FEDERAL COURT OF AUSTRALIA

AEN15 v Minister for Immigration and Border Protection [2018] FCA 509

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant is a citizen of Sri Lanka. He arrived in Australia on 16 July 2012. On 27 November 2012 the appellant lodged an application for a Protection (Class XA) visa (“visa”). On 17 July 2013 a delegate (“delegate”) of the first respondent (“Minister”) refused the appellant’s application. On 20 February 2015 the Refugee Review Tribunal, a predecessor of the second respondent (“Tribunal”), affirmed the delegate’s decision (“Tribunal decision”). The appellant sought judicial review of the Tribunal decision in the Federal Circuit Court but was unsuccessful. The subject of this appeal is the primary judge’s dismissal of that application on 21 October 2016. The primary judge’s judgment is published as AEN15 v Minister for Immigration & Anor [2016] FCCA 2714.

2    The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“Migration Act”) and Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. The task of this Court is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

BACKGROUND

3    Before both the delegate and the Tribunal, the appellant agitated a number of claims of feared persecution on the basis of his Tamil identity and his profile as the son of a perceived wealthy Tamil businessman. The appellant’s core claims were dismissed by the Tribunal primarily because the appellant’s accounts of harm after 2007, on which the claims were based, were not believed. Those accounts of past harm were found by the Tribunal to have been exaggerated or fabricated by the appellant. The Tribunal’s approach to the appellant’s core claims is not challenged and therefore not relevant to the present appeal.

4    A claim only incidentally dependent upon the appellant’s personal profile was raised on behalf of the appellant that he would be at risk of harm on return to Sri Lanka because of his illegal departure. The claim stood independently of the appellant’s individual circumstances and remained to be addressed by the Tribunal notwithstanding its rejection of the appellant’s claims of having suffered past harm on the basis of his personal profile.

5    At [138] the Tribunal accepted that having departed Sri Lanka by boat without his passport, on return to Sri Lanka the appellant was susceptible to charge and punishment under the Immigrants and Emigrants Act (Sri Lanka) (“IE Act”). It accepted that, incidental to that process, the appellant may also be exposed to questioning and arrest and would be required to make an application for bail. The Tribunal accepted that the appellant would be bailed and would, ultimately, be subject to a fine of 5,000 or 50,000 rupees at most.

6    The Tribunal considered the prospect of the appellant facing serious or significant harm as a consequence of the process of being charged under the IE Act. In relation to questioning and interrogation, based on the Tribunal’s prior finding that the appellant did not have an adverse profile or a criminal record, the Tribunal did not accept that the appellant would be seriously harmed (at [139]). The Tribunal also considered reports of Sri Lankan authorities subjecting returnees to questioning or reporting conditions upon release on bail, but did not consider such questioning or reporting to amount to serious harm (at [143]). Again on the basis of the appellant’s lack of profile, the Tribunal did not accept that the appellant faced a real chance of suffering serious harm from authorities upon release on bail (at [144]).

7    Of particular relevance to this appeal, the Tribunal separately considered the prospect that the appellant would be released on bail and the risk that the appellant would experience serious or significant harm during any period of imprisonment on remand pending release on bail (“remand claim”). The Tribunal’s operative reasoning for dismissing the remand claim was addressed at [140]–[141] of the Tribunal decision. It is convenient that I set out those paragraphs in full (citations omitted):

[140]    The tribunal does not accept the applicant would be denied bail because of his ethnicity, any actual or perceived support for the LTTE [Liberation Tigers of Tamil Eelam] or opposition to the current Sri Lankan government or for any other reason. The tribunal notes the applicant's family are wealthy and they are still in contact and there is no reason they could not provide assistance in this regard and the tribunal finds they would provide surety or assistance if required. The applicant did not make any claim that he was involved in organising people smuggling and he made no claims that he had any criminal offences and therefore, the tribunal does not accept that he faces a custodial sentence. Based on the country information the tribunal does not accept he faces any mistreatment upon return.

[141]    The tribunal accepts if arrival occurs on the weekend, the returnee is placed in remand section of the Negombo prison until the bail hearing on Monday. The tribunal accepts there has been one report of up to two weeks on remand. The tribunal has doubts that the applicant faces being on remand given this will only occur if he arrives on a weekend or holiday. However, the Tribunal accepts that there is a possibility he will be held for a short period (even if up to 2 weeks) in remand if he arrives on the weekend or holiday and accepts prison conditions can be poor due to overcrowding and unsanitary conditions. The Tribunal accepts that conditions in Sri Lanka's prisons are generally poor. 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. However the tribunal 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. The tribunal has already found the applicant does not have such a profile. Further, DFAT [Department of Foreign Affairs and Trade] assesses the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the IE Act. The tribunal does not accept he faces a real chance of torture or mistreatment on remand.

