FEDERAL COURT OF AUSTRALIA

BWX15 v Minister for Immigration and Border Protection [2018] FCA 64

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

MURPHY J:

INTRODUCTION

1    The appellant is a 54-year-old man of Tamil ethnicity and Hindu faith from the Northern Province of Sri Lanka. He arrived in Australia by boat on 9 August 2012, without a visa. On 15 January 2013 he applied for a protection visa on the basis that he is a person in respect of whom Australia owes obligations of protection pursuant to ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

2    The appellant appeals from orders of the Federal Circuit Court to dismiss his application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal): see BWX15 v Minister for Immigration & Border Protection [2017] FCCA 117. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Border Protection (the Minister), to refuse to grant the appellant a Protection (Class XA) visa pursuant to the Act.

3    For the reasons set out below I have made orders to dismiss the appeal.

THE FACTS AND PROCEDURAL HISTORY

4    In a statutory declaration attached to his visa application the appellant made a number of claims, including that:

(a)    he was born on 9 October 1963 in the Killinochichi region in the Northern Province of Sri Lanka. That region was controlled by the Sri Lankan army until about 2000, when it was captured by the Liberation Tigers of Tamil Eelam (LTTE), and remained under LTTE control until the end of the civil war in 2009;

(b)    he attended school until Year 8, and from the age of 18 he worked on the family farm in Killinochichi. During that time the LTTE tried to force him to join them as a cook, but he did not do so. His parents were against allowing him to join the LTTE because they were worried that he would be killed. Because of harassment from the LTTE, he wished to move away from Killinochichi;

(c)    in 1996 he moved to Batticaloa and purchased a van which he rented out to a local business. He says that on two or three occasions armed members of the LTTE tried to forcefully take the van from him and they came to his house and threatened him. He was afraid the LTTE would kill him, so he sold the van and went to live and work in Saudi Arabia. He remained there between 2000 and 2006, except to return home every two years to visit for two months;

(d)    in 2006 the appellant returned home permanently. One night four armed men with covered faces came to his rented house in Batticaloa and threatened him. They said that he had become rich from working in Saudi Arabia, so he had to pay them money and come with them. He said that he refused their demands and the men fled after the neighbours were alerted;

(e)    the same night, the appellant and his family moved to his wife’s brother’s house because they feared the men would return. The following day his wife went to the police station and made a complaint. The appellant was scared to return home to Killinochichi because of the people who threatened him in Batticaloa and those who earlier demanded his van. He believed that there was not a safe place for him to live in Sri Lanka;

(f)    he decided to flee the country. The day after the incident he went with his brother-in-law to Colombo where he stayed in a lodge for about two weeks while he made arrangements to flee to Thailand. While he was in Colombo some men returned to his house looking for him. His wife told the men that he had left and that she did not know where he was;

(g)    on 6 February 2006 he fled to Thailand where he stayed for two months. He then went to Malaysia where he worked as a kitchen hand until 2009;

(h)    in 2009 the UNHCR interviewed him and, following the interview, issued him with a refugee card and said that they had accepted him as a refugee;

(i)    in 2009 he was arrested for working in Thailand without a visa. He was taken to an immigration camp where he was kept for two months. After he was released he went to the city of Kajang and worked in a general store while awaiting resettlement through the UNHCR;

(j)    also in 2009, while the appellant was in Thailand, his home village in Killinochichi was bombed in an aircraft attack and all the houses were destroyed. His mother, father and siblings travelled to a refugee camp in Vavuniya, and while travelling his mother was killed in a bombing. The rest of the family remained in the refugee camp for three or four months;

(k)    the appellant worked in the general store in Kajang for the next three years. He was not paid enough money to both survive and to support his family in Sri Lanka. He waited a long time to receive a resettlement offer from the UNHCR and when an offer was not forthcoming he felt that his position was hopeless and decided to come to Australia; and

(l)    he contacted an agent in Malaysia who told him to first travel to Indonesia. He went to Indonesia on 11 May 2012 and waited there until 7 August 2012 when his agent obtained passage for him on a boat to Australia.

5    The appellant claimed that he would be targeted and his life was in danger in Sri Lanka from “various terrorist groups”, who saw him as rich because he had worked overseas. He claimed to fear being targeted by the LTTE who would be looking for him if he returned to Sri Lanka because he had refused to comply with their demands in the past.

