SZWDE v Minister for Immigration - [2017] FCCA 422

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWDE v MINISTER FOR IMMIGRATION & ANOR

[2017] FCCA 422

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

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2A)

Cases cited:

AIS15 v Minister forImmigration and Border Protection [2016] FCA 978

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197

ALR 389; [2003] HCA 26

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

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

Applicant:

SZWDE

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 398 of 2015

Judgment of:

Judge Barnes

Hearing date:

22 February 2017

Delivered at:

Sydney

Delivered on:

22 February 2017

REPRESENTATION

The Applicant:

In Person

Solicitors for the Respondents:

DLA Piper

ORDERS

The application be dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $4,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 398 of 2015

SZWDE

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal, dated 29 January 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant, a citizen of Sri Lanka, arrived in Australia in July 2012 as an unauthorised maritime arrival. He made a protection visa application in March 2013. His claims were initially set out in a statement accompanying his protection visa application.
The Applicant claimed to fear harm on a number of bases, in particular because of his brother’s activities and also to fear harm from his brother. He claimed to fear harm for reason of his Tamil ethnicity and his membership of a particular social group, later specified by his advisers to be the particular social group of failed asylum seekers.
The Applicant claimed that he first left Sri Lanka illegally in 2005 out of concern that Sri Lankan authorities would come after him because his brother had married a girl who had LTTE links. The Applicant claimed that the boat he was travelling on in 2005 was intercepted by the Sri Lankan navy, that he was charged and received a five year prison sentence but was pardoned and released by the president of Sri Lanka after spending what was later explained to be some six months in prison. The Applicant left Sri Lanka to come to Australia in June 2012. He claimed that he was at risk of being harmed by the authorities for having attempted to flee illegally in 2005 and having done so in 2012 and for having made asylum claims in Australia. He claimed he would be sentenced to a long jail term because of his previous sentence for attempting to flee Sri Lanka illegally.
The Applicant also claimed that he feared harm from some Muslim candidates in a local election because he and his brother had supported a particular candidate in that election.
As subsequently elaborated on, the Applicant claimed he would be imputed with the political opinion of being anti-government or pro-LTTE, including for reason of his illegal departure from Sri Lanka.
The application was refused. The delegate did not make adverse credibility findings but found that the claims relating to the Applicant’s brother were not Convention-related, that any sanctions he would face for illegal departure would be pursuant to a law of general application, and that insofar as he made claims based on events relating to an election and Muslim candidates, he could reasonably relocate.
The Applicant sought review by the Tribunal. He had the assistance of solicitors who provided the Tribunal with a detailed pre-hearing submission in which the Applicant’s claims were elaborated on in light of what were said to be more recent events involving the brother.
It was claimed that the essential and significant reasons the Applicant feared persecution were his Tamil race and his membership of the particular social group of failed asylum seekers. Much of the submission addressed country information in relation to the position of Tamils in Sri Lanka, failed asylum seekers and returning illegal departees.
The Applicant attended two Tribunal hearings, in December 2014 and January 2015. He submitted some supporting documents, including a STARTTS report in relation to counselling he was receiving and some medical certificates in relation to physical injuries he had suffered.
In its reasons for decision the Tribunal summarised the Applicant’s claims to fear harm on the basis of his ethnic background as a Tamil and as a member of the particular social group of returning failed asylum seekers; that he would be perceived as having an imputed political opinion of being anti-government or pro-LTTE because he left Sri Lanka illegally; and that he feared harm because of the activities of his brother and also to fear harm from that brother. In addition he claimed that because he and his brother provided support to a particular candidate in a local election he feared harm from some Muslim candidates in that election.
The Tribunal summarised the Applicant’s evidence. It set out in some detail its discussion with the Applicant at the hearing. It recorded that at the first hearing the Applicant had confirmed that his claims and grounds for seeking protection were as summarised. At the second hearing, he said he was mainly fearful about harm from his brother, including harm from his brother’s underworld connections. He made this claim on the basis that he had been involved in reporting his brother’s abduction in 2008 by armed men who spoke Tamil and Sinhalese. The Tribunal also recorded that the Applicant told it that neither he nor any members of his family had been members or supporters of the LTTE.
The Tribunal set out a discussion of the Applicant’s claims about having attempted to depart Sri Lanka illegally in 2005 and what occurred thereafter. It recorded that the Applicant did not have any documents about his claimed sentence and imprisonment for having attempted to leave Sri Lanka illegally.
In its consideration of the claims and evidence the Tribunal found that it was not satisfied as to the Applicant’s claims to have a well-founded fear of persecution on the basis of his Tamil ethnic extraction or on the basis that he was a failed asylum seeker who would be perceived to be pro-LTTE or to hold anti-Sri Lankan government views. It found that the evidence before it indicated that the real basis for the Applicant fearing harm was that he was afraid of his brother and feared harm from his brother.
