SZWAA v Minister for Immigration

[2016] FCCA 2863

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWAA v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2863

Catchwords:
MIGRATION – Application to review decision of former Refugee Review Tribunal – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.91R(2)(a), 424A, 425

Cases cited:

Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14

Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166

Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD

507; [2015] FCA 1069

Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR

610; [2015] HCA 22

SZTAL v Minister for Immigration and Border Protection & Anor [2015] FCCA 64

SZTAL vMinister for Immigration and Border Protection [2016] FCAFC 69

SZTAP vMinister for Immigration and Border Protection (2015) 238 FCR 404; [2015] FCAFC 175
SZTQS v Minister for Immigration and Border Protection & Anor [2015] FCCA 978
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: SZWAA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 134 of 2015

Judgment of: Judge Barnes

Hearing date: 24 October 2016

Delivered at: Sydney

Delivered on: 24 October 2016

REPRESENTATION

The Applicant: In Person

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 amount of $6,500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 134 of 2015

SZWAA

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) dated 8 January 2015.  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, entered Australia in August 2012.  He participated in an unauthorised maritime arrival entry interview.  He applied for a protection visa on 27 May 2013.  

3. The Applicant claimed he was a Tamil and Hindu who had always lived in a particular LTTE-controlled area in Sri Lanka.  He claimed that in 2009 he had to do basic training with the LTTE and that his family was displaced during the war.  They lived in a refugee camp for a year, during which time he was questioned about his links to the LTTE.  After his release he had a small farm which he operated until he left Sri Lanka in 2012.  He claimed that on one occasion in 2012 he and his cousin were stopped by army officers who questioned and beat them and that since early 2012 the army and the CID had been targeting people who had trained with the LTTE.  He also claimed to fear that a person he had trained with who had decided to join the army would disclose his details.  He explained that he was never involved in the LTTE apart from doing the compulsory training.  The Applicant expressed his claims as a fear that he would be imprisoned, beaten and tortured or killed by the CID because he was a Tamil and they suspect he has links to the LTTE and has helped the Tigers because he came from an LTTE area.  

4. The Applicant also advanced claims that his brothers had scarring as a result of bombings and that for that reason, the CID believed they had been involved with the LTTE; that family land had been taken away; and that his cousin had been killed by the army.  He claimed that he feared harm on return to Sri Lanka as a failed asylum seeker. 

5. After the application was refused, the Applicant sought review by the Tribunal. The Tribunal wrote to the Applicant on 8 December 2014, apparently under s.424A of the Migration Act 1958 (Cth) (the Act), inviting him to comment on or respond to information consisting, in essence, of inconsistencies in information he had given at various stages.

6. The Applicant’s agent provided the Tribunal with a response in December 2014 and submitted an undated letter of support from a parish priest in a church in Sri Lanka that was said to be the Applicant’s church.  The Applicant was invited to and gave evidence at a Tribunal hearing. 

7. In its reasons for decision the Tribunal first considered the Applicant’s claims in relation to his claimed involvement with the LTTE.  It summarised his claim that he did basic training for the LTTE, provided support to them through providing building materials and building a roof and that because he was a Tamil from an LTTE-controlled area from which an LTTE commander came and because of the training and provision of support to the LTTE he may be harmed by the authorities, forced to confess an involvement with the LTTE, forced into rehabilitation and even killed.

8. However the Tribunal, for reasons which it gave, was of the view that the Applicant had not been truthful concerning his claimed involvement with the LTTE or any interest in such involvement from the authorities.  It placed substantial weight on the fact that the claims he made in his protection visa application were substantially different to his evidence in his entry interview.  In particular, at the entry interview he had claimed that nothing had happened to him since 2009, whereas in his protection visa application he made claims about events which allegedly occurred in 2012. 

9. The Tribunal did not accept the Applicant’s explanations that he failed to appreciate the relevance of such information or was distrustful of authorities, having regard to the fact that the incident in 2012 was part of the basis for his protection claims.  In circumstances where the Applicant had gone to considerable lengths and the expense of travelling to Australia to seek protection, the Tribunal did not accept that he would then be fearful of mentioning the reasons he was in need of protection or fearful of harm. 

