SZVUV v Minister for Immigration

[2016] FCCA 1592

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVUV v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1592

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

Legislation:

Migration Act 1958 (Cth), ss.91R, 425

Cases cited:
AJW15 v Minister for Immigration and Border Protection [2016] FCA 197
AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68
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
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69
SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309

Applicant: SZVUV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3431 of 2014

Judgment of: Judge Barnes

Hearing date: 16 June 2016

Date of Last Submission: 16 June 2016

Delivered at: Sydney

Delivered on: 16 June 2016

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: DLA Piper

ORDERS

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

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $6,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3431 of 2014

SZVUV

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 former Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 11 December 2014 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.

2. The Applicant, a citizen of Sri Lanka, arrived in Australia by boat in June 2012 and applied for a protection visa in November 2012.  His primary claim was to fear harm in Sri Lanka for reason of his imputed political opinion on the basis that the Sri Lankan authorities believed that his father was involved with the LTTE. 

3. The application was refused by a delegate of the First Respondent.  The Applicant sought review by the Tribunal.  He attended a Tribunal hearing.  The only evidence before the Court of what occurred in the Tribunal hearing is the Tribunal's account in its reasons for decision. 

4. In its reasons for decision the Tribunal summarised the Applicant's claims, including that his father used to commute for weeks at a time to the north of Sri Lanka to fish there, that he had an LTTE fishing permit because the LTTE controlled the fishing grounds and that without this permit his father could not fish in that area.  The Tribunal noted that the LTTE lost control of the north at the end of the civil war in May 2009.

5. The Tribunal recorded the Applicant's claims that since 2012 his father had been targeted by the Sri Lankan army who had accused him of being active with the LTTE and that his father was detained and beaten in 2012, but released after his family paid money.  The Applicant also claimed his father had escaped to Colombo and that subsequently the army came to the family home asking after his father.  He claimed that on one occasion such army visitors hit him for saying he did not know his father’s whereabouts.  He claimed that after he unsuccessfully tried to get a visa and travel to Qatar he decided to come to Australia, but that before he left Sri Lanka his father was again detained and beaten and released after payment of money.

6. The Applicant left Sri Lanka illegally.  The Tribunal understood his claims to include a fear of harm for reason of being presumed on return to be a failed asylum seeker. 

7. The Tribunal referred to submissions from the Applicant's adviser, including post-hearing submissions which sought to clarify some matters which it was suggested that the Applicant may not have fully understood at the Tribunal hearing and to other evidence before it (including photographs of an army camp in Udappu where the Applicant had lived).

8. In its consideration of the claims and evidence the Tribunal acknowledged that the Applicant had indicated at the hearing and in the post-hearing submission that his father had been going to the north for a long time.  However it also had regard to the fact that he had told the Tribunal that his father had been doing so for “three or four years”, which, as the Tribunal recorded, would have been since 2010 or 2011, after the civil war had ended and the State had regained control of the north from the LTTE.  It acknowledged that the Applicant had also said that his father had been doing work as a fisherman in the north before that period. 

9. The Tribunal considered the post-hearing submission to the effect that the Applicant's father had an LTTE permit from the time when the LTTE had control, but had regard to the fact that the Applicant’s claim at the hearing had been that “his father had only been located in the north for three or four years”. 

10. It recorded that the Applicant claimed to the delegate and to the Tribunal that the army found the LTTE card when they visited and searched the family home in 2012, some three years after the end of the war, and that they accused the father of LTTE links on the strength of this card.

11. The Tribunal referred to independent county information cited by the Applicant's adviser in relation to the risk of harm to persons with family links to those who were or, were perceived to be, associated with or supporters of the LTTE.  However it was of the view that the Applicant's evidence about his father needing an LTTE card to fish in the north “seemed at odds with history” given his evidence that his father had only been accessing the north for the last three or four years and the fact that the LTTE lost control of all its territory in 2009.