The Tribunal did not accept the Applicant’s claim that he had a real chance of suffering persecutory harm from the police on the basis that if they could not locate his brother they would take some action against him, or that he faced a real chance of persecutory harm from underworld associates of his brother or from Muslim candidates and their supporters. Nor was it satisfied that the Applicant faced a real chance of persecutory harm from the police because he was a surety for bail for his brother and his brother had not answered his bail on occasion.
The Tribunal gave reasons for these findings. It had regard to the fact that the Applicant claimed that he had been detained on one occasion for one day by police who could not locate his brother, but that he did not claim he suffered any mistreatment or harm on that occasion. It recorded that he told the Tribunal that the CID had made inquiries about him and his brother twice in 2012 and had told his mother that if they could not locate the brother they would detain the Applicant. However, the Tribunal found that much of the Applicant’s evidence about these claims was confusing and vague and lacking in detail. It gave examples, including his inability to recall dates and details in relation to significant issues, including the time of the local elections in relation to which he claimed to fear harm as well as in relation to his claims surrounding visits by the secret police and CID to his mother.
The Tribunal found generally that there was a great deal of vagueness surrounding much of the Applicant’s evidence. It was not satisfied as to his credibility in relation to a number of his claims. These concerns were expressed at a number of points through the Tribunal reasons. In this context the Tribunal considered the Applicant’s explanation that he had difficulty remembering events. It had regard to the STARTTS report provided to the Tribunal which referred to counselling treatment for the Applicant and indicated that he exhibited signs of post-traumatic stress disorder. However the Tribunal also had regard to the fact that the STARTTS report did not refer to any apparent memory problems affecting the Applicant and referred to him as “alert and oriented to time and place”. It acknowledged that the STARTTS report also referred to the Applicant feeling “anxious” regarding the asylum claim and accepted that such a process could be stressful and cause difficulties for applicants. However, the Tribunal did not accept that the Applicant’s vague and on occasions inconsistent evidence in relation to critical issues could be fully attributed to any conditions associated with post-traumatic stress disorder or anxiety. It was not satisfied that some of the events claimed occurred as claimed. In particular, it did not find the claim that the Applicant continued to act as surety for his brother to be credible in all the circumstances and given his inability to recall the details of the charges in relation to such bail and the lack of any supporting documentation in relation to bail surety. It was not satisfied that the Applicant went surety for his brother.
It was also not satisfied as to the claims that the police told the Applicant’s mother they would detain him if they could not locate his brother. The Tribunal found much of the Applicant’s evidence about his claims to fear police was vague and confusing. It also had regard to the fact that on the Applicant’s evidence he appeared to have been detained only on one brief occasion and that it was not clear why he claimed that such detention occurred. Given the Tribunal’s concern about the Applicant’s vague claims, inconsistencies and confusion about details and dates, it was not satisfied as to his claims that the police, CID or secret police had said they would detain him if they could not locate his brother and had a conversation with his mother to this effect.
The Tribunal noted that a letter from the Applicant’s mother and the translation provided did not refer to any conversations with police consistent with this aspect of the Applicant’s claims. It was not satisfied that the Applicant feared harm on this basis. It also had regard to the Applicant’s evidence that his brother was no longer living in the Applicant’s home and that their relationship had deteriorated. In those circumstances the Tribunal was of the view that the Applicant’s contact with his brother would now be reduced if he returned to Sri Lanka.
Insofar as the Applicant’s claim was that he would be arrested and detained and feared harm because he had acted as surety for his brother who did not answer bail, the Tribunal had regard to the absence of country information supporting the Applicant’s claims he would face detection, charging, and possible harm on this basis. It was not satisfied that the Applicant faced a real chance of persecutory harm on this basis. It was not, in any event, satisfied that the Applicant did act as a surety for his brother as claimed.
The Tribunal had regard to the absence of detail in relation to the Applicant’s claim to fear harm from underworld associates of his brother, the absence of any contact between the Applicant and such claimed underworld associates or evidence or claims of any threats or harm, despite available opportunities to harm or threaten the Applicant after the claimed 2008 incident. It was not satisfied that the Applicant had a well-founded fear of harm on this basis. It observed that the Applicant acknowledged that insofar as there was said to be some risk of confusion about identification between himself and his brother, he had not suffered any harm on that basis.
The Tribunal considered the Applicant’s claims to fear harm on the basis of his Tamil ethnicity and an imputed political opinion on the basis that because he left Sri Lanka illegally he could be perceived as having pro-LTTE or anti-Sri Lankan government views. It had regard to the absence of any claim by the Applicant that he had suffered harm on the basis of his Tamil ethnicity and the fact that, except in relation to the political support claim, his evidence to the Tribunal about his claims was essentially based around his claim that he feared harm because of some connection with his brother’s activities.
