FEDERAL COURT OF AUSTRALIA

AUE15 v Minister for Immigration and Border Protection [2016] FCA 331

ORDERS

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)

RARES J:

1    This is an appeal from a decision of the Federal Circuit Court refusing the appellant’s application for constitutional writ relief in respect of the decision of the Refugee Review Tribunal given on 15 April 2015 that affirmed the Minister’s delegate’s decision not to grant the appellant a protection visa: AUE15 v Minister for Immigration [2015] FCCA 2452.

Background

2    The issues in the appeal are within a narrow compass. The appellant is a citizen of Sri Lanka, whom the Tribunal accepted had sought to travel to Australia in June 2012 by boat, that was intercepted by Australian authorities before he was transferred to Christmas Island in July 2012. He applied for protection claiming on a number of grounds, including political associations that he had with his brother, his race as a Tamil and his religion as a Muslim.

3    The Tribunal rejected all of the appellant’s claim bases for protection, both under the Refugees Convention and in respect of his claims for complementary protection under s 36(2)(a) and (aa) of the Migration Act 1958 (Cth). It did so in reasons that were comprehensive and about which, except in a particular respect the subject of this appeal, no complaint is made.

4    The two questions that the appellant seeks to raise on appeal are that, first, the Tribunal failed to have an active intellectual engagement with the PAM3 guidelines promulgated, pursuant to s 499 of the Act, by the Minister under Ministerial Direction No 56 - Consideration of Protection Visa Applications and, secondly, for the purposes of s 36(2A)(e) of the Act, the Tribunal failed to address an integer of the appellant’s claims concerning whether the exercise by the Parliament of Sri Lanka in enacting penalties in the Immigrants and Emigrants Act 1949 for illegal departure from that country itself amounted to significant harm. The trial judge rejected each argument.

The legislative scheme

5    Relevantly, s 36(2)(aa) of the Act provided:

(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;

6    The meaning of “significant harm” is found in s 36(2A)(e) which relevantly provides:

A non-citizen will suffer significant harm if:

…

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

7    Next, s 5(1) provides that, unless the contrary intention appeared in the Act:

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.

8    The covenant to which that definition referred was the International Covenant on Civil and Political Rights (the Covenant).

9    Clauses 2 and 3 of Direction 56 required a decision-maker in the position of the Tribunal when performing its functions or exercising its powers, relevantly in a review of a decision to refuse a protection visa, first, to take account of the PAM3 guidelines “to the extent they are relevant to the decision under consideration” (cl 2), and, secondly, DFAT had prepared a country information assessment expressly for protection status determination purposes and where that assessment was available to the decision-maker, the decision-maker “must take into account that assessment where relevant in making their decision” (cl 3).

The Tribunal’s decision

10    The Tribunal identified one of the issues before it as whether the appellant met the complementary protection criteria in the Act. It expressly referred to its obligation to take account of the PAM3 guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determinations, to the extent that those were relevant to the decision under consideration. The Tribunal said at [22] that it had had regard to the PAM3 guidelines, among other material available to it from a wide range of sources.

11    The subject matter of the application to the trial judge and of this appeal concerned the Tribunal’s consideration of the appellant’s claims to protection as a failed asylum seeker who would be forced to return to Sri Lanka, having departed that country illegally.

12    The Tribunal considered those circumstances in its reasons under the headings, “Failed asylum seeker and forced returnee” and “Illegal departure”. It set out in detail country information concerning the treatment of persons who fell within those descriptions, and sequentially found that Australia owed the appellant no protection obligations under ss 36(2)(a) or 36(2)(aa).

