SZUOX v Minister for Immigration

[2016] FCCA 2625

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUOX v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2625

Catchwords:
MIGRATION – Application to review decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.499

Cases cited:

AJW15 v Minister for Immigration and Border Protection [2016] FCA 197

AUE15 v Minister for Immigration and Border Protection (2016) 239 FCR 148; [2016] FCA 331

Minister for Immigration and Border Protection v SZUXN [2016] FCA 516

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611;

[2010] HCA 16

Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22
SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276; [2013] FCA 566
SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309
SZWCO v Minister for Immigration and Border Protection [2016] FCA 51
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZUOX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1736 of 2014

Judgment of: Judge Barnes

Hearing date: 29 September 2016

Delivered at: Sydney

Delivered on: 29 September 2016

REPRESENTATION

The Applicant: In Person

Counsel for the Respondents: Mr Reilly

Solicitors for the Respondents: DLA Piper

ORDERS

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

2. The application be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1736 of 2014

SZUOX

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 30 May 2014.  The Tribunal affirmed a decision of the delegate of the First Respondent not to grant the Applicant a protection visa.  The Applicant, a citizen of Sri Lanka, arrived in Australia in June 2012.  He attended a departmental interview.  His application was refused.  He sought review by the Tribunal.  He attended a Tribunal hearing. 

2. The Applicant claimed that the Sri Lankan authorities and paramilitary groups would harm him because in late 2008 he had discovered that Criminal Investigation Department (CID) officers and paramilitaries were using the house next to his to interrogate and mistreat people.  He claimed that after he disclosed this he was assaulted, that he resisted demands that he vacate the house and that when he reported the use of the house by an armed group to an emergency services line he was abducted and beaten by the officials and taken to a military camp from which he escaped. 

3. He claimed he then fled to another part of Sri Lanka where his in-laws lived, but was seen working in his father-in-law’s shop and that his father-in-law was questioned.  He claimed that subsequently, in February 2012, he was chased by a CID man who then put pressure on his father-in-law to report any sighting of him.  He made arrangements to leave Sri Lanka for his safety. 

4. He also claimed to fear harm on the basis of his Tamil ethnicity, his imputed political opinion for opposing the paramilitaries, and as a Tamil failed asylum seeker and a person who left Sri Lanka illegally. 

5. The Tribunal set out in some detail the claims made by the Applicant, in particular based on the incidents alleged to have occurred from 2008 onwards.  It observed that at the hearing it had some difficulty establishing the Applicant’s exact employment history and the arrangements concerning the house he lived in in 2008.  While the Tribunal accepted that some of this difficulty might be the result of genuine confusion, it stated that other areas remained “somewhat uncertain”.  The Tribunal expressed “general concerns” that the Applicant had not provided a “complete, reliable account of his activities as a whole”, in particular in relation to the period from 2009 on.

6. The Tribunal observed that the Applicant had not made any express protection claims pre-dating the alleged incidents in late 2008.  It referred to his background as a Tamil and events that he claimed had occurred during the conflict in Sri Lanka, which it accepted (including that his father was killed).  However it had regard to the fact that the Applicant had not claimed that he had any adverse profile arising from his father’s work or the circumstances in which he was killed or that was otherwise such as to suggest that the authorities, paramilitary groups, or anyone else, had an adverse interest in him for any reason arising out of events prior to late 2008.

7. The Tribunal then summarised the Applicant’s claims about his encounters with the authorities and paramilitaries from November 2008 to February 2009, including his claims that he discovered that CID and paramilitary men were using the house next to his; that they were using the property to detain and mistreat opponents; that he had disclosed this to the mother of a victim, which led to him being taken in and assaulted; that there was subsequently a demand that he vacate the family home for the use of those next door; that he called an emergency services line anonymously advising that an armed group was using the next-door house; and that in response officials abducted, and assaulted him and took him to a CID camp, from which he managed to escape.  

8. The Tribunal accepted that the Applicant had given a reasonably consistent account of these incidents.  It acknowledged that country information supported some aspects of such claims, but found that as information of this nature was very much in the public domain or the subject of discussion, knowledge of such matters was not necessarily based on personal experience.  It then set out in some detail concerns it had about the truthfulness of the Applicant’s account.