In relation to the claim to fear Muslim candidates and supporters, the Tribunal noted that this claim was not said to be based on the Applicant’s Tamil ethnic extraction. It considered the Applicant’s evidence about this claim, including the absence of any reference in the statement supporting his protection visa application to any attack upon him as he subsequently claimed. It was of the view that it would have been reasonable in all the circumstances to assume that if an attack on the Applicant had occurred in March/April 2012, it would have been referred to in the supporting statutory declaration. The Tribunal was not satisfied as to the Applicant’s claims that he was attacked and feared harm from two Muslim candidates and their supporters as a result of the 2011 election. It noted that apart from claimed incidents on the day of the election as well as the March/April 2012 incident which the Tribunal did not accept had occurred, the Applicant made no claim that there had been any incident involving the Muslim candidates or their supporters as a result of the election.
The Tribunal considered the Applicant’s claim to fear harm on the basis of an imputed political opinion because he left Sri Lanka illegally. It had regard to the fact that he had no pro-LTTE profile suggestive of risk and that his only claim of involvement in political life was his claim to have supported a particular candidate in local elections. It also had regard to his Tamil ethnicity in this context, but found that the UNHCR eligibility guidelines did not identify Tamils as being at risk as such, although the guidelines did identify people who had a real or perceived link to the LTTE as being at risk. The Tribunal found, however, that the Applicant had no such risk profile. The Tribunal also had regard to the fact that neither the guidelines or October 2014 DFAT reports identified or suggested that failed asylum seekers who were just passengers on people-smuggling ventures with no other risk profile were at risk in returning to Sri Lanka on the basis of being failed asylum seekers who left illegally, apart from being likely to be charged with offences because of having left illegally. It found that the guidelines and reports did not suggest that returned failed asylum seekers who were Tamil who left illegally were at risk of harm on the basis of an imputed political opinion of opposition to the government unless some other identified risk factors applied.
The Tribunal accepted that it was highly likely that the Applicant would be charged with offences of having left Sri Lanka illegally if he returned, but regarded any such charging and subsequent detention as being the non-discriminatory enforcement of a law of general application and not imposed for any Convention-based reason.
The Tribunal reiterated that the evidence before it indicated that the Applicant had no LTTE connection or profile that would put him at risk on the basis of any actual or imputed political opinion of support for the LTTE.
The Tribunal considered the Applicant’s claims that the police might come looking for his brother because his first wife came from a family with some LTTE connections and might mistake the Applicant for his brother. It found that the Applicant had not really provided any evidence or advanced claims that he actually feared harm based on an LTTE connection, beyond suggesting that the police would mistake him for his brother. It found no evidence to support such a claim. It did not accept the claim that the Applicant faced harm on the basis of events that occurred in 2005 having regard to the absence of evidence to suggest that the Applicant had faced any threats or harm on this basis while in Sri Lanka. It noted that the Applicant did not suggest he had a current or future fear of harm on this basis.
The Tribunal accepted that country information did refer to historical discrimination against Tamil people, in particular in relation to employment and education, but noted that several Sri Lankan governments had taken action to improve the position for Tamil people. It referred again to the fact that the UNHCR guidelines did not specifically refer to Tamils being at risk on that basis. It was not satisfied that the Applicant faced a real chance of persecutory harm on the basis of being a Tamil or on the basis of an imputed political opinion of support for the LTTE. It found that returned failed asylum seekers who were Tamils and who left illegally were not identified as being at risk on that basis and was not satisfied he faced a real chance of persecution on this basis.
The Tribunal considered the Applicant’s claims of having previously been detained and imprisoned for having left Sri Lanka illegally in 2005, receiving a five-year sentence but being pardoned and released in June 2006. It had regard to the absence of any documentation in relation to this claim and to the Applicant’s vague and evasive responses to questions about the circumstances surrounding this claim. In these circumstances, and based on the Applicant’s evidence, to which it referred, the Tribunal was not satisfied that the Applicant was arrested and detained or imprisoned in 2005 and 2006 for leaving Sri Lanka illegally.
The Tribunal accepted that the Applicant was fearful of his brother, that the brother was abducted in 2008 and that the Applicant and his brother and some others in the village supported a particular candidate in the March 2011 elections and that as a result there were some difficulties or issues with some Muslim candidates and their supporters. However, it did not accept that there were threats of harm directed to the Applicant’s family. It noted that much of the Applicant’s evidence related to an alleged attempt to attack a Catholic priest and the village church. It found the evidence about this incident and its concerns about the Applicant’s credibility led it not to accept his claim about threats to his family on this occasion.
The Tribunal was not satisfied as to the Applicant’s claims that he had a well-founded fear of harm from Muslim politicians or their supporters on the basis of an imputed political opinion because he supported a particular candidate in the 2011 elections.
As it did not accept the Applicant’s claims that he provided surety for his brother at or about that time, the Tribunal was not prepared to accept his claims that he was detained for a short time by the police when they were looking for his brother.
The Tribunal did accept that the Applicant left Sri Lanka illegally and came to Australia in 2012. The Tribunal referred to the representative’s written submissions, including in relation to the general human rights situation in Sri Lanka, the suggestion that the Applicant would be at risk as a Tamil and that his risk profile would be increased as a Tamil from an area connected to the LTTE, and that he would be at risk as a returned failed asylum seeker who left illegally.

