FEDERAL COURT OF AUSTRALIA

BEJ15 v Minister for Immigration and Border Protection [2016] FCA 1033

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 14 June 2016 is dismissed.

2.    The appeal is dismissed.

3.    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

REEVES J:

Introduction

1    The appellant has appealed from a decision of the Federal Circuit Court: see BEJ15 v Minister for Immigration & Anor [2016] FCCA 25 (BEJ15). These reasons address an application filed by the appellant to adduce evidence on this appeal and the substantive appeal.

2    The appellant’s notice of appeal has been amended on several occasions. In its final amended form, it set out two grounds as follows:

1.    The Federal Circuit Court erred in failing to find that the decision of the Refugee Review Tribunal (“the Tribunal”) was affected by jurisdictional error, in that the Tribunal did not give any opportunity to respond to or rebut the Tribunal’s assumption, or determination that the applicant had a relative or some other person who would be willing and able to provide surety to support a grant of bail. His Honour, despite the assertions of the applicant or the evidence inferred, concluded that he could not infer from the tribunal’s reasons that it did not raise the issue of the availability of a surety with the applicant.

2.    That the primary judge took into account an incorrect and misleading representation or submission, made by the Minister’s Counsel from the bar table, namely that:

(a)    the appellant was married;

(b)    he was in constant contact with his fictitious wife;

(c)    the fictitious wife did not give evidence;

(d)    it was open to the court to conclude that the fictitious wife was able to provide surety; and

(e)    the appellant had previously being arrested;

(f)    and on the fictitious arrest he bailed out by his family;

and failed to take into account a relevant consideration or representation, namely that

(a)    the appellant had never been previously arrested;

(b)    the appeallant had never being bailed out by his family; and

(c)    the appellant was unmarried and had never been married.

(Errors in original; emphasis omitted)

3    Both these grounds relate to the same issue, which I will describe as “the surety issue”.

4    As mentioned above, the appellant has applied under s 27 of the Federal Court of Australia Act 1976 (Cth) to adduce evidence on this appeal. The evidence in question is a transcript of the appellant’s hearing before the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal) conducted on 10 February 2015. I should note that there were two other pieces of evidence that the appellant has sought to adduce, but they are relevant to the second ground of appeal, so I will address them separately under that ground.

5    Ordinarily, two conditions must be satisfied in an application of this kind. They were illuminated by the Full Court in NASB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 24 at [42] as follows:

In order for this Court to receive further evidence, generally speaking (cf : Cottrell v Wilcox [2002] FCAFC 53; [2002] FCA 232 at [18]-[21], citing CDJ v VAJ (1998) 197 CLR 172 at 184-186 per Gaudron J, 199-201 per McHugh, Gummow and Callinan JJ and 230-238 per Kirby J) it will be found that two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, ‘probability’, and at the highest, ‘certainty’, of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 (‘of such importance as very probably to influence the decision’ and ‘of such weight as, if believed, would probably have an important influence on the result’); Orr v Holmes at 636 (‘high degree of probability that the admission of the new evidence would result in a different verdict’); Florance v Andrew (1985) 58 ALR 377 at 381 (‘such a different complexion on the case that a reversal of the former result ought certainly to ensue’); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) ‘almost certain that, … , an opposite result would have been reached by the primary judge’).

(Emphasis added)

6    To meet the first condition above, the appellant filed two affidavits. In one he explained why he did not adduce the transcript before the Federal Circuit Court, as follows:

4.    Evidence was not adduced in the Federal Circuit Court because the cost of producing a transcript of the Tribunal hearing was something I could not afford, and because it was not until receiving the Judge’s reasons that it was apparent that the lack of the transcript or other evidence was a reason he did not grant judgment in my favour and allow my appeal.

7    In the other affidavit, he added:

2.    I have instructed my barrister and solicitor to have produced a transcript of my tribunal hearing from the audio file of my tribunal hearing. I confirmed my instructions for a research clerk to do the transcription as I did not have the money for an official transcription.

3.    I have not been able to work because I do not have a visa which allows me to do so.

8    At the hearing of this application, the appellant was not cross-examined on either of his affidavits.

9    Nonetheless, the Minister contended that the appellant had made a deliberate decision not to produce a transcript of the Tribunal hearing because he took the view that what occurred before the Tribunal was not relevant to his grounds of review. The Minister also contended that I should doubt the appellant’s assertion that he did not have the money to produce the transcript from the Tribunal hearing for a number of reasons which I do not need to detail.

10    In the absence of any cross-examination and any evidence or other material to counter the assertions the appellant made in his affidavit, I propose to accept that evidence. I therefore consider the appellant has met the first condition above.

11    Meeting the second condition is, however, more problematic for the appellant. It goes to the substantive issue in this appeal, the surety issue. Before considering it, it is appropriate to outline the factual context to this appeal. That was conveniently summarised in the reasons of the Federal Circuit Court Judge as follows (see BEJ15 at [4]–[7]):

4.    The applicant is a citizen of Sri Lanka of Tamil ethnicity. He arrived in Australia as an unauthorised maritime arrival in July, 2012. He applied for a protection visa on 27 November, 2012.

5.    The applicant claimed that he had resided in the Batticaloa District, Eastern Province, Sri Lanka. He claimed to have suffered harm at the hands of a suspected member of the Karuna Group, a criminal association in Sri Lanka, apparently. Specifically, he claimed that in February, 2012 a suspected member of the Karuna Group visited his home and asked him about the whereabouts of his brothers who the visitor believed had reported him (the visitor) to the police. The applicant did not provide the requested details and the person threatened to kill him and held a pistol to the side of his forehead before running away.

6.    This incident followed a history of alleged attempted forcible recruitment of the applicant’s brothers to the Liberation Tigers of Tamil Ealam during the period 1990 to 1994 and demands for money as well as use of family motor vehicles by members of the Karuna Group during the period 2006 to 2008.

7.    The applicant also claimed to fear harm from the Sri Lankan authorities because he is a Tamil.

12    It can be seen from the lack of any mention of it in the description above, that the surety issue did not relate to the appellant’s past history in Sri Lanka. Instead, it related to the question whether he would be subjected to serious or significant harm if he were to return to that country. That issue was the sole issue before the Federal Circuit Court, but it was one of a number of matters that the appellant relied upon in his original visa application and in his review application before the Tribunal. It is therefore appropriate to consider how that issue was raised and dealt with at those two stages. First, in rejecting the appellant’s original visa application in September 2013, the Delegate recorded the following matters pertinent to that issue – I have emphasised the parts that are particularly pertinent:

Since the applicant has broken Sri Lankan domestic law by exiting the country by illegal means, there is the possibility of prosecution under the Sri Lankan Immigrants and Emigrants Act (I & E Act). Section 45(1) of Sri Lanka’s I & E Act provides that any person found guilty of leaving Sri Lanka in contravention of any provision of the Act will be liable to imprisonment for between one and five years and a fine of between 50,000 rupee and 200,000 rupee.

