FEDERAL COURT OF AUSTRALIA

CRC15 v Minister for Immigration and Border Protection [2018] FCA 218

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The Appellant pay the First Respondent’s costs of the appeal in the sum of $4,750.00.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

KERR J:

1    The Appellant is a Sri Lankan national who departed Sri Lanka by boat in July 2012. In November 2012 he applied for a Protection (Class XA) visa (the visa). On 29 January 2014, a delegate of the Minister for Immigration and Border Protection (the delegate) refused to grant the visa he had applied for on the basis that the Appellant was not a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) (the Act).

2    The Appellant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision. The Tribunal affirmed that decision on 2 December 2015. The Appellant applied to the Federal Circuit Court of Australia (the FCCA) for judicial review of the Tribunal’s decision. On 16 October 2017 a single judge of the FCCA dismissed the Appellant’s application.

3    The Appellant has appealed the FCCA decision to this Court.

before the federal circuit court

4    Before the primary judge, the Appellant had advanced three grounds of appeal:

1.    The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact, or information.

2.    The Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.

3.    The Tribunal fell into jurisdictional error in that it acted so unreasonably that no reasonable Tribunal would so have acted.

5    The primary judge noted at [16] of his reasons that the grounds advanced before the FCCA were “copiously particularised”. His Honour set out the factual background to the Appellant’s claims and summarised the Tribunal’s decision from [4] to [15]. No criticism of that summary was made by either party. To provide context to these reasons, I adopt his Honour’s summary as follows:

4.    The applicant is a national of Sri Lanka from Nedunkerny Division, Vavuniya District, North Eastern Province. He is of Tamil ethnicity. He departed Sri Lanka by boat in June 2012 and was living in the Mullaitivu district prior to his departure from Sri Lanka.

5.    The applicant made a number of claims for protection, including by reason of his race (Tamil, from the Northern province); imputed political opinion, being a perceived supporter of the Tamil National Alliance (TNA) and the Liberation Tigers of Tamil Eelam (LTTE); his membership of a particular social group, being a failed asylum seeker in Sri Lanka; and his illegal departure from Sri Lanka.

6.    The applicant’s claim to fear harm on the basis of his pro-TNA and LTTE political opinion allegedly arose because one of the applicant’s older brothers, SP, was forcibly recruited by the LTTE in 2008 from their family home in Vavuniya. The applicant gave evidence to the Tribunal that SP fought for the LTTE against the government in the Kilinochchi district, that he surrendered to government forces in approximately May 2009 and that he was detained at a camp in Omanthi, Vavuniya until February 2011 when he was released by the army.

7.    The Tribunal accepted that SP was an LTTE member from 2008 to 2009 and he was detained by the army following the end of the war, until February 2011. It also accepted that SP was beaten and tied up by the army during that time. However, the Tribunal did not find that the applicant faced a real chance of serious harm from the authorities on his return to Sri Lanka based on his brother’s past involvement with the LTTE. Rather, the Tribunal found that there was only a remote chance that the applicant would be seriously harmed on return to Sri Lanka based on his brother’s previous involvement with the LTTE. Having regard to recent country information, the basis for the Tribunal’s finding on this point was that the situation in Sri Lanka had changed dramatically since the end of the war. It also made reference to DFAT’s assessment that Tamil civilians who were not members of the LTTE, including those that may have provided a low level of support to the LTTE, may be monitored by Sri Lankan authorities but are at a low risk of being detained or prosecuted.

8.    In relation to the applicant’s claims surrounding the applicant’s other brother, S, the Tribunal accepted that S had worked for the LTTE (despite not being an actual member of the LTTE) in one of their offices in Vavuniya, an area controlled by the LTTE, distributing rice and fertiliser. However, based on the applicant’s oral evidence that S had not experienced problems from authorities in Sri Lanka as a result of his involvement, the Tribunal found that there was only a remote chance that the applicant would be imputed with a pro LTTE political opinion.

9.    The Tribunal accepted that the applicant and his family lived in an internally displaced persons camp for approximately one to one and a half years after the war but found that the applicant was not of any particularly adverse interest to the authorities over the general interest of young Tamil males during this period. The Tribunal did not accept that the applicant would be seriously harmed by the authorities as a result.

10.    In relation to the applicant’s claim to fear harm arising from his brother, S being a local government member for the TNA in Vavuniya district and assisting his brother during the 2011 election campaign, the Tribunal accepted that S was a local councillor representing the TNA in Vavuniya district in a local election in 2011. Despite raising concerns about the vague nature of the applicant’s oral evidence before the Tribunal, it accepted that the applicant may have helped his brother in the lead up to the election by putting up posters, canvassing votes and handing out pamphlets and that in that role the applicant may have received some verbal threats from political opponents, primarily to dissuade him in his campaign efforts for the TNA. The Tribunal noted that on the applicant’s own evidence, he put up the posters regardless and did not experience problems as a result.