The Tribunal summarised the effect of the representative’s submissions. It also referred to DFAT country reports. It found, in particular, that more recent DFAT country reports provided reliable and recent sources of information about issues relevant to the Applicant’s claims, including in relation to the security situation in Sri Lanka, the situation for Tamils and the treatment of returnees, including people who left Sri Lanka illegally.
The Tribunal accepted that returnees were treated according to standard procedures, regardless of ethnic extraction or religion. It had regard to DFAT’s assessment that returnees were not subject to mistreatment during processing at the airport, but were likely to be questioned. It recorded that where illegal departure was suspected, returnees were, according to DFAT, likely to be charged with an offence or offences of having left illegally, processed and taken before a magistrates’ court at the first available opportunity. It noted that the report indicated that those arrested may spend up to several days on remand in jail if a magistrate was not available. It acknowledged that jail conditions in Sri Lanka were poor due to overcrowding and because of poor conditions generally.
The Tribunal had regard to information provided to DFAT in March 2014 that no returnee who was just a passenger on a people-smuggling venture had been given a custodial sentence for departing illegally, although fines had been issued. It considered the Applicant’s submissions and in that context reiterated that the UNHCR guidelines did not identify people of Tamil ethnic extraction as at risk on that basis and found that the Applicant had no risk profile of a real or perceived link with the LTTE. While the Tribunal considered the Applicant’s claim that he had been previously arrested and imprisoned for leaving Sri Lanka illegally so that if he returned he would be at greater risk because he had committed a prior offence, it was not satisfied that he left Sri Lanka illegally in 2005 and was subsequently arrested and imprisoned on that basis before he was pardoned.
Notwithstanding that finding, the Tribunal discussed whether the Applicant would be at greater risk for a Convention-based reason on the basis of such claim. It accepted that there was a real possibility that “if in fact the applicant had committed a prior offence of leaving Sri Lanka illegally” he would “be highly likely to face a greater penalty”, whether a larger fine or a term of imprisonment or perhaps a longer period on remand. However it was not satisfied that this would be caused or would arise for any Convention-based reason, as it would be the result of the non-discriminatory enforcement of a law of general application. In any event, because the Tribunal had not accepted the Applicant’s claim that he was previously detained and imprisoned for leaving Sri Lanka illegally, it considered his position in terms of what would happen to him on return to Sri Lanka “because he left illegally to come to Australia”. In that context it accepted, consistent with procedures referred to in the DFAT report of October 2014, that he would be detained and questioned on return; that it was highly likely he would be charged for leaving Sri Lanka illegally; that he would be remanded in custody pending bail determination and that this may be for up to several days. It accepted that prison conditions in Sri Lanka were poor. The Tribunal reiterated that any period in detention would be the result of the non-discriminatory enforcement of a law of general application and not for any Convention reason and that it was not satisfied that the Applicant was previously arrested and imprisoned for leaving Sri Lanka illegally. It concluded that based on that finding country information indicated that it was highly likely the Applicant would have a fine imposed upon him for having left Sri Lanka illegally to come to Australia.
The Tribunal had regard to the DFAT assessment that detainees were not subject to mistreatment during processing at the airport, that standard procedures were adopted and that “the risk of torture or mistreatment for the great majority of returnees is low, including for those suspected of having committed offences under the Immigrants and Emigrants Act”, but that the risk was greater for those suspected of committing serious crimes, including smuggling or terrorism offences. It found that the Applicant had no such profile in the area of risk associated with torture or mistreatment of returnees. It was not satisfied that he had a well-founded fear of harm that he would be beaten during questioning on return as he had claimed.