Referring to the practical application this law, DFAT has reported that, since 2 November 2012, some non-voluntary returnees from Australia have been charged with offences relating to their irregular departure from Sri Lanka but notes that all of these were released on bail. The latest DFAT report states,

‘The Attorney-General’s Department advises that no one to date 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.

This demonstrates that for returnees from Australia, prosecution under the I & E Act has meant a fine and prompt release on bail. I do not find that the application of a fine and bail equates with the threshold of significant harm. The Refugee and Humanitarian Policy Advice Manual (PAM) 3, offers guidance on the assessment of significant harm within the framework of lawful sanctions. It states,

‘The assessment of whether particular conduct or conditions amounts to torture, cruel, inhuman or degrading treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to cruel, inhuman or degrading treatment or punishment for one person whereas it may not for another person.

If an applicant claims that they face a disproportionately long period of time in prison, this should be considered as a cumulative factor that may render other conditions cruel, inhuman or degrading. For example, overcrowding in a cell for a person detained overnight may not breach Article 7, although it may do so if a person faces a lengthy prison sentence.’

The practical application of the I & E Act do not demonstrate lengthy prison sentences, as discussed above. The applicant appears to be a healthy young man in his twenties. I therefore find that even if the applicant was held for a short time in a Sri Lankan prison while arranging to be released on bail, that there are no substantial grounds for believing that this will breach Article 7 in terms of significant harm. I have already discussed that the applicant is unlikely to attract the pointed and discriminate attention of the Sri Lankan authorities on arrival since he appears to lack any additional risk profile. I therefore find the applicant does not have a real risk of being imprisoned and subjected to significant harm even if prosecuted under the I & E Act for illegal departure from Sri Lanka.

(Errors in original; footnotes omitted; emphasis added)

13    Soon after being notified of the Delegate’s decision, the appellant applied to the Tribunal for a merits review of that decision. The appellant appeared in person before the Tribunal in February 2015 following receipt of an invitation from the Tribunal. Prior to that hearing, the appellant’s migration agent, Fragomen (Australia) Pty Ltd, submitted a lengthy (42 pages) letter to the Tribunal in support of the appellant’s review application. That letter addressed the surety issue and the circumstances relating to it at length, partly by reference to reports of the Australian Department of Foreign Affairs and Trade (DFAT) as follows – again, I have emphasised the parts that are particularly pertinent:

133.    Returned failed Sri Lankan asylum seekers are charged with having departed Sri Lanka illegally. The Immigrants and Emigrants Act No. 31 of 2006 (“Immigrants and Emigrants Act”) provides for the control of, inter alia, the departure of citizens from Sri Lanka. Articles 34 and 35 of the Immigrants and Emigrants Act, prescribe that no person shall depart Sri Lanka other than from an approved port and in possession of a valid travel document:

34.    No person to whom this Part applies shall leave Sri Lanka from any place other than an approved port of departure.

35.    No person to whom this Part applies shall-

(a)    if he is a citizen of Sri Lanka, leave Sri Lanka unless he has in his possession a Sri Lanka passport

134.    Violation of articles 34 and 35 ‘runs a mandatory fine and imprisonment – details of which are set out under art 45(1)(b) of the Immigrants and Emigrants Act:

(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]

135.    Given that the Applicant departed Sri Lanka from a place other than a designated port without his original Sri Lankan travel document on his person, he has contravened both articles 34 and 35 and is liable for prosecution in accordance with art 45(1)(b) of the Immigrants and Emigrants Act.

…

137.    Further, these provisions under the Immigrants and Emigrants Act are not only in effect, but they are being actively applied to returned, failed asylum seekers in Sri Lanka. The Department of Foreign Affairs and Trade’s Country Information Report of 31 July 2013 notes that returnees are under arrest for illegally departing Sri Lanka until the offence has been investigated.

138.    A recent news article in the Sri Lankan newspaper ‘The Island’ a senior Sri Lankan lawyer clearly warned what faced failed asylum seekers upon their return to Sri Lanka:

... Upon deportation to Sri Lanka, such deportees are produced in court. Sometimes, it can take years to file charge sheets and the cases will be heard in court for years.

‘Ignorance of the law excuses no one’ is a famous legal maxim. According to the 1978 constitution, freedom of movement and the freedom to return to Sri Lanka is a constitutionally guaranteed right. In order to exercise this right legitimately, one should be in possession of a genuine passport and a valid visa. If exercised the wrong by getting on board a vessel and spending a fortune thus risking life in perilous seas will earn one nothing but a period behind the bars.

139.     The real risk test involves an assessment of the objective level of risk faced by the Applicant. The Tribunal’s January 2012 Complementary Protection Training Manual notes: ‘the RRT should adopt the view that ‘real risk’ in the complementary protection context is based on the term ‘well-founded fear.” It should be interpreted consistently with this jurisprudence. Accordingly, the application of these principles involves consideration of the real chance test set out in Chan v MIEA (1989) 169 CLR 379 (i.e. a real chance is one that is not remote. regardless of whether it is less or more than 50 per cent (and can be as low as 10 per cent). The above information regarding the punishment of those who violate Sri Lanka’s exit procedures demonstrates that there is a real chance the Applicant will face significant harm.

140.    It is also important to note the overlap of the concepts of ‘real risk’ and ‘necessary and foreseeable consequence’, which was reiterated by the Explanatory Memorandum: ‘real risk of significant harm is one where the harm is a necessary and foreseeable consequence of removal.’ This is the position long held by the UN Human Rights Committee. Given that the Applicant’s removal from Australia would directly result in him being presented to the authorities, his feared harm would be a necessary and foreseeable consequence of his removal from Australia.

141.    Consistent and credible reports demonstrate the prevalence of ‘torture and other cruel, inhuman or degrading treatments of suspects in police custody’. So much so, that the UK Home Office’s current policy is that prison conditions in Sri Lanka are so harmful that they reach the threshold of Article 3 of the European Convention on Human Rights: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

Conditions in prisons and police custody are very poor and taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of torture, are likely to reach the Article 3 threshold and a grant of Humanitarian Protection may be appropriate.