12. The Tribunal continued:

    13.  I asked Mr [Applicant] why his father would be suspected these days of being an LTTE supporter, and he said it was because his father commuted from Udappu to Kilinochchi to fish.  Again, I note, he could only account at the hearing for his father having been doing this the last three and four years.  I asked him if it was not common to commute over that distance to work and he said it is indeed common.  He suggested his father was in his particular situation because he used to need an LTTE card to fish in the north, but by the evidence the card was from a time when the north was under LTTE control; in this case, Mr [Applicant] could only say that his father was commuting to or staying in the north for the last three or four year (since 2010 or 2011).  In a later submission he suggested his father had been commuting to or residing in the north during the period of LTTE control, but I give this later claim much less weight that what he said at the hearing, according to what be said at the hearing, his father had only been there for the last three or four years.     

    14.  Generally, when I asked Mr [Applicant] questions on particular points, he answered either in generalities or retold part of his account.  For example, when I asked why the government would be interested in his father, a commuting Udappu fisherman, in 2012, which was three years after 2009, he said, “They took him to the camp.”  I asked him why it would have taken so long for the army to suspect his father, given that he had been commuting for so many years, and he said “I know my father had been living there for the last four years, because I’m twenty now; before that I don’t know what happened to him.”  

    15.  Later in the hearing, I put to Mr [Applicant] that if his family had heard from his father four months ago it did not sound like he was in trouble, and he said that he was relaying news his mother had heard.  I asked Mr [Applicant] to tell me what had happened to him in Sri Lanka, but he went on to talk about his father being released and going into hiding.  I put to him that his father’s release was potential evidence of the army having no ongoing significant interest in him, and he said that not all of the army thinks like that (emphasis in original) . 

13. The Tribunal also raised with the Applicant why he returned to Udappu for his birthday after he had gone to Colombo if he thought he was in danger from the army.  It recorded his response was that his mother wanted to see him.  It also recorded that when it asked him to provide whatever information he could to suggest the authorities were or were still interested in his father, he responded: “Nothing.”

14. The Tribunal recorded a discussion with the Applicant and his adviser of the consequences of his illegal departure from Sri Lanka and the treatment of failed asylum seekers and relevant county information.  It noted that the process was discussed in the primary decision record and in the Applicant's adviser's submissions.  It discussed with the Applicant his claim that he believed that he might be jailed and tortured and face extra-judicial violence on return to Sri Lanka as a person who had departed illegally and his emphasis on a claim that after his processing and release people would try to extort money from him.  In particular, the Tribunal noted that when asked if he had any other concerns about what might happen to him as a returnee to Sri Lanka, the Applicant again focused on the possibility that people would demand bribes from him and also claimed more generally that the Sri Lankan government was “not a proper government” and may kill him.

15. The Tribunal accepted that the Applicant was a resident of Udappu (which was never under LTTE control).  It accepted that his father was a fisherman who had been living and fishing in the north of Sri Lanka for the previous three or four years.  The Tribunal noted that the Applicant had told it that he was not sure what his father was doing before three or four years earlier and found “after full consideration” that it did not accept on the evidence before it that the Applicant’s father was commuting to or living or working in the north when it was under LTTE control, or in any LTTE-controlled area.

16. Hence, as the Tribunal only accepted that the Applicant’s father had been commuting to, working and residing in the north for the previous three or four years, it did not accept that the father would have ever needed an LTTE permit to allow him to do so.  The Tribunal found that it followed that it did not accept that such a permit was ever issued to the Applicant’s father and hence that it did not accept that any item even vaguely linking the Applicant’s father to the LTTE was ever found by the authorities.

