FEDERAL COURT OF AUSTRALIA

AZG15 v Minister for Immigration and Border Protection [2018] FCA 226

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

KENNY J:

1    This is an appeal from the judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 21 December 2016, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal had affirmed a decision of a delegate of the respondent Minister (the delegate) not to grant the appellant a Protection (Class XA) visa (protection visa).

2    The appellant is a citizen of Sri Lanka, of Tamil ethnicity. He arrived at Christmas Island on 29 June 2012 and applied for the protection visa on 12 December 2012. The appellant made the following claims in a statement accompanying his protection visa application:

(1)    During the conflict in Sri Lanka, he lived in an LTTE controlled area and, towards the end of the conflict, the Sri Lankan army took him and other displaced people to a refugee camp. While living in the camp, the appellant was interrogated by the army, and then by the Criminal Investigation Department (CID) about his connections with the LTTE.

(2)    When the appellant left the refugee camp, the army and the CID were still looking for people with LTTE links and many people were taken away by the army or the CID between 2009 and 2012 for questioning. Some disappeared and were killed.

(3)    In March and May 2012 men from the CID came looking for him when he was not home. These visits frightened him and he fled Sri Lanka in June 2012. The appellant feared detention, interrogation, torture and for his life if he were returned to Sri Lanka.

(4)    If returned to Sri Lanka, the appellant faced problems at the airport and he feared he would be taken directly to the CID.

3    The delegate refused the appellant’s protection visa application on 30 December 2013. On 6 January 2014, the appellant applied for a review of that decision by the Tribunal. The Tribunal subsequently wrote to the appellant, inviting him to attend the hearing and to provide a written submission setting out his claims. The appellant’s agent responded in writing on 27 February 2015, including a supplementary statement on the appellant’s behalf.

4    In this supplementary statement, the appellant stated that:

(1)    In 2006, the LTTE took students, including him, from the college where he was studying and held them for training. The students received an induction about LTTE objectives. After about 23 days, he and the other students escaped from the LTTE camp.

(2)    In 2008 or 2009, he was able to leave the army-controlled camp to stay with his father, who was in hospital.

(3)    The CID has continued to look for him.

5    The appellant, represented by his migration agent, attended a hearing before the Tribunal on 4 March 2015 and gave evidence. His representative provided further written submissions on 18 March 2015. On 14 May 2015, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.

The Tribunal decision

6    The Tribunal summarised the appellant's evidence about the CID’s alleged attempts to locate him in 2012 at his family home, about his decision to leave Sri Lanka, and about subsequent visits from the CID that led to his family’s relocation. The Tribunal set out its concerns about the appellant's evidence, stating its view that it was improbable that the appellant would keep working after the CID visited him in early 2012 and that his evidence about “when steps were first taken for him to leave Sri Lanka was not convincing”. The Tribunal noted the appellant told the delegate that he did not think the situation was serious after the first CID visit, and it found that what he had said to the delegate in this regard was “clearly inconsistent with his evidence to the Tribunal that, following that first visit, he believed he was in danger and he stopped living at his family home for that reason”. The Tribunal did not believe the appellant’s explanation. It also found it “incongruous” that the CID would not return to the appellant’s home to find the appellant for some six months.

7    The Tribunal also identified what it called other “inconsistencies” in the appellant’s evidence. These related to the CID’s letter to the appellant's family, the CID’s demand that the appellant present himself at a particular camp, the appellant’s decision not to live at his family’s home, and the appellant’s interrogation at the refugee camp. The Tribunal also referred to the fact that the appellant did not make any claim to have been abducted by the LTTE until his claim was under consideration by the Tribunal. The Tribunal concluded that the appellant “is not a witness of truth and the account of events on which his protection claims are based is false”.

8    The Tribunal went on to state as follows:

(1)    The Tribunal disbelieved his claim that the CID issued a summons and gave no weight to a document said to be a police report.

(2)    The Tribunal did not believe that the appellant witnessed Tamils being abducted or that he saw decapitated heads.

(3)    The Tribunal accepted that the appellant is a Tamil man, that his family were displaced during the conflict, and that his father was disabled from an explosion during the conflict, but added that “[b]eyond this there is no credible evidence that the [appellant] or any member of his family suffered harm in Sri Lanka”.

(4)    The Tribunal found there was “no credible evidence that any person or group in Sri Lanka wishes to harm the [appellant]” and “no credible evidence as to why he left Sri Lanka and why he does not want to return there”.

