FEDERAL COURT OF AUSTRALIA

SZTBE v Minister for Immigration and Border Protection [2014] FCA 1230

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent's costs.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal for a decision of the Federal Circuit Court dismissing the appellant’s further amended application in that Court for Constitutional writ relief: SZTBE v Minister for Immigration Border Protection [2014] FCA 1288.

Background

2    The appellant is a Sri Lankan Tamil who arrived in Australia in 2012. He was granted permission by the Minister to make an application for a protection visa, which he did, assisted in the end by a migration agent-solicitor who has continued to represent him throughout the subsequent processes before the Minister and Refugee Review Tribunal as well as in the proceedings in the Court below and this Court. In both of the Court proceedings, the appellant has also been represented by counsel experienced in the field, albeit that he changed counsel before the appeal.

3    Although the appellant made a plethora of claims for protection, the further amended application in the Court below raised only two grounds. Those grounds were confined to issues arising under s 36(2)(aa) of the Migration Act 1958 (Cth), namely that Australia owed him only “complementary protection” obligations. He accepted below that he had no basis to challenge the Tribunal’s rejection of his many claims to be a refugee.

4    Nonetheless, he contended that the Tribunal had made two particular errors in its consideration of his claims. He argued that the Tribunal had substantial grounds, when standing in the Minister’s shoes, for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there was a real risk that he would suffer “significant harm” as defined in s 36(2A)(d) and (e), namely, that he would be subjected to cruel or inhuman treatment or punishment or, as he sought to add on appeal, that he would be subjected to degrading treatment or punishment.

5    In the Court below, the grounds of the appellant’s application, as ultimately refined, contended that the Tribunal had, first, failed to consider specific country information in his migration agent-solicitor’s written submission to it as to the conditions that he might face were he to be incarcerated, even on remand, on his return to Sri Lanka, and secondly, misapplied the statutory criterion in s 36(2A)(d) as to whether he would suffer cruel or inhuman treatment or punishment because he could be subjected to, what he contended the country information showed, very degrading or appalling conditions in prison.

The legislative scheme

6    Relevantly, the Act provided the following definitions in s 5(1):

Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

significant harm means harm of a kind mentioned in subsection 36(2A).

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

7    The criteria for a protection visa were set out in s 36, relevantly, as follows:

(2)    A criterion for a protection visa is that the applicant for the visa is:

(a)    a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;

…

(2A)    A non-citizen will suffer significant harm if:

…

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)    the non-citizen will be subjected to degrading treatment or punishment.

(2B)    However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

…

(c)    the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

8    Next, s 91R prescribed the following relevant requirements for a finding of conduct amounting to persecution, namely:

91R    Persecution

(1)    For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

(a)    that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b)    the persecution involves serious harm to the person; and

(c)    the persecution involves systematic and discriminatory conduct.

(2)    Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)    a threat to the person’s life or liberty;

(b)    significant physical harassment of the person;

(c)    significant physical ill treatment of the person;

…

This appeal

9    At the outset of the appeal today, the appellant sought to rely on an amended interlocutory application in order to amend his notice of appeal from her Honour’s decision.

10    The first ground of appeal contended that her Honour had erred in her consideration of his first ground below, namely the asserted failure of the Tribunal to consider the specific country information to which his representative had particularly referred in written submissions to it. The second ground initially challenged only her Honour’s adverse decision on the construction and application of s 36(2A)(d) but now sought to rely, without opposition by the Minister, on an asserted failure by the Tribunal to correctly construe and apply the criterion in s 36(2A)(e).

11    However, the Minister opposed the three other proposed amendments. In the first, the appellant sought to further amend the second ground, by adding a new basis, not taken below. That addition sought to raise a claim that the Tribunal had failed correctly to construe and apply the criteria in s 91R(1)(b) and (2) of the Act based on a decision delivered by North J subsequently to her Honour’s decision, namely, WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. In that case, his Honour had held that the criterion of “serious harm” for the purposes of s 91R(2)(a), being a threat to a person’s life or liberty, was satisfied by any threat to life or liberty, without reference to the severity of the consequences of that threat to the person’s life or liberty: WZAPN [2014] FCA 947 at [30].

12    Both of the next two proposed new grounds asserted that her Honour erred in failing to find something that she had never been asked to address, namely that the Tribunal had made a jurisdictional error by failing correctly to construe and consider a claim before it, by misconstruing and misapplying the applicable law or by failing to ask the right question.