The Tribunal concluded that it was not satisfied as to the Applicant’s claims that he had a well-founded fear of persecution should he return to Sri Lanka now or in the reasonably foreseeable future based on his Tamil ethnic extraction or as a failed asylum seeker who left illegally and who would be perceived as having a pro-LTTE or anti-government political opinion or on the basis of his claim about fear of Muslim politicians or supporters. It found that the Applicant’s claim to fear harm from his brother did not involve any Convention-based ground or reason and that the family had sought to avail themselves of state protection in relation to the claim that the Applicant’s wife was attacked and threatened by the Applicant’s brother. Overall it was not satisfied that the Applicant had a well-founded fear of persecutory harm should he return to Sri Lanka for any Convention-based reason in relation to these claims considered individually and cumulatively.
The Tribunal considered the complementary protection criterion. It referred to the written submissions from the Applicant’s representative, the Applicant’s evidence and country information. It reiterated that it was not satisfied that the Applicant had previously been arrested and imprisoned for leaving Sri Lanka illegally, although it accepted that if he had committed the prior offence of having left Sri Lanka illegally, then he would, on return, likely face a significant penalty on the basis of having committed a prior offence, being an increased fine, custodial period, or possibly extended period on demand. It was not satisfied there was a real risk he would be arbitrarily deprived of his life or subject to the death penalty. It considered whether the Applicant faced a real risk of significant harm consisting of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in light of country information and its assessment of his risk profile. It was “not satisfied that there would be the required intention as required by the Migration Act to inflict those conditions on the applicant should he be detained and imprisoned either in terms of serving a sentence or on remand”.
The Tribunal then referred to the absence of any suggestion in the UNHCR guidelines that Tamils were at risk on the basis of their ethnic extraction, the risk to those with a real or perceived link to the LTTE, and DFAT references to a risk of torture and mistreatment of people who may be suspected of having committed serious offences, other than having left Sri Lanka illegally. However it found that the Applicant did not have such a risk profile. The Tribunal was satisfied that any period in detention the Applicant would face would be the result of non-discriminatory enforcement of a law of general application. In these circumstances and having regard to what it described as “the intention aspect” and country information to which it had referred, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of removal to Sri Lanka there was a real risk the Applicant would suffer significant harm.
The Tribunal also considered the Applicant’s claims to fear harm from his brother in the context of the complementary protection criterion, including the claim that the brother had assaulted and threatened the Applicant’s wife and threatened his child. It noted his evidence that his brother no longer resided in the family home and that the assault on the wife was reported to police, although the threats to the child were not. It found it clear that in reporting the assault on the wife to the police the Applicant and his family believed that state protection was available to stop future harm. It had regard to the fact that the evidence did not indicate that the brother had ever actually caused direct harm to the Applicant or threatened the Applicant, but rather that he had caused difficulties for him in terms of the authorities in relation to other people. It found that the failure to report claimed threats to the child, the absence of any further encounters between the brother and the Applicant’s wife and the fact that the brother no longer resided in the family home to be relevant in relation to consideration of any future risk of significant harm. Having regard to the overall evidence the Tribunal was not satisfied there were substantial grounds for believing the Applicant was at a real risk of significant harm if he returned to Sri Lanka on the basis of a claimed fear of harm from his brother directly or in relation to threats and attacks on the wife and the child. In this context the Tribunal was prepared to accept, with what it described as “some reservations”, the Applicant’s claim that his brother had threatened the Applicant’s wife as claimed, notwithstanding vague and imprecise evidence from the Applicant and its overall concerns about his credibility. However, given the Applicant’s very vague evidence about the events, it was not satisfied that his wife was actually assaulted. Overall it was not satisfied that the Applicant met the complementary protection criteria. It affirmed the delegate’s decision.
The Applicant sought review by application filed in this court on 19 February 2015. At that time the Applicant was represented by a barrister on a direct brief basis. His application was summarily dismissed on 16 March 2015. The Applicant appealed to the Federal Court and the proceedings were remitted by consent to this court, differently constituted. The Applicant now relies on an amended application filed on 21 December 2016. There are two grounds in the application. The Applicant did not file written submissions.