142.    The United Nations Committee against Torture (“UNCAT”) echoes these concerns:

[T]he Committee remains seriously concerned about the continued and consistent allegations of widespread use of torture and other cruel, inhuman or degrading treatment of suspects in police custody, especially to extract confessions or information to be used in criminal proceedings. The Committee is further concerned at reports that suggest that torture and ill-treatment perpetrated by State actors, both the military and the police, have continued in many parts of the country after the conflict ended in May 2009 and is still occurring in 2011.

143.    In a Department of Foreign Affairs and Trade (“DFAT”) Report of 4 March 2012 (LKA41452) the following information is provided in relation to the detention and release on bail of failed asylum seekers forcibly removed from Australia to Sri Lanka:

Post’s experience with returnees from Australia is that persons are arrested by the Sri Lanka Police Service Criminal Investigation Department (CID) after being processed back into Sri Lanka by the Department of Immigration and Emigration. They are held in police custody at the CID Airport Office throughout the investigation period, which can last up to 24 hours under relevant legislation.

They are then produced before a magistrate and the Magistrate’s Court will determine whether the person is to be released on bail, to appear before the court at a later date, or is remanded into custody.

If a person needs to be held for more than 24 hours as a result of a Magistrates Court not sitting, such as when a person arrives during a weekend or public holiday, arrested persons are transferred to the nearby Negombo Prison (Remand Section) until the Magistrates Court is in session.’

144.    Given the prevalence of torture, cruel or inhuman and degrading treatment or punishment in Sri Lankan prisons as evidenced by the significant amount of Country Information provided above, the Tribunal should accept that there is a real risk the Applicant will face significant harm.

(Footnotes omitted; errors in original; emphasis added)

14    In addition to this pre-hearing submission, shortly after the hearing before the Tribunal, the appellant’s migration agent, Fragomen, submitted a further letter providing further information in support of his review application. That letter also addressed the surety issue and matters relevant to it, again partly by reference to DFAT reports. It did so in the following terms – the parts that are particularly pertinent have, again, been emphasised:

31.    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). In practise, convicted returnees generally receive fine.

32.    The last two reports from DFAT indicate that a magistrate in Negombo has been issuing fines of up to 50,000 SLR. The lower fines indicated by DFAT are questionable given that the legislation prescribes fines of ‘not less than 50,000 rupees’. Alternatively, country information from DFAT indicates that the returnees are ‘transported by police to the Magistrates Court in Negombo’, which indicates that returnees are likely to appear before the Magistrate in Negombo.

33.    In order to determine whether such fines are ‘appropriate’, they also need to be considered within the county’s context, taking into account what the figure represents to an ordinary Sri Lankan. A fine of 50,000 SLR for example represents a figure that is over 13 times the official national poverty line in Sri Lanka.

34.    This figure does not factor into account the returnee’s circumstances such as: their earning capacity, whether the individual has family members or dependents, and whether the returnees are subjected to debts as a result of fleeing the country. In which case, the fines represent a far higher burden.

35.    Contextually, the Applicant was never worked for an income prior to his departure from Sri Lanka. It stands to reason that despite the ability to pay the fine in instalments, the Applicant would face great difficulty in being able to pay such a fine imposed for reasons of his illegal departure. Such penalties lead to the possibility of the convicted returnee spending years, if not decades, paying off the fine.

Does the time spent on remand constitute serious (or significant) harm?

36.    The most recent DFAT report indicates that following questioning upon return at the airport, returnees are transported by the police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed (when custody/responsibility shifts to the courts or prison services). DFAT also indicates that should magistrates not be available (examples given include public holidays or weekends), those charged are held at the nearby Negombo Prison. However, this merely appears to be a reiteration and amalgamation of country information previously provided by DFAT. rather than a substantive ‘new’ finding.

37.    Country information regarding the time spent in remand varies. Imprisoned returnees from Australia on 14 and 15 October 2013 were detained for up to 15 days. Similarly, a vessel recently returned from Australia indicated that five individuals were remanded in custody for two weeks. No information currently exists regarding the individuals on the boat returned to Sri Lanka on 29 November 2014.

(Footnotes omitted; errors in original; emphasis added)

15    Before detailing how the Tribunal dealt with these submissions, it is appropriate to set out the relevant parts of two of the DFAT reports that were referred to in these letters. There is a third, the report of 4 March 2012, but it is quoted verbatim above so it is unnecessary to reproduce it. The first of the other two is the Country Information Report of 31 July 2013 (see [13(137)] above) entitled “Country Information Report – Sri Lanka, 31 July 2013”. The following paragraphs of that report related to the treatment of returnees:

3.71    Sri Lankans are able to re-enter the country on temporary travel documents if they do not have their passport. However, Sri Lankan citizens exiting Sri Lanka can only do so with a passport and visa (if required) and are not able to depart on a temporary travel document. If a returnee has committed an offence under Sri Lankan law, they will be investigated and prosecuted for the offence.

3.72    DFAT assesses that Sri Lankans returnees are treated along standard procedures applying to all Sri Lankans, regardless of their ethnicity and religion. DFAT has not observed any difference in the way Tamil returnees are treated in comparison to Sinhala or Muslim returnees.

3.73    Upon arrival in Sri Lanka, authorised officers check passport/travel document and visa information against the Department of Immigration and Emigration (DoIE) immigration database. Under Sri Lanka’s Immigrants and Emigrants Act (the I&E Act), it is an offence to depart other than via an official port of entry/exit (such as a seaport or airport) and without a passport. A returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka can also be charged with an offence under Section 45C of the I&E Act for organising or attempting to organise for another person to leave in contravention of the I&E Act. The I&E Act empowers authorised officers to detain and examine any person arriving in or leaving Sri Lanka and to require the production of any documents by such a person.

Application of the law in practice

3.74    Returnees from Australia on charter flights are processed by DoIE, the State Intelligence Service (SIS) and Airport Criminal Investigations Department (CID). This process involves:

DoIE confirming the returnee’s identity, their nationality and any offences committed under immigration law;

State Intelligence Service checking the returnee against intelligence databases; and

Airport CID verifying a person’s identity to then determine whether the person has any outstanding criminal matters.