13    The first of those grounds arose out of the appellant’s claim before the Tribunal that, on a number of occasions in his store over the period between about 2007 and 2012, persons, whom he alleged to be connected to paramilitary groups linked to the Sri Lankan Government or its allies, known as the Karuna Faction and the Tamil Eelam People’s Liberation Tigers or TMVP, had threatened him with weapons and sought to extort goods and money from him.

14    The second of those new grounds arose out of the appellant’s claim that the Tribunal did not ask itself whether he might be tortured in the process of the Sri Lankan police or other authorities determining whether he was a person with an adverse profile after the Tribunal had rejected his claim to have, or be seen to have, any such a profile.

15    The Minister opposed each of the contentious amendments. In the course of doing so, he identified an independent ground on which the Tribunal’s decision was arrived at that excluded the operation of s 91R entirely, namely, so the Minister contended, the Tribunal had found that what the appellant had alleged to be the persecution complained of did not involve systematic and discriminatory conduct and so failed to meet the mandatory criterion set in s 91R(1)(c). The appellant argued that he did not have to challenge that independent adverse finding in a new ground of appeal and that, in the event that he did have to do so, he sought leave to add it as a further ground.

Consideration of amendment application

16    Her Honour very carefully and thoroughly set out the facts from which the present appeal arises. Significantly, the appellant made no substantive attack on her Honour’s findings of fact or reasoning process during the course of argument and in his written submissions except to disagree with her conclusions.

17    It is not necessary for me to rehearse in detail the plethora of factual claims on which the appellant had relied in seeking a protection visa and the consideration by the Tribunal of them in order to deal with the arguments the subject of the appeal. Essentially, the appellant’s arguments on the appeal failed to deal with the fact that he was appealing from a decision of a Court, and therefore needed to argue that her Honour made some error in her consideration of the facts or the law sufficient to warrant appellate correction.

18    Ordinarily, an appeal court can exercise its appellate powers in an appeal by way of rehearing only if it is satisfied that there was some error made by the Court below: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [14]. There, Gleeson CJ, Gaudron and Hayne JJ said:

That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error (See CDJ v VAJ (1998) 197 CLR 172 at 201-202 [111], per McHugh, Gummow and Callinan JJ).

19    The application to amend the grounds of appeal must be considered having regard to the relevant principles that the High Court has identified on many occasions. In Coulton v Holcombe (1986) 162 CLR 1 at 7-8, Gibbs CJ, Wilson, Brennan and Dawson JJ said:

To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v Gundowda Pty Ltd [(1950) 81 CLR 418 at p 438]; Bloemen v The Commonwealth [(1975) 49 ALJR 219]. In O'Brien v Komesaroff [(1982) 150 CLR 310 at p 319], Mason J, in a judgment in which the other members of the Court concurred, said:

“In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co v Kavanagh [[1982] AC 473 at p 480]; Suttor v Gundowda Pty Ltd [(1950) 81 CLR 418 at p 438]; Green v. Sommerville [(1979) 141 CLR 594 at pp 607-608]). However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial.”

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this Court (University of Wollongong v Metwally [No. 2] [(1985) 59 ALJR 481 at p 483]) the Court said:

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.” (emphasis added)

20    As their Honours said there, it is fundamental to the due administration of justice that the substantial issues between the parties be ordinarily settled at the trial.

21    Here, the Minister accepted that the addition to ground 2, in relation to s 91R and the related claim for a protection visa, raised a matter of law on the facts as decided, and he was also able to deal with, if necessary, those arguments on their merits. However, the issues raised by the two grounds that the appellant sought to add to his notice of appeal were not issues in the Court below. The appellant was represented then by counsel. He twice amended his application for Constitutional writ relief and also abandoned some grounds at the hearing, as her Honour recorded.

22    Ordinarily, one consideration in determining whether an application to add a new ground of appeal is whether the grant of the amendment will be in the interests of justice. In his affidavit affirmed on 10 July 2014, Mr Varess, the appellant’s solicitor, identified the basis on which the present application is made as simply that new counsel, who was briefed to argue the appeal, had thought of those two new grounds. In my opinion, that is not an appropriate reason, in the circumstances of a case such as the present, to grant leave to raise those new grounds. It is not as if the appellant had been unrepresented earlier in the proceedings before the Tribunal or the Court below. Rather, he has been represented by the same migration agent-solicitor throughout his attempts to secure a protection or complementary protection visa, both at the administrative and litigious stages of that process.