6    He also said that he could not safely relocate to anywhere else in Sri Lanka because, as a Tamil, he would be a minority in Sinhalese areas and would not be allowed to live there. He said that although his family lived in Vanni, the LTTE were still operating covertly in that area and they might again try to force him to join them and he feared that he would be targeted and killed for failing to comply with their demands. He said he feared being kidnapped and made to pay money, and then killed. He also said that he would be subject to attempted forced recruitment.

7    He said that the Sri Lankan authorities could not protect him from the harm that he feared, and that in any event the authorities are involved in targeting and killing Tamil people. He said he also feared being persecuted as a failed asylum seeker and that he might be arrested at the airport, jailed and tortured because the Sri Lankan authorities would suspect that he gave Australian authorities information about the Sri Lankan government.

8    For these reasons the appellant sought the grant of a protection visa. He attended an interview with the delegate of the Minister on 14 October 2013 and repeated the claims contained in his statutory declaration. On 26 March 2014 the delegate refused the application.

The application to the Tribunal

9    On 28 March 2014 the appellant applied to the Tribunal for review of the delegate’s decision. In the application to the Tribunal the appellant was represented by the Refugee & Immigration Legal Centre Inc (RILC).

10    On 19 August 2015 RILC filed written submissions on the appellant’s behalf in which the appellant claimed that there is a real chance that he would face serious harm from: (a) the Sri Lankan authorities; and/or (b) paramilitary groups in Sri Lanka on account of the following grounds, taken either individually or cumulatively:

(a)    his Tamil ethnicity;

(b)    his actual or imputed political opinion in support of the LTTE or against the Sri Lankan authorities or other paramilitary groups on account of his Tamil ethnicity, his origins in Killinochichi in the Northern Province of Sri Lanka, and his departure from Sri Lanka and unsuccessful asylum claim in Australia;

(c)    his membership of the social group “wealthy Tamils who worked overseas”; and/or

(d)    his membership of the social group “returned failed Tamil asylum seekers”.

11    The appellant also relied upon the complementary protection regime under s 36(2)(aa) of the Act and submitted that if he was returned to Sri Lanka there was a real risk that he would be subjected to torture, cruel and inhuman treatment or punishment, or degrading treatment or punishment.

12    The Tribunal heard the application on 21 August 2015 and, on the same day, affirmed the delegate’s decision to refuse the protection visa.

The application to the Federal Circuit Court

13    On 16 September 2015 the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision. He had legal representation in drafting the application for review and at the Court hearing.

14    The appellant’s amended application for review set out six grounds, but in written submissions the appellant’s counsel only pressed two grounds.

15    On 25 January 2017 the Federal Circuit Court found no error in the Tribunal’s decision and dismissed the application.

THE APPEAL TO THIS COURT

16    By notice of appeal dated 8 February 2017 the appellant appeals to this Court. The notice contains the following two grounds of appeal and particulars:

Ground 1

The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.

Particulars

The respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reason but as inhumane.

Ground 2

The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA.

Particulars

The respondent did not raise/or put to me in writing parts of the adverse decision for me to comment on in writing.

17    Neither of those grounds were raised before the Federal Circuit Court.

18    The notice of appeal also states that “in addition to the above grounds, I still rely on the grounds and the particulars for the judicial review with the Federal Court of Australia”. It became clear in the hearing that the reference to the Federal Court was erroneous, and the appellant intended to rely on the two grounds of review he alleged before the Federal Circuit Court. For convenience I shall call these grounds three and four.

19    Grounds three and four, together with the particulars, are as follows:

(a)    Ground three:

The Tribunal committed jurisdictional error by making findings that were unreasonable and/or without sufficient evidence.

Particulars

The Tribunal noted the Department of Foreign Affairs and Trade (‘DFAT’) Country Report - Sri Lanka (16 February 2016), and said:

‘The DFAT country report referred to above provides that there is no difference in the return of deportees or returnees whether they are Singhalese, [sic] Tamil or Muslim. DFAT have stated that there are relatively few allegations of torture or mistreatment and that although they do not routinely monitor the situation of returnees, they assess that the risk of torture or mistreatment for the great majority of returnees is low. I have considered the country information submitted by the agents but I have given greater weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government.’