9    The Tribunal referred to country information and found that being a Tamil “from a certain part of Sri Lanka does not per se … lead to a real chance that the [appellant] will suffer serious harm”. It found that returnees might be detained for a brief period on return as a result of the “non-discriminatory enforcement of a law of general application”. The Tribunal stated that “[a]lthough prison conditions in Sri Lanka are poor that is due to a lack of resources and the (comparatively few) allegations made about returnees being harmed after arriving in Sri Lanka have not been substantiated”. The Tribunal inferred that “for leaving Sri Lanka illegally and returning there as a failed asylum seeker from Australia, the risk of a Tamil returnee suffering serious harm ... in the process of re-entering the country and being brought before a court is remote”. The Tribunal found that returnees would likely be given bail and fined.

10    The Tribunal found that the appellant had no adverse history with the authorities, and that there was not a real chance he would suffer serious harm as a result of being from a LTTE and Tamil area. The Tribunal reaffirmed that any time spent on remand on return in poor conditions would be “brief” and would be the result of the non-discriminatory enforcement of a law of general application. The Tribunal rejected the appellant’s submission that he would suffer extortion or abduction on return to his native area and a fine of Rs200, 000. Rather, the Tribunal found that he would receive a fine of between Rs5, 000 to 50, 000 and concluded that there was not a real chance that the appellant would suffer serious harm for a Convention reason.

11    In respect of complementary protection, the Tribunal repeated its adverse credibility findings and found there was no credible evidence that anyone in Sri Lanka wished to harm the appellant. For the same reasons set out in relation to its Convention findings, the Tribunal found that the appellant would not suffer significant harm as a Tamil from an area formerly controlled by the LTTE.

12    The Tribunal also found that the risk of the appellant suffering significant harm in the process of returning to Sri Lanka and being prosecuted for his illegal departure was remote. The Tribunal stated that “although prison conditions in Sri Lanka are poor, conditions themselves caused by inadequate resources, having to spend time in such conditions (which the Tribunal infers will be brief if it even occurs) does not amount to significant harm as that term is defined in the Act”. The Tribunal also considered that the fine that would be imposed would not amount to significant harm.

13    Accordingly, the Tribunal affirmed the decision under review.

Proceedings before the Federal Circuit Court

14    By an amended application filed on 6 October 2016, the appellant sought judicial review of the Tribunal’s decision of 14 May 2015. After a hearing on 28 October 2016, the primary judge dismissed the application on 21 December 2016.

15    The appellant pressed three grounds of review before his Honour, namely:

3.    The Tribunal fell into jurisdictional error in that it took into account of irrelevant consideration.

4.    The Tribunal fell into jurisdictional error in that it failed to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact.

5.    The Tribunal fell into jurisdictional error in that it acted irrationally or illogically or so unreasonably that no reasonable Tribunal would so have acted.

16    As to the ground numbered 3 above, the primary judge rejected the appellant's argument that the Tribunal fell into jurisdictional error “by taking into account the fact that there were some claims advanced by the [appellant] later than others, or not at a time earlier than the hearing”. His Honour said that “[t]he findings of the Tribunal ... must be viewed together with other areas of inconsistency that the Tribunal identified in the [appellant’s] evidence” and that “[t]aking into account the effect of late claims, which may be considered a recent invention, is simply part of the fact-finding exercise embarked upon by the Tribunal”. His Honour concluded that this challenge amounted to “impermissible merits review”.

17    The primary judge also rejected the appellant’s other two grounds, discussing in some detail the particulars that had been given in respect of them.

18    In respect of particulars (a) to the ground numbered 4, his Honour held that “the Tribunal was entitled to find the [appellant’s] evolving narrative as contradictory and redolent of recent invention rather [than] of ‘organic development’” and that the decision was not irrational or unreasonable. In respect of particulars (b) to this ground, his Honour held that it was open to the Tribunal to find, on the material before it, that:

[T]here is no credible evidence that the [appellant] will suffer discrimination in Sri Lanka and that any penalty or detention that the [appellant] may face will be as result of the “non-discriminatory enforcement of a law of a general application.”

19    In respect of particulars (c) to that ground, his Honour stated:

The [appellant] submits that the Tribunal should have had regard to evidence submitted on behalf of the [appellant] that demonstrated that there is “violence against Tamils including returnees.” This particular of the ground is an attempt at merits review and as such are impermissible.

