SZVWN v Minister for Immigration

[2016] FCCA 1665

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWN v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1665

Catchwords:
MIGRATION – Application to review decision of former Refugee Review Tribunal – whether the Tribunal failed to consider an integer of the Applicant’s claim – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.424AA

Cases cited:

NABE v Minister for Immigration & Multicultural and Indigenous Affairs (No

2) (2004) 144 FCR 1; [2004] FCAFC 263

SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003)

129 FCR 137; [2003] FCAFC 120

Applicant: SZVWN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3556 of 2014

Judgment of: Judge Barnes

Hearing date: 24 June 2016

Date of Last Submission: 24 June 2016

Delivered at: Sydney

Delivered on: 24 June 2016

REPRESENTATION

The Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

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

2. The application be dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3556 of 2014

SZVWN

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.  By decision dated 19 December 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 citizen of Sri Lanka of Tamil ethnicity, arrived in Australia in July 2012 as an unauthorised maritime arrival. He applied for protection in November 2012. 

3. In support of his protection visa application, the Applicant provided a summary of his claims for protection and indicated that he would provide further information during his interview with the departmental officer.  He attended an interview with the departmental officer.  His application was refused and he sought review by the Tribunal. 

4. He attended a Tribunal hearing by video.  The only evidence of what occurred at that hearing is the Tribunal’s account in its reasons for decision.  In addition, the Applicant’s adviser made detailed written submissions to the Tribunal on 22 October 2014, including a discussion of country information in relation to relevant aspects of the situation in Sri Lanka. 

5. As indicated, the Tribunal affirmed the delegate’s decision.  In its reasons for decision, it summarised the Applicant’s claims in general terms, initially as based on abduction attempts he claimed occurred in 2007 and claimed extortion attempts in 2012. He claimed to fear harm for reason of his Tamil race, his imputed political opinion in support of the Liberation Tigers of Tamil Eelam (the LTTE) his membership of a particular social group of failed asylum seekers, those who had left Sri Lanka illegally or Tamils who had returned from working overseas. 

6. The Tribunal also summarised the material before it. It observed that it had regard to a range of independent country information, including that referred to in the adviser’s submission.  It referred in detail to the country information cited and the arguments of the adviser in various respects; including in relation to the issue of persecution of Tamils in Sri Lanka, (as described in Appendix 1 to the adviser’s submission).

7. The Tribunal was satisfied that the Applicant was a Sri Lankan citizen born in 1985 and that he grew up in a particular named village in the Ampara District and that he and his family moved to Ambari District in 1994 due to the civil war.  It accepted his claims about being a Catholic Tamil and about his past employment with an insurance company. It also accepted that a co-worker, was kidnapped by an unidentified paramilitary group in December 2006. 

8. It accepted the Applicant’s claims about his overseas residence in Qatar in 2007 and in Saudi Arabia from 2010 to 2012, his evidence about where he lived when in Sri Lanka with his family, and that his father had worked in Saudi Arabia since 2010. 

9. The Tribunal then turned to the specific claims about past.  It referred to the Applicant’s claim in his written statement in support of his protection visa application that he narrowly escaped being kidnapped on two occasions in 2007, following which he stayed away from his home and then went to Qatar.  The Tribunal set out the details of the Applicant’s claims in that respect and recounted his evidence at the hearing when asked for further detail. 

10. The Tribunal found there were basic inconsistencies in the account, which it detailed, including in relation to when the claimed abductors went to the family home and where the particular claimed incidents occurred. It also had regard to what it saw as an inherent implausibility  in the claim that criminal gangs would seek to abduct the Applicant in areas surrounded by other people (as he claimed) and in a situation where he was in a position to make an easy escape on two occasions. 

11. The Tribunal also referred to the “halting and hesitancy” in the Applicant’s evidence about these incidents and the lack of detail or embellishment, but gave limited adverse weight to these concerns, given difficulties of communication, culture, education and language.  However, overall, it had significant doubts as to whether these events occurred, which were reinforced by other issues about the Applicant’s credibility in relation to his claims about extortion. 