17. On the evidence before it, the Tribunal did not accept that the claims about the Applicant’s father being caught, detained or harmed by the authorities on any occasion were truthful.  It gave weight to the fact that the Applicant had also given evidence that his father had recently been in touch with the family, speaking to them from the place where he was said to have lived and worked over the past three or four years.  It did not accept that the father was “in hiding” as claimed.  It also had regard to the absence of any information to suggest that the authorities were still interested in the Applicant's father.  On the evidence overall, the Tribunal did not accept that the Applicant had told a credible story about his father.  It did not accept that the Applicant’s father had been or would be imputed in any way to be linked with the LTTE. 

18. Hence the Tribunal did not accept the Applicant’s claim that the authorities would be interested in him because he might be able to tell them the whereabouts his father.  While it accepted that the Applicant stayed in Colombo for a time, it did not accept that he was in hiding or lying low in Colombo.  It did not accept that the authorities questioned, detained or assaulted the Applicant in Udappu.  It gave some weight to the fact that the Applicant was preparing to leave Sri Lanka legally under the eye of the authorities until he was “ripped off” by the agent handling his visa for Qatar.  It found that such behaviour was inconsistent with that of a person trying to evade the attention of the authorities.  The Tribunal gave weight to the fact that when asked for any information suggesting the authorities were interested in his father the Applicant had told it there was: “Nothing”.  It also found that the evidence of the Applicant's own life growing up in the west of Sri Lanka was strong evidence that he was not imputed with LTTE links during or in the few years after the war.  It found that the only purported change was the “story” about the LTTE fishing permit which it did not believe.

19. On the evidence before it, the Tribunal did not accept that the Applicant was or would ever be regarded in Sri Lanka as a person with LTTE links, either directly or indirectly.  It was not satisfied he faced a real chance of persecution for reasons of being a family member of a suspected LTTE supporter. 

20. The Tribunal considered the Applicant’s claims about the conditions under which he obtained a passport in 2012.  On the evidence before it, and given that it had found that the Applicant would not be of interest to the authorities (particularly in connection with the LTTE), the Tribunal gave his evidence about the method of obtaining a passport little weight.  It gave more weight to the fact that the Applicant was prepared to use such a passport to go to Qatar.

21. The Tribunal also considered to the Applicant's claims that as a child in Udappu he was “imposed upon” by soldiers to perform errands and tasks.  It did not accept that this was indicative of a real chance of serious harm. 

22. Insofar as the Applicant's adviser had contended that some Tamils suffered degrading treatment or punishment through denial of social and economic rights, the Tribunal found on the evidence before it that the Applicant's own life in the west or northwest of Sri Lanka had been very different, that he had been able to go to school and to be employed and to live with his family in a stable household.  On the evidence of the Applicant’s work and domestic mobility, the Tribunal was not satisfied that he faced a real chance of serious harm in Sri Lanka, let alone in his home region, for reasons of his membership of particular social groups such as “Tamils”, “Tamil males”, “adult or young adult Tamil males” or the like.

23. The Tribunal then considered the Applicant’s claim that he faced a real chance of persecution for reasons of being a failed asylum seeker.  It had regard to county information, in particular a Department of Foreign Affairs and Trade (DFAT) country report discussing in detail the treatment of returnees.  It accepted on the basis of this information that the Applicant would likely come to the attention of the authorities as having departed Sri Lanka illegally, that he would likely be questioned and possibly charged for his illegal departure, may be transferred to the Magistrates Court at the first available opportunity and could remain in police custody for up to 24 hours (or three days if a weekend intervened).

24. The Tribunal found on the independent evidence before it that the Applicant would likely be granted bail within 24 hours as he had no adverse profile other than having left Sri Lanka illegally.  It accepted and gave weight to independent evidence to the effect that bail would likely be conditional only on personal recognisance and to the evidence that many people in this situation were allowed to go free even without their families being required to come and collect them.  It also accepted on the evidence that the Applicant would be fined.

25. However, on the evidence before it, the Tribunal found that the process of interviewing and prosecuting Sri Lankans who departed illegally was implemented under laws of general application.  It was not satisfied it would be enforced in a discriminatory manner. 