10. The Tribunal also had regard to the fact that in his protection visa application the Applicant said he had undergone basic self-defence training with the LTTE, whereas he made no mention of this in his entry interview.  The Tribunal did not accept that the Applicant was fearful of admitting any connection to the LTTE given that it was the basis for his protection claim. 

11. The Tribunal did not accept the Applicant’s explanation that he had difficulties recalling dates in his entry interview and that his memory had been adversely affected by trauma during the war.  It had regard to the absence of any medical or other evidence to support such a claim and to the fact that this explanation was only proffered in response to Tribunal concerns about inconsistencies.  It appeared to the Tribunal to be an apparent attempt to explain such inconsistencies.  In addition, the Tribunal pointed out that the issue was not the Applicant’s inability to recall precise dates and events, but rather that either nothing had happened after 2009 for three years before the Applicant left Sri Lanka, or else the Applicant was harassed and harmed in mid-2012 (months before his departure) and that this was the impetus for his decision to leave.  The Tribunal acknowledged that in a brief interview shortly after arrival there may be a lack of detail in answers, but found that these matters did not explain the direct inconsistencies in the Applicant’s evidence.  While the Tribunal accepted that the Applicant may not have given details of any harassment he had suffered in 2012 in his entry interview, it was of the view that there was no obvious reason he would have expressly stated in his entry interview that nothing had happened to him since 2009. 

12. The Tribunal acknowledged submissions in relation to the unreliability of entry interviews and had regard to credibility guidelines, but did not accept that the matters raised by the Applicant and his representative had caused the Applicant to be forgetful about one incident of harassment as had been submitted.  It was of the view that the significant discrepancies in his descriptions of events suggested that the Applicant had not been truthful in his evidence concerning these matters. 

13. The Tribunal also formed the view that the “very basis” of the Applicant’s claims contradicted available country information.  The Tribunal found that even if the entirety of the Applicant’s claims (about providing assistance to the LTTE, undergoing basic training, living in an LTTE-controlled area and providing materials for and working for the LTTE) were to be accepted, on the evidence before it none of these matters would cause the Applicant to be of any adverse interest to the CID or the authorities.  In that respect the Tribunal had regard to evidence before the Upper Tribunal (Immigration and Asylum Chamber) of the United Kingdom to the effect that the Sri Lankan authorities are aware that everyone in LTTE-dominated areas had some level of involvement with the LTTE during the civil war.  The Tribunal was of the view that this involvement was not sufficient to bring a person within the risk category. 

14. The Tribunal did not accept that the Applicant’s limited involvement with training or employment with the LTTE would be viewed adversely by the authorities, the CID, the army or anyone else or that the Applicant would be perceived as being an LTTE supporter or at risk as a result of participating in such training and employment. 

15. It was of the view that if the Applicant was perceived as having had an involvement with the LTTE that was of concern (whether arising from his past involvement with the LTTE, being a Tamil or a Tamil from a particular area, his brother’s injuries or any other matter), he would have been questioned about it and likely detained at the conclusion of the war.  However, while he claimed he had been questioned while in the refugee camp, he had been released in 2009 and claimed that nothing happened to him until 2012. 

16. The Tribunal also stated that even if it accepted that the 2012 event had taken place, it appeared to have been a random act of harassment, rather than targeted harm due to the Applicant’s LTTE links.  Insofar as the Applicant claimed that he had not been located because he had not lived in his village, the Tribunal was of the view that the CID would have been able to locate him whether he remained living in one village or moved around.  It was of the view that the fact that no steps had been taken to harm, question, interrogate or take action against the Applicant since 2009 as an LTTE supporter was a strong indication that he was not and had not been perceived as such. 

17. The Tribunal did not find persuasive the claim that a person the Applicant had trained with may disclose his training to the authorities, having regard to his own evidence that training was compulsory and undergone by everyone and the fact that this had not caused him to be a person of interest in the past.  The Tribunal did not accept that this would change in the future.  It did not consider that any of the characteristics the Applicant identified would cause him to be perceived as being an LTTE supporter or sympathiser. 