9. The Tribunal found several aspects of the Applicant’s claims puzzling or anomalous.  For instance, it was said to be “unclear” why the Sri Lankan authorities or paramilitaries would need to set up a small camp in a suburban or semi-residential area, or at least directly next to the Applicant’s home such that he could see the goings on and witness what occurred in the backyard. 

10. It recorded that the Applicant was unable to shed light on the authorities’ thinking or motivations in this respect, beyond presenting the facts as he allegedly saw them.  The Tribunal was of the view that any implication from this evidence that the CID and paramilitaries were perhaps indifferent to locals’ perceptions or overly confident they could behave with impunity or perhaps even deliberately aiming to terrify locals, was “mere speculation”.  It found that what was troubling was that none of these possible motives seemed to fit very well with the Applicant’s account of what had occurred in late 2008 and 2009.  The Tribunal considered “the scenario as a whole to be very problematic”. 

11. While the Tribunal was also concerned that the Applicant appeared to have embellished and added details to his claim over time, it did not wish to make to make too much of this “in isolation”. 

12. However, the Tribunal had regard to the elaboration of the Applicant’s claims at the Tribunal hearing, insofar as he mentioned, for the first time, that a fence had been erected around the neighbouring property when asked what had given rise to his suspicions.  When asked why he had not mentioned the fence previously (as the Tribunal considered that this seemed to be an obvious sign of potentially nefarious activities) the Applicant had said that he had not spoken about that in detail.

13. The Tribunal also expressed concern that the Applicant’s evidence had been vague and changeable in relation to ownership of the home he had lived in in 2008.  He had referred to the property as “my house” in his original application and at the departmental interview and claimed he sold his house to raise funds for his trip to Australia.  A supporting letter from a local member of Parliament also said that the Applicant sold his own house and then lived in a rental place in another part of Sri Lanka. 

14. The Tribunal was of the view that the issue of ownership of the property was relevant because, if truthful, it would help explain why the Applicant hesitated to abandon his property, even after realising what was going on next door.  However, at the same time, if the Applicant had owned this house, this raised the question of how he was able to put the property on the market and sell it, if the CID, Sri Lankan military or paramilitaries were in search of him.

15. It recorded that at the hearing the Applicant knew very little about what had happened to the house and said that his father‑in‑law had sold it at a loss, although he was not sure when this occurred and did not have further details.  Further, in a pre‑hearing submission and at the hearing, the Applicant had clarified that the house had actually belonged to his father-in-law and provided documentary evidence in this respect. 

16. The Tribunal accepted that the house represented a dowry from the Applicant’s father‑in-law for the Applicant and his wife to live in, but that the title remained formally in the father-in-law’s name.  It found that when the Applicant and his family moved, his father-in-law sold the house.  However the Tribunal was not satisfied that this sale (which documents provided indicated was in April 2010) demonstrated or supported the Applicant’s claims about living in the house in a virtual state of terror from November 2008 to February 2009; or that he went to another part of Sri Lanka for the reasons claimed; or that the sale of the house was related to the Applicant’s travel to Australia some two years later.  It was concerned that the Applicant’s evidence had been vague and changeable and found that the supporting statement from the Member of Parliament “should not be taken as wholly reliable”.

17. The Tribunal also expressed some doubts about the Applicant’s claim that he called an emergency number anonymously thinking this might prompt the authorities to take action about the armed group next door, whereas instead it resulted in him being abducted, seriously assaulted and detained.  The Tribunal was of the view there was little to indicate why the Applicant would think the police or other emergency services would tackle the CID or paramilitaries; whether he thought that his call would remain anonymous despite past tensions with the neighbours; or why he stayed at home after making the call.  It also remarked that it was “unsettled” by the Applicant’s evidence as to the treatment he undertook after being assaulted, relying on home remedies.

18. The Tribunal found that, considered cumulatively, these concerns raised strong doubts about the claimed events and the reasons for the Applicant’s move, such that it was not prepared to accept at face value that the claims were truthful.  However the Tribunal explained that it would make firm findings after assessing the claimed events from early 2009 on, that is, after the Applicant moved within Sri Lanka. 