12. The Tribunal was not satisfied that the claimed abduction attempts occurred.  However, it went on to find that if it was wrong, it nonetheless did not consider that these events of 2007 (during the civil conflict which had now ended) were events that established a future risk of harm for the Applicant should he return to Sri Lanka.  The Tribunal had regard to the absence of any suggestion of any further abduction attempts or contacts from the particular individuals and the Applicant’s indication that he did not consider that the people involved in the claimed extortion attempts in 2012 were the same people.  For the same reasons, the Tribunal did not consider the kidnapping of the Applicant’s co-worker in 2006 provided a basis on which the Applicant would face a real chance of harm in the future. 

13. The Tribunal also considered the Applicant’s written claim that on 10 June 2012, following his return to Sri Lanka from Saudi Arabia, a white van arrived at his home and two armed people, including a man speaking Tamil, demanded two million rupees from him.  He claimed that he was given three days to get the money and that four days later the men returned, questioned his mother, searched the house and stole his laptop, and that subsequently he stayed at his aunt’s house and then left for Australia. 

14. The Tribunal found significant discrepancies between the information in the written statement and other evidence the Applicant had given surrounding these events at the departmental interview. It detailed these discrepancies and also recorded that at the Tribunal hearing, it had put to the Applicant under section 424AA of the Migration Act 1958 (Cth) (the Act) his oral evidence to the delegate and also the information in his entry interview, the inconsistencies and the relevance of such inconsistencies.

15. The Tribunal addressed the adviser’s submissions in relation to the deficiencies in the written statement and other explanations for these inconsistencies.  The Tribunal found that the submissions did not ameliorate its concerns as to the extent of the inconsistencies and the way the Applicant’s evidence had shifted and had been so lacking in clarity and certainty. 

16. The Tribunal noted that it also raised with the Applicant why these men would target only him and not seek to extort money from his mother or other family members who lived together and who would be considered to be part of the same economic unit.  It had regard to a discrepancy in his evidence in relation to how many people later came to visit the house, and considered the Applicant’s explanation. 

17. The Tribunal also had regard to cited independent country information.  It accepted that this did establish that extortion by paramilitary groups occurred in Sri Lanka and that there was some evidence that this had happened to Tamils returning from overseas.  However, the Tribunal found that considering the overall shifting nature of the Applicant’s evidence, the significant inconsistencies and plausibility concerns, it was not satisfied that the claimed 2012 extortion attempt had occurred in relation to the Applicant. It was not satisfied there was any attempt following his return from Saudi Arabia to Sri Lanka to extort money from him or any visit by men to his home following his arrival in Australia. 

18. On the basis of these findings, the Tribunal was not satisfied that at the time the Applicant left Sri Lanka for Australia in July 2012 he was of any interest to or identified by criminal gangs or paramilitary gangs for extortion or that he had any adverse profile which gave rise to a real chance of serious or significant harm. 

19. Nonetheless, the Tribunal went on to consider the Applicant’s risks of harm in Sri Lanka in the reasonably foreseeable future.  It considered first the Applicant’s claims based on his Tamil race. I note that in making written submissions in that respect, the Applicant’s adviser had provided the Tribunal with independent country information about persecution of Tamils in Sri Lanka and a commentary on such information.

20. The Tribunal had regard to information on the human rights situation in Sri Lanka and risks faced by Tamils, including indications in a US State Department Country Report of discrimination against the ethnic Tamil minority;  reports of arbitrary or unlawful killings by the government, its agents or allies, albeit decreasing;  an ongoing problem of enforced and voluntary disappearances;  and credible reports that police and security forces tortured and abused citizens, in particular in the northern and eastern provinces. 

21. However the Tribunal also had regard to a 2014 DFAT country report on Sri Lanka in relation to the treatment of Tamils, and various other items of country information, including UNHCR Guidelines and a decision of the United Kingdom Upper Tribunal Immigration and Asylum Chamber in 2013 which comprehensively considered information on the treatment of Tamils in Sri Lanka and those returning. 

22. After setting out extracts from such information in some detail, the Tribunal assessed the Applicant’s risk of future harm in Sri Lanka with specific respect to his Tamil race and, associated with that, his claims about an imputation of political (that is, LTTE) connections.  It acknowledged that the independent information made it clear that the human rights situation in Sri Lanka continued to be “problematic” and that Tamil citizens were disproportionately affected by human rights abuses, but found that the key catalyst in the human rights abuses for Tamils was “most often certain perceived or actual links to the LTTE”.  It also accepted that Tamils faced continuing discrimination, which it described. 