23    I am not satisfied that either of the additional two proposed grounds has any substantive prospect of success. Indeed, as the Minister asserted, each in effect seeks merits review. In particular, the first of those grounds, namely, proposed ground 4, as articulated in over a page of typescript in the draft notice of appeal, did not even raise the point which appeared to be central to the appellant’s oral argument. That point was, that the Tribunal had not considered, after it had rejected the appellant’s claim to have been subjected to persecution in his shop, the question of whether the appellant would be afforded protection by Sri Lanka from that alleged persecutory treatment were he to return to Sri Lanka.

24    That argument, in my opinion, was hopeless. The Tribunal did not consider the appellant to be, generally, a credible witness. The appellant’s claim for protection based on this ground was that he had been persecuted on a number of occasions in the past over several years by reason of extortionate demands made with guns and other physical threats to him in his shop. He had claimed that, as a result, he had felt forced, without being physically harmed, to pay money to the extorters and to allow them to take goods from his shop. He claimed that those extorters belonged to two particular paramilitary groups, being the Karuna group and the TMVP, they were agents, or aligned to the interests of, the Sri Lankan authorities, those persons had threatened his ability to subsist and there was a real chance that they would do so again were he to be returned to Sri Lanka.

25    The Tribunal specifically rejected, as entirely speculative, the appellant’s assertion that the persons whom he claimed to fear, namely, the Karuna group and or the TMVP, were responsible for the acts complained of. It found that it was prepared to accept that the appellant had been subjected to opportunistic and or criminal demands that had resulted in his having lost some money or goods. In other words, the Tribunal accepted that the appellant had been subjected to criminal activities at the hands of persons who were not engaged in persecutory conduct of any kind, but rather were merely acting as common criminals. It found that it was not satisfied, on the evidence before it, that the appellant had ever been or would in the future be targeted by the two groups from whom he claimed protection.

26    In those circumstances, it would be impossible to uphold any claim that the Tribunal had made a further error in failing to consider whether the State of Sri Lanka would protect the appellant from persecutory conduct that the Tribunal had found, first, had not occurred in the past and, secondly, there was no real chance would occur in the future.

27    The fifth ground must fail for similar reasons, namely, the lack of any factual foundation. The Tribunal was not satisfied that the appellant had been, or would in the future be, imputed with any political opinion linked to the Liberation Tigers of Tamil Eelam or LTTE, or that he was opposed to the Sri Lankan government for any of the reasons he claimed or arising on the evidence. It was not satisfied that he faced a real chance of persecution involving serious harm for any of the Convention reasons he claimed or arising on the evidence either singularly or cumulatively, including his Tamil race and or membership of any particular social group, including social groups of Tamil owners of successful businesses or of failed asylum seekers or persons who had illegally departed Sri Lanka.

28     For those reasons, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future, or that he was a refugee for the purposes of s 36(2)(a) of the Act. In those circumstances, there was no necessity for the Tribunal to go on to consider a claim that the appellant would face a real chance of persecution by reason of the possibility that he might be tortured in the future, since it had found that the motivating factor that he alleged for the torture, namely, a Convention reason, did not exist. To the extent that this ground went to the issue of complementary protection, it effectively repeated the substantive grounds that the appellant had argued below and before me, and which I will consider below.

29    For these reasons, I reject the application to amend the notice of appeal by adding proposed grounds 4 and 5.

The appellant’s submissions

30    The appellant argued that the detailed written submissions to the Tribunal of his migration agent-solicitor that had referred to specific country information had not been considered by it in accordance with its obligations as recently reaffirmed by Kenny, Griffiths and Mortimer JJ in Minister for Immigration and Border Protection v MZYTS (2013) 136 ALD 547 at 559-560 [38]-[41]. Their Honours said that, in assessing a claim for a protection visa, the Tribunal had to approach its task with a consciousness and consideration of the submissions, evidence and material advanced by the visa applicant that were most likely to give the Tribunal an accurate picture of the circumstances, were he to be returned to his country of origin, on which he relied for his claim. Their Honours found that, in that case, the Tribunal’s reasons had not disclosed any consciousness or consideration of what the visa applicant was articulating through his own statements and the submissions made by his adviser to the Tribunal about a particular risk the subject of the appeal (136 ALD at 559 [39]). The ratio decidendi of their Honours’ reasoning in that case appeared at [41], namely, that there was an absence of any consideration by the Tribunal in its reasons of the material upon which the appellant there had relied.