19. The Tribunal described the Applicant’s claims about the move to the place his in-laws lived and a series of chance encounters with one of his former captors, which he claimed indicated to him that the CID and/or the TMVP were still motivated to find and punish him.  The Tribunal accepted that the Applicant had also been reasonably consistent in his presentation of these claims, but was concerned that he had struggled to provide detail or persuasive explanations to resolve a number of doubts and anomalies. 

20. The Tribunal had regard to a number of “serious concerns” about the Applicant’s claims that he was in hiding from the CID and paramilitaries from February 2009 until his departure from Sri Lanka in early 2012, except for a few chance encounters with one of his former captors.  In relation to the claim that his wife had not left their prior home at the same time as the Applicant, the Tribunal was of the view that if the neighbours were intent on capturing and punishing the Applicant they would have had an opportunity to locate him through his wife’s later movements as well as if she had left immediately.

21. The Tribunal also had regard to the fact that the Applicant had confirmed that his parents and three brothers continued to live in the part of Sri Lanka he had lived in in 2008.  It considered that this would have been another avenue for the CID to investigate and locate the Applicant had they wished to do so, but observed that there was no claim or evidence to suggest that the CID or others had bothered the Applicant’s family (but rather a claim that one of his brothers had helped with travel arrangements).  It noted that while the Applicant had emphasised that he was in hiding after he moved, in May 2011 he started working in his father-in-law’s shop.

22. The Tribunal found that, against the background of its already serious concerns, it disbelieved the Applicant’s claims that he moved in an (initially successful) attempt to evade the CID or other Sri Lankan official or paramilitary groups.  It was of the view that the CID or others could easily have ascertained (if the Applicant was of interest to them) that the house in which he lived in 2008 belonged to his parents-in-law.  It also had regard to the fact that while the Applicant claimed that around May 2009 his father-in-law had approached the armed group after he sold the house to divert their attention from the Applicant, the sales contract for the property showed an April 2010 date.  It found it surprising that the Applicant did not know when the property was sold if a key purpose was to divert his assailants from pursuing him.  The Tribunal also expressed concern that the Applicant claimed his father-in-law had told the armed group the Applicant had left the area, because in so doing he would have exposed his family link with the Applicant and provided the CID or the armed group with a means of tracking down the Applicant.

23. The Tribunal was also of the view that it would have been logical for the CID to search for the Applicant (if they were interested) in the place in which his father‑in‑law lived and worked.  It found it particularly difficult to believe that after one of his alleged captors allegedly saw the Applicant in his father-in-law’s shop in 2011, four CID officers called on his father‑in‑law without making the link that the Applicant was related to him.  It found “very problematic” the claim that the father-in-law (who, the Tribunal stated, must already have been known to the CID or the armed group to some extent as the property owner who had informed them that the Applicant no longer lived there) could have convinced the CID officers that the Applicant had only visited his shop as a casual worker.

24. The Tribunal found that, having regard to these “extensive” concerns, considered cumulatively, it disbelieved the Applicant’s claims to have discovered and exposed misconduct by the CID and armed groups, to be subject to their continued aggressive pursuit, and to have left Sri Lanka for his safety. 

25. It made findings consistent with these views.  It accepted the Applicant’s claims about where he lived and worked until February 2009 and that the property was sold about a year later after the family had moved to another part of Sri Lanka.  It accepted that the Applicant worked in his father‑in‑law’s shop for some time prior to travelling to Australia.  It did not accept his claims about living next to a property used by the CID or an armed paramilitary group or anyone else as a headquarters for local policing and similar activities, or about the events that he claimed he witnessed and what occurred as a result of this or the associated claims.  Nor did it accept the Applicant’s claims about chance encounters with former captors or that he fled Sri Lanka after the CID confronted and threatened his father-in-law or associated claims. 

26. The Tribunal found that the Applicant left Sri Lanka for reasons unrelated to his protection claims. 

27. Having rejected the Applicant’s claims that the CID or an armed paramilitary group was pursuing him while in Sri Lanka, the Tribunal also did not accept that there had been any subsequent follow up after his arrival in Australia, whether by way of questioning or remarks to the Applicant’s wife or father-in-law or a friend, as claimed.