18. The Tribunal considered the recent claim that CID informers would inform the CID the Applicant was a member of the LTTE and that he would be harmed as a result.  The Tribunal saw no reason why CID informers would wish to wait until 2015 to inform on the Applicant and reiterated that if the CID had wanted to find him they could have done so before his departure through his residence or his employment. 

19. The Tribunal also considered the Applicant’s claims based on his race or as a young Tamil or a young male Tamil from a particular area or his membership of various particular social groups.  For reasons which it gave, it did not consider there was a real chance of persecution, serious or significant harm on those bases. 

20. The Tribunal had regard to the letter from a parish priest in Sri Lanka.  It expressed concerns about the authenticity of that document, given errors in the spelling of “parish” and the name of the church and the lack of a date and contact details for the priest to enable the Tribunal to verify or test the evidence.  Given these concerns and its overall credibility concerns, the Tribunal gave the letter no weight. 

21. The Tribunal considered country information provided by the Applicant and his representative in relation to the situation in Sri Lanka but found that it was not of the view that Tamils as a group were in need of international protection having regard to country information and the fact that the Applicant did not claim to be within the categories of persons at risk.  It was not satisfied on the evidence before it that the Applicant would be perceived as being at present risk as a perceived LTTE supporter and because of his characteristics, given his minimal links with the LTTE and the fact that he did not have a relevant risk profile as a result of any characteristic identified or that arose on the evidence. 

22. The Tribunal also addressed the Applicant’s claim that his cousin had been detained for five years and killed.  Despite the absence of documentary evidence, it observed that even if that claim were to be accepted it did not give rise to a real chance of persecution for the Applicant, as he had not established a link between his and his cousin’s circumstances that would cause him to be targeted or harmed.  It found that insofar as the link he made was that they were both Tamils, being a Tamil was not sufficient in itself to give rise to a real chance or real risk of harm. 

23. The Tribunal reiterated that it accepted the Applicant’s claims about events up to 2009, including his involvement in basic training with the LTTE and that the Applicant was questioned while living in the refugee camp and threatened about his links with the LTTE.  It was also prepared to accept, despite the lateness and vagueness of the claim, that his cousin had been killed.  However it did not accept that the Applicant was of any interest to the authorities after being released from the refugee camp, or that he was subsequently questioned about his training or links to the LTTE or perceived as an LTTE member, supporter or sympathiser as he claimed.  It did not accept that in 2012 he was beaten and questioned by the army, that his training or involvement with the LTTE would be disclosed by a friend or, even if it was, that it would be of any interest to anyone.  It found the Applicant would not be perceived as being an LTTE supporter or sympathiser and that he had not been of any adverse interest to the authorities, the army or the CID because he was a Tamil; lived in an LTTE-controlled area or in a particular area; had undergone training or provided other support and help to the LTTE; because his siblings were disfigured; or for any other reason.  It did not accept his claims that he would be interrogated on return to Sri Lanka, forced to sign a confession or to go through rehabilitation or be killed or otherwise harmed as a result.  Irrespective of any characteristic or combination of such, it did not accept that the Applicant would be imputed with being an LTTE supporter or sympathiser and be of adverse interest to anyone in Sri Lanka on this basis. 

24. The Tribunal recorded that despite being repeatedly asked if he had any other fear, at the hearing the Applicant had not raised other claims until the Tribunal reminded him about his written claim that he feared persecution due to being a failed asylum seeker.  It was of the view that if the Applicant was genuinely fearful of harm on this basis (or on the basis of having sought asylum in a Western country or his illegal departure from Sri Lanka) he would have remembered this when questioned.  Nonetheless, it considered whether there was a real chance the Applicant faced serious harm as a person who had departed Sri Lanka illegally and would return as a failed asylum seeker. 

25. The Tribunal gave detailed reasons for not accepting that the Applicant would be treated any differently from any other returnees or that he would be targeted in a discriminatory fashion as a consequence of his Tamil ethnicity or having sought asylum in Australia.  It accepted that he would be questioned at the airport on return, but did not regard this as something that could be characterised as harm.  It noted there was a possibility he could be held on remand for a limited period and that conditions in remand would be poor, but found that if this were to happen the Applicant would be held for having left Sri Lanka illegally, rather than for his membership of a particular social group of Tamils, that he would not be treated any differently from other returnees and that problems he may face due to poor conditions in remand would be faced by the general population. 