20    In respect of particulars (d) to the ground numbered 4, his Honour stated:

The [appellant] particular[ise]s grounds that:

a)    the Tribunal failed to consider whether a member of the [appellant’s] family would be willing to act as a guarantor for his bail on his return to Sri Lanka;

b)    as a guarantor is required for a returned failed asylum seeker to be released on bail;

c)    the failure to have one may subject the [appellant] to serious or significant harm due to his imprisonment.

d)    The Tribunal had regard to the country information regarding whether bail was sometimes given and the need for consequences of not having a guarantor. The Tribunal was entitled to make the finding that it did at [48] and set out its reasons for doing so.

21    In respect of particulars (e) to that ground, his Honour noted the appellant’s claims that “the Tribunal failed to have regard to the country information that referred to defects in Australia’s ability or practice in monitoring the safety of people returned to Sri Lanka, when it relied on the fact that DFAT did not refer to allegations of torture or mistreatment of asylum seekers as substantiated”. The primary judge noted that the Tribunal had regard to the country information from a number of sources and specifically referred to the conclusion reached by the Department of Foreign Affairs and Trade (DFAT) that “[o]verall DFAT assessed the risk of torture or mistreatment for the great majority of returnees to be low except those suspected of committing serious crimes including people smuggling or terrorism offences”. His Honour held that this ground was an impermissible challenge to the Tribunal’s findings of fact.

22    In respect of particulars (a) to ground 5 (“no evidence that a family member able and willing to guarantee bail”), the primary judge concluded that this ground had been addressed in relation to particulars (d) to ground 4.

23    In respect of particulars (b) and (c) to ground 5, his Honour stated:

I will address both particulars (b) and (c) as they arise from the same issue with the Tribunal’s findings on credit based on inconsistencies in the [appellant’s] evidence. The [appellant] submits that the evidence in relation to:

i)    the CID sending a letter to the [appellant’s] family;

ii)    the demand by the CID that the [appellant] present himself to a camp;

iii)    the [appellant] moving out of his home;

iv)    being abducted by the LTTE;

was not inconsistent evidence.

The [appellant] submits that the only “slender inconsistency” was in relation to evidence of forms filled under duress during interrogations of the [appellant] by the army while he was in a refugee camp. It was put by the [appellant] that the inconsistency was an insufficient basis for concluding that the whole of the [appellant’s] substantial history was false and that the Tribunal lacked a logical basis for its conclusion.

It was open to the Tribunal to make the adverse finding in relation to the evidence proffered. There was no irrational, illogical or unreasonable finding by the Tribunal by reason of the decision to find that the [appellant] was not a witness of truth. This ground has been considered above. Counsel for the [appellant] accepted that at the hearing there was evidence of inconsistency. The challenge is one of weight given by the Tribunal and as such is an attempt to ask this court to engage in merits review.

24    His Honour noted that he had addressed particulars (d) to ground 5 in relation to the other grounds and concluded that the application for judicial review should be dismissed.

25    The appellant appealed from this judgment to this Court. In an amended notice of appeal filed on 28 February 2017, the appellant identified three grounds of appeal. The first two were supported by detailed particulars, each raising different arguments. The third ground was not ultimately pursued by the appellant, presumably because it had been overtaken by the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405; 91 ALJR 936 (SZTAL).

consideration

Notice of appeal grounds and particulars

26    Under ground one of his amended notice of appeal, the appellant alleged that the Tribunal fell into jurisdictional error by failing to consider relevant material or a relevant consideration, or an integer of the claim, or a material question of fact. The appellant abandoned particulars (a), (b) and (d) to this ground, making submissions at the hearing only in support of particulars (c).

27    Particulars (c) read as follows:

The Tribunal noted that there was evidence from the Australian Department of Foreign Affairs and Trade that a family member as guarantor was required for a returned failed asylum seeker to be released on bail (CB 223, n.25), but the Tribunal failed to consider whether a member of the appellant’s family would be willing and able to act as guarantor for his bail on his return to Sri Lanka, and, if not, the implications for the length of time he may stay in prison and the risk of him suffering serious harm amounting to persecution, or significant harm, by the length of time he was deprived of liberty in poor conditions in prison, or by ill-treatment in prison.