23. However, the Tribunal considered that the UNHCR guidelines provided that “Tamil ethnicity of itself did not establish a group-based protection mechanism for Tamils” and that, rather, a risk factor existed for a Tamil “with certain actual or imputed links to the LTTE” which it found was limited to those perceived to have a significant role in relation to post-conflict separatism. 

24. The Tribunal acknowledged that in considering whether the Applicant himself faced a real chance of suffering serious harm, his own particular circumstances had to be considered.  In that context, it had regard to his evidence that he had no actual personal or family links to the LTTE.  It found that there was no basis on which he would be imputed with such links.  It found that the chance of the Applicant being arbitrarily killed, kidnapped, detained or physically harmed by the authorities or paramilitary groups based on his ethnicity or any political association was remote. 

25. The Tribunal also considered the possibility of future discrimination, but observed that past treatment of the Applicant could provide a guide.  It had regard to the extensive time he had lived in Sri Lanka; the fact his family continued to live there without any expressed difficulties; the fact that it did not accept his claims about past attempted abductions and extortion attempts; that he was employed with a company from 2004 to 2007 and able to leave and enter Sri Lanka lawfully to travel to and live in Qatar.  It recorded that the Applicant had not provided other evidence of any impediment to his daily living for himself or his family as a result of being a Tamil or that he had faced serious discrimination in his life. It found no evidence to suggest there would be any likely marked difference in terms of day-to-day treatment on return.  The Tribunal did not consider the Applicant faced a real chance of suffering discrimination that would constitute serious harm. 

26. Considering the Applicant’s circumstances, that of his family and the independent information, the Tribunal was not satisfied that he faced a real chance of serious harm in connection with his Tamil ethnicity and political association in the reasonably foreseeable future. 

27. The Tribunal also considered the Applicant’s claims that he would be perceived to hold anti-government or pro-LTTE political views as a Tamil previously resident in Eastern Province who would be perceived to support the LTTE and who had applied for asylum in Australia. 

28. The Tribunal accepted that, as the Applicant’s adviser had submitted, issues of race and political opinion were intertwined.  However, it was not satisfied there was any evidence that established that the Applicant would be perceived to hold anti-government or pro-LTTE views such as to put him at risk of serious harm simply because he was a Tamil.  It noted the absence of links for the Applicant himself, or through his family, to the LTTE and did not consider he would be perceived to have a significant role in relation to post-conflict separatism. 

29. The Tribunal was of the view that there was a variety of independent information that suggested that merely being a Tamil did not impute a person with an LTTE or political link that would create a risk of harm. It referred to the UNHCR risk categories and the United Kingdom decision.  The Tribunal noted that it also considered at a later stage in its reasons whether the Applicant would be imputed with such political opinion because of his illegal travel to and application for asylum in Australia, but that for the reasons it gave, it was not satisfied that such matters would impute the Applicant with political opinions linking him to the LTTE or as opposed to the authorities giving rise to a real chance of serious harm in the reasonably foreseeable future.  The Tribunal was not satisfied he had or would have any actual or imputed political opinion or profile which would give rise to such a real chance. 

30. The Tribunal then turned to consider the claims about failed asylum seekers generally.  The Tribunal took into account independent information which it summarised in some detail.  It assessed that evidence in light of the Applicant’s circumstances, including the fact that he was a Tamil failed asylum seeker.  It acknowledged independent information, including about claims of torture and mistreatment of failed asylum seekers, particularly from the United Kingdom, and referred to issues raised about the veracity and absence of verification of such claims. 

31. The Tribunal had regard to the fact that thousands of Tamils had returned to Sri Lanka under the auspices of the UNHCR and IOM, but that the UNHCR eligibility guidelines indicated no risk category of Tamil returnees to Sri Lanka or returnees who had made failed claims for asylum.  It did not consider that the independent information and the Applicant’s particular circumstances established that living overseas would specifically impute him with having links to the LTTE or a real chance that he would be imputed which such links as a failed asylum seeker.

32. The Tribunal accepted on the basis of independent evidence that on return the Applicant would be investigated at the airport, checked and questioned, and that the process could take 24 to 48 hours.  It rejected claims about lengthy detention in such circumstances and considered that the preponderance of information suggested that the Applicant did not face a real chance of being detained for more than several days while checks were undertaken. 