8    Having found that the appellant would not face a real chance of serious harm in relation to his illegal departure from Sri Lanka, the Tribunal went on to make findings (at [145]) that, “in any event”, punishment under the IE Act was the operation of a law of general application and not discriminatory persecution for the purposes of the refugee criterion (s 36(2)(a) of the Migration Act).

9    Under the complementary protection criterion (s 36(2)(aa) of the Migration Act), in relation to the appellant’s claims of punishment for having departed Sri Lanka illegally, the Tribunal primarily repeated its reasons for dismissing those claims under the refugee criterion. Additionally, the Tribunal found (at [159]), “in any event”, that poor prison conditions on remand did not satisfy the necessary element of intent as defined in s 5(1) of the Migration Act, which requires that cruel or inhuman treatment or punishment is inflicted intentionally.

10    The Tribunal ultimately (at [169]) affirmed the decision of the delegate under review.

11    On review before the Federal Circuit Court, the appellant pressed two grounds of review. The primary judge’s rejection of the second of those grounds, relating to whether the Tribunal properly considered a claim of the appellant that he would suffer sexual violence in custody, is not the subject of appeal.

12    The first ground of review revolved around procedural fairness in the Tribunal’s disposition of the remand claim. Specifically, it was argued that the question of whether the appellant’s family would assist him in being granted bail by providing a surety for his release was never put to the appellant by the Tribunal for his comment, in breach of the Tribunal’s obligations under s 425 of the Migration Act.

13    The primary judge found in relation to that ground that:

(a)    the Tribunal’s factual conclusion that the appellant’s family would provide surety for bail (“surety issue”) was a necessary link in its subsequent finding that the appellant would only be detained on remand for a short period of time, and that in the absence of a relevant profile, this would not amount to serious harm (at [51]);

(b)    the appellant was not on notice that the surety issue was in issue before the Tribunal (at [52] and [61]);

(c)    the surety issue was not dispositive of the appellant’s claims under the refugee criterion (s 36(2)(a)), as the Tribunal found in any event that punishment under the IE Act was the result of a law of general application and would not amount to Convention persecution (at [63]);

(d)    the surety issue was not dispositive of the appellant’s claims under the complementary protection criterion (s 36(2)(aa)), as the Tribunal found in any event that exposure to poor prison conditions on remand was not intentional (at [65]); and

(e)    “[a]ccordingly”, the ground did not “give rise to jurisdictional error” (at [71]).

THE PRESENT APPEAL

14    By his Amended Notice of Appeal, the appellant presses only one ground of appeal. Broadly stated, that ground alleges that the primary judge erred in failing to conclude that the Tribunal made a jurisdictional error by denying the appellant procedural fairness.

15    A preliminary debate in the appeal revolved around the primary judge’s disposition of the review ground, and whether her Honour’s findings that there were independent unimpeachable bases for the Tribunal’s decision was more appropriately directed to the question of jurisdictional error or to her Honour’s discretion to refuse relief.

16    With respect to the primary judge, it is not clear precisely how the finding that the surety issue was not dispositive of claims under the refugee and complementary protection criteria informed her Honour’s ultimate conclusion that no jurisdictional error was disclosed.

17    Section 425(1), which is subject to exceptions not presently relevant, is in the following terms:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

18    It may be the case, as the Minister submitted on appeal, that the primary judge made no conclusion, express or implied, that the terms of s 425 had been contravened by the Tribunal. However, if this interpretation is correct, it is not clear then how the findings that the surety issue was not dispositive were relied upon. There is no express exception to the Tribunal’s obligation under s 425 to provide a hearing of the issues in relation to issues which are not dispositive of a claim. While I accept that whether a particular factual question was dispositive may be relevant to (although not determinative of) the characterisation of that question as an issue for the purposes of s 425 of the Migration Act (see my reasons in ABV16 v Minister for Immigration and Border Protection [2017] FCA 184 at [27]–[33]), the primary judge did not expressly consider this, or come to a conclusion to this effect, in her Honour’s reasons. Moreover, the primary judge’s consideration of whether the surety issue was dispositive comes after the primary judge’s express consideration of the characterisation of the issue and whether or not the appellant was put on notice of the issue.