11.    The Tribunal did not accept that the applicant experienced problems from the CID based on the following factors:

a)    the inconsistencies between the applicant’s oral evidence and his statutory declaration;

b)    the uncertainty surrounding why the applicant would be of particular interest to the CID and not his brother; and

c)    the applicant’s evidence before the Tribunal that none of his family members in Sri Lanka, including those who reside in Vavuniya, had experienced any problems from the authorities in relation to their purported interest in the applicant and/or because of S’s status as a TNA politician.

12.    In relation to the applicant’s claim to fear harm on the basis of his Tamil ethnicity, the Tribunal considered relevant country information which disclosed that being of Tamil ethnicity did not on its own warrant international protection. In light of this information and the end of the war in May 2009, the Tribunal did not accept that the applicant faced a real chance of persecution on return to Sri Lanka. The Tribunal did not find that the applicant faced a real chance of serious harm on return to Sri Lanka on the basis of his imputed political opinion (LTTE) for any reason submitted separately or in combination.

13.    The applicant also claimed to fear harm on the basis of his membership of a particular social group, being a failed asylum seeker. The Tribunal had regard to the detailed submissions of the representative for the applicant and relevant country information and accepted that the applicant was likely to face questioning at the airport upon his return to Sri Lanka in relation to his movements abroad and potential links with the LTTE. However, the Tribunal did not accept that the applicant faced a real chance of persecution on return to Sri Lanka. The basis for this finding was that the applicant did not have any actual or perceived association with the LTTE which would cause him to be targeted by the authorities on return as an LTTE suspect of serious concern. The Tribunal accepted that upon the applicant’s return to Vavuniya, his arrival would be noted and he may be questioned by the Sri Lankan authorities. Ultimately the Tribunal did not accept that there would be a real chance that the applicant will be targeted for harm by Sri Lankan authorities on account of his Tamil ethnicity and having sought asylum in Australia, or for any other reason.

14.    In relation to the applicant’s claim for protection that he faced a real chance of persecution on return to Sri Lanka because he departed the country illegally, the Tribunal accepted that he was likely to be questioned on return and possibly charged under the Immigrants and Emigrants Act (I&E Act). The Tribunal referred to DFAT information which indicated that the risk of torture or mistreatment for the majority of returnees is low, including for those suspected of offences under the I&E Act. It accepted that prison conditions in Sri Lanka were generally poor and noted reports of mistreatment of Tamil and Sinhalese prisoners in Sri Lankan prisons. However, the Tribunal found that as the applicant did not have actual or perceived association with the LTTE which would cause him to be a target in the prison system, there was only a remote chance the applicant will be targeted and harmed in the context of a very brief stay in remand pending bail.

15.    The Tribunal concluded that the applicant did not face a real chance of persecution on return to Sri Lanka for any Convention reason. It also found that the applicant did not meet the complementary protection criterion under s.36(2)(aa).

6    His Honour McNab J then gave consideration to the grounds of appeal as then advanced before him. In respect of Ground One, his Honour’s reasons appear at [17] to [20]. They were as follows:

Ground one

Particular (a)

17.    In my view there is no substance to this ground. At paragraph [67], the Tribunal accepted that prison conditions in Sri Lanka are generally poor and noted reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. The Tribunal did not consider that “all prisoners or prisoners in the accepted circumstances similar or the same as the applicant, will be subjected to harm by the authorities during a brief period of remand.” The Tribunal did not limit its consideration to “Tamil prisoners or those specifically targeted as known political opponents.” The Tribunal gave consideration to the circumstances of “all prisoners.”

Particular (b)

18.    The Tribunal was entitled to give such weight to particular country information as it considered appropriate. As was stated in … NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:

[t]he weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function. Such information as the Tribunal obtains for itself is not restricted to “guidance”, as the appellant submitted. It may be used to assess the credibility of a claim of a well-founded fear of persecution. It is not, as the first appellant submitted, an error of law or a jurisdictional error for the Tribunal to base a decision on country information that is not true. The question of the accuracy of the country information is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of the country information, it would be engaging in merits review. The Court does not have the power to do that.

19.    Further the Full Court stated at [13]: “the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had [a] different view from that reached by the Tribunal.

Particular (c)

20.    Having regard to the decision of the High Court in SZTAL v Minister for Immigration and Border Protection & Anor [2007] HCA 34, this ground of appeal must fail. Such was conceded [by the] applicant in written submissions.

7    In respect of Ground Two as articulated in the court below, his Honour’s reasons were as appears at [21] to [26]:

Ground two

21.    Under the particulars to ground 2(a), the applicant states: “the Tribunal thus misdirected itself to the question “whether the applicant will be subjected to harm” rather than “whether there was a real chance that he may be substituted to harm” during a period on remand.

22.    The respondent referred the Court to Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 412 – 413 as authority for the proposition that the phrase “well-founded fear of being [persecuted]” requires both a subjective fear of being persecuted and a well-founded (objective) fear for that threat.

23.    As to the task of the decision maker in [evaluating] whether an applicant has a well-founded fear for that threat, Gaudron J stated:

[p]erhaps all that can usefully be said is that a decision-maker should evaluate the mental and emotional state of the applicant and the objective circumstances so far as they are capable of ascertainment, give proper weight to any credible account of those circumstances given by the applicant and reach an honest and reasonable decision by reference to broad principles which are generally accepted within the international community.