This ‘country information’ from DFAT could not reasonably be regarded as basis [sic] for rejecting the applicant’s claim to have a well founded fear of suffering persecution by torture or mistreatment because:

(a)    ‘DFAT does not routinely monitor the situation of returnees’;

(b)    ‘the country information submitted by the agents’ included:

(i)    a report of Australian official inaction in Colombo when a report of torture was made;

(ii)    an opinion of why ‘One could not say that nothing happened simply because nothing was reported’;

(iii)    a decision by the Refugee Review Tribunal in another matter about the situation of returnees to Sri Lanka and which gave reasons why it was ‘inappropriate to be sanguine’ about the situation of a person returned to Sri Lanka;

(iv)    a report by the Bar Human Rights Committee of England and Wales based on 40 sworn statements of witnesses relating to abduction, detention and torture including detention after return to their home areas of Sri Lanka;

(v)    a report by Amnesty International, quoted by the Immigration and Refugee Board of Canada, to the effect that:

‘the government of Sri Lanka has a history of arresting and detaining rejected Sri Lankan asylum seekers on their return and we aware [sic] of cases of people being tortured’;

(vi)    a Freedom from Torture report in October 2014 to the UN Human Rights Committee referring to documented torture of individuals, and saying that:

‘This evidence indicates that the risk of torture for Sri Lankan Tamils returning from the UK... has not diminished and may be increasing’

(vii)    a Freedom from Torture report cited by UK authorities which detailed medico-legal reports of torture of 35 asylum seekers returned to Sri Lanka between May 2009 and early 2011, which covered not only the situation of returnees at the airport, but also in the days, weeks, months and years after return.”

(b)    Ground four:

The Tribunal fell into jurisdictional error by failing to consider relevant considerations including all of the Applicant’s claims, integers of claims, material questions of fact raised by the material before the Tribunal, and all information before the Tribunal.

Particulars

(a)    The Tribunal considered that the applicant would return as a person who left Sri Lanka legally so ‘that the illegal departure laws are not applicable to him’, but did not consider whether he would face a risk of special scrutiny and consequent ill-treatment or harm, whether at the airport or later, because:

(i)    he would be returning over ten years after his departure from Sri Lanka;

(ii)    he would not have his passport with him to show that he departed legally, and there was no evidence about whether there would still be a record of his legal departure from Sri Lanka which the Sri Lanka government would have or accept;

(b)    The Tribunal said:

‘that when he [the applicant] returns to his home area, there is a real chance that he will [be] contacted at his home by the military or the police for further registration. I do not consider such treatment amounts to either serious harm or significant harm...’

but the Tribunal did not consider whether during or after such contact the applicant may suffer mistreatment or harm, although that was a claim explicitly raised by the reports before the Tribunal.

20    The appellant was not legally represented in the appeal. He did not comply with directions to put on written submissions and he made short oral submissions at the hearing that added little to the notice of appeal itself.

The proposed new grounds of appeal

21    Parties to an appeal are ordinarily bound by the way the case was put below (Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority (2015) 227 FCR 95; [2015] FCAFC 7 at [161]-[162]), but the Court has discretion to permit new grounds to be raised on appeal where it is expedient and in the interests of justice to do so. In Water Board v Moustakas (1988) 180 CLR 491; [1988] HCA 12 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ) the High Court said:

More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied: see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; 60 ALR 68 at 71; Coulton v Holcombe (1986) 162 CLR 1 at 7–8; O’Brien v Komesaroff (1982) 150 CLR 310 at 319.

22    In my view it is expedient and in the interests of justice to grant the appellant leave to raise the new grounds on appeal. Essentially this is because:

(a)    the appellant has a great deal at stake in this appeal. If leave is not granted he will lose the opportunity to put arguments in support of his case. That may mean that he is returned to Sri Lanka where he fears persecution, torture, cruel and inhuman treatment or punishment or degrading treatment or punishment;

(b)    the question of prejudice is an important consideration: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 at [48] (Kiefel, Weinberg and Stone JJ). The Minister did not contend that he would suffer any prejudice if leave was given to raise the new grounds of appeal; conversely, the appellant’s prejudice may be serious;

(c)    the issues in the appeal involve an analysis of the Tribunal decision and questions of law. The factual findings made by the Tribunal are not central to the new grounds, and they could not have been met by calling evidence before the Federal Circuit Court;

(d)    having regard to the existing grounds of appeal, the new grounds require little additional use of the resources of the respondent or the Court; and

(e)    the Minister did not oppose a grant of leave.