28    Under ground two of his amended notice of appeal, the appellant alleged that the Tribunal fell into jurisdictional error in that it acted irrationally or illogically or so unreasonably that no reasonable Tribunal would have so acted.

29    Particulars (a) to ground 2 were in the following terms:

The Tribunal noted that there was evidence from the Australian Department of Foreign Affairs and Trade that a family member as guarantor was required for a returned failed asylum seeker to be released on bail (CB 223, n. 25), but the Tribunal had no evidence that a family member of the appellant would be able and willing to be guarantor for his bail, and therefore no evidence for its finding that “Any period of time spent in remand in poor conditions will be brief ...” (CB 227, [63])

30    Particulars (b) to ground 2 stated:

The Tribunal based its findings on credit on “Areas of inconsistency in the applicant’s evidence (CB 217, heading to [25]-[43] of the Tribunal’s Decision Record) but:

i)    The evidence about the CID sending a letter to the appellant’s family (CB 217, [25]-[27] was not inconsistent;

ii)    The evidence about the demand by the CID that the appellant present himself to a camp (CB 217-218, [28]-[29]), was not inconsistent evidence but the later provision of further detail;

iii)    the evidence about when the appellant stopped staying at his home was not a clear inconsistency such as to base a finding of false testimony. The phrase “After this incident” (CB 61, [18]) may have referred to just the visit of the CID on 26 May 2012 as the Tribunal took it to mean, but may have referred to both the CID visits as the next “incident” occurring after “these incidents” (CB 60 [14]) which occurred before the first of the CID visits.

iv)    the evidence about being abducted by the LTTE (CB 219-220, [36]-[38]) was not inconsistent evidence but the later provision of further detail;

v)    the only remaining inconsistency identified by the Tribunal as a basis for totally rejecting the credibility of the appellant’s substantial claims, namely his evidence about whether he had filled in any forms under duress during interrogations by the army while he was in a refugee camp during the civil war in 2008 or 2009 (CB 59-60, 84) – and therefore evidence about a small aspect of his interrogations more than three years before the application for protection and more than six years before the Tribunal’s hearing – was a slender inconsistency and insufficient as a reasonable basis for concluding that the whole of the appellant’s substantial history was false. (CB 220, [39])

Submissions – ground 2(b)

31    The appellant submitted that the Tribunal did not have a reasonable evidentiary or logical basis for concluding that the appellant “is not a witness of truth and the account of events on which his protection claims are based is false”. The appellant submitted that this conclusion was not supported by what the Tribunal referred to as “inconsistencies” in the appellant’s evidence. The appellant submitted that the Tribunal made findings without or contrary to probative evidence, and that the decision was therefore unreasonable and fell into jurisdictional error.

32    In particular, the appellant contended, first, that, save for one matter, the Tribunal’s so-called “areas of inconsistency” were not “inconsistencies” at all. The appellant submitted that his affirmation in his written statement of 22 November 2012 that since arriving in Australia his parents had told him that they had received a letter from the CID stating that he had to attend for interrogation was not inconsistent with the appellant’s subsequent evidence. At the hearing, counsel for the appellant submitted that the appellant’s statement regarding what his parents had told him since arriving in Australia was incorrect in the sense that his parents had been mistaken about the contents of the letter that they had received, but the appellant’s statement was nonetheless a truthful account of what his parents had told the appellant at the time.

33    Secondly, the appellant contended that his evidence to the Tribunal that when the CID came to his home in May 2012 the CID told his mother that the appellant had to report to Joseph camp by the end of that day was not inconsistent with his statement of 22 November 2012 and his interview before the delegate simply because he did not then mention the demand to present himself to Joseph camp at the end of the day. The appellant submitted that the supposed inconsistency was merely the later provision of further detail. At the hearing, counsel for the appellant contended that the further information was not a “critical core part of the whole account, but … a further circumstantial detail, consistent with what had been said before”.

34    Thirdly, the appellant submitted that his statements in his written statement indicating that he did not cease living at home until after the CID’s second visit were not clearly inconsistent with his statement to the Tribunal that he stopped living at home one month earlier, after the CID’s first visit. The appellant submitted that the phrase “After this incident” in his written statement may have referred to the second visit of the CID on 26 May 2012 in accordance with the Tribunal’s understanding, or it may have referred to both the CID’s visits as the next “incident”. At the hearing, counsel for the appellant also emphasised that the statement was in a language other than the appellant’s own, although it was interpreted to him. Counsel for the appellant submitted that the Tribunal could make a favourable construction or an unfavourable construction of his written statement and that, as either course was open, the Tribunal must have been alive to the existence of different constructions.