3.75    Returnees are considered to have committed an offence under the I &E Act if they depart Sri Lanka irregularly by boat. The CID will commence an investigation into the offence, including interviewing returnees about their illegal departure from Sri Lanka. Returnees are considered to be under arrest for the offence during this process in accordance with Sri Lankan law. As part of the investigation, fingerprints would usually be taken and the person photographed. Deputy Inspector General of CID has advised that the CID endeavours to complete all processing at the airport as quickly as possible.

3.76    For returnees traveling (sic) on temporary travel documents, police undertake an investigative process to confirm the person is not trying to conceal their identity due to a criminal or terrorist background. This involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal records.

3.77    Some returnees have been charged with people smuggling offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to robbery of a vessel used to travel to Australia, causing grievous harm to persons and people smuggling.

3.78    For offences committed under the I&E Act, a prison sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees may be applicable. The Attorney-General’s Department advises that no one to date 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 Department further advises that the Magistrates Court in Colombo has been handing out fines of around 5,000 Sri Lankan Rupees for persons attempting to depart Sri Lanka irregularly on boats. However, in Negombo, the magistrate, who handles a large number of these cases, has been handing out fines up to 50,000 Sri Lankan Rupees to act as a deterrent.

3.79    Since November 2012, Sri Lankan irregular maritime arrivals (IMAs) returned from Australia have been charged under the I&E Act for offences related to departing Sri Lanka and remanded in police custody until they are presented to a magistrate at the first available opportunity. The International Organization for Migration (IOM) has advised DFAT that, from their experience in delivering post-arrival support for voluntary returnees from Australia, those who have departed illegally under Sri Lankan law have been arrested by the police at the airport. They have been taken by the police from the airport and presented at the Negombo Magistrates Court at the first available opportunity. The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.

3.80    The two main NGOs involved in facilitating voluntary returns have told DFAT that they have not witnessed any differentiation in treatment by authorities towards returnees from Tamil Nadu, India, in comparison to other returnees.

3.81 Sri Lankan asylum seekers and refugees who return to Sri Lanka through the UN High Commissioner for Refugees facilitated voluntary repatriation program are processed through DoIE and SIS on return to Sri Lanka but not CID. This process is the same for all persons returned regardless of the country from which they are being returned or when they departed Sri Lanka.

3.82    In practice, where a returnee is travelling voluntarily on their own passport on a commercial flight they will not come to the attention of local authorities if they departed Sri Lanka regularly (legally through the airport/seaport) on the same passport, as they have not committed any offence under the I&E Act.

(Emphasis added)

16    It is important to note the specific mention of the surety issue in the concluding three sentences of 3.79 above:

The returnees have been granted bail on personal surety immediately by the magistrate. Sometimes returnees then need to wait until a family member comes to court to collect them. IOM is present with the returnee during this process.

This is to be contrasted with the report dated 4 March 2012 (see at [13(143)] above) where there is no mention of the need for a surety in order to obtain bail.

17    While it does not identify it by date, it can be reasonably inferred from the chronology that “the most recent DFAT report” which is mentioned in the opening words of paragraph 36 of Fragomen’s second letter (see at [14(36)] above) is the report entitled “DFAT Country Report, Sri Lanka, 3 October 2014”. This report came into existence after the Delegate’s decision, but before the Tribunal’s decision. It dealt with the surety issue and matters relevant to it in the following parts of that report:

5.22    Article 14(1)(i) of Sri Lanka’s Constitution entitles any citizen to ‘the freedom to return to Sri Lanka’. Entry and exit from Sri Lanka is governed by the Immigrants and Emigrants Act (the I&E Act). Under Section 45(1)(b) of the Act, it is an offence to depart other than via an official port of entry or exit, such as a seaport or airport. Penalties for leaving Sri Lanka illegally can include custodial sentences of up to five years and a fine of up to 200,000 Sri Lankan rupees (round AUD 1,600).

5.23    Returnees are generally considered to have committed an offence under the I&E Act if they depart Sri Lanka irregularly by boat. Where a returnee is travelling voluntarily on their own passport on a commercial flight they may not come to the attention of local authorities if they departed Sri Lanka legally through an official port on the same passport, because they have not committed any offence under the I&E Act.

Exit and Entry Procedures

5.24    Upon arrival in Sri Lanka, involuntary returnees, including those on charter flights from Australia, are processed by the Department of Immigration and Emigration (DoIE), the State Intelligence Service (SIS) and Airport CID. Officers of the Australian Department of Immigration and Border Protection (DIBP) based in Colombo endeavour to meet all commercial flights and charter flights with involuntary returnees from Australia on arrival. DIBP has observed that processing arrivals typically takes several hours, primarily due to the manual nature of the interview process and staffing constraints at the airport. Voluntary returns eligible for an Australian Government Assisted Voluntary Return package are usually met by the International Organization for Migration. Other voluntary returnees are usually met by DIBP staff based at the Australian High Commission in Colombo.

5.25    During the processing of returnees, DoIE officers check travel document and identity information against the immigration database. SIS checks the returnee against intelligence databases. Airport CID verifies a person’s identity to then determine whether the person has any outstanding criminal matters.

5.26    For returnees travelling on temporary travel documents, police undertake an investigative process to confirm the person’s identity, which would address whether someone was trying to conceal their identity due to a criminal or terrorist background, or trying to avoid, among other things, court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person’s claimed home suburb or town police, contacting the person’s claimed neighbours and family and checking criminal and court records. DFAT assesses that Sri Lankan returnees are treated according to these standard procedures, regardless of their ethnicity and religion-Tamil, Sinhalese and Muslim returnees are treated the same way on arrival in Sri Lanka. DFAT further assesses that detainees are not subject to mistreatment during their processing at the airport.

Offences under the Immigrants and Emigrants Act

5.27    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 an 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.

5.28    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.

5.29    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.

People smuggling offences

5.30    The Attorney-General’s Department typically treats differently those suspected of being passengers on a people-smuggling venture and those suspected of facilitating or organising a venture. A returnee suspected of involvement in the organisation of irregular migration of people from Sri Lanka can be charged with an offence under Section 45C of the I&E Act for organising or attempting to organise for another person to leave in contravention of the I&E Act.

5.31    Some returnees from Australia have been charged with people smuggling offences and other criminal offences which they allegedly committed before departure. For example, in October 2012, warrants were issued for the arrest of a group of returnees in regard to robbery of a vessel used to travel to Australia, causing grievous harm to persons and to people smuggling. DFAT understands that, in several cases, returnees have been charged and convicted for people smuggling offences. As of March 2014, at least one charge has been upheld on appeal.