CONSIDERATION

Ground one

23    This ground of appeal has no merit. The notice of appeal alleges that the Tribunal made a finding that if the appellant were returned to Sri Lanka he would be held in degrading conditions in prison because he had left the country illegally. There is, however, no such finding in the Tribunal’s reasons and the appellant made no submissions addressed to this ground.

24    Further, insofar as the appellant’s claim relied on the complementary protection regime under s 36(2)(aa) of the Act, I can see nothing to indicate that the Tribunal failed to adequately deal with it. Under the heading “Tamil failed asylum seeker” (at paragraphs 45 to 51 of its reasons) the Tribunal considered the risk that the appellant would be tortured or mistreated if he were returned to Sri Lanka. Based on country information provided by the Department of Foreign Affairs and Trade (DFAT) the Tribunal found that risk to be low. The Tribunal noted that the risk of harm in this regard is higher where the returnee has an actual or suspected affiliation with the LTTE, but found that did not apply to the appellant. It found that returnees generally are not regarded as having links with the LTTE, or as being opposed to the government simply because they have been in Australia. It accepted that there is a real chance that the appellant will be contacted by the military or police if he is returned to Sri Lanka, but considered that such treatment does not amount to either serious or significant harm.

25    I dismiss ground one of the appeal.

Ground two

26    Under this ground the appellant alleges that the Tribunal failed to put to him parts of its adverse decision for him to comment upon, as required by s 424AA. However, the appellant did not particularise any matter which the Tribunal was obliged to, but did not, put to him. There is nothing in the material to indicate that the Tribunal erred in this regard.

27    I dismiss ground two of the appeal.

Ground three

28    The Tribunal rejected the appellant’s claims that, if he were returned to Sri Lanka, he had a well-founded fear of persecution by reason of his membership of the social group “Tamil failed asylum seeker”, doing so on the basis of country information provided by DFAT.

29    Before the Federal Circuit Court the appellant submitted that the Tribunal fell into error by making findings that were contrary to probative evidence and were unreasonable, because the findings relied on country information provided by DFAT to the exclusion of country information provided by the appellant. He maintains that submission in the appeal to this Court.

30    The appellant relied on paragraphs 45 and 46 of the Tribunal’s reasons. At paragraph 45 the Tribunal extracted the country information provided by DFAT and at paragraph 46 the Tribunal said:

The DFAT country information referred to above provides that there is no difference in the treatment of deportees or returnees whether they are Singhalese [sic], Tamil or Muslim. DFAT have stated that there are relatively few allegations of torture or mistreatment and that although they do not routinely monitor the situation of returnees, they assess that the risk of torture or mistreatment for the great majority of returnees is low. I have considered the country information submitted by the agents but I have given greater weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government.

31    The appellant argued that the country information provided by DFAT could not reasonably be regarded as a basis for rejecting the appellant’s fear of suffering persecution by torture or mistreatment if he were returned to Sri Lanka, because:

(a)    the country information provided by DFAT said that “DFAT does not routinely monitor the situation of returnees”; and

(b)    the appellant provided contrary country information which included a Refugee Review Tribunal decision which gave reasons why it was “inappropriate to be sanguine” about the situation of returnees to Sri Lanka, and a number of reports from government and non-government agencies detailing incidents of torture and mistreatment of returnees to Sri Lanka. The reports included:

(i)    a report of Australian official inaction in Colombo when a report of torture was made;

(ii)    an opinion that “One could not say that nothing happened simply because nothing was reported”;

(iii)    a report by the Bar Human Rights Committee of England and Wales based on 40 sworn statements of witnesses relating to abduction, detention and torture including detention of returnees after return to their home areas of Sri Lanka;

(iv)    a report by Amnesty International stating that the Sri Lankan government has a history of arresting and detaining rejected Sri Lankan asylum seekers and that they are aware of cases of people being tortured;

(v)    a Freedom From Torture report to the UN Homan Rights Committee stating that the risk of torture for Sri Lankan Tamils returning from the UK has not diminished and may be increasing; and

(vi)    a Freedom From Torture report which detailed medico-legal reports of torture of 35 asylum seekers returned to Sri Lanka between May 2009 and early 2011.