35    Fourthly, the appellant referred to the Tribunal’s identification of his statement in his written statement of 22 November 2012 indicating that he had completed certain forms in the course of interrogation by the army while in a refugee camp and to his statement to the Tribunal that he did not complete any forms on either of the two occasions he was interrogated by the army. The appellant submitted that his evidence about this was a “slender inconsistency”.

36    Fifthly, the appellant submitted that his statement in a supplementary statement of 27 February 2015 provided to the Tribunal about his abduction by the LTTE was not inconsistent with his written statement of 22 November 2012 and the claim at his interview with the delegate that he had never been involved with the LTTE, but rather was the subsequent provision of further detail.

37    At the hearing, counsel for the appellant accepted that there was inconsistent evidence regarding whether the appellant had signed forms during interrogations by the army while he was in a refugee camp, but submitted that none of the other “areas of inconsistency” were properly understood as “inconsistencies”. The appellant submitted that there was no reasonable evidentiary or logical basis for concluding that he “is not a witness of truth and the account of events on which his protection claims are based is false”. Counsel for the appellant, referring to Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS), acknowledged that legal unreasonableness is a “high bar”, but submitted that it had been reached in this case.

38    The first respondent submitted that the Tribunal’s findings were open to it and that its findings were not illogical. At the hearing, counsel for the first respondent submitted that, however described, the “inconsistencies” in the appellant’s evidence were difficulties with the appellant’s evidence. Counsel for the first respondent drew attention to the Tribunal’s statement that “considered cumulatively” its concerns about the appellant’s credibility led the Tribunal to find that the appellant was “not a witness of truth and the account of events on which his protection claims are based is false”. Because of this finding, so the first respondent submitted, the Tribunal disbelieved other residual claims made by the appellant in his written statement of 22 November 2012. Counsel for the first respondent accepted that it may not have been necessary for the Tribunal to make this statement about those residual claims but, relying on SZMDS (at [135]), maintained that it was open to the Tribunal to find that the appellant’s evidence was inconsistent, and that the appellant was not a truthful witness whose account should be accepted.

Appraisal – ground 2(b)

39    For the following reasons, I would reject the appellant’s submissions under ground 2(b).

40    Regarding the evidence about the CID sending a letter to the appellant’s family, it was in my opinion open to the Tribunal to find the appellant’s explanation “unconvincing and improbable”, irrespective of whether the appellant’s evidence is properly characterised as “inconsistent”. The Tribunal gave a clear explanation for its inability to accept the appellant’s explanation, stating:

If the [appellant’s] father had approached the police about the loss of his wallet the Tribunal finds it highly improbable that his father would mistakenly think a letter from the police about that was in fact a summons issued by the CID requiring the [appellant] to attend for interrogation. The Tribunal can acknowledge that some Tamils have difficulty understanding official documents which are not in Tamil but it again seems highly improbable that his parents would not have taken steps to have someone tell them what the letter actually said and would just assume that it was a summons from the CID for the [appellant].

It was open to the Tribunal to make this assessment.

41    I am of the same opinion concerning the Tribunal’s evaluation of the evidence about the demand that the appellant present himself at a particular camp. Whether or not a matter of inconsistency was involved, the Tribunal’s concern about the veracity of the appellant’s evidence was clearly set out when it stated that it did not accept that the appellant had given “true reasons” as to why he had earlier omitted to make this significant claim before the delegate and in his written statement of 22 November 2012. The Tribunal explained that:

The [appellant] was given the opportunity in his written statement and at his interview with the delegate to relate what the CID said to his family when they came to the home on that occasion and, were he relating a truthful account, he would have said at those earlier stages that they demanded that he present himself to a camp.

It was open to the Tribunal to make this finding.

42    Similarly, it was open to the Tribunal to evaluate the appellant’s evidence about when he ceased to live at home, as it did. Again, this was so, whether or not the identified discrepancy was characterised as an inconsistency. It was also open to the Tribunal to find that the appellant’s “belated adoption of the account ... in his written statement” about the completion of forms during his interrogation was “an attempt to conceal inconsistency in his evidence”. Likewise, it was open to the Tribunal, for the same reason, to reject that the appellant’s claims that his fears about being returned to Sri Lanka prevented him from informing his representative about his claimed abduction by the LTTE and explained his failure to disclose the claim to the delegate and in his written statement.