24.    The Tribunal made reference to country information submitted by the applicant but gave weight to the DFAT report that assessed that returnees to Sri Lanka are treated the same way regardless of their ethnicity and religion.

25.    At [67] – [68] the Tribunal rejected the applicant’s claims, including that he had a perceived association with the LTTE, which would cause him to be targeted in prison. The Tribunal did not accept that the applicant “will be personally targeted and harmed for any reason advanced in the context of a very brief stay in remand pending bail” and by doing so was rejecting the factual premise that he would suffer harm. It was open to the Tribunal to conclude that it was not satisfied that the treatment faced by Sri Lankan returnees who have departed from Sri Lanka unlawfully amounted to persecution involving serious harm or giving rise to a real chance of such harm in the reasonably foreseeable future.

26.    In my view, there is no apparent error in the consideration given by the Tribunal as to whether there was a real chance of the applicant suffering serious harm.

Particular (b)

27.    In a nutshell the particular is directed at whether the Tribunal failed to consider the requirements as to intention contained in the definition of “cruel or inhuman treatment or punishment” in section 5(1) of the Migration Act 1958 (Cth).

28.    In my view there is no substance to this ground. Because the Tribunal found that because the prison conditions themselves would not give rise to a level which would constitute significant harm, there was no need for the Tribunal to consider whether or not pain and suffering was “intentionally inflicted”.

8    In respect of Ground Three, his Honour’s reasons were as appears at [29]:

Ground three

29.    This ground goes to the issue of the particular weight given to particular country information. That the Tribunal placed weight on DFAT reports rather than country information submitted by the applicant does not constitute a basis for a finding that the decision was unreasonable, arbitrary, illogical or unsupported by any probative evidence. As stated above in relation to ground 1(b), the question of the treatment by the Tribunal of country information is a matter for the Tribunal.

before this court

9    The grounds of appeal that are now before this Court broadly mirror the grounds contended for in the court below.

10    As a preliminary matter, I refer to the submissions made on behalf of the Appellant at [13]:

The Federal Circuit Court below was not satisfied that the Tribunal had fallen into jurisdictional error, and rejected the application for judicial review. The Grounds of the present appeal were Grounds argued below, and therefore it is not necessary to traverse the reasons of the court at first instance.

11    The Appellant cites CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14 (CSO15) per Tracey, Mortimer and Moshinsky JJ at [9] as authority for that proposition:

Since the grounds of appeal before this Court are in substance the same as the grounds of review before the Federal Circuit Court, the errors the appellant identifies in the reasons of the Federal Circuit Court are no more than a failure to accept one or both of the grounds of review as put to it. For that reason it is not necessary to examine the decision of the Federal Circuit Court in any detail.

12    While it undoubtedly may be convenient where appeal grounds mirror those alleged to have been made by the Tribunal advanced in the court below, as has largely been the fact in this case, for counsel to address their arguments upon the alleged errors made by the Tribunal, I do not take what their Honours said in CSO15 as a reference to the ultimate nature of an appeal. The nature of an appeal brought under s 24 of the Federal Court of Australia Act 1976 (Cth) recently was the subject of attention by the Full Court in Minister for Immigration and Border Protection v SZVFW [2017] FCAFC 33; (2017) 248 FCR 1 (SZVFW) at [40] to [42]. Having regard to SZVFW, I do not think it is open to me to treat this appeal as a de novo review, ignoring the Appellant’s obligation to establish appealable error.

Grounds of appeal

1.    The Federal Circuit Court erred in not finding the Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact, or information.

Particulars

a)    The appellant’s representatives provided submissions and evidence with detailed reference to diverse independent sources, and the Tribunal had material from other sources also, to the effect that there was a culture in Sri Lanka of serious harm, including torture, being inflicted by the authorities on persons including prisoners, and not necessarily specifically targeted at known political opponents but aimed at people simply as prisoners or as Tamil prisoners.

(Court Book (“CB”) 171, [35]; CB 186, 189, 194-196, 201, 202, 203, 205-206, 208, 214, 216, 227-248; CB 277-278, [52], [54], [55]-[57]; CB 280, Decision Record [66], [67] and note 18; CB 281, [72], [74])

Despite having this material, although the Tribunal considered whether there might be harm targeted at the appellant as a Tamil or as a person with “an actual or perceived association with the LTTE” (CB 280, [67]) or the TNA (CB 270-273, [22]-[35]), it failed to consider whether there was a real chance of the appellant suffering significant harm, as the result of the culture of serious harm, including torture, being inflicted by the authorities on persons including prisoners, although it found that he would be for at least a short time in detention or prison as a returned failed asylum seeker who had left Sri Lanka illegally.