31    However, that position is, as her Honour correctly found in this case, removed from the facts here. That is because the Tribunal considered the country information, some of which the appellant referred to and other portions that it found to be more recent and apposite to the determination of the application. As her Honour said at [59], the Tribunal had identified with particularity a significant amount of country information and it was mindful that a number of human rights groups had provided alternative country information regarding the treatment of returnees in Sri Lanka, including persons such as the appellant claimed to be, a failed Tamil asylum seeker.

32    The appellant’s written submissions before the Tribunal had referred to a number of items of country information, including a report in the Sydney Morning Herald newspaper of 8 December 2012 headed “Asylum denied, a penalty waits at home”, to which the Tribunal expressly referred in its reasons, together with a report written in June 2012 by ACAT-France and the Asian Legal Resource Centre that had been funded by the European Union, research by the Asian Human Rights Commission, and country information of a general kind sourced from the United States Department of State. At a number of points in its reasons, the Tribunal addressed the issue of conditions in Sri Lanka that returnees might face. It discussed country information from the Department of Foreign Affairs and Trade, the Immigration and Refugee Board of Canada, the Canadian High Commission, and the United Kingdom Home Office. The Home Office information had also referred to a decision of the Upper Tribunal of the Immigration and Asylum Chamber in the United Kingdom, the latter being a Court.

The Tribunal’s reasoning

33    The Tribunal referred, in a general way, to assertions by a number of human rights groups, including Amnesty International, Human Rights Watch and Freedom from Torture, about alternative country information concerning the treatment of returnees to Sri Lanka, including failed Tamil asylum seekers and the risks that those persons faced, including mistreatment in prison and torture. The Tribunal, it is true, did not specifically advert in its reasons to the ACAT-France or United States Department of State country information to which the appellant’s written submissions referred. That material had asserted that, in effect, Sri Lankan police regularly used torture as part of their methodology to investigate matters. The ACAT-France report referred to what it said were the deplorable levels of overcrowding and poor conditions in Sri Lankan prisons and to a particular incident in which seven Tamil detainees, who had been on remand for several years by August 2011, had been beaten violently in a prison and threatened with death. However, the position of those detainees was a far cry from the situation of the appellant. That is because the persons to whom the report referred had been detained, for reasons that were not specified, earlier during the civil war in Sri Lanka that had ceased in 2009.

34    The Tribunal found that the appellant was not a person at risk of having a profile attributed to him that made a connection between him and the insurgency by the LTTE or others hostile to the Government. In those circumstances, the Tribunal did not need to refer to that report in its reasons since the situation of the seven Tamils was not of any apparent relevance to a person in the position of the appellant being returned to Sri Lanka long after the end of the civil war. Rather, the Tribunal made a finding based on more recent country information in the decision of the Upper Tribunal that it considered to be significant. The Upper Tribunal had found that the claims by the human rights groups that failed asylum seekers faced harm on return to Sri Lanka had left “much to be desired” and raised “even more unanswered questions about their own efficacy”. The Tribunal found that the Upper Tribunal, in turn, had found that, after further information had been received by it from the Home Office, only two of the 13 individuals alleged that they had suffered mistreatment described in the human rights organisations’ reports following their return to Sri Lanka from the United Kingdom. And, in one of those cases, the mistreatment had not occurred until six months after the person’s return when he or she had been stopped at a checkpoint. The Tribunal found that the Amnesty International report that had asserted that failed Sri Lankan asylum seekers faced harm upon return lacked substance.

35    The Tribunal relied instead on a press release made in April 2012 by the United Nations High Commissioner for Refugees that stated that the High Commissioner had assisted the voluntary return of 1,728 Tamils in 2011 and 408 in the first quarter of 2012. The Tribunal noted the absence of systematic monitoring of involuntary returnees to Sri Lanka by the High Commissioner and acknowledged that that placed limits on the transparency and accountability of what might have happened to those returnees. Nonetheless, the Tribunal concluded that it was highly speculative that those persons faced a real chance of serious harm for any particular reason.