33. It went on to consider the harm the Applicant faced as a result of leaving the country illegally and any detention immediately following his return.  It considered the risk of harm during the process of questioning and interrogation, but did not accept that every Tamil returning had a real risk of facing serious harm during such process as it was inconsistent with the UNHCR risk profiles and country information. 

34. The Tribunal also considered claims in relation to “follow up” in the Applicant’s home area, but found nothing in the independent information or based on the Applicant’s profile to suggest that he faced a real chance of serious harm as a result of such contact. 

35. In relation to broader treatment on return to Sri Lanka as a failed asylum seeker, the Tribunal found the preponderance of independent information was that the Applicant would face no different circumstances to any other Sri Lankan Tamil. It did not consider that there were special circumstances applying to the Applicant that would create a risk of additional harm. 

36. On the basis of all the evidence, including that provided by the adviser, given the absence of actual links and no reasonable basis to impute links to the LTTE, the Tribunal assessed the risk of harm to the Applicant as a result of being a failed asylum seeker as less than a real chance. It was not satisfied that the evidence gave rise to the Applicant facing differential treatment for a Convention reason or that it revealed a real chance of serious harm. 

37. The Tribunal went on to consider the risk arising from the fact that the Applicant had departed Sri Lanka illegally.  Again, it set out in some detail information in relation to the treatment of those who had departed illegally.  It accepted on that basis that the Applicant would be charged with an offence under the Sri Lankan Immigrants and Emigrants Act, and that sources suggested the penalty would be a fine in the range of 5000 to 100,000 rupees. It found that while a custodial sentence was possible under the Immigrants and Emigrants Act, there was no information to suggest that such a sentence had ever been imposed on a returnee.  It accepted the Applicant may be held for several days, possibly as much as a fortnight, in jail on remand before being given bail, but found no evidence to suggest that returnees in that situation had been subject to longer periods of detention as part of the process of being charged. 

38. The Tribunal accepted that conditions in Sri Lankan prisons were substandard, crowded and very uncomfortable, but found no evidence to suggest deliberate mistreatment of returnees in detention on remand charged with leaving the country illegally.  It did not accept that a Convention reason would be an essential and significant reason for the Applicant spending up to a fortnight in jail on remand, and found rather that the essential and significant reason for penalties under the Sri Lankan Act was to prevent unregulated departures and that being charged under the Act and being detained on remand would be the result of non-discriminatory enforcement of a law of general application. 

1. The Tribunal accepted independent information that there was no differential treatment based on race or otherwise as to enforcement of this legislation.  The Tribunal specifically considered the adviser’s submission that the prosecution of Tamils under this Act was not a law of general application and that the means were wholly disproportionate to the aims of the legislation, but it did not accept this submission given the lack of any information to support the proposition that those charged under this Act had been subject to mistreatment in detention, or that the law and its enforcement had been applied in a discriminatory way. 

2. The Tribunal also had regard to concerns raised by the Applicant’s adviser about the reliability of DFAT reports and DFAT’s reliance on information provided by the Sri Lankan Government.  It accepted that to some extent such information must be treated with caution, but noted that the fact those who were charged were generally detained for a reasonably short period before being released was confirmed in a cited media report, and that there was no independent information to substantiate any claim that custodial sentences had been imposed. On this basis, the Tribunal was prepared to accept the information to that effect provided by the Sri Lankan government. 

3. The Tribunal also observed that as well as the DFAT report, it had considered a range of other information, including that provided by the adviser.  The Tribunal reiterated that it had considered the Applicant’s submission that DFAT ignored the extent to which failed asylum seekers may be subject to unlawful or unofficial punishments by the authorities as a result of imputed political opinions, but indicated that, as it had already found, the risk of serious harm to the Applicant based on being a returned asylum seeker was remote.

4. The Tribunal considered the Applicant’s claim that he feared persecution as a Tamil who had returned from overseas and was thus perceived to be wealthy.  The Tribunal recorded it had not accepted his evidence that he had been subject to extortion in the past. It therefore found there was no risk profile on that basis.  It had regard to country information about paramilitary groups operating in Sri Lanka and the Eastern Province and the evidence that in attempting to solidify their territory they had engaged in activities, including extortion, against returning Tamils. However it found that none of the evidence before it suggested that this occurred on a widespread basis to Tamils returning from overseas. 