(CB 277-278, [55]-[57]; CB 280, [66]-[67])

b)    Further or in the alternative, the Tribunal failed to consider and to determine why it should reject as unreliable reports, from various sources, of torture and prisoners, returnees and failed asylum seekers in Sri Lanka, so that it should conclude that it “does not accept that the applicant faces a real chance of persecution on this basis on return to Sri Lanka…” and that there was no “real risk that the applicant will face torture, or other instances of significant harm, either during his questioning at the airport or during any period he spends on remand.” (CB 277, [52]; CB 280, Decision Record [67])

2.    The Federal Circuit Court erred in not finding that the Tribunal fell into jurisdictional error in that it acted so unreasonably that no reasonable Tribunal would so have acted.

Particulars

(a)    The Tribunal was unreasonable in determining, on the basis of reports of the Department of Foreign Affairs and Trade, but without determining why it should reject other reports of torture of prisoners and returnees in Sri Lanka, that it “does not accept there to be a real chance that the applicant will face serious harm during the questioning or any period he is held on remand awaiting a bail hearing.”

    (CB 280, [66])

(b)    The Tribunal was unreasonable in determining, on the basis of reports of the Department of Foreign Affairs and Trade, but without determining why it should reject other reports of torture of prisoners and returnees in Sri Lanka, that there was no “real risk that the applicant will face torture, or other instances of significant harm, either during his questioning at the airport or during any period he spends on remand.”

    (CB 280, Decision Record [67]; CB 281, [75])

Ground 1 Particular (a)

13    The Appellant’s written submissions with respect to Particular (a) of the first ground of appeal are as follows:

Ground 1 – Failure to consider relevant considerations

The Tribunal must consider each necessary and relevant consideration and an integer of the claim. It must consider a material question of fact, squarely raised by the material before the Tribunal. Failure to do so is a failure to discharge the Tribunal’s jurisdiction.

14.    A failure to have regard to information before the Tribunal is also a jurisdictional error because of the Tribunal’s task as an inquisitorial tribunal under the Act, which “must act according to substantial justice and the merits of the case” (section 420), and which has the power to seek information (s. 424) and an obligation to give particulars of information (s. 424A & 424AA) and to invite an Appellant to a hearing to give evidence and present arguments, must include the task of having regard to the information before it. An error about this information and a failure to have regard to it therefore can be an error of law and is a sign of jurisdictional error.

Particular (a) – whether a real chance of suffering serious or significant harm, as the result of the culture of serious harm, including torture

15.    The Appellant’s representatives provided submissions and evidence with detailed reference to diverse independent sources, and the Tribunal had material from other sources also, to the effect that there was a culture in Sri Lanka of serious harm, including torture, being inflicted by the authorities on persons including prisoners, and not necessarily specifically targeted at known political opponents but aimed at people simply as prisoners or as Tamil prisoners.

16.    Despite having this material, although the Tribunal considered whether there might be harm targeted at the Appellant as a Tamil, or as a person with “an actual or perceived associated with the LTTE” (AB 280, [67]) or the TNA (AB 270-273, [22]-[35]), it failed to consider whether there was a real chance of the Appellant suffering persecution, or a real risk of him suffering significant harm more generally, as the result of the culture of serious harm, including torture, being inflicted by the authorities on persons including prisoners, although it found that he would be for at least a short time in detention or prison as a returned failed asylum seeker who had left Sri Lanka illegally. (AB 277-278, [55]-[57]; AB 280, [66]-[67])

17.    The Tribunal’s finding (at AB280 [66]), that it “does not accept there to be a real chance that the Appellant will face serious harm during the questioning or any period he is held on remand awaiting a bail hearing”, is a finding which is not a general finding about the risk to the Appellant as a result of a culture of violent abuse by the authorities, but is in the context of the Tribunal’s consideration of targeted abuse, shown by its finding in the following paragraph “that the Appellant does not have an actual or perceived association with the LTTE which would cause him to be targeted in the prison system.” (AB 280 [67])

18.    The Tribunal thus failed to have regard to a relevant consideration raised by the material before it and its obligation to review the matter, whether this be seen as an integer of the claim, or a material question of fact, namely whether there was a real chance of the Appellant suffering persecution, or a real risk of him suffering significant harm more generally, as the result of the culture of serious harm, including torture, being inflicted by the authorities.

14    The First Respondent (the Minister) also filed written submissions. The Minister’s submissions going to Ground 1 Particular (a) were as follows:

5.    In this Ground, the appellant alleges that the Tribunal failed to consider a relevant consideration, being a claim that the appellant might be harmed in prison, not specifically because he had political opponents, but simply because he was a prisoner. In support of this ground, the appellant quotes a sentence from the Tribunal’s reasons, which refers to “association with the LTTE”.

6.    There is no basis for the appellant’s submission, and the reference to the LTTE extracted from the Tribunal’s reasons ignores the full findings actually made by the Tribunal. When [66] and [67] of the reasons (AB 280) are read in full, it is apparent that the Tribunal considered and made findings in relation to claims both about those with LTTE links, and for prisoners generally.

(a)    At [66], the Tribunal accepted that the appellant would be questioned upon return and might be held on remand for up to several days. The Tribunal noted a small number of allegations of harm raised by asylum seekers returned to Sri Lanka. However, such allegations came in a context of the return of many thousands of asylum seekers.

