FEDERAL COURT OF AUSTRALIA

ASV16 v Minister for Immigration and Border Protection [2018] FCAFC 141

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant do pay the first respondent's costs of the appeal to be assessed if not agreed.

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

REASONS FOR JUDGMENT

THE COURT:

1    The appellant is a national of Sri Lanka who arrived in Australia by boat on 30 July 2012. He applied for a protection visa. It was refused by a delegate of the Minister on 16 September 2013.

2    The refusal of the appellant's application for a protection visa was affirmed by the Administrative Appeals Tribunal on 9 March 2016. The Federal Circuit Court dismissed an application for judicial review of the Tribunal's decision: ASV16 v Minister for Immigration and Border Protection [2017] FCCA 3076. The appellant now appeals to this Court.

3    The appellant raises three appeal grounds. The third ground was not raised in terms before the Federal Circuit Court so leave is required to raise that ground.

4    Grounds 1 and 3 each seek to give significance to an alleged failure by the Tribunal to consider travel advice issued by the Department of Foreign Affairs and Trade about the danger of land mines when travelling in certain parts of Sri Lanka (DFAT Information).

5    Ground 2 concerns the Tribunal's approach to prison conditions that the appellant may face if returned to Sri Lanka and the significance of those matters in relation to complementary protection under s 36(2)(aa) of the Migration Act 1958 (Cth).

6    For the following reasons, none of the grounds establish error in the decision by the Federal Circuit Court to dismiss the application for review. Therefore, the appeal should be dismissed with costs.

Claims before the Tribunal based upon an alleged bomb blast

7    The appellant is of Tamil ethnicity and is from the Eastern Province of Sri Lanka.

8    One of the main claims made by the appellant before the Tribunal as to why he feared returning to Sri Lanka concerned a bomb blast near his place of work. He said he was working in a garage with three work colleagues when there was a bomb blast close by the garage. About three months later his three colleagues were abducted by the Sri Lanka Army (SLA) on the way to work. He said that they may have placed the bomb and he feared that they may name him as a co-conspirator. As a result he became very scared for his life and two days later he left Sri Lanka and eventually came to Australia.

9    Before the Tribunal, the appellant claimed that the bombing hit an army truck and SLA personnel were killed. There was an issue before the Tribunal as to whether there had been different versions of the appellant's account concerning the bomb. In his initial statement the appellant claimed that a claymore mine went off. However, he included the reference to bombing of the army truck in his evidence at the Department interview and before the Tribunal.

10    The appellant had a separate claim about concerns arising from his half-brother's involvement with the Liberation Tigers of Tamil Eelam (LTTE). He had been killed in a battle between the LTTE and the SLA in May 2009, shortly before the cessation of civil war in Sri Lanka. However, no issue is raised in the appeal concerning the manner in which that claim was dealt with by the Tribunal.

11    In dealing with the claim concerning the bomb blast, the Tribunal stated that there was no information that the bombing incident occurred. The lack of information was said to be a significant issue with the claim. The Tribunal stated that it had conducted extensive research into events in Sri Lanka at the relevant time. It referred in particular to the South East Asian Terrorism Portal which it described as 'a reputable source of events'. It noted events that were included in the Portal which it described as minor and major events. It also said that there was a further absence of country information arising from the claimed event. The Tribunal then observed that having regard to the nature of the bombing event described by the appellant, reports of SLA responses to such an event would be significant (as to these matters, see paras 33-35).

12    The Tribunal also dealt with other concerns with the claim (para 37).

13    The Tribunal then said that the issue with the account was not one of a lack of corroboration. Rather, it was 'an example of a complete absence of country information about an incident that occurred that should be available' (para 39). The Tribunal stated that it considered that had the incident occurred there would be country information about the event.

14    On that basis, the Tribunal did not accept the appellant's account about the bomb blast and related matters (paras 40-42).

Decision of the Federal Circuit Court concerning alleged bomb blast

15    Before the Federal Circuit Court it was argued, relevantly for present purposes, that the approach of the Tribunal concerning the bombing was to require the appellant to provide corroboration for his claims and that such an approach was in error.

16    The judge below found that the Tribunal had expressly noted court decisions to the effect that applicants for protection visas 'can't be expected to provide corroborative evidence of all their claims'. Further, the Tribunal had not reasoned on the basis of a need for corroboration. Rather, the reasoning had been on the basis that the lack of any report as to the actual event was circumstantial evidence that the alleged bombing did not occur: ASV16 v Minister for Immigration and Border Protection at [21]-[24]. On that basis the judge below dismissed the relevant review ground.

The DFAT Information and its significance

17    Grounds 1 and 3 both concern the approach of the Tribunal in dealing with the appellant's claims concerning the bomb blast.