26. The Tribunal addressed the claims made by the Applicant and his advisers about the possibility of detainees facing bribes and other extra-judicial harm. It found that the evidence in this respect was vague and speculative and gave weight to the fact that any detention would be evidently brief. It was not satisfied that the penalty of a fine for the nature of the offence of illegal departure would be disproportionate. It found that the enforcement of the law in the Applicant's case would not be persecution within s.91R(1) of the Migration Act 1958 (Cth)(the Act).

27. As to the adviser's claim that the period of detention for up to 24 hours provided time for the Applicant, as a Tamil, to be more vulnerable to extra-judicial harm, such as acts of intimidation and violence from officials or other detainees and demands for bribes, the Tribunal found, having regard to the DFAT report and for want of evidence supporting the Applicant's claims that Tamils were more vulnerable during and after processing for illegal departure, that this claim should be given very little weight.  It found that the Applicant’s claims about facing extra-judicial harm were vague, even when he was given the opportunity to go into detail and based on unsubstantiated rumour. 

28. The Tribunal considered that such harm was a remote possibility.  It gave no weight to the purported advice the Applicant said he had received from friends about not going home, let alone as a basis for his claim about being tortured on return. 

29. The Tribunal considered the adviser's claim that Tamils who were perceived to oppose the government or support the LTTE were singled out and discriminated against in the application of these laws, but found that as it did not accept that the Applicant had ever been or would be perceived to oppose the government or support the LTTE it did not accept he would face a real chance of persecution for such reason.  On the evidence before it, the Tribunal did not accept that the Applicant would face extra-judicial harm or bribe demands as claimed.  The Tribunal was also satisfied that the Applicant could safely re-access his home town. 

30. The Tribunal also assessed the Applicant’s claims about the general human rights situation in Sri Lanka and the behaviour of the security services.  It noted that these claims related to the claim about being related to an LTTE suspect.  It found that that the Applicant did not match any of the UNHCR risk profiles.  It was not satisfied that there was a real chance of the Applicant facing a real chance of persecution on these bases.

31. The Tribunal concluded that the Applicant did not meet the Refugees Convention criterion. 

32. The Tribunal went on to consider the complementary protection criterion, indicating that it considered all of the Applicant’s claims as complementary protection claims.  In particular, it addressed whether the process of investigation, charging, remanding, prosecuting and penalising the Applicant as an illegal emigrant may amount to significant harm.  It referred to the relevant law (as set out in an attachment) as to the meaning of “significant harm”, but found that the Applicant would not be subject to the arbitrary deprivation of life or the death penalty or torture from anyone in the course of or as a result of the process of prosecuting him on return and that the process of penalising him would not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment.  The Tribunal found on the evidence before it that there was insufficient evidence of an intention on the part of the authorities to inflict, or a real risk that others would inflict, harm upon the Applicant during this process.  It reiterated that it had found that the Applicant would only be fined for his illegal departure.  It did not accept on the evidence before it that the penalty would amount to significant harm.  The Tribunal noted the emphasis the Applicant and his adviser had placed on the claim that others would exploit the process to bribe him, but was not satisfied that the treatment suggested would amount to significant harm or that there was a real risk the Applicant would face such a treatment. 

1. For the reasons already given, the Tribunal did not accept on the evidence before it that the Applicant faced a real risk of extra-judicial violence or other significant harm in Sri Lanka. 

2. Considering the Applicant's claims as a whole, the Tribunal found that it was not satisfied he met the complementary protection criterion.  It affirmed the decision under review.

3. The Applicant sought review by application filed in this Court on 11 December 2014.  Under the heading “Grounds of application” the Applicant indicated that the lawyers who had assisted him with his protection visa application and review said that they could not assist him with his court application unless he paid their legal fees and that he did not have the savings to meet the costs of his legal fees.  He also stated that he had read the Tribunal decision and found “a number of errors” made by the Tribunal and that the Tribunal had “acted beyond its jurisdiction” and “declined (sic) its jurisdiction”.

