the failed asylum seekers are held in prison several days in overcrowded and unpleasant conditions.  The prison conditions are poor.  These combined facts will place me in great danger. 

2. The Applicant repeated this ground in his written submissions of 21 March 2016.  He also contended in his written submissions that there were “additional errors” in that the Tribunal “failed to take into account [the Applicant’s] evidence to discern a Convention reason” and that the “particulars” to this “error” were that the Tribunal failed to “having (sic) regard to the claims cumulatively” and “failed to make a finding based on the facts”.  The Applicant also submitted that the Tribunal had erred in failing to make a finding in relation to his fear of the EPDP. 

3. As the First Respondent submitted, ground one and these other contentions do not establish jurisdictional error. 

4. The Tribunal considered the Applicant’s personal characteristics, including his ethnicity and place of origin, in assessing his claims that he would be suspected by the authorities or the EPDP of involvement with the LTTE or in anti-government activities or on the basis of an imputed political opinion.  It considered, in that context and more generally, his claimed fear of harm based on being a failed asylum seeker returning to Sri Lanka and/or because of his illegal departure from Sri Lanka.  It addressed these claims both in the context of the Refugees Convention criterion and the complementary protection criterion. 

5. The Tribunal also considered the Applicant’s claims cumulatively.  In particular, in the context of considering the Applicant’s claims to fear harm as a failed asylum seeker who had departed Sri Lanka illegally, the Tribunal accepted that there may be a particular social group of “Tamil men returning to Sri Lanka as failed asylum seekers or something similar” but, based on country information, did not accept that the fact of the Applicant’s Tamil ethnicity would increase the risk that he would be harmed as a failed asylum seeker.  It concluded that he would not suffer harm on return to Sri Lanka because of his membership of a particular social group of Tamil men returning to Sri Lanka as failed asylum seekers. 

6. Insofar as this ground refers to the fact that the Applicant had lived in an LTTE controlled area, the Tribunal gave consideration to whether he would be imputed with a political opinion and harmed, not only as a failed asylum seeker who departed illegally, but also by reason of any suspected association with the LTTE (which, it had been suggested, may have been because his family had lived in the Vanni).  However, consistent with its earlier findings, including in relation to the fact the Applicant had lived in the Vanni in 1996 and was from Jaffna, the Tribunal was not satisfied that the authorities suspected the Applicant of being associated with the LTTE.  Nor was it satisfied that merely seeking asylum in Australia would give rise to such a suspicion. 

7. Further, as described above, the Tribunal acknowledged that returnees who were believed to have left Sri Lanka in breach of the Immigration and Emigration Act (as would be the case for the Applicant) were subject to scrutiny at the airport, arrested and brought before a court to apply for bail. However it found that such scrutiny on re-entry applied “regardless of ethnicity” and that the Immigration and Emigration Act was a law of general application and that there was insufficient evidence that any likely penalty (or a fine) would be applied to the Applicant in a discriminatory way or for any Convention reason.

8. This is contrary to the suggestion that the Tribunal failed to consider the Applicant’s attributes in considering whether he faced harm as a failed asylum seeker and/or as a returnee who departed Sri Lanka illegally.

9. Further, the Tribunal considered the possibility of detention of the Applicant on remand.  It accepted that if arrival in Sri Lanka occurred over a weekend or on a public holiday a returnee who was believed to have left the country in breach of the law would be placed in the remand section of Negombo Prison for a few days until a bail hearing was available.  It acknowledged that conditions in remand had been described as “dirty, cramped and uncomfortable”.  However, the Tribunal also had regard to the fact that there were no reports that individuals awaiting bail hearings had been intentionally ill-treated.  Having considered the available information, the Tribunal was not satisfied that the treatment that would be afforded to returnees for departing Sri Lanka unlawfully, either at the airport on arrival, on remand while awaiting a bail hearing or when dealt with by the courts amounted to “serious harm”, systematic and discriminatory conduct, persecution or significant harm.  It did not fail to consider the “combined facts” in this respect in a manner constituting jurisdictional error.   