26. In relation to his illegal departure, the Tribunal accepted that Sri Lankan legislation provided penalties of both imprisonment and fines on conviction for illegal departure, but had regard to country information in finding that the penalty would likely be a fine, rather than imprisonment.  It was not satisfied that questioning, arrest and the poor conditions in remand amounted to systematic and discriminatory conduct or that the evidence established there was a real chance the Applicant would suffer serious harm on arrival or thereafter as a failed asylum seeker, a returnee from a Western country or because he departed illegally. 

27. While the Applicant had claimed to the delegate that land had been taken away, he had not offered any documentary evidence or pursued this claim before the Tribunal.  The Tribunal found that he did not have a fear of harm as a result of land acquisition.  

28. It concluded that there was no real chance of persecution for a Convention reason on the basis of the Applicant’s claims considered singularly and cumulatively. 

29. The Tribunal also considered the complementary protection criterion.  In that context it accepted that the Applicant had departed Sri Lanka illegally, that this was an offence under Sri Lankan law and that the most likely penalty for such a breach was a fine.  It accepted that due to his illegal departure the Applicant would be questioned, charged, fined and may be arrested, but did not consider that this amounted to significant harm.  It accepted he may spend up to a fortnight in jail on remand, but had regard to the absence of reports of persons held in remand in such circumstances suffering torture, arbitrary deprivation of life, intentional mistreatment involving torture, cruel or inhuman treatment or punishment or degrading treatment or punishment amounting to significant harm.

30. Having regard to this information, the Tribunal did not accept there were substantial grounds for believing that there was a real risk the Applicant would suffer significant harm during any period he may spend in jail on remand.  It accepted that he may be remanded in conditions that were cramped and uncomfortable, but did not accept that spending up to a fortnight in such conditions amounted to significant harm or that such treatment was intentional. 

31. The Tribunal found there was not a real risk that the Applicant would suffer significant harm within the Migration Act. Relevantly, it observed that mere negligence or indifference was not sufficient in relation to those kinds of significant harm that required intention, which was said to be an intention to inflict pain or suffering or to cause extreme humiliation. It did not accept that the pain and suffering caused by overcrowding and other problems in prisons in Sri Lanka were intentionally inflicted on prisoners within the definitions of the relevant kinds of significant harm. It found that the Applicant did not meet the complementary protection criterion.

1. The Applicant sought review by application filed in this court in January 2015.  He filed an amended application in May 2015.  He did not file written submissions.  When I asked him whether he wished to rely on the grounds in his amended application he appeared uncertain.  For the sake of completeness I have considered both the original and the amended application.  In addition, the Applicant filed two affidavits.  The first of these (filed with the original application) repeated one of the grounds in the original application.  Both the copy on the file and the copy served on the Minister were missing page 2.  The Applicant was unable to assist the Court with any indication of what was contained on that page, but it would appear that paragraph 4 of the affidavit (which is incomplete on page 1) is, in effect, paraphrasing part of what appears in the original application.  In addition, the Applicant filed an affidavit on 26 September 2016 discussed below. 

2. The Applicant was given the opportunity today to make oral submissions addressing all of the grounds raised in various ways in his applications and affidavits and also to express any other concerns with the Tribunal decision or procedures.  In essence the concerns the Applicant raised in oral submissions did no more than seek impermissible merits review.  The Applicant clearly disagreed with the Tribunal’s factual findings and its conclusion that he did not meet the criteria for a protection visa.  I endeavoured to explain to him that it was not for this Court to determine whether or not he was a refugee, but he continued to reiterate his claims that he was a refugee and that the Tribunal had erred in not accepting that this was so.  The Applicant’s claims in this respect do not establish jurisdictional error on the part of the Tribunal.  The Tribunal’s findings, including its credibility findings, were reasonably open to it on the material before it for the reasons which it gave. 