5. The Tribunal also had regard to the fact that at the hearing the Applicant, when referring to the motivation of those engaging in extortion, did not claim that it was due to a perception that he was wealthy as a result of working overseas, but said instead that he believed he was being targeted because he had previously worked in a Sinhalese area. 

6. The Tribunal acknowledged that the Applicant claimed an associated risk of abduction if he failed to pay an extortion attempt, but had regard to country information in relation to abductions in Sri Lanka and also to information that the vast majority of failed asylum seekers did not belong to the groups currently exposed to the risk of abduction, that both Sinhalese and Tamils were abducted, and that most of those abducted were social activists, prominent critics of the authorities, or businessmen and individuals with ties to the underworld. 

7. The Tribunal accepted there was a potential for a range of groups to be targeted for extortion, ranging from business owners to Tamil returnees, but found that it had no evidence to suggest that the prevalence and nature of extortion that Tamil returnees faced was such that the Applicant, given his particular circumstances, would face a real chance of extortion that would constitute serious harm.  It did not accept he had been the target of prior extortion and hence found that this did not put him at a particular risk.  

8. The Tribunal was of the view that the risk of abduction of the Applicant was remote, including based on his personal circumstances, and thus that there did not exist a real chance of serious harm to him on that basis. 

9. On the totality of evidence, including that provided by the Applicant’s adviser, the Tribunal was not satisfied that the evidence revealed a real chance of persecution involving serious harm in connection with the Applicant being perceived to be wealthy as a result of working overseas. 

10. The Tribunal considered the Applicant’s Refugee Convention claims individually and cumulatively. It was not satisfied that he met the Refugees Convention criterion. 

11. It went on to consider the Applicant’s claims in terms of the complementary protection criterion, referring to the law in that respect and the adviser’s submission that the Applicant feared he would be killed or face physical abuse, amounting to cruel, inhuman or degrading treatment and that he would experience racial discrimination which may itself amount to degrading treatment. 

12. The Tribunal considered the Applicant’s race and the potential for discrimination.  It accepted that Tamils in Sri Lanka faced discrimination, as it had outlined, but considered the Applicant’s personal circumstances and the independent information did not establish that he faced a real risk of serious harm in the reasonably foreseeable future as a result of discrimination.  It considered the nature of future harm the Applicant would suffer as a result of discrimination would not come within the categories of significant harm for the purposes of the complementary protection criterion. It found that independent information, in particular from the UNHCR about Tamils, itself supported the proposition that the level of discrimination against Tamils per se did not reach a level that would constitute significant harm. 

13. The Tribunal also had regard to the fact that it did not consider that the Applicant would be imputed with a political opinion of association to the LTTE such as to give rise to a real risk of significant harm. It had regard to its earlier reasoning in relation to failed asylum seekers in finding that he was not at a real risk of significant harm on this basis.

14. Similarly, the Tribunal reached the same view with respect to potential harm relating to the fact that the Applicant had left Sri Lanka illegally, having regard to its earlier findings (which it summarised). It accepted the likelihood of investigation and remand, that bail was routinely given and that the Applicant was likely to be given a fine. It considered the risk of the Applicant being detained for an extended period was remote, based on his personal circumstances.

15. The Tribunal accepted that prison conditions were poor, but did not accept that spending up to a fortnight in jail amounted to significant harm, or that such treatment was intentional within the definitions within the concept of significant harm.  It did not consider that overcrowding and very unpleasant conditions which were a product of the general state of the system and negligence and indifference, had the intention required in the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment. It found that the Applicant did not meet the complementary protection criterion as a consequence of poor conditions in prison due to overcrowding. 

16. The Tribunal acknowledged the Applicant may be contacted by authorities on return to his home area, but did not consider his personal circumstances and his lack of any particular risk profile created a real chance of suffering significant harm when he was contacted by the authorities on his return, on the basis of being a failed asylum seeker or for any other reason.  It reiterated its findings in relation to the risk of harm by way of extortion being remote and similarly did not consider there was a real risk of significant harm to the Applicant on that basis. Individually and cumulatively considering the Applicant’s claims, the Tribunal found he did not meet the complementary protection criterion.  It affirmed the decision under review. 