10. In particular, the Tribunal considered whether being placed in the remand section of Negombo Prison in dirty, cramped prison conditions for a few days would amount to significant harm within the complementary protection criterion.  In that context, and contrary to the assertions in ground one, the Tribunal again addressed the country information in relation to poor conditions in Sri Lankan jails and evidence that some detainees were subjected to torture and other forms of significant harm, including those with suspected LTTE connections.  However it had already found that the Applicant was not under suspicion by the authorities of involvement with the LTTE and that he would not be suspected of LTTE-links.  Nor was it satisfied that his Tamil ethnicity would increase the risk he would be harmed as a failed asylum seeker.  It found that there had been no reliable reports that people returned from Australia and held on remand had been subjected to the treatment described in reports in relation to Sri Lankan jail conditions generally.  It acknowledged that this may be attributable to the brevity of returnees’ detention on remand or to some other, as yet unknown, factor, but was satisfied that if such treatment were occurring to those held on remand it would have become known by the time of the Tribunal decision. 

11. The Tribunal also had regard to the fact that no evidence had been submitted for the Applicant and there was no evidence before it from any other source that individuals awaiting bail hearings had been subjected to “torture” or “cruel or inhuman treatment or punishment” as defined for the purposes of the complementary protection criterion in the Migration Act. It considered whether being held in dirty, cramped and uncomfortable conditions for up to a few days constituted “degrading treatment or punishment”. In that context it referred to the exhaustive definition in the Migration Act of “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable”.  On the basis of the evidence before it, the Tribunal was not satisfied that the conditions the Applicant would experience on remand would fall within this concept.  In this way it considered the “combined” facts and information referred to in ground one and in the Applicant’s submissions.

1. Insofar as in submissions the Applicant also contended that the Tribunal had failed to consider his fear of the EPDP, such claim is not made out.   

2. The Tribunal considered at some length the Applicant’s claims about the interest of the EPDP in him from 2006 on.  As set out above, it was satisfied that prior to his journey to Australia in 2012 the Applicant was not under suspicion by the paramilitary EPDP or the authorities of involvement with the LTTE or in any anti-government activities and that he was not being subjected to any serious harm at that time.  The Tribunal also considered the Applicant’s other characteristics relevant to whether he had a well-founded fear or persecution at the time of his departure from Sri Lanka.  It went on to find that his circumstances had not changed in this respect.  It was not satisfied that the EPDP had any ongoing suspicions about him.  The Tribunal relied on its earlier findings in this respect in considering the Applicant’s claim to fear being harmed by the authorities or the EPDP in the context of the complementary protection criterion. 

3. Beyond this, if the Applicant’s concern is that the Tribunal did not accept that he had a fear of serious or significant harm within the Refugees Convention or the complementary protection criteria, he seeks impermissible merits review. 

4. The Tribunal did not fall into error in the manner suggested in ground one or in the Applicant’s submissions. 

Whether the Tribunal erred in its consideration of “intention”

1. Ground two in the Amended Application is as follows:

   The RRT made an error when deciding that cruel or inhuman treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions.  The RRT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.

   The Applicant repeated this ground in his written submission. 

2. As the First Respondent submitted, it appears that by this ground the Applicant sought to replicate the argument that was considered and rejected by Judge Driver in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 at first instance. In SZTAL it was  contended that the Tribunal had erred in its construction of the phrase “intentionally inflicted” and the concept of “intention” in the definitions of conduct which amount to significant harm for the purposes of the complementary protection criterion in the Migration Act, on the basis that harm may be intentional “in circumstances where the person has knowledge of the probability of the occurrence of suffering, and probably also if the person merely foresees the possibility of its occurrence” (see SZTAL at [45]).  Judge Driver found (at [49]), referring to SZSPE v Minister for Immigration and Border Protection & Anor [2014] FCA 267, that the Tribunal did not err in concluding that the notion of “intentionally inflicted” connoted the existence of “an actual, subjective, intention on the part of a person to bring about the suffering by his or her conduct”. 

3. The Full Court of the Federal Court dismissed an appeal from this decision (see SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69).

4. On appeal to the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, the appellant submitted that the term “intention” included “objective intention” such that the “conditions of “intentional infliction of pain or suffering” or “intentionally causing extreme humiliation” are satisfied if a person does an act knowing that the act will, in the ordinary course of events, inflict pain or suffering, or cause extreme humiliation”. The majority of the High Court rejected this submission and dismissed the appeal. Kiefel CJ, Nettle and Gordon JJ found (at [26]) that the references to intention in the s.5(1) definitions of categories of conduct constituting significant harm were to “actual, subjective, intent”.  Edelman J agreed (at [114]) (while Gageler J dissented). 