43    There was no appealable error in the decision of the Federal Circuit Court in so far as it held that there was no irrational, illogical or unreasonable finding by the Tribunal by reason of the finding that the appellant was not “a witness of truth”. Further, it was open, as the first respondent submitted, to the Tribunal to reject the residual claims that the appellant made in his written statement of 22 November 2012 on the basis that the Tribunal did not find the appellant “a witness of truth”. When analysed, the appellant’s challenge under ground 2(b) amounted to a submission that, on judicial review, the Federal Circuit Court should have stepped into the shoes of the Tribunal and re-assessed these parts of the appellant’s evidence. This is not the role of a court on judicial review.

Submissions – ground 1(c) and ground 2(a)

44    As already noted, ground 1(c) and ground 2(a) both related to the issue of whether a family member would be available to act as guarantor for bail on the appellant’s return to Sri Lanka, and the appellant’s arguments under both grounds were essentially the same. With respect to particular (a) of ground two, the appellant submitted in writing that there was no logically probative evidence before the Tribunal that a family member of the appellant would be able and willing to be guarantor for his bail, and therefore no evidence for its finding that “[a]ny period of time spent in remand in poor conditions will be brief.” With respect to particular (c) of ground 1, the appellant submitted that there was evidence from a DFAT report that a family member was required to act as guarantor before a returned failed asylum seeker could be released on bail. The appellant submitted in writing that “the Tribunal failed to consider whether a member of the appellant’s family would be willing and able to act as guarantor for his bail on his return to Sri Lanka, and, if not, the implications for the length of time he may stay in prison and the risk of him suffering serious harm amounting to persecution, or significant harm, by the length of time he was deprived of liberty in poor conditions in prison, or by ill-treatment in prison”. The appellant submitted that whether or not there was such a family member was a necessary question raised for the Tribunal on the material it had determined to accept. If there was no family member able and willing to act as guarantor, then it would appear bail would be denied, or at least delayed, as having a family member act as guarantor was said to be a requirement “in most cases”. The appellant further submitted that:

Denial or delay of bail would mean a longer period in prison, but the brevity of the period which the Tribunal accepted that the [a]ppellant would spend in prison, and therefore the availability of a family member to act as guarantor was, as in Minister for Immigration and Border Protection v SZTQS [[2015] FCA 1069], a “crucial link” in the Tribunal’s reasoning that he would not suffer persecution or significant harm during this process of detention, questioning and remand in prison.

45    At the hearing, counsel for the appellant accepted that a failure by the Tribunal to consider the availability of a family member to act as a guarantor for a Sri Lankan returnee would not amount to jurisdictional error in every case, but he submitted that in this case there was jurisdictional error because the Tribunal did not turn its mind to an “essential link in the chain” and there was no evidence before it to enable it to conclude that there was a family member available and willing to be guarantor and that the detention on return would therefore be brief.

46    Counsel for the appellant accepted that since the decision in SZTAL, detention in prison in Sri Lanka would not constitute the intentional infliction of harm. Instead, counsel for the appellant contended that other material before the Tribunal would have fallen for consideration in the event there was a possibility of imprisonment for more than a few days.

47    The first respondent also made substantially the same submissions in respect of the particular (a) of ground two and particular (c) of ground one. The first respondent submitted in writing that the appellant’s argument was misconceived for various reasons, including that it was not critical for a family member to act as a guarantor; the Tribunal’s conclusions in relation to the relevant country information were open to it on the known materials; and that this country information was excluded by s 424A of the Migration Act 1958 (Cth) (the Act), and in consequence it could not be said that the Tribunal was required to identify any further issue arising within that country information that should have been put to the appellant. The first respondent particularly relied on SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 (SZTAP) at [76]–[80].

48    At the hearing, counsel for the first respondent emphasised that the Tribunal’s ultimate conclusion was that, having regard to country information and especially the DFAT material, the risk of mistreatment of the majority of returnees was low and, unless the returnee had a profile which included a LTTE connection, he or she was not at risk. Counsel for the first respondent drew attention to the Tribunal’s findings that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for illegal departure; that fines were imposed in the range of 5,000 to 50,000 Sri Lankan rupees; and in most cases returnees were granted bail on personal reconnaissance immediately by a magistrate.