(b)    At [67], the Tribunal accepted that the conditions in Sri Lankan prisons were generally poor and noted reports of mistreatment of both Tamil and Sinhalese prisoners. The Tribunal went on to say that the appellant did not have an association with the LTTE that would cause him to be targeted. The Tribunal then stated that there was only a remote chance that the appellant would be “targeted and harmed for any reason advanced in the context of a very brief stay in remand” (emphasis added).

(c)    The Tribunal then found, in [67], that it did “not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant will be subject to harm by the authorities in a brief period of remand.”

(Emphasis added.)

(d)    Finally, the Tribunal concluded in [68] that the treatment that the appellant might face on return would not amount to persecution involving serious harm, or give rise to a real chance of serious harm. That conclusion included the more specific claims about links with the LTTE, and the general proposition that the appellant might face harm during a short stay in remand.

7.    Read as a whole, it is plain that the Tribunal considered the situation for prisoners generally, as well as in relation to specific risk factors (such as LTTE links). The judge below found to that effect at [17] (AB 376). This ground should be dismissed.

Oral submissions

15    In oral submissions, Mr Krohn identified the focus of the Appellant’s criticism of the Tribunal’s decision: it was that while the Tribunal had adequately dealt with the harm that the Appellant might face on the basis of his actual or imputed political views, membership of a particular group, or religion, the Tribunal had failed to consider that the Appellant would be subject to untargeted harm whilst detained as a consequence of having departed Sri Lanka illegally.

16    For the Minister, Mr Yuile drew the Court’s attention to the Tribunal’s discussion of the circumstances facing the Appellant, commencing at [54], in which the Tribunal had referred to country information from the Department of Foreign Affairs and Trade which was to the effect that, absent some circumstance whereby a returnee might be suspected of having links to the LTTE or some other reason that would draw attention to them, returnees were all treated in a similar way. The Tribunal had referred at [56], [57] and [64] to materials that it had before it, relevant to the consequences that would apply in the case of a returnee.

Consideration

17    With respect to its conclusions regarding the likely treatment of the Appellant on his return to Sri Lanka, the Tribunal set out its findings at [66] and [67] of its decision:

66.    On the evidence before it, the Tribunal finds that the [Appellant] will be questioned at the airport upon his return to Sri Lanka, that he will likely be charged with departing Sri Lanka illegally and that he may be held on remand for a period up to several days while awaiting a bail hearing. The Tribunal notes DFAT’s advice that it is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have returned to Sri Lanka, many of which have been made anonymously by third parties making verification difficult. In making this assessment DFAT notes the thousands of asylum seekers returned to Sri Lanka since 2009 including from Australia, the US, Canada, UK and other European countries and assesses that the risk of torture or mistreatment for the great majority of returnees is low, including for those suspected of offences under the I&E Act. The Tribunal does not accept there to be a real chance that the [Appellant] will face serious harm during the questioning or any period he is held on remand awaiting a bail hearing.

67.    The Tribunal accepts that prison conditions in Sri Lanka are generally poor and notes reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. However in this case the Tribunal has found, for the reasons set out above, that the [Appellant] does not have an actual or perceived association with the LTTE which would cause him to be targeted in the prison system. The Tribunal finds the chances remote the [Appellant] will be targeted and harmed for any reason advanced in the context of a very brief stay in remand pending bail. The Tribunal does not accept that the [Appellant] will be personally targeted for harm in the prison. As discussed, the Tribunal considers that the [Appellant] will be remanded for a short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the sale as the applicant, will be subjected to harm by the authorities during a brief period of remand. The Tribunal finds it speculative and the chances remote that he will face serious harm in this context.

18    It will be recalled that on the basis of its earlier finding the Tribunal had concluded that the Appellant did not have any actual or imputed association with the LTTE. The Tribunal’s conclusion at [68] that it was not satisfied that the treatment faced by Sri Lankan returnees who had departed Sri Lanka unlawfully must be read in that context. That is, that there was no real risk that the Appellant would face serious harm during any questioning or any period he was held on remand awaiting a bail hearing, and that his circumstances were indistinguishable from any other person in those circumstances. In the context of its later discussion of complementary protection, the Tribunal again made the same point. In that context, the Tribunal did accept that the prison conditions in Sri Lanka are generally poor, but it did not accept there was a real risk that the Appellant would be subject to particularly harsh prison conditions to constitute significant harm.

19    The Tribunal concluded, on the evidence before it, that the Appellant would probably be charged under Sri Lankan law with having departed illegally. It accepted that as a consequence thereof he might be detained on remand for a short period of time or perhaps even some days prior to a bail hearing. The Tribunal expressly found there to be no basis to distinguish between the circumstances that would face the Appellant from others who would return in similar circumstances. It noted that thousands of asylum seekers had returned to Sri Lanka and accepted DFAT’s advice that the risk of torture or mistreatment of the great majority of returnees was low, including for those suspected or charged with offences related to illegal departure under Sri Lankan law. It expressly dealt with the contention that had been advanced on the Appellant’s behalf that such persons would be the subject of serious harm by reason of being a failed asylum seeker.