36    The Tribunal found that, on balance, while it accepted that the appellant would, as a returnee to Sri Lanka, go through a process that would bring him into contact with Sri Lankan authorities, it was not satisfied on the evidence before it that being a returned failed Tamil asylum seeker, singularly or in combination with what it had accepted of the balance of his claims of a personal or family profile, would impute to him a political opinion linked to the LTTE or one opposed to the Sri Lankan authorities or give rise to differential treatment for a Convention reason. The Tribunal accepted the Home Office’s observations that only two of the 13 returnees had alleged that they had suffered mistreatment on return and came to a view on balance, based on the totality of the evidence before it, that it was not satisfied that the appellant faced a real chance of persecution involving serious harm in connection with his unsuccessful application for asylum, either singularly or cumulatively in Sri Lanka now or in the reasonably foreseeable future.

37    Next, the Tribunal turned to consider whether, if the appellant were returned to Sri Lanka, he would be subjected to any persecutory conduct, or would suffer significant harm by reason of being subjected to the Sri Lankan laws relating to persons who had departed that country illegally. In essence, the Tribunal relied on its earlier rejections of the appellant’s claims of being a failed Tamil asylum seeker, his having a political profile imputed to him and that his circumstances would give rise to differential treatment for a Convention reason, when it rejected this further ground. It found in [43] that it was not satisfied that, at the time of its decision, the process that the Sri Lankan authorities applied to all persons who returned to Sri Lanka, having departed the country illegally, involved or gave rise to differential treatment for a Convention reason.

38    The Tribunal referred to recent information from the Department of Foreign Affairs and Trade that it considered to be consistent with reports from other foreign governments and independent news sources, including the article in the Sydney Morning Herald to which the appellant had referred, concerning standardised procedures that applied to all cases, regardless of a person’s ethnicity or the circumstances in which they had left Sri Lanka. That country information was that such persons were routinely interviewed at the airport on arrival by the Sri Lankan immigration authorities, its State intelligence service and its criminal investigation department. The Tribunal found that those processes involved police and security clearances and could take some hours while checks were made with the person’s local police station, searching for outstanding warrants and any other alerts relating to the person’s previous activities in the country.

39    It found that under recently tightened procedures, returnees who were believed to have left the country in breach of Sri Lanka’s immigration and emigration laws were arrested at the airport and brought before a court to apply for bail. The Tribunal found that bail was routinely given on the accused’s own recognisance, although a family member was also required to provide surety. It also found that, if the arrival occurred over a weekend or a public holiday, the returnee was placed in the remand section of the Negombo Prison, and could remain there for some days until a bail hearing was available. It said:

Conditions in remand have been described in media reports [referring back to the Sydney Morning Herald report] as being overcrowded, although there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. (emphasis added)

40    The Tribunal found that the penalties for illegal departure eventually imposed on such returnees by the courts involved fines ranging up to 100,000 rupiah. It said that, having considered the information before it, it was not satisfied that the treatment faced by Sri Lankan returnees who had departed Sri Lanka unlawfully when on remand while awaiting a bail hearing, or when they were later dealt with by the courts, amounted to persecution involving serious harm or gave rise to a real chance of such harm in the reasonably foreseeable future.

41    The Minister accepts that that finding is inconsistent with what North J found in WZAPN [2014] FCA 947 at [30] and has formally contended that that decision was wrongly decided, noting that it is the subject of an application by the Minister for special leave to appeal to the High Court. However, the Minister argued that, regardless of whether the Tribunal erred in that regard, its finding that it was not satisfied that the process involved or gave rise to differential treatment for a Convention reason was an independent basis on which the appeal must be dismissed. He argued that it was necessary for the purpose of s 91R(1)(c) that the appellant challenge that finding so far as it concerned his protection visa claim.

Consideration – ground 1

42    I agree. In my opinion, her Honour was correct to have concluded that, in relation to the first ground argued before her and me, none of the reports relied on by the appellant identified particular instances of Sri Lankan returnees being subjected to torture or other forms of deliberate mistreatment while awaiting bail hearings. She found that a fair reading of the Tribunal’s decision record made clear that it was aware of the reports of poor conditions in Sri Lankan prisons, albeit that she did not describe those conditions in exactly the same terms as in the appellant’s adviser’s written submission. Her Honour said that it was well established that country information to which the Tribunal had regard and the weight it gave that information were matters for the Tribunal.