32    In submissions before the Federal Circuit Court the appellant accepted that it was a matter for the Tribunal as to what weight it gave to the evidence, but argued that the Tribunal had no logically probative evidence for rejecting his claim to have a well-founded fear of persecution if he were returned to Sri Lanka.

33    The primary judge rejected the appellant’s claim in this regard. After setting out the relevant extracts from the Tribunal’s decision, her Honour said (at [19]) that the country information relied upon by the Tribunal provided “an evident and intelligible justification” on which to reject the appellant’s claim, and that it could not be said that the Tribunal acted unreasonably by relying upon the country information provided by DFAT.

34    Her Honour said (at [20]) that the Tribunal properly considered the appellant’s claims by assessing the country information before it, and engaged in “a cogent process of weighing the evidence”. Her Honour said that the question of the accuracy of the country information provided by DFAT and the country information provided by the appellant was for the Tribunal to determine and that it was not for the Court to make its own assessment as to which of the country information is to be preferred.

35    Jurisdictional error will be demonstrated where the Tribunal makes a finding that is illogical or unreasonable, in the sense that the decision is one at which no rational or logical decision maker could have arrived on the same evidence: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (SZMDS) at [130] (Crennan and Bell JJ). Legal unreasonableness may also arise where a decision is arbitrary, capricious or without common sense or lacks an evident and intelligible justification: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [28] per French CJ, [76] per Hayne, Kiefel and Bell JJ and [105] per Gageler J; Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437; [2014] FCAFC 1 at [44] (Allsop CJ, Robertson and Mortimer JJ). Such unreasonableness will constitute a failure by the Tribunal to discharge its statutory task.

36    The country information provided by DFAT included that:

(a)    “there have been thousands of asylum seekers returned to Sri Lanka since 2009... but relatively few allegations of torture or mistreatment”;

(b)    “DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low”;

(c)    [t]he risk of torture or mistreatment for returnees is greater for those who are suspected of committing serious crimes, including people smuggling or terrorism offences”;

(d)    Sri Lanka’s constitution entitles any citizen to “the freedom to return to Sri Lanka”. It is only an offence under the Immigrants and Emigrants Act to depart Sri Lanka other than by an official port of entry or exit;

(e)    involuntary returnees are processed by government and intelligence officials and airport staff at the airport, which can take several hours. Australian immigration department officials also endeavour to meet all commercial flights carrying involuntary returnees on arrival at the airport;

(f)    Sri Lankan police will investigate returnees travelling on temporary travel documents, which includes interviewing the returnee, contacting their claimed home suburb or town police, contacting their neighbours and family and checking criminal and court records; and

(g)    DFAT assesses that detainees are not subject to mistreatment during their processing at the airport.

37    As I have noted above, the country information provided by the appellant painted quite a different picture. However, as Crennan and Bell JJ observed in SZMDS (at [131]):

…the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

(Emphasis added.)

38    In my view the primary judge was correct to conclude that the country information provided by DFAT provided an evident and intelligible justification for the Tribunal’s findings. Reasonable minds may differ with respect to the weight to be given to the competing country information but it cannot be said that the Tribunal’s finding lacked any reasonable basis. It is not for the Court to make its own assessment as to which of the country information is to be preferred: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] (Gray, Tamberlin and Lander JJ).

39    It is noteworthy too that the Tribunal expressly said (at paragraph 46) that it had considered the country information provided by the appellant but it had given greater weight to that provided by DFAT because “it is recent, authoritative and [DFAT] have been specifically charged with giving advice to the Australian government.” The Tribunal was not required to give a line by line refutation of the appellant’s evidence: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2000] HCA 1 at [64]-[65] (McHugh J).