28. The Tribunal accepted that the Applicant’s Tamil ethnicity, age and gender formed an essential backdrop to his experiences and the perceptions of the Sri Lankan authorities and others, but in light of its findings was not satisfied that any of these factors had caused him to suffer Convention-related persecution in the past.  Having considered his claims individually and cumulatively, the Tribunal did not accept that the Applicant had come into conflict with the CID, paramilitary groups or others, or that such groups had in the past or currently had any adverse interest in the Applicant for any reason.  Hence it was not satisfied the Applicant faced a real chance of serious harm amounting to persecution for a Convention reason on this basis.

29. The Tribunal then considered the other aspects of the Applicant’s Refugees Convention claims.  In considering his Tamil ethnicity it accepted that his family had suffered hardship during the civil conflict, but found that there was strong evidence, based on the Applicant’s schooling, employment, family circumstances and his residence in two areas in Sri Lanka, that he did not experience any serious harm amounting to persecution for reasons of his Tamil ethnicity in recent years.  It also found there was nothing to suggest that the Applicant was seen as having any LTTE links as a result of past events and his ethnicity. 

30. The Tribunal considered evidence that Tamils continued to face discrimination, but also had regard to UNHCR guidelines.  Given its assessment of the Applicant’s circumstances and those of his family, the Tribunal was not satisfied that the authorities or anyone else had suspected or would suspect the Applicant of having “certain links” to the LTTE. 

31. While the Tribunal accepted that the Applicant’s Tamil ethnicity may have resulted in some official and social discrimination, it did not accept that he had experienced serious harm amounting to persecution as a Tamil or for any associated reason.  Nor did it accept that he left Sri Lanka in anticipation of experiencing serious harm amounting to persecution for such reasons. 

32. Nonetheless, the Tribunal went on to consider the prospects of persecution of the Applicant in the future as a Tamil.  While it accepted that the Applicant may be at some risk of harassment if he returned to his home area, on the basis of the evidence about the past and his circumstances it was not satisfied that he faced a real chance of harassment or other harm involving serious harm amounting to persecution as a Tamil or a middle-aged Tamil male in Batticaloa, or for reason of any actual or imputed political opinion.

33. The Tribunal did not accept that the Applicant had an adverse political profile.  In particular, having rejected the factual basis for claims based on the events he claimed occurred in late 2008 and 2009, it was not satisfied he held any political opinion or conviction that had in the past or would in the future motivate him to engage in any relevant activity, or lead him to be perceived as an opponent of the Sri Lankan authorities.

34. The Tribunal did accept that the authorities would be able to identify the Applicant as a failed asylum seeker on his return to Sri Lanka.  It considered whether he faced a real chance of persecution on that basis.  It had regard to country information in relation to processing of returnees in Sri Lanka.  Such assessment was said to be based on the entirety of the material and the Applicant’s submissions, including, but not limited to, a DFAT report of July 2013.

1. The Tribunal recognised the need for caution in considering DFAT advice, but on the information before it was satisfied that any processing of returnees to Sri Lanka attracted scrutiny and that discriminatory treatment of Tamils on ethnic grounds would have come to light if it was occurring, but that it had not. 

2. It summarised the checks to which returnees were subject at Colombo Airport and the process of verifying identity.  It accepted that if a returnee had departed Sri Lanka illegally, information indicated that the authorities would present the person to court as soon as possible to apply for bail and that bail would usually be granted on the returnee’s personal surety, although on occasion a family member was required to attend and personally collect the person. 

3. The Tribunal was not aware of any factors that would prevent the Applicant being able to obtain bail on his own recognisance or on the surety of family members to whom it referred, particularly his father-in-law who was a retired government official and a businessman.  It was satisfied that the authorities would verify the Applicant’s identity on return and would ascertain that he was a failed asylum seeker and had departed illegally.  However it did not consider that such inquiries gave rise to a real chance of the Applicant facing serious harm amounting to persecution.