49    Counsel for the first respondent also drew attention to the fact that the post-hearing written submission provided to the Tribunal by the appellant’s representative referred to the payment of a fine and did not make any submission that a guarantor would not be available. Counsel for the first respondent submitted that the Tribunal was required only to respond to the case put before it, and that the appellant did not raise any issue about the availability of a guarantor for him. The appellant did not indicate that there would be any difficulty on account of the fact that his family members were not in or near Colombo. Counsel for the first respondent submitted that the relevant Sri Lankan law was known to the appellant; the Tribunal received submissions on the operation of that law from the appellant’s representatives; and no point was taken about the inability of the appellant on return to satisfy the need for a guarantor or surety. Counsel for the first respondent submitted that it was incumbent on the appellant to have raised these issues if they were to be considered by the Tribunal.

50    In reply, counsel for the appellant accepted that the appellant had not made submissions on the question of a guarantor, but submitted, first, that the DFAT report was lengthy and not everything might be responded to, and, secondly, that the concern of the post-hearing submission dated 16 March 2015 was primarily the question of arbitrary and capricious punishment, which the appellant’s representative may have perceived as the more serious point.

Appraisal – ground 1(c) and ground 2(a)

51    These grounds call for close attention to the Tribunal’s reasons for decision. In considering the position of failed Tamil asylum seekers returning to Sri Lanka, the Tribunal relied principally on DFAT information, mainly a report of 3 October 2014, as well as a confirmatory report of 16 February 2015. The Tribunal noted that DFAT advised:

No returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for illegal departure. Rather, fines are imposed on such people in the range of 5,000 to 50,000 Sri Lankan Rupees and in most cases returnees have been granted bail on personal reconnaissance immediately by the magistrate.

52    The Tribunal inferred from this information that:

While Tamil returnee applicants will be held in the custody of Sri Lankan authorities for checks to be made at the airport where they arrive, they are not subjected to mistreatment. They are brought before a magistrate at the earliest opportunity and would only be held in prison should they arrive in Sri Lanka on a day when a magistrate is not available. Any period of time spent in prison (and the Tribunal infers that period will be brief) would be due to the non-discriminatory enforcement of a law of general application.... Although prison conditions in Sri Lanka are poor that is due to a lack of resources.... Accordingly, the Tribunal infers that, for leaving Sri Lanka illegally and returning there as a failed asylum seeker from Australia, the risk of a Tamil returnee suffering serious harm ... in the process of re-entering the country and being brought before a court is remote.

The Tribunal infers that although Sri Lankan law provides for a custodial sentence as a penalty for leaving the country illegally, the risk of this occurring to an applicant, solely on that ground, is remote. Such persons are granted bail by magistrates and then receive a fine in the amounts mentioned which does not amount to serious harm.

53    The Tribunal substantially re-iterated these findings when it subsequently addressed the appellant’s responses to, and submissions about, the country information and these inferences. In this context, the Tribunal stated:

The representative made submissions and referred to country information about poor conditions in Sri Lanka prisons. It was claimed that on that ground the [appellant] would suffer serious harm if held on remand after arriving in Sri Lanka and before being taken to a court. The Tribunal finds that the risk of the [appellant] suffering serious harm for the essential and significant reason of a Convention ground is remote. Whether the [appellant] even gets held on remand depends on the day he returns to Sri Lanka. Any period of time spent in remand in poor conditions will be brief and solely because of the [appellant’s] illegal departure.

54    The Tribunal again repeated these findings when it turned to the appellant’s complementary protection claim.

55    It was, of course, primarily a matter for the Tribunal to determine the weight it gave any particular country information: see, for example, NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. It was therefore open to it, in the circumstances of this case, to rely on the DFAT information, rather than any other country information.

56    Having regard to the reasons of the Tribunal in this case, it does not appear to me that the appellant can derive much assistance from the decision in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (SZTQS). That case was discussed in SZTAP, in which Robertson and Kerr JJ (Logan J generally agreeing) made it clear that SZTQS is not to be read as standing for the proposition that every Tribunal reference to a family member being required to provide surety for a failed asylum seeker returning to Sri Lanka will involve a breach of s 425 of the Act if not the specific subject of evidence or submission from the applicant: see SZTAP at [76]. As their Honours said (at [77]-[80]):

SZTQS is but an application, on particular facts, of a feature of the review jurisdiction exercised by the Tribunal under the Act, described in SZBEL. It is not necessary to consider whether or not SZTQS was correctly decided. Rather, the pertinent feature highlighted by SZBEL is that, in each instance, the Tribunal exercises a review jurisdiction in respect of a particular decision in respect of which the Minister (or a delegate) will have given particular reasons. In our opinion, SZTQS was, of necessity, fact specific.