4. The Applicant indicated in this Application that he would “wait until a lawyer [was] given [to him] by the Court” and he would meet with the lawyer with the errors he had found and then notify the Court of legal errors made by the Tribunal.  He repeated these claims in his supporting affidavit. 

5. As noted in the First Respondent's submissions, at the directions hearing of 4 March 2015 (which I conducted) the Applicant was advised that the Court would not appoint a lawyer.  The Court does not provide all applicants with lawyers.  There is no general right to legal representation (AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68 at [51]). This was not a matter in which I saw it as appropriate to seek pro bono representation for the Applicant.  It was made clear to the Applicant that it was his responsibility to obtain legal advice.  The usual directions were made for the filing of an amended application, further evidence or written submissions.  No such documents were filed by the Applicant.  The First Respondent did file pre-hearing written submissions.

6. When the Applicant appeared before the Court on the hearing date of 7 June 2016 he told the Court that he had just met a Tamil lawyer and that he had an appointment to see the lawyer on Saturday 11 June 2016.  He sought an adjournment on that basis.  When asked for further details, he changed his story slightly and indicated that he had not met or spoken to the lawyer but that he had met a JP who had given him the contact details for a lawyer and referred him to the lawyer.  The Applicant claimed he had fixed an appointment for 11 June 2016.

7. When asked whether he had taken any other steps to obtain legal advice since starting the application, the Applicant indicated he had not had much money and had had difficulty finding a lawyer and the only the opportunities seemed to be in Perth and he would have had to go there to do that but that now he had a friend who would help him with money. 

8. Notwithstanding that an adjournment was sought at the hearing and despite the lengthy period after the application was filed, the Applicant was given the opportunity to obtain legal advice he claimed he had arranged.  I granted him a short adjournment of a little over a week on the basis that if a lawyer was going to act for him the lawyer would either file a notice of appearance and appear today (which has not occurred), or, at the very least, would contact my chambers.  With the agreement of the solicitor for the First Respondent, I provided the Applicant with telephone details to enable a lawyer to contact my chambers.  I advised him that if there was no contact from the lawyer the hearing would proceed today, notwithstanding that the Applicant was self-represented.  No notice of appearance was filed.  There has been no contact by any lawyer acting for the Applicant.  The Applicant confirmed today that he was acting for himself.  He did not seek a further adjournment or raise any issues to suggest that such further adjournment would be warranted.  The hearing proceeded.

9. The Applicant contended generally that there were a number of errors in the Tribunal decision.  I gave him the opportunity to describe such errors.  It is apparent from what he said that his primary concern was that the Tribunal did not believe his claims. 

10. Insofar as he suggested that the Tribunal did not believe that his father was a member of the LTTE, that was not the basis on which his claims were presented in his application or to the Tribunal.  Nor was it the basis for the Tribunal decision.

11. Insofar as the Applicant’s concern was that the Tribunal did not accept his claim that his father needed an LTTE permit to go to work in the north of Sri Lanka, that the permit had been found by the authorities and that an association with the LTTE was suspected on the part of the father and the consequential concerns that the Applicant raised on that basis, as indicated above, the Tribunal gave reasons for such findings having regard, in particular, to the Applicant's oral evidence that his father had been fishing in the north for the last three or four years (being a period during which the area was not under LTTE control).

12. The Applicant's disagreement with the Tribunal's credibility and other findings in this respect takes issue with factual findings that were open to the Tribunal on the evidence and material before it.  The Tribunal's reasoning is not such as to indicate illogicality or unreasonableness such as to amount to jurisdictional error.  It was based on the Applicant's own evidence to the Tribunal. 