13    In considering the appellant’s claims to protection by reason of his illegal departure from Sri Lanka, the Tribunal proceeded on the basis of his clearly articulated claim made on 24 March 2015 in submissions by his solicitor migration agent after the hearing on 9 March 2015. Those submissions included the following statement in a 23-page letter that followed a pre-hearing submission of 32 pages:

‘Appropriate and Adapted towards a Legitimate Objective’

62.    Similarly the I&E Act cannot be considered to be appropriate and adapted towards achieving a legitimate objective. By law, convicted returnees are liable for up to five years in prison or a fine of up to 200,000 Sri Lankan rupees (‘SLR’) [Immigrants and Emigrants Act, available at: http://hrcsl.lk/PFF/Library_Domestic_Laws/Legislations_related%20_to_Migrants_Workers/1948%20No%2020%20Immigrants%20and%20emmigrants.pdf accessed 3 December 2014]. In practice, convicted returnees generally receive fines [DFAT Country Report – Sri Lanka, Department of Foreign Affairs and Trade, 3 October 2014]. (emphasis added; material in footnotes inserted in square brackets)

14    The submissions continued by referring to the range of fines and then discussed whether time spent on remand could constitute serious or significant harm for the purposes of both the Refugees Convention and, relevantly, s 36(2A)(e). The submissions argued that the appellant’s detention, whilst on remand awaiting bail and any other period of detention that he would experience, would constitute a threat to his “liberty and subsequently serious harm and persecution”.

15    The appellant’s submissions filed before the Tribunal hearing had argued that there was a real risk of significant harm were the appellant forceably removed back to Sri Lanka. The submissions set out Arts 34 and 35 of the Immigrants and Emigrants Act 1949. Those provisions relevantly prohibited a person from leaving Sri Lanka from any place, other than an approved port of departure, and if the person were a citizen of Sri Lanka, from leaving unless he or she had in his or her possession a Sri Lankan passport.

16    The submission argued that a violation of Arts 34 and 35 attracted mandatory fines and imprisonment pursuant to Art 45(1)(b), which was in the following terms:

(1)    Any person who …

(b)    leaves Sri Lanka in contravention of any provision of this Act …

shall be guilty of an offence under this Act and shall on conviction be liable in the case of an offence under … paragraph (b) …to imprisonment of either description for a term not less than one year and not more than five years and to a fine not less than fifty thousand rupees and not more than two hundred thousand rupee (emphasis added)

17    The appellant’s submission continued that, given that he had departed Sri Lanka illegally, without his passport, he had contravened both Arts 34 and 35 and was “liable for prosecution in accordance with Art 45(1)(b). The submission argued that “in the process of prosecution the applicant will be detained by security forces which will lead to significant harm”. It then set out citations from a decision of the United Kingdom Upper Tribunal (Immigration and Asylum Chamber) in support of the argument that a person detained by the Sri Lankan security services faced a real risk of ill-treatment or harm requiring international protection. The submission contended that there were credible reports of the prevalence of torture and other cruel, inhuman or degrading treatment of suspects in police custody in Sri Lanka.

18    Suffice to say that the Tribunal rejected the appellant’s earlier claims made under that rubric. It found that he would not be detained by security forces for more than a relatively brief period upon arrival. It rejected the appellant’s claim to protection based on his illegal departure and found that he was a person of no interest to the security forces of Sri Lanka, but rather was simply in the position of an ordinary Sri Lankan who was an illegal departee.

19    The Tribunal expressly acknowledged that in making its decision it had considered the country information from the appellant’s solicitor migration agents both at the hearing and outlined in their written submissions. It referred to the then recent information from DFAT that appeared to be consistent with reporting from other governments, to whom it referred, and noted that in summary:

… under standardised procedures introduced in November 2012 which apply to all cases, regardless of a person’s ethnicity or the circumstances in which they left the country, returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service and the airport Criminal Investigation Department. These processes involve police and security clearances, including checks with the person’s local police station and may take some hours.

20    It then relevantly set out what DFAT had outlined, in its then recent report of 16 February 2015, as the following procedures:

Most Sri Lankan returnees from Australia are questioned by police on return and, where an illegal departure from Sri Lanka is suspected, are charged under the I&E Act. DFAT understands that in most cases, these individuals have been arrested by the police at Colombo international airport. As part of this process, most returnees will have their fingerprints taken and be photographed. They are transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed, when custody and responsibility for the individual shifts to the courts or prison services. The Court makes a determination as to the next steps for each individual. Those arrested can remain in police custody at the CID Airport Office for up to 24 hours. Should a magistrate not be available before this time-for example, because of a weekend or public holiday-those charged are held at the nearby Negombo Prison.