In SZTQS, part of the background circumstances was that SZTQS had, before he left Sri Lanka, been taken to the police station and, two days later, to the local courthouse where his mother paid bail money for his release. By reason, in part, of those events and by reason of his ethnicity as a Tamil, SZTQS feared that he would be arrested again. SZTQS had also given a statutory declaration that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally and without permission.

However, on the facts of the present case, we would not accept that it was critical to the Tribunal’s finding, that the appellant could apply for bail and that bail was routinely given, that a family member was required to provide surety and that therefore it was plainly an issue for the Tribunal that the appellant’s family would be able to provide surety for him as a determinative factor in the mind of the Tribunal. It is to be recalled that what is, and what is not, an issue for the purposes of s 425(1) of the Act may be affected by what matters the Tribunal considers may be important to its decision: SZBEL at [47]. There is no such indication in the reasons of the Tribunal.

We also note that in SZTQS it appears to have been assumed by the Federal Circuit Court that providing surety involved the payment of money. This may have been because of the earlier history that SZTQS’ mother had paid bail money for his release from a cell in a police station: see [78] above. In our opinion, no such assumption should be made in the present appeal.

57    These observations offer some guidance in the present case, even though the grounds relied on here do not include an alleged breach of s 425 of the Act (as in SZTQS and SZTAP) but instead allege a failure to consider a relevant consideration, and irrational and unreasonable decision-making. The point being made here by the appellant was that there was no material before the Tribunal about the availability of a guarantor for him to obtain his release.

58    As the Full Court emphasised in SZTAP, in order to determine whether or not there is jurisdictional error, it is necessary to have regard to the particular circumstances of the decision made by the Tribunal, including the claims made by the applicant and the information and evidence before the Tribunal, together with the findings the Tribunal actually made.

59    In this case, the Tribunal made no findings at all as to whether or not a family member of the appellant would be able and willing to be guarantor for his bail. That there was no occasion for the Tribunal to do so is apparent from the inferences the Tribunal drew from the country information on which it relied, including that “in most cases returnees have been granted bail on personal reconnaissance immediately by the magistrate”. It was open to the Tribunal to draw this inference, and the related inferences to which it referred, from the country information.

60    Further, whether or not the Tribunal was required to do so (see s 424A of the Act), it is clear from its reasons for decision that the Tribunal discussed these inferences and the country information with the appellant at the hearing. After the Tribunal hearing, the appellant was given a further opportunity to respond to the country information, including an opportunity to address the operation of the legal regime governing a returning asylum seeker who had departed Sri Lanka illegally. This opportunity was taken up in the appellant’s post-hearing submissions to the Tribunal dated 16 March 2015. These submissions addressed at length and in detail the operation of the relevant Sri Lankan legislation and detention conditions. It also commented on the DFAT information to which the Tribunal had referred, including the October 2014 report. Notwithstanding the opportunity to do so, the appellant did not raise the unavailability of a family member to attend to act as guarantor or to fulfil any other role required by Sri Lankan law as a condition of his release from any detention after his arrival in the country. In the circumstances of this case, I accept that, as the first respondent submitted, it was incumbent on the appellant to raise the issue before the Tribunal was obliged to consider it.

61    In the circumstances of the case, it cannot be said that there was jurisdictional error either because the Tribunal failed to consider “relevant material or a relevant consideration, or an integer of the claim, or a material question of fact”, or because the Tribunal acted “irrationally or illogically or so unreasonably that no reasonable Tribunal would have so acted”. In this case, it was plainly open to the Tribunal to make the findings it did concerning the position of the appellant, as a failed asylum seeker returning to Sri Lanka after an illegal departure. These findings were not illogical and, as the first respondent submitted, there is no warrant for the proposition that that the Tribunal’s decision lacked an evident and intelligible justification.

Disposition

62    For the reasons set out above, the appeal should be dismissed with costs.

Associate:

Dated:    6 March 2018