3. The Applicant also claimed that he had new evidence that had not been before the Tribunal, including documents he had attached to his affidavit of September 2016 which consisted of a copy of a complaint to the Human Rights Commission of Sri Lanka about events of 2016 and an acknowledgement of receipt of that complaint.  The Applicant conceded that as this material post-dated the Tribunal review it was not material that was or could have been before the Tribunal.  It is not indicative of jurisdictional error on the part of the Tribunal.  As I indicated to him, if his concern is that circumstances have changed in Sri Lanka that is a matter he may raise with the Minister for Immigration, but this is not in itself such as to establish a jurisdictional error on the part of the Tribunal.

4. Turning to the grounds relied on by the Applicant, it is convenient to consider first the amended application.  The first ground in the amended application is that the Tribunal erred in failing to discern a Convention nexus in the Applicant’s case in relation to his claim that he would be targeted by the authorities due to his association with the LTTE.  The ground also states that the Applicant received training from the LTTE and that the Tribunal accepted this as plausible.  It is then contended that the fact that the Applicant had not been targeted in the past did not mean that he would not be targeted in the future. 

5. The Tribunal considered and accepted the Applicant’s claims in relation to his training and past involvement with the LTTE, but concluded, in light of country information and the nature of the Applicant’s activities, that his past activities would not cause him to come to the adverse attention of the authorities in the future.  It did not reject this claim on the basis that there was no Convention nexus, but rather found that there was no well-founded fear of serious harm or real risk of significant harm on this basis.

6. Nor did the Tribunal reject the Applicant’s claims on the basis that because he had not been targeted in the past that necessarily meant that he would not be targeted in the future.  In considering whether the Applicant would come to the adverse attention of the authorities in the future it was open to the Tribunal to have regard to what had occurred in the past.  The Tribunal considered all the claims advanced by the Applicant, finding that even if the entirety of the claims about his involvement up to 2009 was accepted, none of these matters would cause him to be of any adverse interest to the CID or the authorities.  It also considered the other claims that he raised.

7. Further, the Tribunal’s findings rejecting the Applicant’s claims about events of 2012 were reasonably open to it on the material before it for the reasons which it gave.  

8. Ground one in the amended application as pleaded and as elaborated on in submissions is not made out.  

9. The second ground in the amended application is that the Tribunal made an error in that it concluded that the Applicant was not targeted in the past and therefore he would not be targeted in the future.  Apart from the issue addressed in ground one, it may be that this is a reference to the part of the Tribunal’s reasoning in which it expressed the view that the fact that no steps had been taken to harm the Applicant, question him, interrogate him or take any action against him as an LTTE supporter since 2009 was a strong indication that he was not and had not been perceived as an LTTE supporter.  The Tribunal observed that this had not caused the Applicant to be a person of interest in the past and it did not accept that his would change in the future.  However, as indicated, that finding was not based solely on the absence of past harm.  Rather, the Tribunal had regard to the absence of past harm, country information and the opportunity the authorities would have had had they wished to approach the Applicant before he came to Australia.

10. The Tribunal assessed the Applicant’s risk of future harm by considering whether he was a person of interest to the authorities.  This necessarily required it to consider, as part of all the evidence, whether he had been harmed in the past as claimed.  The Tribunal did not fall into jurisdictional error in the manner contended for in ground 2 in the amended application. 

11. Insofar as in oral submissions the Applicant claimed that he was targeted in Sri Lanka and had suffered a lot in the past, he seeks impermissible merits review in disagreeing with the Tribunal’s factual findings.  Ground 2 is not made out. 

12. The grounds in the original application appear as a number of unnumbered paragraphs.  First, it was contended that the Tribunal had declined its jurisdiction by failing to consider whether the Applicant would be persecuted as a Tamil male from a village in the north of Sri Lanka, a particular part of Sri Lanka and a former LTTE-controlled area.  It seems to be suggested that, instead, the Tribunal considered whether there was persecution for Tamils generally.  I take this to be a contention that the Tribunal failed to consider an integer of the Applicant’s claims.  However, the Tribunal clearly considered the Applicant’s claims to fear persecution as a Tamil from a particular area, an LTTE-controlled area, as well as as a Tamil, but found that this would not cause him to be of adverse interest to the authorities.  It was of the view that if the Applicant was perceived by the authorities to be of concern for reason of being a Tamil or a Tamil from a particular area then they would have questioned him at the conclusion of the war.