4. On the information before it the Tribunal was not satisfied that Tamils who were failed asylum seekers were at risk of Convention-related persecution for that reason alone.  It found on the evidence before it that the Applicant was not a person who would be suspected of pro‑LTTE or anti-government associations which might increase his risk of harm.  On the totality of the evidence, the Tribunal was not satisfied that the Applicant faced a real chance of serious harm amounting to persecution because of claimed perceptions or attitudes of the authorities treating Tamil failed asylum seekers as former LTTE members. 

5. The Tribunal considered in some detail the Applicant’s circumstances as a person who had departed Sri Lanka illegally, having regard to the application of Sri Lankan immigration laws, the punishment he may face and whether this would amount to significant harm.  It noted that the arguments in this respect had focused on the complementary protection criterion, but also considered these circumstances in the context of the Refugees Convention criterion.

6. On the available evidence, the Tribunal accepted that the Applicant had departed Sri Lanka illegally (as he claimed) and that he therefore appeared to have committed an offence under the Sri Lankan Immigrants and Emigrants Act (the I&E Act).  It had regard to information about routine identification by the authorities of those suspected of having committed such an offence, and the process of questioning, detention, processing and presentation to a court for a bail hearing at the earliest opportunity.  It accepted that where a returnee’s arrival occurred over a weekend or on a public holiday, such a returnee would be held in Negombo prison’s remand section, perhaps for a few days, until a bail hearing could be conducted.  It acknowledged that conditions in that prison were reported to be overcrowded and unsanitary, but found that there were no reports to indicate that the authorities or others had tortured or otherwise targeted returnees for mistreatment.

7. The Tribunal considered submissions asserting that there was torture of detainees in Sri Lanka with impunity and in relative secrecy.  It recognised that the Sri Lanka government had a poor human rights record and that there was a need for caution in assessing the prospects of those whom it may detain and question.  However, based on the available material and the fact that the welfare of Sri Lankan returnees had attracted some scrutiny, the Tribunal was not satisfied that Tamil returnees detained for relatively short periods who did not otherwise have an adverse profile faced a real chance of serious or significant harm.

8. While the Tribunal acknowledged that prison sentences could be imposed for offences under the I&E Act, it also had regard to evidence that indicated that the Sri Lankan courts had only imposed fines on returnees found guilty of illegal departure.  It considered the range of fines available and that had been imposed.  On the basis of country information and its findings, the Tribunal accepted that the Applicant’s illegal departure may be investigated at the airport, that he may be arrested and charged and possibly detained on remand for a few days pending a bail hearing and that he may be fined up to 50,000 LKR.  Although the Tribunal accepted that conditions in the Negombo prison were poor, it was not satisfied that such treatment, individually or cumulatively, involved serious harm. 

9. In the absence of an adverse profile with the authorities, it was not satisfied on the evidence as a whole that the mere fact of the Applicant returning to his home area as a failed asylum seeker gave rise to a real chance of persecutory harm.  

10. Overall the Tribunal concluded that it was not satisfied that the circumstances of the Applicant’s return to Sri Lanka, including the process at the airport, the general treatment of Tamil failed asylum seekers, and/or the prospects of prosecution for immigration law breaches, gave rise to a real chance of serious harm amounting to persecution.

11. The Tribunal summarised its conclusions about the Applicant’s claims and its lack of satisfaction that the circumstances or the Applicant’s situation as a whole gave rise to a real chance of the authorities or anyone else inflicting serious harm on him amounting to persecution for any Convention reason.  

12. It accepted the Applicant was a Tamil male who had suffered with his family during the civil war and that, despite a generally-improved security environment in his home area, the ongoing military presence, abuses by paramilitaries and the uncertain economic outlook, caused the Applicant some concern and to worry about his family’s future prospects.  However it was not satisfied that these broad concerns gave rise to a well-founded fear of Convention‑related persecution and engaged Australia’s protection obligations.