DFAT was informed in March 2014 by Sri Lanka's Attorney-General's Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future. The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD 40) for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent. In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor. Sometimes returnees then need to wait until a family member comes to court to collect them.

DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the PTA. While credible, DFAT cannot verify this claim. (emphasis added)

21    The Tribunal then summarised its understanding of those Sri Lankan procedures. It found that returnees who were believed to have left the country illegally were arrested at the airport and brought before a court to apply for bail and that bail was routinely given on the accused’s own recognisance, although a family member might also be required to provide security. It found that if the returnee’s arrival occurred over a weekend or on a public holiday, he or she would be placed in the remand section of Negombo prison and could remain there for some days until a bail hearing was available. The Tribunal accepted country information that conditions for persons held on remand could be “poor due to overcrowding and unsanitary conditions”.

22    The Tribunal found that the appellant would not be singled out or treated any differently because he left Sri Lanka illegally and, indeed, that he would be treated in the ordinary way described in the DFAT information. It was not satisfied that any problems that the appellant might face as a result of questioning, being charged, or held, cramped, uncomfortable and unsanitary conditions while on remand or being fined, were aimed at the appellant for any Convention reason, but were circumstances that would apply to the general population in Sri Lanka. It found that any questioning, arrest or remand in poor conditions would not amount to systematic or discriminatory conduct within the meaning of that term in s 91R(1)(c) of the Act.

23    The Tribunal was not satisfied that treatment faced by Tamil returnees who had departed Sri Lanka illegally amounted to serious harm for the purposes of the Refugees Convention. It said that it had considered the information provided by the appellant’s representatives in that regard and, for similar reasons as it had already given, rejected his claims. It then said that having considered relevant country information it was satisfied that the Immigrants and Emigrants Act was a law of general application that was appropriate and adapted to meet a legitimate national interest in regulating the movement of persons across the country’s borders ([115]-[116]) and:

On the basis of that information I am satisfied that the sections of the Act which provides penalties including fines and imprisonment for the offence of leaving Sri Lanka other than through an official port, and which involve suspects being arrested and possibly held in remand awaiting a bail hearing, are not enforced selectively or in an arbitrary or discriminatory way on the basis of a Convention reason or any other reason, but are instead applied to all Sri Lankans, regardless of their race or other personal circumstances.

Further, on the basis of the available information concerning the enforcement of this law I am not satisfied there is a real chance that on return to Sri Lanka the applicant would face more than questioning at the airport on arrival, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum if convicted. I am not satisfied that he would face a term of imprisonment on conviction. I find that this treatment, including such a period of detention on remand, would reflect no more than the non-discriminatory enforcement of a law of general application. I do not accept that it would constitute systematic and discriminatory conduct. (emphasis added)

24    The Tribunal concluded that no protection obligations arose in respect of illegal departees under the Refugees Convention. It then turned to the issue of complementary protection on this issue. It set out a summary of the appellant’s submissions and said ([118]):

With regard to complementary protection, contrary to the applicant's submission that he will be face the harm claimed during detention, the Tribunal notes that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of such persons suffering torture, arbitrary deprivation of life, or intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A). The Department of Foreign Affairs and Trade has also advised that allegations of mistreatment of returnees have not been substantiated and it has said that it is not aware of allegations of mistreatment of returnees while on remand.[ DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT, Sri Lanka: RRT Country Information Request- LKA41955, 28 March 2013, CX305410]. Having regard to all the evidence, including the DFAT advice, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm or specifically that he will be arbitrarily deprived of his life, that a death penalty will be carried out on him, that the applicant will experience torture, cruel or inhuman treatment or punishment or degrading treatment or punishment during any period which he may spend in gaol on remand. (emphasis added)