20    The Tribunal concluded that the likely outcome of any conviction for having departed illegally would be that the Appellant would be released on recognisance after a short period and fined. I accept the Minister’s written submissions that the Tribunal’s reasoning does not exhibit the error asserted, namely that the Tribunal failed to consider the risk faced by returnees generally, as well as returnees who departed illegally, are of Tamil ethnicity, or have an actual or imputed LTTE association. I accept the Minister’s submission at [7] that the Tribunal’s reasoning, read as a whole, did not fail to address the question of the risk faced by returnees generally. The Tribunal’s conclusion with respect to untargeted harm faced by the Appellant was that there was no real risk.

21    This ground of appeal is not made out. The learned trial judge did not err in respect of the conclusion he expressed at [17] of his reasons.

Ground 1 Particular (b)

22    The Appellant’s written submissions advanced the following with respect to Particular (b):

Particular (b) – failure to consider reliability of reports

19.    It is for the Tribunal to determine the material questions of fact before it. In doing so, it is open to the Tribunal to determine which evidence it accepted and which it rejects. It must, however, consider where necessary whether, and why, to accept or reject important evidence before it.

20.    In the present matter, it is submitted, (further or in the alternative to particular (a) of this Ground), that the Tribunal failed to consider and to determine why it should reject as unreliable the many reports, from various sources, of torture of prisoners, returnees and failed asylum seekers in Sri Lanka, so that it should conclude that it “does not accept that the Appellant faces a real risk of persecution on this basis on return to Sri Lanka…” and that there was no “real risk that the Appellant will face torture, or other instances of significant harm, either during his questioning at the airport or during any period he spends on remand.” (AB 277, [52]; AB 280, Decision Record [67])

21.    Under its heading of “Failed Asylum Seeker”, the Tribunal noted that there were reports from diverse sources, and submissions, to the effect that:

“routinized and systematic use of torture on detainees (referring to country information from a variety of sources may cause failed asylum seekers to suffer from severe mistreatment through abusive police and army tactics.”

(AB 277, [51])

“Some of the reports of ill treatment of returnees provide no details of the profiles of persons who are said to have been mistreated … while other reports refer to their activities with the LTTE…”

(AB 277, [54])

23.    Yet the Tribunal made no finding about the reliability of these reports of abuse, or the cogency of the arguments founded on them, dealing rather with the application on the basis of the Appellant not being targeted as associated with the LTTE, or perceived as a security risk, and not also on the basis of being at risk of general abuse. (AB 278, [55])

24.    Under the heading “Illegal departure”, the Tribunal noted advice from DFAT “that the risk of mistreatment for the great majority of returnees is low”, from which it concluded that it “does not accept there to be a real chance that the Appellant will face serious harm during the questioning or any period he is held on remand awaiting a bail hearing” (AB 280. [66]), but this finding makes no reference to the other reports, and is also in the context of consideration of violence “personal targeted” against the Appellant for “an actual or perceived association with the LTTE”. (AB 280, [67])

25.    It was open to the Tribunal to reject these various reports of abuse if it had reason to do so, but it was not open to it to do so without consideration, and without reasons. These reports were not simply a piece of evidence, but a vast array of broadly consistent information, which required the Tribunal to consider it, in the course of reviewing the application on the merits.

23    The Minister’s written submissions were as follows:

8.    This ground alleges that the Tribunal failed to consider and determine why it preferred country information from DFAT instead of the general information relied on by the appellant.

9.    The Tribunal’s reasons disclose at several points that the appellant’s representatives presented to the Tribunal a large amount of country information, to which the Tribunal had regard:

(a)    at [17]-[18] (AB 269), the Tribunal refers to country information from various sources about pro-LTTE political opinion and links with the LTTE;

(b)    at [37] (AB 273), the Tribunal refers to country information from various sources about those with association to the LTTE;

(c)    at [39]-[46] (AB 273-276), the Tribunal refers at length to country information from various sources about the risks for Tamils in Sri Lanka;

(d)    at [49]-[55], (AB 276-277), the Tribunal refers to submissions and country     information about failed asylum seekers;

(e)    at [60]-[66] (AB 278-280), the Tribunal refers to country information from a range of sources in relation to persons who departed Sri Lanka illegally.

10.    At each of these points in its decision, the Tribunal set out and considered the relevant information, including information from the appellant and information from DFAT and other government sources. It then went on to make its findings and conclusions on those factual matters. However, in respect of the issue now complained about – the information about returnees who had departed Sri Lanka illegally – the Tribunal preferred the information from DFAT.

11.    There was no error in the Tribunal so deciding. It is well established that:

the weight that [the Tribunal] gives to [country] information is a matter for the Tribunal itself, as part of its fact-finding function … The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that [NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]].