13. The Tribunal also considered the complementary protection criterion in relation to which the Applicant’s advisor’s submissions had focused on processing of the Applicant as a Tamil returnee and his possible prosecution for breach of the immigration laws.  Having regard to its review of the claims, submissions and country information, the Tribunal was not satisfied that there was a real risk the Applicant would suffer significant harm as defined in the Migration Act 1958 (Cth). In particular, it was of the view that the Applicant’s likely brief detention (perhaps for several days in Negombo prison pending resolution of his status and any bail arrangements) did not give rise to a real risk of torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor was it satisfied that the Applicant faced a real risk of being imprisoned for any breach of immigration law, given its assessment that he did not have an adverse profile with the CID, other authorities or paramilitaries. His circumstances were said to differ markedly from reported instances of persons who had been mistreated on return or faced the prospect of a lengthy period in prison. The Tribunal found that the Applicant did not meet the complementary protection criterion. It affirmed the delegate’s decision.

14. The Applicant sought review in June 2014.  He now relies on an amended application filed in November 2014.  He did not file written submissions.  He was given the opportunity to address the grounds in his amended application or any other issues he had with the Tribunal decision or procedures.  Perhaps understandably, given that the amended application appears to have been prepared by or with the assistance of a lawyer, the Applicant was unable to elaborate on the grounds in the amended application. 

15. The Applicant contended that his claims about what had occurred to him in Sri Lanka were true and expressed concern on that basis.  In that respect he sought merits review.  As I endeavoured to explain to him, merits review is not available in this Court.

16. The first ground in the amended application is that the Tribunal’s decision was affected by legal unreasonableness.  The particulars to this ground are that: “The RRT relied upon the applicant’s inability to shed light on the authorities’ thinking or motivations beyond presenting the facts as he allegedly saw them as being a matter adverse to his credit when this inability was not probative to the assessment of credit.” 

17. It is apparent that this ground involves a reference to the part of the Tribunal’s decision in which it expressed a number of concerns about the truthfulness of the Applicant’s account of what occurred in late 2008 to early 2009.  In particular, in addressing the first of its concerns, the Tribunal indicated that it found several aspects of the Applicant’s claims puzzling or anomalous.  It stated that it was unclear why the authorities or paramilitaries would need to set up a small camp in a suburban or semi‑residential area where it could be seen from next door.  The Tribunal then observed that the Applicant had been unable to shed light on the authorities’ “thinking or motivations beyond presenting the facts as he allegedly saw them”.  While it found that the Applicant’s evidence implied a number of possible motivations (indifference, over-confidence or to deliberately terrify locals), it acknowledged that this was “mere speculation”.  The Tribunal explained that what troubled it was that none of these possible motives seemed to fit very well with the Applicant’s account of what he said had occurred in late 2008 and 2009.  “In sum”, the Tribunal “consider[ed] the scenario as a whole to be very problematic”. 

18. While the Tribunal was perhaps doing more than “simply noting” (as the First Respondent submitted) that on the Applicant’s own account the motivation of the authorities was unclear (as it referred to how possible implications of the Applicant’s evidence fitted with his account of events), it is apparent that the Tribunal was, in essence, expressing concern about the lack of clarity in the evidence as to why the Sri Lanka authorities or paramilitaries would have proceeded in the manner claimed by the Applicant.  This was one of a number of factors which, considered cumulatively, raised “strong doubts” about the claimed events in 2008 and 2009 and the reasons for the Applicant’s move to another part of Sri Lanka.  As well as these concerns, the Tribunal expressed and had regard to further “serious concerns” about events thereafter.  Taken cumulatively all these matters led the Tribunal to disbelieve the Applicant’s claims to have discovered and exposed misconduct by the CID and armed groups, to be subject to their continued aggressive pursuit and to have left Sri Lanka for his safety.

19. The concern raised in ground 1 as to reasonableness of the aspect of the Tribunal’s reasoning is to be seen in light of the exposition of the law in this respect in Minister for Immigration and Border Protection v SZUXN [2016] FCA 516 at [44]-[57] in which Wigney J considered in some detail the principles relating to legal unreasonableness in the decision-making process and when illogicality or irrationality in the decision-making process may constitute or justify a finding of underlying jurisdictional error. His Honour referred in that context to the approach taken by the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 and to the consideration of illogicality and associated issues in other Federal Court decisions.