Experience following return

5.32    Between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. The majority of these returnees are Tamil. Although the experiences of individual returnees will vary, many Tamil returnees choose to return to the north, because it is their place of origin, where they have existing family links and the relatively lower cost of living compared to Colombo and other urban areas in the south.

5.33    Many returnees will have incurred significant expenses to undertake their outward journey and, in some cases, will have incurred debt to do so. Many are apprehensive about finding suitable employment opportunities on return. Those who have skills which are in high demand in the labour market will be best placed to find well-paid employment. Returnees who receive reintegration assistance on their return to Sri Lanka find it easier to resettle.

(Emphasis added)

18    Again, it is important to note the specific mention of the surety issue in the last two sentences of paragraph 5.28 above and to contrast it with the 31 July 2013 report (see at [16] above) where there is no mention of a family member acting as guarantor:

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.

19    Before going to the decision of the Tribunal, it is also convenient to set out the pertinent part of the transcript of the hearing before the Tribunal relating to the surety issue. It should be noted that this is the transcript that the appellant is seeking to adduce in evidence on this appeal. It is as follows:

[TRIBUNAL MEMBER]: The information I have is that the Sri Lankan law is if you depart Sri Lanka on a boat without your passport, not through an official port, you have broken Sri Lankan law. And the information I have is that if you went back to Sri Lanka you would be met at the airport either by people from the Australian Department of Foreign Affairs or the International Organisation for Migration. You will be investigated by the airport police. You may also be investigated by the CID or other security forces. As part of those investigations, the police may call back to your home town and ask about you. And you will be charged with departing Sri Lanka illegally. Then you will be put on remand. Remand means that you will go to jail although you have not yet been found guilty of anything. You will be on remand for as long as it takes for you to appear before a magistrate to get bail. The information I have is that everybody gets bail unless they are charged with people smuggling. Bail is given on a personal security. Somebody promises that you will go back to jail. Sorry, I said that wrongly. Somebody promises you will go back to court. After you get bail, you’re free to go back to your home town. Most people get bail within a day or two. Sometimes less than a day. But there is a report of it taking up to 2 weeks. One day though you have to go back to court to face the charges. The Sri Lankan law says the penalty for departing Sri Lanka illegally is a fine plus a term of imprisonment. Term of imprisonment. So even though if the law says you must go to prison, the Sri Lankan magistrates also have a discretion to just issue a fine and a suspended sentence. And the information I have is that everybody gets a fine of between 5 and 50,000 rupees. And Sir Lankan law also says that you can be given time and you can pay any fine by instalment. The only people that go to jail are people that are charged with people smuggling.

(Emphasis added)

20    Since it mentions both the need for a “security” [sic – surety] and for someone to promise the person will return to court, it is reasonable to infer that the 3 October 2014 DFAT report was the source of the statement “Bail is given on a personal security. Somebody promises that you will go back to jail [sic – court]”.

21    The Tribunal dealt with the surety issue and the circumstances surrounding it under the heading “Illegal departure from Sri Lanka”. It devoted eight paragraphs to that issue as follows:

43.    The applicant claimed he would be harmed because he departed Sri Lanka illegally. The Tribunal accepts that the applicant departed Sri Lanka without possession of his Sri Lankan passport and not from an approved port. The Tribunal discussed with him his doing so was an offence under the Immigration and Emigration Act of 2006 (‘“IEA”) for illegal departure from Sri Lanka. It discussed too that according to information from DFAT returnees are generally met either by DFAT or IOM staff at the airport. Since November 2012, all failed asylum seekers returned to Sri Lanka from Australia who had departed Sri Lanka illegally had been arrested upon return to the airport in Colombo. The returnees were then charged with offences relating to illegal departure under the IEA and held on remand until brought before a Magistrate. After a bail hearing, the returnees are granted hail with a personal surety and able to return to their home area. The period on remand varies between a couple of hours to a couple of days, depending on how soon a bail hearing can be held, but there are reports of it taking up to two weeks. The Sri Lankan authorities will investigate the background and identity of each returnee, which can involve contacting the person’s family and the police in their home area. Eventually the returnee will need to return to Court to face the charges. Although the IEA states the penalty for illegal departure is a prison sentence from 1 to 5 years and a fine of 50,000 LKR to 200,000 LKR, the Magistrates are able to use their own discretion in determining the amount of the fine. In practice, Magistrates have been handing out fines between 5,000 LKR and 50,000 LKR. Only returnees suspected of people smuggling offences have been denied bail or given a prison sentence. The most recently available information is the above process is continuing under the new government.

44.    The applicant replied sometimes things go wrong and the Sri Lankan authorities harm people. The Tribunal noted his earlier comment about being questioned at the airport and perhaps investigated a few months after being released. It may not consider questioning or investigation to be serious or significant harm. It was at this time the applicant referred to the possibility of his disappearing during any such investigation. He repeated his earlier comment too about information released by the Sri Lankan authorities was not reliable. The people who are harmed by the Sri Lankan authorities may be too afraid to report that to anyone.

45.    Again, the Tribunal is mindful it must give regard not only to the outcome of any interrogation or questioning, but also whether there is a chance of harm during the process the process involved in attaining that outcome. The Tribunal considers the offences under the IEA are laws of general application. On the face of the wording of the IEA legislation and the information regarding the implementation of the IEA before the Tribunal, the Tribunal is not satisfied the IEA laws are discriminatory in there terms or enforced in a selective or discriminatory way. The laws apply to all Sri Lankan citizens who depart Sri Lanka in breach of the IEA laws. Any harm the applicant may suffer arising from punishment for an offence under the IEA has no element of persecution for the purpose of s. 91R(1)(c) and therefore is not persecution. The Tribunal does not accept that his prosecution for breach of Sri Lankan migration laws amounts to persecution.