25    The Tribunal accepted, on the basis of the country information available to it, that the appellant “may be remanded” in cramped and uncomfortable conditions, but it did not accept that spending up to a fortnight in such conditions would amount to “significant harm”, as defined in s 36(2A), or that that treatment was intentional, as required in the definition of degrading treatment or punishment in s 5(1) of the Act. It found, correctly in my opinion, that in order to amount to degrading treatment or punishment, the act or omission feared had to be “intended to cause” extreme humiliation. It found that mere negligence or indifference was not sufficient and that an actual intention to inflict pain and suffering or cause extreme humiliation was required so as to amount to degrading treatment or punishment. It referred in that regard to the decision of Yates J in SZSPE v Minister for Immigration and Border Protection [2014] FCA 267.

26    The Tribunal did not accept that, on the evidence before it, the pain and suffering caused by the overcrowding and other problems in prisons, or while the appellant would be on remand, in Sri Lanka was intentionally inflicted on prisoners, as required by the definition in the Act of “cruel or inhuman treatment”, or that overcrowding or other problems were intended to cause extreme humiliation, as required by the definition of “degrading treatment or punishment”. Accordingly, it found that there was no real risk that the appellant would suffer significant harm, within the meaning of s 36(2A) as a consequence of the poor conditions in prison due to overcrowding, during any period which he might spend on remand, or for any other reason or reasons and, accordingly, concluded that he was not entitled to protection under s 36(2)(aa).

The trial judge’s decision

27    The appellant relied on two grounds in the further amended application before the trial judge in support of his claim that the Tribunal had made a jurisdictional error namely that the Tribunal had failed:

    to comply with Direction 56 by not taking the PAM3 guidelines into account as to the degrading or cruel or inhuman treatment or punishment that the appellant would face on being detained in Sri Lanka; and

    to take into account a relevant consideration, namely that the enactment of the Immigrants and Emigrants Act was an “act within the meaning of degrading treatment or punishment for the purposes of s 36(2A)(e) of the Migration Act”.

28    His Honour dismissed the appellant’s first ground. The appellant had argued that the Tribunal’s reasons showed that it had not had an intellectual engagement with the PAM3 guidelines in respect of his claim to fear harm as an illegal departee. The appellant’s invocation of a requirement that a decision-maker should have an “intellectual engagement with” a consideration that he or she has to take into account appeared to have been derived from Lafu v Minister for Immigration (2009) 112 ALD 1 at 7 [47] per Lindgren, Rares and Foster JJ and Tickner v Chapman (1995) 57 FCR 451 at 462C-D per Black CJ. His Honour found that the Tribunal’s reasons showed that it had had an active intellectual engagement with the relevant requirements of the PAM3 guidelines.

29    The trial judge also rejected the second ground. He found that nothing in the appellant’s submission to the Tribunal, that he would be subjected to mandatory imprisonment of not less than one year and a fine, sufficiently had raised a claim that, when enacting that punishment, the Sri Lankan Parliament had intended to cause extreme humiliation that was unreasonable within the definition of degrading treatment or punishment in s 5(1) of the Act. His Honour found that the Sri Lankan legislation on its face, did not convict and punish a person without other processes and that any punishment would only flow from enforcement of the legislation in a particular case. He found that, based on DFAT’s country information, and, I might say, the express concession in the appellant’s post-hearing submission to it, it was open to the Tribunal to find, as it did that the appellant would not face mandatory imprisonment on his return to Sri Lanka.

This appeal

30    The appellant’s amended notice of appeal asserted that his Honour erred on two grounds, namely, first, by finding that the Tribunal had an intellectual engagement with the PAM3 guidelines and, secondly, by not finding that the Sri Lankan Parliament’s exercise of its legislative power in enacting the Immigrants and Emigrants Act was itself an act that fell within s 36(2A)(e) of the Act and that this had been an integer of the appellant’s claims that the Tribunal should have addressed.