20. Relevantly, while Wigney J accepted that jurisdictional error may be able to be established on the basis of illogical reasoning or illogical or irrational findings on the way to the final conclusion (as appears to be contended in this case), His Honour also made the point (at [55]) that such allegations must be considered against the framework of the inquiry as to whether there had been jurisdictional error on the part of the Tribunal and (consistent with other authority) that even if an aspect of the reasoning, or a particular factual finding, was shown to be irrational or illogical, jurisdictional error would generally not be established if that reasoning or finding of fact was immaterial or not critical to the ultimate conclusion or end result.

21. Further, also relevant to the present case, it was pointed out that if an impugned finding was one of but a number of findings that independently may have led to the Tribunal’s ultimate conclusion, jurisdictional error would generally not be made out, albeit that an irrational or illogical finding, or irrational or illogical reasoning leading to a finding, that an Applicant was not a credible or honest witness may, in some circumstances, lead to a finding of jurisdictional error, in particular where the adverse credibility finding was critical to the Tribunal’s decision.

22. In this case the adverse credibility finding was critical to the Tribunal decision.  However, considerable caution must be exercised before concluding that adverse findings as to credit expose jurisdictional error.  In any event, the Tribunal had regard to the anomalies and problematic aspects of the claimed scenario, rather than simply the absence of an explanation by the Applicant for the authorities’ motivations or thinking.  In that respect what concerned it was a lack of logic in the claim that the authorities would proceed in such a manner.  It also had regard to several other concerns about the claims about 2008 as well as about subsequent events before reaching its adverse credibility finding.  I am of the view that the Tribunal’s reference to the fact that the Applicant was unable to shed light on the authorities’ thinking such to assist it, was not critical to its reasoning in relation to credibility and was not in itself such as to render the decision one in which there was a lack of reasonableness or illogicality or irrationality in the reasoning process in the manner considered in SZUXN or in SZMDS such as to establish jurisdictional error.  The circumstances of this case are not such as to establish jurisdictional error in the manner contended for in ground 1 (see SZRLQ v Minister for Immigration and Citizenship (2013) 135 ALD 276; [2013] FCA 566 and SZWCO v Minister for Immigration and Border Protection [2016] FCA 51).

23. Ground 2 and 3 both assert that the Tribunal failed to comply with Ministerial Direction No. 56. Ground 2 asserts jurisdictional error on the basis of a contravention of s.499(2)(a) of the Migration Act 1958 (Cth).

24. The particulars to this ground assert that the Tribunal “failed to take into account the PAM 3 Protection Visas complimentary (sic) protection guidelines when it made a finding on whether the treatment that applicant (sic) would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment”. 

25. This appears to be a reference to the Tribunal’s consideration of the fact that the Applicant was likely to be briefly detained on remand in Negombo prison if he arrived on a weekend or a public holiday (on the basis that he would be likely to be charged with an offence relating to his illegal departure from Sri Lanka).

26. It is notable that the Tribunal went on to reject the Applicant’s claim or that there was any likelihood that the penalty he would face were he to be charged and then convicted would be imprisonment, as distinct from a fine.  It also expressed the view that he would be able to meet any bail requirement and to be assisted by his family. 

27. It is the case that in its findings and reasons the Tribunal did not refer expressly to the policy guidelines, except that there was an acknowledgment in Appendix B to the reasons (headed “Relevant Law”) that in accordance with the Ministerial Direction made under s.499 of the Act the Tribunal was required to take into account these policy guidelines as well as any country information assessment prepared by DFAT. The Tribunal did state that it had taken into account the DFAT country information report which was said to contain information broadly consistent with that discussed in the hearing, but there is no express reference in the reasons to having taken into account the PAM3 guidelines.

28. However, the Tribunal acknowledged its obligation to have regard to these guidelines.  It was submitted for the First Respondent that this in itself was sufficient to warrant an inference that the Tribunal had complied with Direction No. 56.  Insofar as reference was made to SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 at [14], I note that in that case Nicholas J was considering a decision in which the Tribunal had not only referred to such obligation, but had also stated that it had taken such guidelines into account. However, in AJW15 v Minister for Immigration and Border Protection [2016] FCA 197 Barker J (at [46]) agreed with the submission of the Minister that the Tribunal’s statement that it was required to take into account the guidelines should in itself, on a fair reading of the Tribunal’s reasons in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259; [1996] HCA 6, be sufficient to conclude that the Tribunal had done so. In that context His Honour referred to SZTCV.  The same may be said in this case. 