19    My preferred reading of the primary judge’s reasons is that they commence with the acceptance that the question of whether the appellant’s parents would provide surety amounted to an issue for the purposes of s 425 of the Migration Act. That inference is borne out by her Honour’s acknowledgement at [4] that “[t]he issue the [appellant] asserts falls within the scope of SZBEL [v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152]”; her Honour’s rejection of the Minister’s characterisation of the relevant issue as being “too general” at [49]; her Honour’s findings at [51], which adopt the language of Griffiths J at [58] of Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069, that the surety issue formed a necessary link in the Tribunal’s chain of reasoning; and her Honour’s subsequent reference throughout the remainder of her reasons to the question of bail or the provision of a surety as an “issue”.

20    If her Honour’s reasons regarding the characterisation of the issue are to be read in that way, and on the basis of her Honour’s subsequent finding that the surety issue was not brought to the notice of the appellant, the conclusion that the Tribunal failed to do that which s 425 of the Migration Act required must follow: SZTQS at [60]. The placement of her Honour’s consideration of whether or not the surety issue was dispositive after the conclusion that the appellant was not on notice of the surety issue may be indicative that her Honour considered the fact that the surety issue was not dispositive had the effect of converting a failure to carry out the statutory task required by s 425 into a non-jurisdictional error.

21    In Minister for Immigration and Border Protection v Hossain [2017] FCAFC 82 Mortimer J was required to squarely confront a submission that an error could be transformed into a non-jurisdictional error where there is an independent unimpugned basis for the decision. I respectfully agree with her Honour’s reasons for rejecting that submission at [64]–[65] and [69]–[70] (emphasis added):

[64]    … [I]n the Minister’s submission, the nature of the error itself was transformed into a non-jurisdictional one if the decision-maker’s reasons disclosed a separate and independent basis to affirm a decision under review, and that separate basis is not impugned. Or, so the argument must run, is unsuccessfully impugned.

[65]    The difficulty I have with the Minister’s argument about the passage in Yusuf is that it treats the references to “affects” the exercise of power or “exceeds” the power in both the extract in Craig and the passage in Yusuf at [82] as a separate requirement, rather than an explanation of what jurisdictional error is. I read those passages differently. I read those passages as speaking to the “gravity” of the error (to use Professor Jaffe’s word: see Kirk [64], quoting Jaffe LL, “Judicial Review: Constitutional and Jurisdictional Fact” (1957) 70 Harvard Law Review 953) and the need for the error to be material to how the decision-maker was required to, and did, discharge the statutory task. The relationship between the power, properly construed, and the error identified (as explained in Project Blue Sky), will be critical. The attributes of gravity and materiality (which have to do with the nature of the error relative to the power under consideration) mean, where such an error is made, the decision-maker’s jurisdiction remains “constructively unexercised”: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35; 232 CLR 189 at [52]. In the context of the power in s 65, a court can identify the error as one which means formation of the state of satisfaction as to that visa criterion has miscarried.

…

[69]    The reality is that it is difficult to discern a consistent approach throughout the authorities as to the appropriate outcome where there is more than one basis for a Tribunal’s decision on review under the Migration Act. That is not necessarily a criticism because each case gives rise to different considerations in different settings. In many of the cases, it is difficult to know whether what the Court had in mind was a discretionary basis for refusing relief, rather than an acceptance of the argument now put that the nature of the error is transformed from jurisdictional to non-jurisdictional.

[70]    In my opinion the correct approach is to accept an error of this kind is jurisdictional and then to ask whether there is utility in the grant of relief to an applicant, because of a second basis for the decision on review. The answer to that question will depend on the circumstances of each case.

22    If it is the case that the primary judge’s reasoning discloses a failure to carry out the statutory task required by s 425, it was not open to the primary judge to conclude, as her Honour did, that there was no jurisdictional error. It will be a rare and exceptional circumstance, if ever, that a denial of procedural fairness will not amount to a jurisdictional error: see Hossain at [68] (Mortimer J). That is especially so where a tribunal’s obligation of procedural fairness is sourced in mandatory terms in the statute governing a tribunal’s exercise of power, as it is in the Migration Act: see Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 at [68] (Buchanan J).

23    Rather, as was submitted by the appellant, the answer to whether there was an independent unimpeachable basis for the Tribunal’s decision was more properly addressed to the question of the primary judge’s discretion to refuse relief to the appellant: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [27]–[29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [91] (Hayne J).

24    To the extent that the primary judge erred by holding that, as the surety issue was not dispositive, there was no jurisdictional error despite the Tribunal’s failure to comply with s 425, any such error is not the basis of the appellant’s complaint to this Court.