When given the opportunity to address these grounds or other concerns about the Tribunal decision, the Applicant did not make any meaningful submission beyond claiming to be fearful of returning to Sri Lanka, mainly on the basis of his past imprisonment for illegal departure.
While the Applicant did not suggest that the Tribunal had failed to consider this claim, the solicitor for the First Respondent addressed this issue in submissions, and I have considered it. As set out above, the Tribunal did consider this claim. However as also set out above, it was not satisfied that past arrest and imprisonment for attempted illegal departure had occurred as claimed by the Applicant. The Tribunal did consider the consequences for the Applicant on return had those events occurred, but as it was not satisfied that the past arrest and imprisonment had occurred, found that the Applicant likely faced a short detention on remand, but not a greater period on remand or increased fine or imprisonment as may have been the case had the previous arrest and imprisonment for illegal departure occurred as claimed. In the context of considering the complementary protection criterion the Tribunal also had regard to the absence of the requisite intention to inflict significant harm should the Applicant be detained and imprisoned. Insofar as the Applicant intended to claim that the Tribunal failed to consider this claim, such contention is not made out. Insofar as he disagrees with the Tribunal’s conclusion in relation to this claim or its implications for the future he seeks impermissible merits review.
In the course of oral submissions, the Applicant sought an adjournment on the basis that he could not recall anything at the moment. He seemed to suggest that he had not had the Tribunal decision read or explained to him. I note that he was legally represented when the matter was first before the court and that his amended application was filed as recently as December 2016. I refused the adjournment in circumstances where I considered that the Applicant had had ample time to familiarise himself with the material, had he wished to make submissions.
Insofar as the Applicant may be seen as claiming an inability to remember, there is no evidence to suggest that he is unfit to participate in today’s hearing or that he was unfit to participate in the Tribunal hearing. I note that the STARTTS report was considered by the Tribunal in relation to the Applicant’s fitness to participate in the Tribunal hearing.
The Applicant also referred to an accident involving his family members a year ago. As the First Respondent submitted, that would have been after the Tribunal decision and hence the Tribunal’s failure to refer to such an event cannot amount to jurisdictional error.
The first ground in the Amended Application is that the Tribunal committed jurisdictional error and denied the Applicant procedural fairness when it failed to consider his membership of a particular social group. This was said to be a Convention nexus specifically claimed by the Applicant. The particulars to this ground assert that:
(i) the Applicant claimed particular social group with attributes such young men from North/East of Sri Lankan (sic) who left illegally. The Tribunal has not made any assessment of a particular social group claim.
(ii) The Tribunal … failed to properly identify, assess and address the risk of harm in respect of the applicant’s particular social group did not deal with the particular social group advanced by the applicant.
This ground is not made out. First, there is no evidence before the court that the Applicant expressly advanced a particular social group claim in the terms now suggested. On the contrary. The written submission to the Tribunal from the Applicant’s representative claimed that the Applicant feared persecution on the basis of his membership of a particular social group comprising “failed asylum seekers”. In its reasons for decision the Tribunal recorded that at the hearing it confirmed with the Applicant the basis on which he made his claim: that he was a Tamil who, if he returned to Sri Lanka, would be a failed asylum seeker with an imputed political opinion of being opposed to the Sri Lankan government as well as the claims about his brother and the Muslims. The Tribunal dealt with the particular social group of failed asylum seekers. It also had regard to the other issues raised by the Applicant and his personal characteristics, including his Tamil ethnicity and his claim that he came from an area that was connected to the LTTE. It addressed the submission from the representative that the Applicant’s risk as a failed asylum seeker would be increased on this basis. It considered the fact that the Applicant would be a failed asylum seeker who left Sri Lanka illegally. The Tribunal not only had regard to these claims, but