17. The Applicant sought review by application filed in this Court on 19 December 2014.  He filed an amended application on 16 March 2015 and confirmed in oral submissions today that he wished to rely on the grounds in the amended application.  He also filed written submissions on 19 May 2016 and made oral submissions today. 

18. The first three paragraphs of the amended application are repeated in the written submission, which otherwise does no more than go on to seek that the Tribunal decision be quashed on the basis the Tribunal failed to exercise its jurisdiction and claims that the Applicant has a good merits review case with new evidence.

19. In both the amended application and the written submission it is claimed first that the Tribunal failed to assess whether the Applicant would be persecuted as a young Tamil male aged 29 from a village of Ambari District of Sri Lanka (which was said to be a particular part of Sri Lanka) but that it had assessed that there was no persecution for Tamils generally.

20. It is convenient to consider this claim before turning to the other claims in the amended application. This claim was addressed today in the Applicant’s oral submissions.  I note first that insofar as the amended application appeared on its face to raise a claim that the Tribunal failed to consider a particular social group characterised as something in the order of young Tamil males aged 29 from a village of Ambari District in Sri Lanka, it is well-established that the Tribunal is only under an obligation to consider claims that are expressly raised or that arise clearly or squarely or are apparent on the material before the Tribunal.  (See SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 137; [2003] FCAFC 120). And as stated in NABE v Minister for Immigration & Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, the Tribunal is not required to claim that is not expressly made or that does not arise clearly on the material before the Tribunal.

21. The Applicant made submissions to the effect that the Tribunal had not considered this claim. I asked him where such claims were made.  I raised with him the fact that his adviser’s written submission did not appear to make a claim in such terms (albeit that it did claim that the Applicant feared he would be perceived to hold anti-government or pro-LTTE political views as a Tamil previously resident in Sri Lanka’s Eastern Province who would be perceived to support the LTTE, and because he had applied for asylum in Australia). I asked him whether he had put documents before the Tribunal suggesting that Tamils from his particular local area faced a greater or different risk from that faced by Tamils generally. He indicated initially that he had raised incidents that had occurred to people in his local area, but did not suggest he had put any evidence before the Tribunal in that respect. From what the Applicant ultimately said today it appeared that it was his view that such a claim arose implicitly on the material before the Tribunal. 

22. I note that the adviser put an extensive amount of information before the Tribunal about persecution of Tamils in Sri Lanka. As the Tribunal recognised in its decision, that material referred to particular issues for those from the east and the north of the country. The Tribunal also acknowledged and dealt with the Applicant’s claim that he was at particular risk of being a victim of extortion, not only as a Tamil who had returned from working overseas and would be perceived to be wealthy, as his adviser submitted, but rather, that he believed he was being targeted because he had previously worked in a Sinhalese area.  The Tribunal understood and considered such claims. 

23. More generally, there is nothing in the material before the Court to establish that a claim of the precise nature contended for by the Applicant in this aspect of his application arose clearly or squarely or was apparent on the material before the Tribunal (beyond those aspects of the Applicant’s claims and his particular circumstances which are set out in some detail above which the Tribunal considered in various parts of its reasons for decision). 

24. Insofar as the claim was that while the Tribunal referred to Tamils generally, it did not consider what problems the Applicant was facing specifically, the Tribunal did consider the particular situation of the Applicant. In that context it had regard not only to the fact that it rejected his claims of past extortion and abduction attempts, but also to his particular circumstances when living in Sri Lanka. It acknowledged his race and the area from which he came and factors that it accepted in its findings and reasons, including his past employment, his family’s continued residence in the part of Sri Lanka in which he had been living (in Ambari District) most recently. It accepted his claim about kidnapping of a co-worker in September 2006.

25. Insofar as the Applicant’s claim is that the Tribunal failed to have regard to his place of residence and work and origin, I am not satisfied that such claims have been made out.  Rather, the Tribunal considered such claims insofar as necessary to do so. The findings that it made were such as to sufficiently address the Applicant’s particular circumstances, particularly having regard to the generality of aspects of such findings, including in relation to the claims based on role and/or imputed political opinion. As expressly presented by the Applicant’s advisor such claims were based on the Applicant being a Tamil previously resident in Sri Lanka’s Eastern Province who would be perceived to support the LTTE.