18    It was submitted that the evidence that related to the claim about the bomb blast included the DFAT Information which had been referred to in submissions for the appellant presented to the Tribunal. The DFAT Information included statements to the effect that visitors should stay on main roads and pay close attention to signs warning of danger from land mines. As to the Eastern Province of Sri Lanka, the information was to the effect that some isolated areas were yet to be cleared of mines.

19    The DFAT Information was said to indicate that the bomb blast was sufficiently likely that persons travelling there should be warned and should take relevant precautions. This was said to be evidence that the Tribunal ought to have considered when deciding whether to accept the appellant's account concerning the bombing.

20    The Tribunal did refer to parts of the DFAT Information at two points in its reasons (paras 23 and 64). However, at those points in the reasons the Tribunal was dealing with a submission advanced on behalf of the appellant to the effect that defeat of the LTTE had not resulted in better treatment for the Tamil population and that there continued to be civil arrest and political tension. It was presented as part of a wider submission that there were reports that showed that Tamils who had any level of association with the LTTE were at risk of serious harm on return to Sri Lanka (a submission that was rejected in an unchallenged part of the Tribunal's reasons). Although the DFAT Information that was quoted also contained warnings about dangers of land mines in isolated areas of Eastern Province where land mines were yet to be cleared, no aspect of that part of the DFAT Information was advanced in the written submissions to the Tribunal as a matter that supported the appellant's account of the bombing. There was no suggestion in the course of argument that there were other submissions made to the Tribunal concerning the DFAT Information.

21    The failure to refer to the DFAT Information in the context of the appellant's claims about the bombing is not surprising. What was to be decided by the Tribunal concerning the bombing was not whether the prospect of a bomb blast from a land mine was unlikely. Rather, the issue was whether the appellant's account of a particular bomb blast involving SLA personnel and occurring at the time and place described by the appellant was to be accepted.

22    The Tribunal did not reason that the appellant's account was not to be accepted because there was no evidence to support the possibility of a bomb blast involving land mines occurring in Sri Lanka. Rather, the Tribunal reasoned that the appellant's account of a particular bomb blast was not to be accepted because of inconsistencies in the account and the absence of any report of a blast of the kind described by the appellant in circumstances where such reports were to be expected. The DFAT Information was not probative of that issue.

23    Therefore, the submission advanced fails as a matter of logic. The DFAT Information was not relevant to the particular issue that was to be resolved nor was it advanced as such.

24    Even if it be accepted that the evidence may have had some relevance then the lack of probative force of the DFAT Information in the context of the Tribunal's reasoning together with the fact that the DFAT Information was referred to by the Tribunal where it was relevant to the submissions, means this is a case where it may be readily inferred that the DFAT Information was not mentioned because it was not material: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 at [34].

25    Judicial review by the Federal Circuit Court in the circumstances of the present case was confined to jurisdictional error: s 476(1) of the Migration Act. Jurisdictional error may include ignoring relevant material in a way that affects the exercise of a power: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [27]. However, it must be of a character that takes the decision outside the scope of authority that is conferred by the Migration Act on the Tribunal. It must involve a 'failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute': Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [24].

26    In this case, the Tribunal was required not only to make a decision of the kind required by the Migration Act but also to undertake a review of a kind that would be expected of an independent statutory Tribunal of the character established by the Administrative Appeals Tribunal Act 1975 (Cth): Applicant WAEE v Minister for Immigration and Multicultural Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [43]-[45]. In performing the review task, the Tribunal must consider claims expressly raised or that are apparent on the material before the Tribunal: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [55]-[63]. A failure to consider an important or significant claim upon which an application for a visa was based may amount to a failure to undertake the statutory review function and therefore be a jurisdictional error. However, failure to consider the DFAT Information when considering the appellant's account of the bombing was not of that character in any respect.

Grounds 1 and 3

27    Ground 1 was advanced as an error by the Tribunal in failing to recognise that the DFAT Information was circumstantial evidence that supported the appellant's account. It was said that exclusion of that evidence had the effect of requiring the appellant to provide corroborative evidence and ignore its own warning (at para 38). However, the Tribunal's reasoning was that there was an absence of independent country information about an incident of the kind described by the appellant when such information was to be expected if the appellant's account was true. To reason in that manner is not to require corroboration, but rather to bring to account the lack of reports as circumstantial evidence counting against the appellant's account. In any event, for reasons already given, the DFAT Information was not relevantly corroborative. It was not the claim that there had been a land mine that had exploded that was significant in assessing the appellant's account. Rather, it was the claim that the bombing hit an army truck and SLA personnel were killed that was the important part of the claim. It was that aspect that was said to give rise to the concerns on the part of the appellant as to his personal safety. The DFAT Information was not relevant to an evaluation of the veracity of that account. No error has been demonstrated in the rejection by the judge below of such an argument.