13. Insofar as what the Applicant said in oral submissions may be seen as taking issue with the Tribunal's account of his evidence at the Tribunal hearing (in this or any other respect), there is no transcript of the Tribunal hearing in evidence before the Court.  There is nothing in the Tribunal reasons for decision to support the Applicant's claims about what he said to the Tribunal.  On the contrary, the Tribunal recorded in some detail its exchange with the Applicant about his father's history and the discussion of the issues of why his father would have required an LTTE permit after 2009 and of why his father was suspected of being an LTTE supporter.  On its account it raised dispositive issues with the Applicant. 

14. Insofar as the Applicant’s concern is with whether the Tribunal considered his claims, the Applicant's primary claim was that he would be imputed with a political opinion on the basis of the authorities believing that his father was involved with the LTTE.  The Tribunal addressed this and other claims made or arising on the material before it.  In particular, having rejected the underlying claim of a perceived association of the Applicant's father with the LTTE, it did not accept that the Applicant had a fear of persecution or significant harm on that basis. 

15. The Applicant submitted that the Tribunal had not accepted that his father was a fisherman or that he had ever lived and fished in the north.  Contrary to such contention, the Tribunal did accept that the Applicant’s father was a fisherman and that (as the Applicant had said at the Tribunal hearing), he had been living and fishing in the north during the previous three or four years.  It did not, however, accept on the evidence before it that the Applicant’s father had done so at an earlier time such that he would ever have needed an LTTE permit to allow him to work in the north.  Beyond this, the Applicant’s disagreement with the Tribunal’s findings seeks impermissible merits review. 

16. In addition to taking issue with the Tribunal's findings, the Applicant also raised an issue about the quality of the interpreter who had assisted in connection with an interview he participated in with his previous lawyer.  He clarified that this was not in connection with the departmental interview or the Tribunal hearing.  His concerns were expressed in general terms on the basis that the statement he provided to his lawyer was only “half done” because of a problem with the interpreter.  Such claims are not indicative of jurisdictional error on the part of the Tribunal. 

17. For the benefit of the Applicant I note that his initial statutory declaration sworn on 22 October 2012 commenced by stating that it was only a summary of his claims and that he would provide further information in relation to his claim during his interview with the delegate.  It appears from the delegate's decision and the Tribunal's decision that he did so.

18. The Applicant also appeared to submit that he had told the Tribunal that his father had two LTTE passes or that there was a copy of the pass.  The Tribunal decision does not support such claim and again I note the absence of a transcript.  In post hearing written submissions to the Tribunal the Applicant’s adviser addressed the issue raised by the Tribunal at the hearing that it seemed far-fetched that the father would be issued with an LTTE card after to the end of the civil conflict and/or that he would risk carrying such a card if he had one.  The adviser submitted that the Applicant did not fully comprehend the point that was being made, in that his response that action was still being taken against imputed supporters of the LTTE after the end of the civil war did not address the question.  It was claimed that the Applicant had instructed that he did not know when his father was first issued with the pass by the LTTE and was not sure when his father first started to commute to the north to fish, but believed this probably started when the Applicant was a child.  The adviser reiterated the claim that the father’s LTTE pass was discovered when the army came to the Applicant’s house and that this was the basis for the army’s belief that he supported the LTTE.  The Applicant was said not to be sure whether the army had prior suspicions about the father.  Insofar as it was necessary to do so, the Tribunal clearly understood and considered such claims as part of all the evidence before it.  As indicated, the Tribunal's findings in this respect were open to it on the material before it for the reasons which it gave. 

19. The Applicant's submissions in relation to the Tribunal's findings did not otherwise raise any allegation of jurisdictional error on the part of the Tribunal.

20. In submissions in reply the Applicant again suggested that the Tribunal concluded that his father never went to the north of Sri Lanka to fish.  That was not in fact the Tribunal's conclusion. 

21. The Applicant also repeated his disagreement with the Tribunal's findings and suggested that while he had been unable to provide documentation, if he had done so the Tribunal would have simply said that he could have obtained it by paying money.  There is no finding to that effect in the Tribunal decision.  These submissions are not indicative of jurisdictional error. 