29. In any event, in AUE15 v Minister for Immigration and Border Protection (2016) 239 FCR 148; [2016] FCA 331, Rares J considered such issue, albeit in a slightly different factual context, in circumstances where (as in this case) the Tribunal’s discussion of the subject matter in question did not refer expressly to the guidelines. It had been argued that this did not amount to an active intellectual engagement with the guidelines. That argument was rejected. His Honour was of the view that it was plain that the Tribunal had had regard to matters in the PAM3 guidelines that it found were relevant, including matters discussed in paragraph 29 of those guidelines in relation to prison conditions that could, depending on the circumstances, constitute a breach of Article 7 of the International Covenant on Civil and Political Rights referred to in the definitions in the Act of conduct within the concept of significant harm.

30. Similarly, in the present case, the Tribunal not only acknowledged that it was required to take such policy guidelines into account, but also in its discussion of whether likely brief detention in prison conditions it acknowledged were overcrowded and unsanitary could amount to significant harm, it proceeded in a manner that has not been shown to be inconsistent with the guidelines.

31. It has not been established that the Tribunal erred in the manner contended for in ground 2 or that it failed to take into account a relevant consideration (the guidelines) as contended in ground 3 of the amended application.  There is no basis on the evidence and submissions before the Court and having regard to the Tribunal decision, to suggest that the Tribunal failed to comply with Direction No. 56 and to have regard to the guidelines, insofar as relevant to the decision under consideration.  These grounds are not made out.

32. Finally ground 4 of the amended application asserts that the Tribunal “erred in its understanding of the applicable law and therefore its jurisdiction when in relation to [the Applicant’s] fear of persecution as a member of a social group of failed Tamil Asylum Seekers, it found in respect of his possible remand in detention in Negombo prison for a couple of days that “Although the Tribunal accepts that the conditions in Negombo prison are poor, it is not satisfied that this treatment, individually or cumulatively, involves serious harm””.

1. As the High Court pointed out in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 at [51], whether particular conduct amounts to serious harm is a matter of fact and degree for the Tribunal. The Tribunal considered that issue in light of country information. Insofar as this ground may have been based on WZAPN at first instance (see WZAPN v Minister for Immigration and Border Protection [2014] FCA 947), that approach did not survive the decision of the High Court. It is not apparent on the material before the Court that the Tribunal erred in its understanding of the applicable law. Nor has it been established that the conclusion the Tribunal reached in relation to whether prison conditions and the treatment the Applicant faced involved serious harm, was not open to it on the material before it, or that it was otherwise such as to have involved jurisdictional error. Ground 4 is not made out.

2. As none of the grounds relied on by the Applicant has been established, the application must be dismissed. 

3. The Applicant has been unsuccessful. The Minister seeks costs in the sum equivalent to the suggested scale amount in the Federal Circuit Court Rules at the time of the application. The Applicant explained that he would be unable to pay costs in circumstances where he had no work, no work rights or savings, and his friends had been unable to assist him even to pay a lawyer. These matters may be for the Minister to take into account in determining whether and how to seek to recover such costs, but they are not such as to warrant a departure from the normal principle that an unsuccessful applicant should be ordered to pay the First Respondent’s legal costs.

4. As to the amount of the costs, I accept that this was a case in which it was appropriate to brief counsel, given the manner in which the grounds were presented in the amended application, albeit that such assistance did not result in ultimate representation for the Applicant, whether by way of preparation of written submissions or appearance at the hearing.  On the one hand this meant that the First Respondent had to address grounds without the benefit of submissions from the Applicant.  On the other hand, the First Respondent did not have to address complexities that may have been raised in written submissions prepared by a lawyer.

5. In the particular circumstances of this case I am of the view that costs in the amount of $6,000 would be appropriate and reasonable having regard to the nature of this and other similar matters.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 14 October 2016