46.    The Tribunal notes the country information that bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison and may remain there for some days until a bail hearing is available. The Tribunal has regard to the decision of the Full Federal Court in SZTEQ that not all detention amount to a threat to a person’s liberty and is an instance of serious harm. The Tribunal accepts that conditions in Sri Lanka’s prisons are poor, they are described so in the DFAT country report. Conditions on remand have been described in media reports as being overcrowded. The Tribunal has considered the available country information in relation to the circumstances of individuals who are held in prison in Sri Lanka and notes the reports of torture and assault. The DF AT country report refers to there being unsubstantiated allegations but is unaware of reports of mistreatment of returnees while on remand. However it considers it is prisoners who otherwise have a profile of being opposed to the current Sri Lankan government profile (such as persons affiliated to the LTTE) who are targeted in this way. There have not been reports that returnees held awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The Tribunal considers any period the applicant spends on remand is as result of the application of the IEA laws, which the Tribunal found above are laws of general application and any period on remand would be a consequence of those laws of general application and therefore not persecution. Furthermore the Tribunal is not satisfied that due to the short-term nature of the imprisonment on remand that the applicant would face a real chance of serious harm while held on remand.

47.    The Tribunal considers it not because the applicant is a Tamil or a failed asylum seeker but rather because the applicant departed Sri Lanka illegally that he will be charged or held or remand or questioned at the airport or further questioned upon return to his home village. The Tribunal is not satisfied that any difficulties the applicant may face as a result or questioning, being charged, encountering cramped and uncomfortable and unsanitary conditions on remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors which apply generally and not specifically to Tamils or failed asylum seekers or persons with imputed political opinions. The Tribunal is not satisfied, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).

48.    There is also the consideration of the applicant facing a jail term for his illegal departure. On the face of the wording of s.45(l)(o) of the IEA states both a fine and a prison sentence are enforced upon conviction for illegal departure. The information from DFAT and the Attorney General Department of Sri Lanka is the Magistrates have discretion to suspend a sentence and that is what is routinely done. This power is found in s.303 of the Code of Criminal Procedure. The Tribunal considers based on the available country information there is only a remote and therefore not a real chance the applicant will be sentenced to a term of imprisonment for his offences under the IEA. The Tribunal considers it high likely the applicant will be fined not more than LKR200,000 (AUD1,850) and more likely to be LKR50,000 (AUD460). The Code of Criminal Procedure provides for allowing time for payment and for the payment of fines by instalments. The evidence before the Tribunal does not suggest the applicant will be unable to pay or that fine or that payment of the fine will cause him hardship. The evidence before the Tribunal too does not suggest he is without any relative able to provide surety. Therefore, the applicant will be able to receive a suspended sentence. As such, the Tribunal considers there is no real chance the applicant will face an extended period of imprisonment arising from his illegal departure from Sri Lanka.

49.    In summary, the Tribunal finds the applicant does not face a well-founded fear of persecution due to his illegal departure from Sri Lanka because: the laws were not persecution due to a lack of discriminatory intent or application and there is no real chance he would face a term of imprisonment for the offence of illegal departure.

50.    After assessing all the evidence and the applicant’s circumstances and being mindful or both the process and the outcome of the prosecution the applicant will face from the Sri Lankan authorities arising from his illegal departure, the Tribunal is satisfied that the applicant does not face a real chance of serious harm due to his illegal departure, now or in the reasonably foreseeable future if he returns to Sri Lanka.

(Emphasis added; footnotes omitted)

22    In the end result, the Tribunal concluded that the appellant did not satisfy the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) and, in light of the above findings, he also did not satisfy the complementary protection criterion in s 36(2)(aa) of the Act.

23    Three things are worth recording about the Tribunal’s reasons at this point. First, the Tribunal expressed the surety issue in slightly differing ways. At [21(43)], it stated: “After a bail hearing, the returnees are granted bail with a personal surety and able to return to their home area.” However, at [21(46)], it described the issue in these terms:

The Tribunal notes the country information that bail is routinely given on the accused’s own recognisance although a family member is also required to provide surety.

This may be explained by the Tribunal having relied on the 31 July 2013 DFAT report for the former and the 3 October 2014 DFAT report for the latter (see the distinction noted at [18] above).

24    Secondly, it is important to record the distinction the Tribunal drew between a prosecution under the Sri Lankan IEA laws and persecution for the purposes of s 91R(1)(c) of the Migration Act. It drew that distinction because it concluded that the IEA laws were laws of general application. The Federal Circuit Court Judge noted the same distinction in his reasons (BEJ15 at [18]).

25    Thirdly, it is important to note that, for present purposes, the central issue was the application of the complementary protection provisions of s 36(2)(aa) of the Migration Act to the appellant. Those provisions are directed to whether there are substantial grounds for believing that “as a necessary and foreseeable consequence of the [appellant] being removed from Australia to [Sri Lanka], there is a real risk that [he] will suffer significant harm”. Thus, because of the distinction adverted to above, it was not the prosecution that was relevant, but rather whether the time that the returnee would remain in jail awaiting bail amounted to significant harm.

The decision of the Federal Circuit Court

26    In the appellant’s original application to the Federal Circuit Court, he raised seven grounds of review. However, at the hearing of his application, he abandoned all but the first two of those grounds. The remaining two grounds were as follows:

1.    The tribunal committed jurisdictional error in that it failed to comply with s 425(1) of the Act.

Particulars

The Tribunal found that the applicant “may be placed in the remand section of Negombo prison” and would remain there “until a bail hearing is available”

The Tribunal said that bail “is routinely given”, but qualified that statement by finding that “a family member is also required to provide surety”

The Tribunal concluded that it is not satisfied that “due to the short term nature of the imprisonment on remand that the applicant will face a real chance of serious harm while held on remand”

The tribunal also concluded “the evidence before the tribunal too does not suggest the he is without any relative able to provide surety” and “as such there is no real chance that the applicant will face an extended period of imprisonment”: thereby implicitly concluding or assuming that someone would be able and willing to provide the surety required for the applicant’s bail. It was only on that basis that the Tribunal could have concluded that the applicant would be released after a few days on bail.

The “issues arising in relation to the decision under review” therefore included whether the applicant or his family or someone else would be able and willing to provide the surety required for the applicant’s bail so as to cause him to be released from the overcrowded prison

2.    The tribunal failed to address an issue which arose on the material before it being whether the detention of the applicant on remand in Sri Lanka in the prison conditions prevalent there would be degrading treatment or punishment and cruel or inhuman treatment or punishment.