13. When asked about this ground, the Applicant reiterated that he feared harm in Sri Lanka and suggested that this was based on recent events including an incident in the last week involving his uncle and friends. 

14. It has not been established that the Tribunal erred in failing to consider such events or claims about events that had not yet occurred.  It correctly had regard to the real chance or real risk of harm in the future.  It has not been established that the Tribunal failed to have regard to any integer of the Applicant’s claims.

15. The original application also takes issue with the Tribunal’s findings about the consequences for the Applicant as a person who had departed Sri Lanka illegally and the possibility that he may be held in prison for several days in overcrowded and unpleasant conditions. 

16. The Tribunal considered whether the Applicant would face harm on return to Sri Lanka as an illegal departee and/or failed asylum seeker.  In that context it considered the possibility of the Applicant being charged and held on remand on the basis of having committed an offence of illegally departing Sri Lanka.

17. The Applicant appeared to suggest that the Tribunal erred in deciding that cruel or inhuman treatment or punishment would not be intentionally inflicted if he was placed in prison on remand for several days, because the Tribunal had accepted prison was subject to overcrowding and poor and unpleasant conditions.  It was contended that the Tribunal did not consider whether the fact of possible placement of the Applicant in an overcrowded jail with unpleasant conditions by the authorities would be intentionally inflicted in circumstances where the authorities had known of the existence of overcrowded and unpleasant jails. 

18. This appears to be a reference to the Tribunal’s reasoning in relation to complementary protection.  It was not satisfied that pain or suffering caused by overcrowding in prison and other problems for those held on remand was intentionally inflicted. 

19. This ground raises an argument as to whether intentional infliction of harm is to be inferred in the manner considered by Judge Driver in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64. However as Judge Driver and the Full Court of the Federal Court on appeal in SZTAL vMinister for Immigration and Border Protection & Anor [2016] FCAFC 69) indicated, intentional infliction, on its natural and ordinary meaning, involves an actual subjective intention by the actor to bring about the victim’s pain and suffering by the actor’s conduct. The Applicant’s grounds in this respect do not establish jurisdictional error on the part of the Tribunal in the manner in which it considered intentional infliction of harm for the purposes of the complementary protection criteria.

20. Insofar as this ground may be seen as raising an allegation of error in the sense considered by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, such complaints cannot succeed in light of the decision of the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22. The High Court held that the likelihood of a period of temporary detention of a person for a Refugees Convention reason was not, of itself and without more, a threat to liberty within the meaning of s.91R(2)(a) of the Act.

21. Finally, it was contended that the Applicant had no family, friends and close relatives in Colombo to vouch for him in relation to his bail.  This appears to be intended to raise the sort of issue that was considered in Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069 on appeal from SZTQS v Minister for Immigration and Border Protection & Anor [2015] FCCA 978.

22. In SZTQS it was found that the Tribunal in that case had erred in failing to put to an applicant under s.425 of the Act the issue of whether a family member would provide surety in respect of any bail. However, in SZTAP vMinister for Immigration and Border Protection (2015) 238 FCR 404; [2015] FCAFC 175 (at [74]-[80]) the Full Court of the Federal Court considered the relevance of the approach in SZTQS in circumstances where the Tribunal had made the same finding as was made in the present case (although in SZTAP there was also evidence that the Tribunal had not put to the appellant the issue of whether a family member would provide surety). 

23. Relevantly, the Full Court was of the view that SZTQS did not stand for the proposition that every reference to a family member being required to provide surety involved a breach of s.425 of the Act, but that it was merely an application on particular facts of a feature of the review jurisdiction exercised by the Tribunal.