also to country information and UNHCR eligibility guidelines. In considering the Applicant’s claims to fear harm, it considered his position as a young Tamil who had left illegally and would be returning as a failed asylum seeker. Insofar as there is some issue as to whether in fact the Applicant came from the North East or, as is recorded by the Tribunal, the North West of Sri Lanka, there is no indication that there was any claim based on the particular area of origin other than, as indicated, the suggestion that he would be imputed with a claimed connection to the LTTE because of where he came from and as a Tamil. The Tribunal considered this, but found that the Applicant did not have attributes which were such as to lead to the imputation of an increased risk profile.
The Tribunal plainly considered the particular social group claim asserted by the Applicant in light of his personal characteristics. No other social group claim arose squarely on the material before the Tribunal. In these circumstances it was not necessary for the Tribunal to reach a positive conclusion about the existence of a particular social group on the basis of the steps enunciated in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26. Ground 1 is not made out.
Ground 2 is that the Tribunal “erred in misdirecting itself and/or asking itself the wrong question in regards to the ethnic background as a Tamil claim”. The particulars are:
(i) At paragraph 60 the Tribunal asked misdirected (sic) itself.
It is not explained how there was a misdirection in the extract from paragraph 60 of the Tribunal decision which is as follows:
The applicant did not refer to any occasion on which he claims that he suffered harm on the basis of his Tamil ethnic extraction and his evidence about claims with the exception of the political support aspect were all essentially based around his claim that he feared harm because of some connection with [his brother’s] activities.
The next particular may be intended to be related to this particular. It is:
(ii) The Tribunal only considered the separate claim of imputed political opinion that he is opposed to the Sri Lankan government because he left illegally.
The particulars go on to refer to the Tribunal’s consideration of the UNHCR guidelines as follows:
(iii) At paragraph 62 in relation to the refugee assessment the Tribunal noted:
I note that those guidelines [2012 UNHCR eligibility] does not specifically refer to Tamils being at risk per se on the basis of their Tamil ethnic extraction but the greater risk for Tamil people arises through actual or perceived links to the LTTE. Returned failed asylum seekers who are Tamils and who left illegally are not identified as being at risk on that basis.
The particulars conclude:
(iv) At paragraph 75 in relation to the complementary protection assessment the Tribunal (sic):
The 2012 UNHCR eligibility guidelines referred to earlier in these reasons do not suggest that Tamils are at risk purely on the basis of their ethnic extraction but link a significant risk profile to people who are (sic) a real or perceived link to the LTTE and I accept in those circumstances people in custody with that risk profile could face a real risk of significant harm.
(v) The Tribunal has failed to consider the claim as to whether the applicant faces a real chance of serious or significant harm in Sri Lanka due to his ethnic background as Tamil.
Insofar as this ground involves a contention that the Tribunal failed to have regard to the Applicant’s claim on the basis of his Tamil ethnicity, this is not made out. The Applicant’s claim to fear harm as a Tamil was plainly considered by the Tribunal. The Tribunal had regard to the guidelines and DFAT reports in reaching its conclusions. It also had regard to the fact that the Applicant’s claim to fear Muslims or supporters of Muslim candidates was not said by him to be based on his Tamil ethnic extraction.
The particulars also refer to the Tribunal’s reference to UNHCR guidelines. In that context, the Tribunal noted that the guidelines did not suggest that Tamils were at risk purely on the basis of their ethnic extraction, but linked a significant risk profile to people who had a real or perceived link to the LTTE, but found that the Applicant did not have such a risk profile.
It is apparent that the Applicant’s claim to fear harm as a Tamil was considered both in the context of the Refugees Convention criterion and the complementary protection criterion. It was open to the Tribunal on the material before it to have regard to the fact that the risks faced by Tamils effectively arose through actual or perceived links to the LTTE and to conclude, having regard to the Applicant’s evidence and the lack of an adverse profile, that he did not face a risk of harm as a Tamil, as it specifically stated in paragraph 63 before going on to find that it was not satisfied that he faced a real chance of harm on the basis of an imputed political opinion that he supported the LTTE. This ground is not made out.