27    As to ground one, the Federal Circuit Court Judge noted that “[b]efore the delegate, it was assumed that the applicant would simply be given bail. There is no reference to the need for a surety from another person to secure a grant of bail”. This led his Honour to the following conclusions about the surety issue:

32.     In my view, however, the first respondent’s submissions frame the relevant issue too broadly. The existence of a person willing and able to provide the necessary surety was an issue arising on the review that did not exist before the first respondent’s delegate. It was an important issue because, without a finding that there was some person willing to provide the necessary surety, the tribunal could not have found that the applicant was likely to get bail following his arrest and detention upon re-entry to Sri Lanka. The finding about the availability of such a person was, I am satisfied, a link in the chain of reasoning that led the tribunal to determine that the applicant would not suffer significant harm if he was detained upon return to Sri Lanka. Moreover, it was not a conclusion that would obviously be open on the known material before the tribunal.

33.     It was, in those circumstances, incumbent upon the tribunal to bring that issue to the attention of the applicant so as to permit him to give evidence and make submissions about that issue. Thus, the critical question for the purposes of this application is whether the tribunal did that.

28    His Honour then proceeded to consider that “critical question”. As can be seen from the following paragraphs of his reasons in BEJ15, his ultimate answer was “I do not think that I can infer from the tribunal’s reasons that it did not raise the issue of the availability of a surety with the applicant” (see BEJ15 at [37]):

34.    He argues that he was given no opportunity to respond to, or rebut, the tribunal’s assumption or determination that he had a relative, or some other person, who would be able and willing to act as surety for the purposes of him being granted bail. His argument relies upon a question of fact - what occurred in the course of his review by the tribunal. It is for him to establish the relevant facts upon which his argument proceeds. He must establish that the tribunal did not afford him the opportunity to which I have determined he was entitled.

35.    However, the first respondent argues that there is no evidence that supports the applicant’s assertion. Unlike other cases that have dealt with this issue (such as SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978 and on appeal Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069) there is no transcript of the tribunal hearing before me. The first respondent argues that without a transcript it is not open to me to infer that the applicant was not afforded an opportunity to give evidence and present arguments relating to this particular concerning the availability of a surety to support a grant of bail.

36.    While a transcript would have been extremely helpful to the applicant’s case, I do not accept that absent a transcript the Court cannot reach the conclusion that the tribunal did being the relevant issue to the attention of the applicant as it was obliged to do. The applicant might have provided sworn evidence of what occurred at the tribunal hearing, or the representative that appeared at the hearing might have done so. There is, however, no such evidence before me. I am left to inferences that might be drawn from the tribunal’s reasons for decision.

37.    I accept that it is plain from the tribunal’s summary of the hearing that the tribunal discussed the country information that it had as to the likely prosecution, likelihood of bail, time spent on remand and likely fine with the applicant and his representative. In those circumstances, and in the absence of any other evidence bearing upon the matter, I do not think that I can infer from the tribunal’s reasons that it did not raise the issue of the availability of a surety with the applicant.

29    In concluding on this issue, his Honour found that the Tribunal did not fail to conduct its review in accordance with s 425(1) of the Act and, accordingly, it did not make a jurisdictional error. His Honour summarised his conclusion as follows (BEJ15 at [39]):

There is no evidence that:

a)    the tribunal never raised the surety issue with the applicant expressly;

b)    the tribunal failed to give the applicant an opportunity to give evidence or make submissions about whether the applicant had a family member who could provide surety for the applicant to ensure his release on bail;

c)    the tribunal failed to give the applicant the opportunity to respond to the tribunal’s conclusion that the applicant had a family member who would provide surety for the applicant to ensure his release on bail;

d)    the Tribunal did not explore with the applicant specifically of the current overall financial position of his family;

e)    it was never put to the applicant by the tribunal that there was no evidence his mother or his brothers could pay a surety.

30    As to ground two, his Honour found that the Tribunal did not fail to address any issue which arose on the material before it, as follows (BEJ15 at [54]–[56]):

54.    In my view, however, the tribunal addressed itself to the correct question. The tribunal considered the conditions of the prisons in Sri Lanka and the possibility that the applicant would suffer significant harm whilst held on remand.

55.    The tribunal correctly identified that the relevant harm must be intentionally inflicted. The tribunal did not find that any harm that might be occasioned to the applicant by reason of him being detained upon return to Sri Lanka would be intentionally inflicted upon him.

56.    I accept the [Minister’s] submission that the Applicant’s submissions in support of this ground descend to the merits of the applicant’s claims for complementary protection.

The grounds of appeal

31    Since the appellant’s two grounds of appeal are already set out at [2] above, it is unnecessary to repeat them. While it contains greater particularity, ground one essentially raises the same issue as was raised in the two grounds of review before the Federal Circuit Court. The second ground raises a new matter which stems from an erroneous submission the Minister’s counsel made during the Federal Circuit Court hearing.

The contentions on the appeaL

32    In relation to ground one, the appellant submitted that the Federal Circuit Court Judge erred in finding that the appellant was afforded an opportunity to give evidence and present argument to the Tribunal on the question of the availability of a family member to provide surety in order to support a grant of bail. The appellant submitted that it is clear from the Tribunal hearing transcript that the Tribunal member did not put the surety issue to the appellant and misconstrued the issue when he said “bail is given on a personal security … Somebody promises that you will go back to court”. The appellant contended that this statement was not in accordance with the country information that a family member is required to provide a surety. The appellant submitted there was nothing to suggest that he or his representative should have been aware that the ability of one of his family members to provide a surety to enable him to be granted bail was a determinative factor in the mind of the Tribunal member. This contention, so the appellant submitted, was supported by the fact that his post-hearing submissions to the Tribunal did not mention the provision of a surety. He also stated that, although he was still in contact with his family in Sri Lanka, there was no evidence that his family could provide surety. Accordingly, the appellant contended that the Tribunal had failed to comply with its obligations under s 425(1) of the Act, that the Federal Circuit Court Judge had therefore erred in not detecting this error and that his application should be remitted to the Tribunal to be determined according to law.

33    In responding to this ground, the Minister submitted that the appellant was put on notice that the Tribunal considered that bail would be granted once a surety was provided. He contended that the appellant had therefore been given the opportunity to dispute his ability to find someone who could provide a surety. He contended further that “s 425(1) of the Act only applies to issues that the Tribunal (subjectively) considered to be critical”. On the question of the appellant’s post-hearing submissions to the Tribunal, the Minister submitted that the omission to mention the separate surety issue in those submissions was equally probative of the fact that the Tribunal identified such an issue to the appellant at the hearing and the appellant had failed to raise any issue in response. In any event, the Minister submitted the information was country information and s 424A(3)(a) of the Act exempted the Tribunal from any requirement to provide particulars of that information to the appellant.