28    Ground 3 alleges a failure to have regard to the DFAT Information before finding that the explosion as described by the appellant did not occur. The ground assumes that the DFAT Information was relevant. For reasons we have given this was not the case. Nor was it presented in that way to the Tribunal. Further, as the Tribunal considered the DFAT Information where it was relevant, it may be readily inferred that the failure to refer to it in the context of consideration of the bombing claim was because the Tribunal formed the view that it was not relevant to that aspect. The ground should not be upheld.

The Tribunal's approach to prison conditions and complementary protection

29    In dealing with the appellant's claim, the Tribunal recited country information about criminal sanctions that may be faced by the appellant upon returning to Sri Lanka having regard to his illegal departure from the country. The Tribunal found the chances to be remote that the appellant would spend more than a very short period 'of hours or at most a few days' remanded in custody awaiting bail on his own recognisance after his return to Sri Lanka.

30    The Tribunal considered the nature of the prison conditions to which the appellant would be exposed. It accepted that country information indicated examples of overcrowding and generally poor conditions in prisons in Sri Lanka. It then found that given the short term nature of detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low and the risk of torture or significant harm for the appellant while in prison is remote.

31    The Tribunal also made findings based upon country information and in respect of the appellant as to whether the appellant would be 'targeted for harm in the prison'. It did not accept that would be the case. The Tribunal also found that the prison conditions 'would apply to every person in Sri Lanka who breached the illegal departure law'. It found expressly that exposure to the prison conditions 'is a real risk faced by the population generally and not the [appellant] personally under s 36(2B)(c)'. The Tribunal also stated that it did not accept that the appellant 'will be singled out or intentionally harmed … while waiting for his bail'.

Decision of the Federal Circuit Court concerning prison conditions

32    The submission advanced to the judge below was that having found that the appellant may be detained for several days, the Tribunal 'should have considered if it could be satisfied that any pain or suffering caused by poor prison conditions which take in severe overcrowding and poor and unsanitary conditions … would be intentionally inflicted on the [appellant] … In other words it should have evaluated the nature and gravity of that loss or liberty'.

33    The reference to 'intentionally inflicted' reflects the requirement in s 36(2)(aa) that there be a real risk of 'significant harm' as a necessary and foreseeable consequence of a person being sent to another country. Where the significant harm is said to be that the person will be subjected to cruel or inhuman treatment or punishment then that means an act or omission by which severe pain or suffering, whether physical or mental is intentionally inflicted: s 36(2A)(d) and s 5(1). As to intention, in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, it was held that it is a reference to subjective intention.

34    Therefore, the issue for the Tribunal was not whether there was a real risk that the prison conditions may be suffered by the appellant if returned to Sri Lanka, but rather to evaluate the nature and extent of harm to the appellant as a result and in particular whether that treatment would be intentionally inflicted in a subjective sense.

35    The findings by the Tribunal considered at [23] above, were referred to by the judge below: at [35]. The review ground based upon those matters was characterised as merits review and rejected on that basis.

Ground 2

36    The appellant submitted that in dealing with the complementary protection claim the Tribunal had to consider the prison information and make findings as to what (if any) harm was likely to befall the appellant in the event that he was detained for a few days. It was said that these findings had to be made before the Tribunal then considered separately whether any such harm was intentionally inflicted or would be of a kind to which Sri Lankans generally are exposed. It was put that the Tribunal had been in error to deal with these matters in a rolled up way.

37    It is to be noted that this is a different formulation of the argument concerning the Tribunal's approach to prison conditions from that which was put to the Federal Circuit Court.

38    However, as we have already stated, the Tribunal did separately consider the nature of prison conditions that would be faced by the appellant for a short period. It then separately considered whether the appellant would be targeted, singled out or intentionally harmed.

39    When the Tribunal expressed its ultimate conclusion that the complementary protection obligations were not met it is to be taken to base that conclusion upon the findings to which we have referred.

40    Accordingly, there is no merit in ground 2.

Leave to amend the appeal grounds and final orders

41    The appellant sought leave to amend the appeal grounds to abandon some grounds and to add a further ground 3. At the commencement of the hearing of the appeal leave was given. The court indicated that it would provide reasons later. In substance, the matters advanced in support of ground 3 are an alternate legal formulation of the complaint raised by ground 1 which was raised before the Federal Circuit Court. Therefore, this court does have the benefit of some analysis by the judge below on that issue. The Minister raised no prejudice that would be consequent upon giving leave to raise ground 3. However, a submission was made that there is insufficient merit in the ground for leave to be granted. In our view, there was sufficient merit for the ground to be raised particularly having regard to the subject matter of the appeal being the refusal of an application for a protection visa. For those reasons, we formed the view that leave should be granted to allow the ground to be advanced. However, for reasons we have given, the appeal should be dismissed. Both parties accepted that costs should follow the event and there should be an order accordingly.

Associate:

Dated:    28 August 2018