The first ground

31    The appellant argued that, when dealing with the situation that would confront him on return to Sri Lanka as an illegal departee, the Tribunal made no reference at all in that section of its reasons to the PAM3 guidelines. He argued that par 29 of the PAM3 guidelines referred to examples of imprisonment or prison conditions that could be particularly harsh, so as to amount to a breach of Art 7 of the Covenant, included extremely cramped or unsanitary conditions. The appellant contended that the Tribunal’s discussion of that subject matter did not refer expressly to, and therefore did not amount to an active intellectual engagement with, the PAM3 guidelines.

32    I reject that argument. I discussed the principles relating to how a decision-maker must proceed when a condition of the exercise of a power is that a specified consideration or matter must be taken into account in Telstra Corporation Limited v Australian Competition and Consumer Commission (2009) 176 FCR 153 at 182 [106].

33    A statutory or legislatively prescribed requirement that a decision-maker take into account, or have regard to, a particular matter entails that the decision-maker must take the matter into account and give it weight as a fundamental element in making his or her determination as Mason J explained in The Queen v Hunt; Ex parte Sean Investments Pty Limited (1979) 180 CLR 322 at 329. In that case, the statute required the Minister to take into account one matter alone, namely, costs. In other cases a statute or other provision may, and often does, require a decision-maker to take into account a number of matters, some of which may reflect conflicting legislative or policy objectives. In those situations, the obligation of the decision-maker is to take each of the stipulated matters into account and give each weight as fundamental elements in the decision-making process. However, it is for the decision-maker to decide the degree of weight he or she gives to individual elements, in reaching a decision. I explained this in Telstra 176 FCR at 182-183 [110], in a passage approved by Jacobson, Lander and Foster JJ in Telstra Corporation Limited v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267], as follows:

I am of opinion that the sense in which the High Court used the expression “fundamental weight” in this context is to require the decision-maker to treat the consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process: Meneling Station 158 CLR at 338 per Mason J. In this way the decision-maker will give appropriate weight to those factors. The Parliament sought to ensure that the Commission would give proper, genuine and realistic consideration to each of the factors it specified in s 152CR(1) but without confining it to those matters, as s 152CR(2) showed. Such consideration must be reflected in the Commission's reasons for its decision. (emphasis in original)

34    The introduction to the PAM3 guidelines stated that they were designed to provide advice and assistance to decision-makers on the law relevant to the assessment of whether Australia owed protection obligations to applicants under the complementary protection provisions of the Act. In my opinion, it is plain beyond argument that the Tribunal did have regard to matters in the PAM3 guidelines that it found were relevant to the issues under s 36(2A)(e) in considering the appellant’s situation were he to return to Sri Lanka as an illegal departee. I accept that the Tribunal did not mention the PAM3 guidelines expressly in the section of its reasons dealing with the illegal departee issue, or make any reference to, for example, the matters discussed in par 29 of those guidelines, as examples of prison conditions, that could constitute, depending on the circumstances, breaches of Art 7 of the Covenant. However, the Tribunal expressly had regard to the factors relevant to that subject that were in the country information and submissions of the appellant, namely, whether extremely cramped or unsanitary conditions in the circumstances would amount to significant harm for the purposes of s 36(2A)(e). The Tribunal also had regard to the fact that the statutory definition of “degrading treatment or punishment” had two elements, namely, whether the relevant matter complained of caused extreme humiliation that was unreasonable and also was intended to cause that outcome.

35    In my opinion, the Tribunal’s reasons demonstrated that it had an active intellectual engagement with, and took into account the considerations in the part of the PAM3 guidelines that was relevant to the issue of whether illegal departees would suffer significant harm if returned to Sri Lanka. It gave weight to those considerations as it considered appropriate. It also was required to, and did, take into account the DFAT country information as to the situation that returning illegal departees would face in Sri Lanka. It then formed its factual conclusion on that subject based on the material before it.

36    The appellant was unable to point to any matter raised in any part of the PAM3 guidelines that the Tribunal, despite not mentioning it expressly, had not considered in arriving at its decision. In fact, the Tribunal stated that it had had regard to the PAM3 guidelines at a number of points in its decision and its reasoning process identified considerations that those guidelines expressly raised in considering the appellant’s position were he to be returned as an illegal departee.