12.    That statement has been affirmed on many occasions, including in circumstances where, as here, the Tribunal prefers the information from DFAT and there is limited reference in the Tribunal’s conclusions to the information provided by the applicant. Notwithstanding those limited references, this Court has consistently found “The choice and the assessment of the accuracy and weight of country information is a matter for the Tribunal”.

13.    Ultimately, the reasons and discussion of the Tribunal show that the country information provided by the appellant was considered, but that the Tribunal preferred the information from DFAT. As the fact finder, that was a matter for it. The judge below correctly found as much at [18]-[19] (AB 376-377). This ground should be dismissed.

    (Footnotes omitted.)

Consideration

24    This ground is advanced as an alternative or additional sub-ground to that pursued under Particular (a), and alleges that the Tribunal ought to have considered and determined why it rejected evidence that had been put forward by the Appellant in concluding that he would not face a real risk of persecution, or a real risk of torture or other significant harm during questioning and whilst in remand. Necessarily, it overlaps with the Appellant’s submissions in respect of Ground 1 Particular (a) that the Court has considered and rejected.

25    As the Minister correctly submits, it is evident from the Tribunal’s reasoning that it had regard to the country information supplied by the Appellant’s representatives in reaching its ultimate conclusions. The Tribunal directly referred to that information at paragraphs [17], [18], [37], [39] to [46], [49] to [55] and [60] to [66]. In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11], a Full Court as constituted by Gray, Tamberlin and Lander JJ held that the weight to be given to country information is a matter for the Tribunal in carrying out its fact-finding functions:

The question of the accuracy of the ‘country information’ is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of ‘country information’, it would be engaging in merits review. The Court does not have power to do that.

26    In Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405, McHugh J commented at [65] that “it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal.”

27    Mr Krohn on behalf of the Appellant disavowed impugning the Tribunal’s reasoning on the premise that it had not given consideration to the submissions and supporting materials advanced on the Appellant’s behalf. In respect of the issues specifically the subject of Ground 1(b), it is clear that the Tribunal did consider information supplied by the Appellant. In some instances where such information was referred to by the Tribunal, as at [54], it explained what it saw to be reasons to be cautious regarding its relevance. In other instances, as at [55], the Tribunal referred to information from sources other than DFAT, responsive to the propositions that had been advanced on behalf of the Appellant. There is nothing, on a fair reading of the Tribunal’s reasons, to suggest that the Tribunal failed to give proper, genuine and realistic attention to the matters it was charged to. It cannot be an error sounding in invalidity that, having done so, certain country information, and in particular that supplied by DFAT, was preferred. It is not contended by the Appellant that anything in the reasons of the Tribunal manifested it having perceived that it was bound to prefer that information. Putting the Tribunal’s duty at its highest, in my view, there is nothing in its reasons to support a contention that it did not give proper, genuine and realistic consideration to any of the material the Appellant says that it did not have regard to.

28    In my view the primary judge was not in error on reaching the conclusion he reached at [18] to [19] of his Honour’s reasons.

29    The ground of appeal must fail.

Ground 2

30    The Appellant’s submissions with respect to Ground 2 are as follows:

26.    The question of the satisfaction of the Tribunal as to a matter of fact is in general a matter for the Tribunal, provided it proceeds reasonably and on the basis of logically probative evidence.

27.    It is settled law that an administrative decision maker falls into jurisdictional error if it makes findings which are unreasonable, or arbitrary, or illogical or unsupported by any probative evidence.

Particular (a) – persecution;

Particular (b) – significant harm – complementary protection

28.    As noted above in relation to Particular (b) of Ground 1, it is for the Tribunal to determine the material questions of fact before it. In doing so, it is open to the Tribunal to determine which evidence it accepts and which it rejects. It may not need to advert in its reasons to every item of evidence. It must, however, consider where necessary whether, and why, to accept or reject important evidence before it.

29.    For the reasons set out above in relation to Particular (b) of Ground 1, the Tribunal did not engage with and assess the reports other than the material by the Department of Foreign Affairs and Trade.

30.    The Tribunal was therefore unreasonable in determining, on the basis of reports of the Department of Foreign Affairs and Trade, but without determining why it should reject other reports of torture of prisoners and returnees in Sri Lanka, that it “does not accept there to be a real chance that the Appellant will face serious harm during the questioning or any period he is held on remand awaiting a bail hearing. (AB 280, [66])

31.    The Tribunal was similarly unreasonable in determining that there was no “real risk that the Appellant will face torture, or other instances of significant harm, either during his questioning at the airport or during any period he spends on remand.” (AB 280, Decision Record [67]; AB 281, [75])

32.    The Appellant submits that by acting in the way set out above, the Tribunal was legally unreasonable, such that it failed to discharge its task to review the delegate’s decision according to law.

(footnotes omitted)

31    The Minster submitted:

14.    Although the appellant sets out two particulars in this ground, they amount to substantially the same thing and are dealt with by the appellant together. In summary, this Ground reprises Ground 1(b) under the rubric of unreasonableness rather than a failure to consider. In other words, the appellant argues that the Tribunal acted unreasonably in rejecting the country information provided to it and in preferring the DFAT information (AS [29]) without expansive discussion. That alleged unreasonableness is then said to infect the Tribunal’s findings about the appellant’s risk of harm in Sri Lanka.