22. As the Applicant was self-represented the solicitor for the First Respondent addressed the issue of whether jurisdictional error was apparent in the Tribunal decision or procedures. 

23. As the First Respondent acknowledged, the delegate accepted that the Applicant's father had been detained but found that he was of no ongoing interest to Sri Lankan authorities. In contrast, the Tribunal did not accept the Applicant’s claim that his father was commuting to or living or working in the north when it was under LTTE control and hence did not accept the claims about detention of the father or the other consequential claims. However there is nothing in the material before the Court to suggest that the Tribunal failed to comply with its obligations under s.425 of the Act to afford the Applicant the opportunity to ascertain the relevant dispositive issues arising in relation to the decision under review (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63). It is apparent from the Tribunal's account of the hearing and the adviser’s post hearing submission (the only evidence in that respect) that the Tribunal asked the Applicant questions and raised issues about matters such as the father's claimed need for an LTTE permit after 2009 and why his father would be suspected of being an LTTE supporter. Through his representative’s post-hearing submissions, the Applicant addressed the Tribunal's concerns as to why his father would be issued with a card after the end of the civil war or why he would risk carrying it.

24. While the Tribunal did not accept that the Applicant's father was detained, it made findings leading to that conclusion, in particular that it did not accept that the father would have needed an LTTE permit to allow him to work in the north given the Applicant's evidence about him only doing so for three to four years (a period after the LTTE had lost control of the area) or that any such permit was ever issued to the father.  On that basis did not accept that any item linking the father to the LTTE was found by the authorities.

25. The rejection of the claim that the Applicant’s father was detained clearly flowed from rejection of the factual underlying elements that were said to have led to the father's claimed detention. The Tribunal's underlying concern in relation to the father having had an LTTE permit (the only basis on which it was said that he was suspected by and hence had suffered any consequences from the authorities) was raised and discussed with the Applicant at the hearing. He had the opportunity to respond to such concerns including in post-hearing submissions. In the circumstances of this case there is nothing in the material before the Court to indicate any failure by the Tribunal to comply with s.425 of the Act, insofar as it was necessary for it to put dispositive issues to the Applicant.

26. The First Respondent also submitted that this case could be distinguished from the circumstances considered in the Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069 in that the relevant DFAT country information in relation to the treatment of persons brought before a magistrate to be charged under the Sri Lankan legislation in relation to illegal departure was different. I agree. The information relied on in this case was that returnees were usually granted bail on personal recognisance, with the requirement for a family member to act as guarantor. There was no reference to a financial payment or surety of the nature considered in SZTQS.  As the solicitor for the First Respondent pointed out, the Tribunal accepted on that evidence that bail would be granted to the Applicant and would likely be conditional only on a personal recognisance.  In contrast, in SZTQS the key issue was seen as the ability of the appellant's family to pay a financial surety for release on bail.   

27. Further, the Tribunal's findings in relation to complementary protection are not inconsistent with the approach taken in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. In its outline of the law the Tribunal acknowledged its obligation under the Ministerial direction to consider policy guidelines and any country information assessment prepared by DFAT to the extent relevant. While it did not also expressly state that it had regard to such considerations in its reasons, it addressed the country information assessment on Sri Lanka prepared by DFAT in some detail. There is nothing to indicate that the Tribunal failed to engage with the guidelines insofar as it was necessary to do so, having regard to the nature of the claims made by the Applicant and his adviser which, as the Tribunal noted, focused on the possibility of extra-judicial harm in vague terms and post-release bribery attempts. (See SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 and AJW15 v Minister for Immigration and Border Protection [2016] FCA 197).

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

29. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $6,300.  The Applicant indicated that he would pay, but that he did not have a job at present.  The issue raised by the Applicant in relation to his present lack of employment is not a reason for departing from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent.  It may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is reasonable and appropriate, particularly as there were two hearings in this matter because the Applicant sought an adjournment during the scheduled hearing.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 29 June 2016