40    I dismiss ground three of the appeal.

Ground four

41    Under this ground the appellant advanced the broad allegation that the Tribunal erred by failing to consider all relevant considerations including all of the appellant’s claims, integers of claims, and material questions of fact raised by the material before the Tribunal. However, the appellant particularised this ground only by reference to the following two alleged errors:

(a)    although the Tribunal considered that the appellant would return to Sri Lanka as a person who had left legally and therefore the illegal departure laws are not applicable to him, it failed to consider whether the appellant would face a risk of special scrutiny and consequent ill treatment and harm if he were returned to Sri Lanka because he was returning over ten years after his departure, without a passport and there was no evidence as to whether there would be a record of his departure from Sri Lanka (the first alleged error); and

(b)    in finding that there was a real chance that the appellant would be contacted by the military or the police for further registration if he was returned to Sri Lanka and that such treatment would not amount to either serious or significant harm, the Tribunal failed to consider whether during or after such contact the appellant may suffer mistreatment or harm in prison or detention, or whether he may spend a short or long period in prison (the second alleged error). The appellant contended that this claim was raised by experts before the Tribunal, and by reference to documented cases including medico-legal reports of the detention and torture of people returned to Sri Lanka.

42    Both the alleged errors revolve around paragraph 49 of the Tribunal’s reasons, where the Tribunal said:

The applicant told the Tribunal that he departed Sri Lanka using his own passport in 2006, so I find that the illegal departure laws are not applicable to him and there is no real chance that he would not [sic] be suspected of any offences under the Immigrants and Emigrants Act. Given his past history, I find that there is no real chance that he would be suspected of having committed a serious crime such as people smuggling or terrorism. I accept that when the applicant returns he will be questioned by the authorities and his identity checked. I also accept that when he returns to his home area, there is a real chance that he will [be] contacted at his home by the military or the police for further registration. I do not consider such treatment amounts to either serious harm or significant harm and considering the country information as a whole (including DFAT’s assessment that the risk of torture or mistreatment for the great majority of returnees is low), I find the chance or risk he will be seriously harmed or significantly harmed is remote.

43    In regards to the first alleged error, the Tribunal considered (at paragraphs 45 to 51) whether the appellant would face harm in Sri Lanka as a returned failed asylum seeker. As I have said, the country information provided by DFAT included that there are “relatively few allegations or torture or mistreatment” for returnees, and that an actual or perceived association with the LTTE placed individuals at a higher risk of harm, but the appellant would not be regarded as having links to the LTTE or to be opposed generally to the government. The Tribunal noted that because the appellant departed using his own passport the illegal departure laws were not applicable to him and that there is no real chance he would be suspected of offences under the Sri Lankan Immigrants and Emigrants Act or of having committed a serious crime.

44    Importantly, the Tribunal said (at paragraph 49) that considering the country information as a whole “the chance or risk [the appellant] will be seriously harmed or significantly harmed is remote”. It concluded at paragraphs 50 and 51 that:

Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of actual or imputed political opinion or membership of a particular social group...

Based on his individual circumstances and the independent country information, I do 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 that there is a real risk he will suffer significant harm on this basis.

45    The primary judge rejected the first alleged error (at [21]), doing so on the basis that the Tribunal was “clearly aware that the Applicant had been absent from Sri Lanka for a considerable period”, that it “considered in detail the claims of the Applicant and rejected them” and “expressly referred to country information concerning returnees travelling on ‘temporary travel documents’”.

46    I can see no error in her Honour’s conclusion in that regard. It is clear from the Tribunal’s reasons that it was aware of how long the appellant had been absent from Sri Lanka (see, for example, paragraphs 24 and 25), and aware that the appellant would be returning on temporary travel documents (see paragraph 45). It is implicit in the reasons that the Tribunal considered the risk of the harm to the appellant in the context of him returning ten years after his departure, without a passport and where there may be no record of his legal departure.

47    In regards to the second alleged error, on a fair reading of the Tribunal’s reasons it concluded that the appellant would not suffer any period of imprisonment or detention capable of constituting serious or significant harm.

48    Further, as the primary judge said (at [22]), the Tribunal’s finding that the appellant would not face serious harm or significant harm if contacted by the military or the police was not confined in time and was a “broad based finding” which encompassed consideration of any mistreatment or harm the appellant may suffer in that regard. I can see no error in her Honour’s conclusion. The Tribunal found that the appellant did not face a real risk of either serious or significant harm, and that conclusion was open to it.

49    I dismiss ground four of the appeal.

CONCLUSION

50    I have made orders to dismiss the appeal with costs.

Associate:

Dated:    9 February 2018