43    The trial judge said that the Tribunal was not obliged to refer to every piece of country information, or other information before it, in making its findings of fact. She held that, in the circumstances, the Tribunal had not failed to consider the appellant’s evidence and submissions in relation to the conditions in Sri Lanka. Rather, her Honour found that the Tribunal had not been persuaded by the evidence before it so as to be satisfied that he was entitled to a protection visa. For that reason, her Honour dismissed ground 1.

44    I am unable to detect any error in her Honour’s reasoning. In my opinion, it is correct. The Tribunal’s reasons demonstrated that it consciously and deliberately considered and rejected the substantive argument put by the appellant through his representative. The Tribunal based its reasons on the appellant’s evidence and submissions to it concerning the conditions on which he relied to support his argument that complementary protection obligations were engaged by reason of cruel or inhuman treatment or punishment, or degrading treatment within the meaning of the definitions of those terms in s 5(1) of the Act. The Tribunal was not satisfied by that evidence and those submissions. That was because, as her Honour correctly pointed out, each of those defined criteria required an intentional infliction of, or subjection of the person to, the particular treatment or punishment.

45    The Tribunal was entitled to find, as it did, that there had not been reports that returnees held on remand, while awaiting bail hearings, had been subjected to torture or other forms of deliberate mistreatment. For these reasons, ground 1 fails.

Consideration – the original ground 2

46    Her Honour rejected the original ground 2 on the basis that the Tribunal had considered in detail the appellant’s claim that the treatment to which he would be subjected, were he to be held on remand in prison, would amount to cruel and inhuman treatment. However, it had rejected that claim. The trial judge found that none of the material referred to in the appellant’s representative’s written submissions to the Tribunal identified reports of intentional acts within the Sri Lankan prisons in terms of the definition of cruel and inhuman treatment in s 5(1) of the Act.

47    By parity of reasoning, because the same requirement of intention is present in the definition in s 5(1) of degrading treatment or punishment, that ground, had it been taken below, necessarily would have failed before her Honour.

48    I see no error in what the trial judge found. In my opinion, her Honour was correct for the reasons that she gave for rejecting ground 2.

The proposed amendment to ground 2

49    As I have said, the appellant sought to amend ground 2 by adding that the Tribunal committed a jurisdictional error in failing to find that the appellant was entitled to a protection visa on the ground that any detention at all would be an infraction of his liberty for the purposes of s 91R(2)(a). It is not necessary for me to consider here the correctness of North J’s opinion and I will express no views about that matter.

50    Here, the Tribunal made a clear finding that it was not satisfied that the process of detention on remand of returnees who had left Sri Lanka illegally, even if it were accepted that that posed a threat to the appellant’s liberty, involved differential treatment of those persons for a Convention reason. The appellant had argued that the Tribunal had erred in failing to assess, notwithstanding that the immigration and emigration law was one of general application to all persons who either were failed asylum seekers or returnees who had departed the country illegally, whether that law operated to treat such persons in a manner that was, according to the standards of a civil society, not appropriately adapted to achieving a legitimate object in the sense explained in decisions such as Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 303 [29] per Gleeson CJ, Gaudron, Gummow and Hayne JJ, and VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at 346-347 [38]-[41] per Merkel J.

51    In my opinion, the Tribunal did address the question of whether or not the appellant would be treated differently or in a way that amounted to torture or other forms of deliberate mistreatment because of the recent procedure that the Sri Lankan authorities had adopted of requiring returning asylum seekers who had left the country illegally to be brought before a court and granted bail. It found that he would not be subjected to such treatment.

52    It is difficult to see how the appellant’s argument is anything other than a merits review argument on this point. There was no suggestion in the material before the Tribunal that the ordinary process of remand was unduly long or of a persecutory nature. Indeed, on the findings of the Tribunal, unless a person was detained on a weekend or public holiday, bail was routinely given very promptly. There was no suggestion in the appellant’s claims to the Tribunal that he, were he required to, could not have provided bail, including through the provision of a surety from his family who remained in Sri Lanka. There was no material before the Tribunal raising any claim that he was at risk of remaining on remand in prison for more than a brief period and, even then, as the Tribunal found, this did not involve differential treatment. Thus, the Tribunal was not satisfied of the criterion in s 91R(1)(c), that the alleged persecutory conduct involved systematic and discriminatory conduct.

53    In my opinion, this argument should be dismissed. No useful result could ensue because the Tribunal had already found that the appellant’s claims had no Convention nexus: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618-619 [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

Conclusion

54    For these reasons, the appeal fails.

Associate:

Dated:    14 November 2014