37    In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 Brennan CJ, Toohey, McHugh and Gummow JJ said:

… that a court should not be “concerned with looseness in the language … nor with unhappy phrasing” of the reasons of an administrative decision-maker [Pozzolanic (1993) 43 FCR 280 at 287]. The Court continued [Pozzolanic (1993) 43 FCR 280 at 287]: “The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.”

These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed [see McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616]. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. (emphasis added)

38    In my opinion, the reasons of the Tribunal demonstrated that it performed its statutory task of reviewing the delegate’s decision in accordance with law and took into account, where relevant, the PAM3 guidelines in the assessment of whether Australia owed protection obligations, for the purposes of s 36(2)(aa), to the appellant as a person who would be returned to Sri Lanka as an illegal departee. That is what the trial judge also, correctly, found. Accordingly, the first ground of the appeal fails.

The second ground

39    The second ground of appeal involved an argument that never arose for the Tribunal’s consideration, having regard to the clearly articulated claim at [62] of the appellant’s submissions to it dated 24 March 2015 concerning his claimed position (set out at [13] above) were he to be returned to Sri Lanka in circumstances, where all his other claims for protection failed and he was simply in the position of a person who had departed the country illegally.

40    The appellant’s argument proceeded through a number of steps that, in my opinion, have no substance. He argued that the Tribunal had to have regard to the terms of Art 45(1)(b) of the Immigrants and Emigrants Act which, he contended, imposed a mandatory sentence of at least one year’s imprisonment for departing Sri Lanka illegally. He argued that the Tribunal should have considered that factor regardless of DFAT’s country information, and, indeed, the appellant’s own submissions to it, as to the fate of persons who were merely in the category of illegal departees, and that it should have concluded that all departees should have received a minimum one year mandatory imprisonment sentence. He argued that this should have led the Tribunal to consider that, in fact, the Sri Lankan judicature routinely disregarded its obligations under that law and simply imposed fines after the brief period of remand necessary to bring persons before the court to be dealt with for that breach of the law.

41    I reject that argument as untenable. The Tribunal would commit a jurisdictional error if it failed to make a finding on “a substantial, clearly articulated argument relying on established facts”. Moreover, this could amount to a constructive failure to exercise its jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 per Gummow and Callinan JJ at 394 [24]-[26], Hayne J agreeing at 408 [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2005) 144 FCR 1 at [55] per Black CJ, French and Selway JJ. However, there was no claim before it of the nature that the appellant’s second ground of appeal seeks to agitate.

42    The Tribunal accepted the DFAT country information, as a matter of fact, as to how Sri Lankan law applied to a person in the appellant’s position who would be a returning illegal departee. There was nothing before the Tribunal to suggest that it needed to determine that the sentencing or other laws of Sri Lanka were not applied by its judiciary in accordance with the law of that country, but instead were applied irrationally, unreasonably or capriciously by every magistrate who had to deal with illegal departees who arrived at Colombo airport. The Tribunal had no clearly articulated claim or, indeed, any claim before it that Art 45(1)(b) of the Immigrants and Emigrants Act required a mandatory sentence of at least one year’s imprisonment for illegally departing Sri Lanka. Nor was there any evidence of any risk or chance that such a sentence would be imposed on a person who was, as the Tribunal found the appellant would be, a returning illegal departee.

43    The DFAT country information made clear, and the Tribunal found, as a matter of fact, how the law operated in Sri Lanka in respect of returned illegal departees in the appellant’s position. There was no matter before the Tribunal that required it to consider the appellant’s subsequently conceived fantastic hypothesis that the construction of the Art 45 required the Sri Lankan courts to impose a penalty of between one and five years imprisonment or whether, somehow, the country information, including DFAT’s advice, and the appellant’s own submissions on this point, should be ignored so that it should have arrived at some different outcome.

44    Moreover, Art 45(1)(b) provided that a person found guilty of an offence of leaving Sri Lanka in contravention of any provision of the Immigrants and Emigrants Act, would be liable to a punishment consisting of either imprisonment for a term of not less than one year and not more than five years and or to a fine not less than 50,000 rupees and not more than 200,000 rupees.