25    At the core of the appellant’s case on appeal, was an argument that the Tribunal’s conclusion that the appellant faced no real risk of torture on remand could not have provided a separate or independent basis for the exercise of the primary judge’s discretion to refuse relief, because that conclusion was itself tainted by the denial of procedural fairness on the surety issue. It was submitted that in relation to both the Tribunal’s consideration under the refugee criterion and the Tribunal’s consideration under the complementary protection criterion, the separate bases identified by the primary judge did not completely dispose of the appellant’s claims. Specifically, the separate bases identified by the primary judge did not address the risk to the appellant of torture during a period of remand because, under the refugee criterion, extra-legal torture in prison could not be the result of the application of a general law and, under the complementary protection criterion, torture will necessarily involve the required intent.

26    The appellant recognised that the Tribunal did address the question of torture during a period of remand, but said that the Tribunal’s finding (made in denial of procedural fairness) that the appellant would be bailed and would face only a short (up to two week) period on remand, framed the Tribunal’s consideration of the risk of torture and thereby tainted its ultimate finding that the appellant did not face a real chance or risk of serious or significant harm in the form of torture on remand. That was said to be so because the chance that the appellant would experience torture on remand was relevant to, and indeed dependent upon the duration of any incarceration. At the hearing of the appeal, the appellant submitted additionally that the Tribunal’s reasoning might have been more indirectly affected by a denial of procedural fairness, for instance in the preference for certain country information over other country information.

27    It should be recorded, as was submitted by the Minister, that this argument of the appellant travelled beyond the case that was put before the primary judge. The Minister did not, however, contend that the appellant should be prevented from relying upon the ground on the appeal.

28    In response, the Minister appeared to concede the correctness of the primary judge’s conclusion that the appellant was not on notice of, and was not provided an opportunity to respond to, the surety issue, and that the finding that the appellant would spend a short period on remand was affected by that failure of procedural fairness. The Minister contended, however, that the question of the appellant’s risk of torture was addressed comprehensively by the Tribunal, both under the refugee criterion and under the complementary protection criterion, and that neither conclusion of the Tribunal was tainted by any failure to accord procedural fairness in relation to the surety issue.

Consideration

29    There is merit in the proposition that the ultimate chance or risk of suffering a particular form of harm is a function of the period of time spent exposed to that risk of harm. All other factors remaining the same, the chance of harm will tend to multiply proportionally to the time spent exposed to it. In other words, the longer a person is exposed to a source of harm, the more likely it is that at some stage the person will encounter that harm. In that way, even a risk that on its face is remote or fanciful, may increase through prolonged exposure such that the level of risk becomes real.

30    However, even accepting the truth of that general proposition, whether or not it can be said that the impugned finding that the appellant would be held on remand for only a short period tainted the Tribunal’s ultimate assessment of the appellant’s risk of torture must depend on the particular reasoning of the Tribunal in this case. I turn then to consider that reasoning.

31    I have already set out [141] of the Tribunal’s decision but it is necessary to focus on the key passage of the Tribunal’s reasoning in relation to the appellant’s risk of torture on remand as set out in that paragraph. The Tribunal said this:

… 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. However the tribunal 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. The tribunal has already found the applicant does not have such a profile. …

32    The deliberations undertaken by the Tribunal at [141] are introduced by an acceptance of the possibility that the appellant would face detention in remand for only a short period of up to two weeks. Whether that context was material to the assessment made by the Tribunal as to the risk that the appellant would be tortured requires closer examination. In my view, the critical finding of the Tribunal that because the appellant lacked an LTTE profile he would not be targeted for torture was not framed by (in the sense that it was dependent upon or influenced by) the underlying factual assumption that the appellant’s remand would only be of short duration. The conclusion reached by the Tribunal about the risk of torture was a conclusion about “prisoners” in general. The conclusion was not in terms confined to prisoners detained for short periods and seems to be a conclusion of general application extending to all prisoners, including those detained for long periods. If that is so, the Tribunal’s finding as to the risk of torture cannot be said to have been tainted by the finding made in denial of procedural fairness that the appellant would only be detained in prison for a short period of up to two weeks.

33    The extent of the country information relied upon by the Tribunal to arrive at what I have described as the critical finding is not clear from the Tribunal’s reasons. There was no country information included in the material placed before the Court on the appeal. Without making an application to re-open the appeal, after the hearing, the appellant’s solicitors provided two DFAT reports, including the report referred to in the last sentence of [141]. Even if that material had been received, it is of no apparent assistance on the question of whether the finding made by the Tribunal was a finding about prisoners in general or was confined to prisoners held for short periods. I am left to construe the Tribunal’s finding by reference to what the Tribunal said at [141].