26. The Tribunal had regard to independent country information in rejecting the claim that being a Tamil exposed an Applicant to being imputed to hold a political opinion.  It understood and had regard to the interplay between racial and political reasons for persecution in Sri Lanka.  It also had regard to the additional factors relating to the Applicant, including his unsuccessful attempts to seek asylum in Australia and his illegal departure from Sri Lanka, in rejecting the claim that his circumstances were such as to impute him with any political opinions linked to the LTTE or opposed to the Sri Lankan authorities. 

27. Insofar as the Applicant’s oral submissions were expressed in general terms in relation to the risk of harm to Tamils in Sri Lanka and suggested that Tamils were targeted, the Tribunal considered such claims. 

28. The findings that the Tribunal made were open to it on the material before it for the reasons which it gave and are not such that its reasoning could be categorised as illogical or unreasonable in a manner amounting to jurisdictional error. 

29. The Applicant’s disagreement with the Tribunal’s conclusions in this respect seeks merits review. Merits review is not available in this court.  This aspect of the Applicant’s grounds of review is not made out. 

30. The next aspect of the grounds of review is a claim that there was country information before the Tribunal indicating that failed asylum seekers were held in prison for several days in overcrowded, unpleasant and poor conditions. The Applicant contended that the Tribunal made an error when deciding that cruel or inhuman treatment or punishment would not be intentionally inflicted upon the Applicant if he was placed in prison on remand for several days because the Tribunal had accepted that prison was subject to overcrowding, poor and unpleasant conditions. 

31. He submitted that the Tribunal had not considered whether the fact of possible placement in such conditions in jail would be intentionally inflicted in circumstances where the Sri Lankan authorities had known of the existence of overcrowded and unpleasant jails. 

32. The Tribunal acknowledged such country information. However, it considered this issue in relation to both the complementary protection criterion and the Refugees Convention criterion. It accepted that conditions in Sri Lankan prisons were substandard, crowded and very uncomfortable.  It specifically considered, but found no evidence to suggest, deliberate mistreatment of returnees in detention or intentional infliction of harm in the requisite sense in the definitions of degrading treatment and cruel or inhuman treatment or punishment. Insofar as the Applicant disagrees with the Tribunal’s conclusions in this respect, he seeks impermissible merits review.  The Tribunal did consider whether his possible detention in an overcrowded jail with unpleasant conditions would be such as to meet the definitions of significant harm and in that context whether the harm would be intentionally inflicted, but was of the view that these conditions were the product of the general state of the system, negligence and indifference, rather than amounting to intentionally inflicted harm on the basis contended for by the Applicant.  This aspect of the Applicant’s claims is not made out.

33. The Tribunal also considered such matters in the context of addressing the Refugees Convention criterion (although the concern raised by the Applicant in this ground appear to relate to the complementary protection criterion).  The Tribunal considered whether the prison conditions to which the Applicant may be exposed were such as to amount to a real risk of serious harm but, as set out some detail above, it was not so satisfied. It accepted that conditions in Sri Lankan prisons were substandard, crowded and very uncomfortable, but found no evidence to suggest deliberate mistreatment of returnees in detention on remand after being charged for leaving the country illegally.  The Tribunal’s findings in this respect were open to it on the material before it. 

34. Insofar as the Applicant disagrees with the Tribunal’s conclusions in this respect, he seeks impermissible merits review.  The Tribunal did consider whether his possible detention in an overcrowded jail with unpleasant conditions would be such as to meet the definitions of significant harm and in that context whether the harm would be intentionally inflicted, but was of the view that these conditions were the product of the general state of the system, negligence and indifference, rather than amounting to intentionally inflicted harm on the basis contended for by the Applicant.  This aspect of the Applicant’s claims is not made out.

35. In the amended application, the Applicant also indicated that he intended to listen to the hearing tapes and to find any other legal errors and would include these in his submission before the Court hearing.  There was, however, no reference in either the Applicant’s written or oral submissions to any other matters arising out of the Tribunal hearing, let alone matters which may be indicative of jurisdictional error. 

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

37. The Applicant has been unsuccessful.  The Minister seeks costs in the sum of $5000.  The Applicant told the Court that he had no work rights now, that he unable to pay the costs and that he was dependent on friends for financial support.  However such matters are not in themselves a basis on which to depart from the normal principle that an unsuccessful applicant should meet the costs of the First Respondent, although they may be matters 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 in light of the nature of this and other similar matters.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 5 July 2016