Although not raised by the Applicant, the solicitor for the First Respondent also referred to the decision of the Full Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69, in relation to the meaning of “intention” in the definitions of conduct amounting to significant harm. The First Respondent acknowledged that this matter may be affected by that decision, having regard to the fact that the Tribunal made findings in relation to the complementary protection criteria which included a finding that it was not satisfied there would be an “intention” to inflict “torture”, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” constituting significant harm under the Migration Act 1958 (Cth) (the Act) on the Applicant should he be detained and imprisoned, either in terms of serving a sentence or on remand. However insofar as this addressed the risk of harm if the Applicant had been previously sentenced and imprisoned as claimed the Tribunal did not accept that this had occurred and had regard to its assessment of the Applicant’s risk profile. It found that the likely penalty for the Applicant’s 2012 illegal departure would be a fine.
The Tribunal did have regard to what it referred to generally as the “intention aspect” as well as other factors (in particular the Applicant’s risk profile and the fact that any period in detention would be the result of the non-discriminatory enforcement of a law of general application and country information) in addressing this criterion based on the facts it accepted about the Applicant, but it did not address or make any finding about how such intention may be proved.
In SZTAL the Full Court endorsed generally the approach taken by Judge Driver at first instance in SZTAL v Minister for Immigration and Border Protection & Anor [2015] FCCA 64 in particular at [49]. Specifically, the Full Court was of the view that the Tribunal’s decision in that case (and the same may be said in this case) was consistent with the proposition that the expression “intentionally inflicted” required an actual subjective intention to cause the relevant harm. I note that special leave has been granted by the High Court in relation the decision in SZTAL. However this court is bound to follow the decision of the Full Court in SZTAL (and see AIS15 v Minister forImmigration and Border Protection [2016] FCA 978). In the circumstances of this case, no jurisdictional error is apparent in relation to the manner in which the Tribunal applied ss.5(1) and 36(2A) of the Act and the application should be dismissed.
The Applicant has been unsuccessful. The Minister seeks costs. The Applicant told the court that he was impecunious and unable to pay the amount sought. I am not satisfied that the Applicant’s lack of funds is a reason for departing from the normal principle that an unsuccessful applicant should pay the costs of the First Respondent, although 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, appropriately, considerably less than the amount provided for as guidance in the Federal Circuit Court Rules. It is a reasonable and appropriate amount, having regard to the nature of this and other such matters.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 8 March 2017