45    The creation by law of liability to such a range of possible sentencing outcomes by way of punishment is very different to the appellant’s assertion that Art 45(1)(b) amounted to the mandatory imposition of a minimum term of one year’s imprisonment: cf Walden v Hensler (1987) 163 CLR 561 at 576 per Brennan J, 586 per Deane J and 595-596 per Dawson J. Apart from the DFAT country information, there was no evidence before the Tribunal to suggest that Art 45(1)(b) should be construed as the appellant now seeks to assert. In particular, there was no other evidence before the Tribunal of Sri Lankan law including its legislation relating to the interpretation of enactments.

46    There was no basis in any, let alone, clearly articulated, claim or evidence before the Tribunal that required it to consider that Art 45(1)(b) operated or might operate as the appellant only later asserted when seeking judicial review. There was no material evidence before the Tribunal or in the Court below how Sri Lankan law operated in this regard, except the DFAT and other country information, and the appellant’s submission to the Tribunal that in “…practice, convicted returnees generally receive fines” (see [13] above).

47    Indeed, ordinarily where a statute provides that on conviction a person is liable to a range of penalties, including imprisonment or a fine that a sentencer can impose, he or she must impose the sentence appropriate to the case at hand. Moreover, Parliaments frequently enact provisions modelled on the Probation of Offenders Act 1907 (UK), such as s 19B of the Crimes Act 1914 (Cth), enabling a court, where it is satisfied that a charge is proved, to dismiss it without proceeding to conviction in certain situations. Gleeson CJ in R v Ingrassia (1997) 41 NSWLR 447 at 449D-F explained that the power conferred by such provisions dealt with:

The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, “a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”.

48    In my opinion, there was no basis on the material before the Tribunal to suggest that it should have considered, let alone found, that Art 45(1)(b) necessarily required a sentence of mandatory imprisonment for a person in the appellant’s position and that the DFAT and other country information was wrong.

49    Moreover, in AGH15 v Minister for Immigration and Border Protection [2015] FCA 1181, Perry J rejected the same argument, for reasons with which I also agree. Her Honour said that the argument that the enactment of a law could constitute the legislature itself as an actor for the purposes of Australia’s complementary protection obligations, assumed that the criteria in s 36(2)(aa) could be met by the mere enactment of the foreign law disassociated from the question of how that law might, in fact, be applied to an applicant. Her Honour said that the assumption was difficult to reconcile with the statutory requirement in the Migration Act that the Tribunal consider whether there was a real risk that a non-citizen would suffer significant harm were the person returned to her or his country of nationality.

50    The appellant’s argument was entirely hypothetical. It involved steps that required consideration of whether the Immigrants and Emigrants Act was itself a law that either caused extreme humiliation that was unreasonable or, was intended to cause such humiliation. The Tribunal did not need to address such an argument because there was no, let alone any, substantial or clearly articulated argument on established facts to demonstrate, any of the propositions that the appellant raised before his Honour or me, namely, that regardless of the country information that the Tribunal was bound to take into account from DFAT, it should have embarked on some investigation of an unarticulated claim that the Sri Lankan judiciary was acting uniformly illegally in imposing fines and not mandatory one year minimum gaol sentences. In my opinion, that argument was unsustainable on the material before the Tribunal and, like his Honour, I reject it.

51    The appellant ultimately reduced his argument to the proposition that the Tribunal needed to consider whether there was a legal basis for the existence and exercise of a discretion in sentencing courts in Sri Lanka not to impose mandatory imprisonment, under Art 45(1)(b) or elsewhere in its laws. In my opinion, no such question arose before the Tribunal. In any event, the Tribunal was entitled to act on the country information on which it found how the law actually was applied in Sri Lanka. Questions of foreign law are questions of fact. In my opinion this question did not arise and the Tribunal did not make any jurisdictional error in the respects alleged. I reject ground two.

Conclusion

52    For these reasons I am of opinion that the appeal must be dismissed with costs.

Associate:

Dated:    4 April 2016