5. Having regard to the approach taken by the High Court in SZTAL, ground two cannot succeed.  Hence it is not necessary to determine whether, as the First Respondent contended, the issue considered in SZTAL did not arise on the face of the Tribunal’s reasons because the Tribunal’s conclusion (in paragraph 112 of its reasons set out at [42] above) was that the “conditions” faced by the Applicant on remand would not rise to the level of significant harm, whether or not they were intentionally inflicted. 

Other issues

1. The First Respondent also addressed the potential relevance of the decision of Griffiths J in Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069 on appeal from SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978. At first instance Judge Emmett had found that the Tribunal had failed to accord the applicant (a Sri Lankan who had departed illegally) procedural fairness as required by s.425(1) of the Act in failing to raise with him at the Tribunal hearing the issue of whether a family member was required to pay surety to enable him to be bailed (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). Her Honour reached such a conclusion in circumstances where a transcript of the Tribunal hearing was in evidence and the Tribunal had found that “bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety”.  Judge Emmett was of the view (and see the decision of Griffiths J on appeal at [33]) that the Tribunal in SZTQS had concluded that the applicant had a family member with the “ability to pay” a surety, but that this conclusion was not obviously open on the known material. 

2. On appeal to the Federal Court the matter appears to have proceeded on the basis that the reference to “surety” in the Tribunal decision was a reference to the applicant’s family paying surety for his release.  Griffiths J found no error in Judge Emmett’s conclusion that the Tribunal had failed to identify this as a dispositive issue during the hearing in accordance with the principles in SZBEL (see SZTQS at [45]). 

3. It is the case that the Tribunal in this case also found that “for adults bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety”.  However, the First Respondent submitted that the present case was not analogous to SZTQS, because it was not a crucial plank in the Tribunal’s reasoning that a family member would provide surety for the Applicant in the sense of making a payment in order for him to obtain bail with respect to any prosecution for his contravention of the Immigration and Emigration Act of Sri Lanka.

4. As pointed out by the First Respondent, in this case the Tribunal expressly referred to and relied on a 2013 DFAT Report (to which it was obliged to have regard under Ministerial Direction No. 56 and which had been brought to the attention of the Applicant’s representative by letter of 21 October 2013) which clarified the meaning of the “surety” requirement.  This Report discussed the application of the law and practice in relation to the treatment of returnees who had departed Sri Lanka illegally and included the explanation (at paragraph 3.78-3.79):

   3.78.  For offences committed under the I&E Act, a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees may be applicable.  The Attorney-General’s Department advises that no one to date has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future.  The Department further advises that the Magistrates Court in Colombo has been handing out fines of around 5,000 Sri Lankan Rupees for persons attempting to depart Sri Lanka irregularly on boats.  However, in Negombo, the magistrate, who handles a large number of these cases, has been handing out fines up to 50,000 Sri Lankan Rupees to act as a deterrent.

   3.79.  Since November 2012, Sri Lankan irregular maritime arrivals (IMAs) returned from Australia have been charged under the I&E Act for offences related to departing Sri Lanka and remanded in police custody until they are presented to a magistrate at the first available opportunity.  The International Organization for Migration (IOM) has advised DFAT that, from their experience in delivering post-arrival support for voluntary returnees from Australia, those who have departed illegally under Sri Lankan law have been arrested by the police at the airport.  They have been taken by the police from the airport and presented at the Negombo Magistrates Court at the first available opportunity.  The returnees have been granted bail on personal surety immediately by the magistrate.  Sometimes returnees then need to wait until a family member comes to court to collect them.  IOM is present with the returnee during this process (emphasis added). 

5. In light of this country information, it was open to the Tribunal to understand that the requirement that a family member “also … provide surety” was not a requirement that the family member make a payment in order for a person charged with having departed Sri Lanka illegally obtain bail. Consistent with such an understanding, in the context of considering the complementary protection criterion the Tribunal made it clear (at paragraph 109) that it understood on the basis of the country information before it that because the Applicant had breached the Immigration and Emigration Act, he would be “briefly detained on remand before being released on his own recognisance, again as DFAT describes in its 2013 report” (emphasis added).  This distinguishes the case from SZTQS. 

6. It has not been established that the Tribunal fell into jurisdictional error in this respect.  Moreover in the absence of a transcript of the Tribunal hearing the evidence does not establish that the Tribunal failed to raise a dispositive issue with the Applicant during the course of the hearing whether of the nature considered in SZTQS or otherwise. 

1. As no jurisdictional error has been established the application should be dismissed. 

I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  24 November 2017