15.    The first respondent repeats what he said in respect of Ground 1(b) – the consideration of factual matters, including country information, and the weight to be given to the information provided to the Tribunal were all matters for the Tribunal. The discussion of those matters in the Tribunal’s conclusions may be limited. In this case, the relevant material was set out and considered. However, the Tribunal, as the finder of fact, preferred the DFAT information, as it was entitled to do. There is no basis for the appellant now to allege jurisdictional error in the Tribunal’s assessment of those matters.

16.    This Court has recently rejected a similar allegation, in BWX15 v Minister for Immigration and Border Protection [2018] FCA 64. In that case, the appellant alleged that there was no evident or intelligible justification for the Tribunal’s conclusion that he was not at risk of harm. The Court noted that the country information provided by the appellant and that provided by DFAT painted quite different pictures (at [37]). The Court went on to cite from Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (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.

17.    The Court in BWX15 then said at [38], by reference to NAHI, that “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”.

18.    The same statement and conclusion can be made in this case. As demonstrated above at [9], the Tribunal set out and considered the country information in relation to each of the claims and factual matters before it. The Tribunal went on to prefer the DFAT information and to rely on that in coming to its conclusions about the risk of harm to the appellant. That was conventional, logical and rational. The DFAT information provided the basis for the Tribunal’s conclusion and it was not incumbent upon the Tribunal to give detailed reasons for its findings relating to the background or country information that it preferred. The appellant has fallen well short of establishing that the Tribunal’s decision was “one at which no rational or logical decision maker could arrive on the same evidence” or was “clearly unjust” or “arbitrary” or “capricious” or “unreasonable”

19.    The judge below was correct to reject this ground (at [29], AB 379).

Oral submissions

32    Ground 2 is an allegation that the Tribunal’s dealing with the country information that had been supplied on the Appellant’s behalf was such as to amount to unreasonableness and thus result in jurisdictional error. The Appellant accepts that it is not necessary for a Tribunal to proceed by a line-by-line refutation of the particular materials before it, but in this case submits that the weight of the materials that were supplied and their relevance to the decision before it were so exceptionally persuasive that the Tribunal was obliged to make a determination regarding the reliability of the reports that had been submitted on the Appellant’s behalf and its failure to do so amounted to jurisdictional error.

33    In oral argument Mr Krohn took the Court to various aspects of the materials that were put before the Tribunal on the Appellant’s behalf. There can be no doubt that the Appellant was well served by his migration agents and advisers in relation to the preparation of that material. The difficulty, however, that Mr Krohn faces is that, as the Minister submits, that material was prepared very largely for quite a different purpose than relevant to the asserted error. It was prepared to identify and highlight the risks that would face a person who would be subject to persecution by reason of a convention or related reason and, in particular, that of imputed membership of the LTTE.

Consideration

34    The case as advanced by the Appellant was rejected by the Tribunal. Having regard to that rejection, many, but not all, of the particular passages that the Appellant referred the Court to at footnote 7 of his written submissions including those to which the Court’s attention was directed in the course of oral submissions were focused on circumstances of abuse, mistreatment and the like facing those to whom such ties might be imputed. The Tribunal’s finding that the Appellant was not such a person is unchallenged in these proceedings. It is true that not every reference is to persons in those circumstances, but that was the case, for example, in the materials referred to in oral submissions at pages 189, 199 and 203 of the Appeal Book.

35    Moreover, a number of passages that the Court’s attention was drawn to were explicitly noted by the Tribunal and taken into account by it in its reasons. That, for example, was the case in respect to the materials to which the Court’s attention was drawn at pages 231 and 248 of the Appeal Book.

36    There is significant case law on the application of legal unreasonableness. The Minister in his written submissions referred the Court to BWX15 v Minister for Immigration and Border Protection [2018] FCA 64 and Murphy J’s reference (at [35]) in that case to the analysis made by Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 (SZMDS) at [130]:

…“[I]llogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

37    I note that their Honours Crennan and Bell JJ went on to state at [131]:

…[T]he 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.

38    Having regard to their Honours’ observations in SZMDS, I am unpersuaded that the Tribunal’s assessment of the country information supplied by the Appellant can be described as flawed in that manner. In each instance where the Tribunal explained its conclusions it drew attention to the materials upon which it relied. No doubt a different decision maker could have weighed the information before it differently and come to a different conclusion, but that cannot be a basis for this Court concluding that the Tribunal’s weighing of the materials was vitiated by illogicality or irrationality.

39    The weighing of the materials before it was for the Tribunal. This Court cannot exercise merits review. Although the primary judge’s reasoning on this point at [29] was brief it was adequate to dispose of the appeal ground advanced in the FCCA.

40    Ground 2 must be rejected.

41    The appeal is dismissed. Costs follow in the sum of $4,750.00 as proposed by Mr Yuile and accepted as a proper estimate by Mr Krohn.

Associate:

Dated:    6 March 2018