24. The Court was of the view in SZTAP that on the facts before it, it was not apparent that it was critical to the Tribunal’s finding that an Applicant could apply for bail and that bail was routinely given, that a family member was required to provide surety.  Hence the issue of whether the applicant’s family would be able to provide surety for him was not plainly a dispositive issue for the Tribunal (see SZTAP at [79]).

25. Moreover, the Full Court in SZTAP made the point (at [80]) that in SZTQS it appeared to have been assumed at first instance that providing surety involved the payment of money, whereas in SZTAP and, indeed, in the present case, no such assumption should be made, having regard to the actual findings of the Tribunal. 

26. It is important to consider the Tribunal’s findings in this case.  The Tribunal accepted that evidence before it indicated that as a result of being an illegal departee the Applicant could be placed in remand for a relatively brief period while awaiting a bail hearing and later fined if found guilty.  In the course of making its findings the Tribunal, relevantly, accepted (as in SZTAP) that bail was routinely given on the accused’s own recognisance, although a family member was also required to provide surety.  As in SZTAP, it is not apparent that the issue of surety was critical to the Tribunal’s findings or amounted to a dispositive issue.  In any event, in the absence of a transcript it cannot be concluded that the Tribunal failed to raise such issue at the hearing. 

27. It has not been established that the Tribunal erred in the manner considered in SZTQS insofar as that was intended to be contended for by the Applicant.  The grounds in the application and the amended application are not made out. 

28. Other issues were raised by the Applicant in submissions.  He suggested that the Tribunal had not considered that his cousin was killed.  He initially referred to his brother being killed, but then clarified that his claim to the Tribunal had been that his cousin was killed.  As indicated, the Tribunal considered the claim about the Applicant’s cousin being killed, but found that even if this was so that did not amount to or establish a real chance of persecution for the Applicant.

29. I note that the Tribunal was also aware of and considered the relevance of the claims the Applicant made about harm to his brother in rejecting the claim that the Applicant met the Refugees Convention criterion because his siblings were disfigured or for any other reason, or that he would be of adverse interest to the authorities on that basis. 

30. As mentioned above, the Applicant sought to rely on 2016 documents consisting of a submission to and acknowledgement of a complaint by the Sri Lankan Human Rights Commission.  The First Respondent objected to the admissibility of these documents on the basis of relevance, but I considered that they should be before the Court as indicating (as the Applicant stated in paragraph 9 of his affidavit) that he was of the view that he needed a new hearing to argue his case again with this new evidence.  However, such matters do not go to show jurisdictional error on the part of the Tribunal or that its findings were not reasonably open to it on the material before it at the time of its decision.  If the Applicant says circumstances have changed in Sri Lanka and seeks to make a further protection visa application on that basis, that is a matter he must raise with the Minister. 

31. Otherwise, the September 2016 affidavit consists of submissions, contending that the Tribunal failed to consider “crucial…” (and a word appears to be missing) and his claim for protection.  The Tribunal considered the Applicant’s claims.  It also considered the evidence before it.  No jurisdictional error is established on this basis.

32. Insofar as it appears to be asserted that the Tribunal should have invited the Applicant to provide his comments in writing or to attend a hearing, the Tribunal did both those things. It has not been established that there was a failure to comply with s.425 or s.424A of the Act. I note in that respect that the Applicant did not identify any information to which s.424A would apply that was not put to him. Nor is any material amounting to information, but not put to the Applicant, apparent on the material before the court.

33. The Applicant submitted that the Tribunal ought to have waited before making its decision, or to have given him the opportunity to provide further information.  There is no evidence that the Applicant made any request in that respect.  The Tribunal is under no general obligation to delay making its decision to wait for further evidence or to prompt or stimulate a response from an applicant (see Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 at [26]). It is well-established that it is for an applicant to present such evidence as he considers relevant to his application when the matter is before the Tribunal for review (see Abebe v Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187]).

34. No jurisdictional error has been established on any of the bases contended for by the Applicant. 

35. The Applicant has been unsuccessful.  It is appropriate that he meet the costs of the Minster.  The Applicant indicated that he would pay the costs in instalments.  I do not propose to make an order in relation to how the costs are to be paid, but the Applicant’s situation is no doubt 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 in light of the nature of this and other similar matters.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 7 November 2016