34    As mentioned above, the appellant’s second ground arises from an erroneous submission the Minister’s counsel made to the Federal Circuit Court Judge. To attempt to remedy this, after the hearing, the Minister’s counsel wrote to the Associate to the Federal Circuit Court Judge and requested his Honour’s leave to withdraw his submission that:

… there was transcript evidence that the Applicant earned 120,000 rupees a year, that his wife earned 25,000 rupees a year and that they had previously paid for their son to be bailed. I submitted that this supported the finding at CB 21 at [48] expressed as follows:

The evidence before the Tribunal too does not suggest he is without any relative able to provide surety.

35    The appellant submitted that this withdrawal was itself misleading as it did not make it clear that the appellant was not married and did not have a wife. As a consequence, the appellant contended he was not afforded a fair hearing before the Federal Circuit Court.

36    On the second ground of appeal, the Minister submitted there was no basis, on the face of the Federal Circuit Court Judge’s reasons, to conclude that his Honour was in any way misled by the submissions made by his counsel.

Consideration

The application to adduce evidence on the appeal and the first ground of appeal

37    To meet the second condition for the admission of the Tribunal hearing transcript as evidence on this appeal, the appellant needs to show that “very probably the result would have been different” before the Federal Circuit Court if that transcript had been available. A higher level of probability is usually required to meet this condition (see at [5] above).

38    It is appropriate to begin with the reasons in BEJ15. It is apparent from those reasons that, in the absence of the transcript, the Federal Circuit Court Judge inferred from the Tribunal’s reasons that the Tribunal had discussed with the appellant and his representative “the country information that it had as to the likely prosecution, likelihood of bail, time spent on remand and likely fine” (see at [28(37)] above). Conversely, his Honour was not able to infer from its reasons that the Tribunal “did not raise the issue of the availability of a surety with the [appellant]” (see at [28(37)] above).

39    This became an issue before the Federal Circuit Court Judge because, as his Honour correctly observed (see at [26(32)]), the Delegate did not mention that there was a need for someone to provide a surety before a person would be released on bail. This is apparent from the Delegate’s decision where he said: “even if the [appellant] was held for a short time in a Sri Lankan prison while arranging to be released on bail,” (see at [12] above). Because of this failure to specifically mention the surety issue, it was, as the Federal Circuit Court Judge also correctly observed, “incumbent upon the tribunal to bring that issue to the attention of the [appellant] so as to permit him to give evidence and make submissions about that issue” (see at [27(33)] above).

40    In making this observation, his Honour was reflecting the obligations imposed on the Tribunal by s 425 of the Act. More specifically, his Honour was reflecting the content of those obligations as described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) as follows (at [35]):

The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

41    From the pertinent part of the Tribunal hearing transcript, it is apparent that the Federal Circuit Court Judge’s inference, that the Tribunal member had complied with the obligations as outlined above, accorded with what actually happened at the hearing before the Tribunal. With particular reference to the surety issue (excluding the mistaken and corrected reference to “to jail”), the Tribunal member said: “Bail is given on a personal security. Somebody promises that you will go back to … court” (see at [19] above). These references to “personal security” and “[s]omebody promises” were clearly sufficient, in my view, to alert the appellant to the fact this was an issue that may be dispositive of his application. If the appellant was unsure what was meant by the words “personal security” or whether the words “[s]omebody promises” meant a member of his family, it was incumbent upon him to ask for clarification. That he did not seek any explanation is likely explained by the fact that both he and his migration agent were well aware of the details of the surety issue because those details were illuminated in the DFAT reports upon which they relied in the detailed submissions that were provided by them to the Tribunal (see at [13]–[14] above). Significantly, the DFAT report dated 4 October 2014, which I infer was “the most recent DFAT report” mentioned in the appellant’s post-hearing submissions (see at [17] above), states in [5.28] that bail was granted “on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor” (see at [17] above). From the manner in which this DFAT report was discussed in the appellant’s post-hearing submissions (see at [14(36)] above), I infer that it is likely that he read this statement.

42    Once the Tribunal had properly raised this issue with the appellant, it had discharged its obligations under s 425. It was then a matter for the appellant to make out his case in response to it; no such obligation fell on the Tribunal: see Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [187] per Gummow and Hayne JJ. For example, if it were the case that there was no family member, or other person, who could provide surety for the appellant, it was incumbent upon him to give evidence and to make submissions to that effect.

43    It follows that the transcript evidence the appellant wishes to adduce as evidence on this appeal concurrently demonstrates two things: that it is not evidence of a kind that would probably have resulted in a different result at the hearing before the Federal Circuit Court; and that the Federal Circuit Court Judge was correct in the inference he drew that the Tribunal had properly complied with its obligation to bring the surety issue to the attention of the appellant.

44    It necessarily follows from these conclusions that the appellant’s application to adduce the Tribunal transcript as the evidence on this appeal must be rejected and he must fail on ground one of his notice of appeal.

45    Because I consider the determination of this appeal turns on its own facts, I do not need to examine the decisions to which I was referred which dealt with the same, or a similar issue: see Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069, SZTAP v Minister for Immigration and Border Protection (2015) 238 FCR 404; [2015] FCAFC 175, ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 and BEV15 v Minister for Immigration and Border Protection [2016] FCA 507. I also do not need to consider the question raised by the Minister and discussed in some of those authorities about whether the country information the Tribunal relied upon was material which was exempt from production under s 424A(3).

Second ground of appeal

46    The appellant’s second ground of appeal can be disposed of briefly. While it is unfortunate that the Minister’s counsel unwittingly misled the Federal Circuit Court Judge and his post hearing attempts to redress the situation were less than satisfactory, I do not consider this matter had any effect on the outcome of the hearing before the Federal Circuit Court. That is so because the Federal Circuit Court Judge disposed of the appellant’s application on the basis of his Honour’s inference that the Tribunal had raised the surety issue with him. Because the appellant’s case was to the contrary, it was immaterial, at least on his case, what evidence or submissions he might have put in response, if the issue had been raised. It follows that the other evidence the appellant wishes to adduce on this ground of appeal (see at [4] above) does not meet the second condition mentioned above (at [5]). The appellant’s application to adduce that evidence on this appeal must therefore be rejected, as must this second ground of appeal.

Conclusion

47    For these reasons, the appellant’s application to adduce evidence on this appeal and the appellant’s appeal must both be dismissed. I will order the appellant to pay the Minister’s costs.

Associate:    

Dated:    26 August 2016