34    The language used by the Tribunal indicates that its consideration of the country information and its consequent finding about the risk of torture, was of the risk of torture to prisoners generally irrespective of the period of detention involved. As I have said, the Tribunal’s reference to “prisoners” is unconfined. The language utilised is of broad and general import. Furthermore, it is unlikely that country information would make an assessment as to which prisoners may be targeted for torture which was limited or confined to a consideration of the treatment of prisoners held for particular periods. It is far more likely that the country information considered by the Tribunal made an assessment of the experience of torture by prisoners generally, there being no apparent reason why that issue would be assessed by reference to the particular time served by persons detained in prison. That the country information considered by the Tribunal was of that character is supported by the language used by the Tribunal to describe it. At [141] the Tribunal described the country information as “information in relation to the circumstances of individuals who are held in prison in Sri Lanka”. The generality of that description and the generality of the language used to describe the conclusion that immediately followed, strongly supports the view that the Tribunal had in mind the conditions of prisoners generally rather than any particular sub-group thereof.

35    While it might be correct to say that elsewhere in its reasons the Tribunal was assessing the harm faced by the appellant by reference to a two week timeframe, especially at [157] in relation to whether imprisonment for a short period would amount to significant harm, the assessment of the appellant’s risk of torture was not so limited.

36    The consequence of understanding the Tribunal’s reasoning at [141] in this way is that the Tribunal’s assessment of the risk of torture was considered against a prisoner population facing longer periods of imprisonment than the maximum two weeks the Tribunal considered the appellant would spend imprisoned on remand. In other words, it may be inferred that the Tribunal excluded as farfetched the possibility that a prisoner with no profile, such as the appellant, may suffer indiscriminate torture in prison in Sri Lanka, even taking into account a potentially protracted period of incarceration.

37    Given the evident consideration of the Tribunal of country information of wider relevance than to the appellant’s immediate circumstances, I do not accept the appellant’s contention that, but for the denial of procedural fairness, the Tribunal might have given consideration to different country information which might have disclosed greater incidence of torture for longer-term prisoners. As I have said, it may be accepted that the Tribunal did consider country information which took account of the risk of torture for prisoners serving longer terms of imprisonment. There is no basis for the suggestion that the Tribunal might have cast its consideration even further, or even, for that matter, that country information even exists indicating a higher risk of harm for longer-term detainees.

38    For these reasons the finding that the appellant may be imprisoned on remand for a short period of only up to two weeks, based as it was in a denial of procedural fairness, did not taint the Tribunal’s subsequent conclusion that the appellant did not face a real chance of torture or mistreatment on remand. Having found that the appellant would not face a real chance of torture on remand, it was open to the Tribunal to refuse the claim. Despite the jurisdictional error made by the Tribunal as to the short duration of any period the appellant may be detained on remand, no useful result could ensue if the matter were remitted to the Tribunal. On that basis, the appellant is not entitled to relief: SZBYR at [29] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ), [91] (Hayne J).

39    For completeness, I should address a late assertion by the appellant that [137] of the Tribunal decision may disclose a separate finding of the Tribunal tainted by the failure to provide procedural fairness to the appellant. At [137] the Tribunal said “[t]he tribunal does not accept he faces any harm regarding bail conditions as it finds that his family would provide surety if needed as he is [in] contact with them”. That finding is made in the context of the Tribunal describing the treatment and processing of returnees on first arrival back to Sri Lanka. It is not clear what harm regarding bail conditions the Tribunal there had in mind. At the hearing of the appeal the appellant suggested that the Tribunal may have had in mind repressive conditions of bail such as reporting or curfew conditions. I do not regard that sentence as anything more than a throwaway line. I do not accept that the sentence adds anything further to the appellant’s ground of appeal.

Conclusion

40    I have found that the Tribunal’s denial of procedural fairness to the appellant in relation to his capacity to receive help to provide surety for bail did not taint the Tribunal’s finding that the appellant would face no real chance of torture on remand. There being no utility in remitting the matter for redetermination by the Tribunal, the appellant’s appeal must be dismissed. I will make orders to that effect. As no party contended that costs should not follow the event, I will also make an order that the appellant pay the Minister’s costs of the appeal.

Associate:

Dated:    13 April 2018