FEDERAL COURT OF AUSTRALIA

BPF15 v Minister for Immigration and Border Protection [2018] FCA 964

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to file and serve an amended notice of appeal in the form of the draft notice of appeal submitted on 13 March 2018.

2.    The appeal be allowed.

3.    The orders of the Federal Circuit Court of Australia made on 17 August 2016 be set aside and in lieu thereof it be ordered that:

(1)    The determination of the Administrative Appeals Tribunal made on 27 June 2015 be quashed.

(2)    The matter be remitted to the Tribunal for hearing and determination according to law.

(3)    The Minister for Immigration and Border Protection pay the applicant’s costs of and incidental to the application for judicial review.

4.    The first respondent pay the appellant’s costs of and incidental to this appeal.

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

REASONS FOR JUDGMENT

BEACH J:

1    The matter before me is an appeal from the Federal Circuit Court of Australia dismissing the appellant’s application for judicial review of a decision of an antecedent to the second respondent (the Tribunal). The Tribunal affirmed a decision of a delegate of the first respondent (the Minister) refusing the appellant’s application for a protection visa.

2    For the reasons that follow, I would allow the appeal.

3    The appellant is a citizen of Sri Lanka, is of Tamil ethnicity and is also a Hindu. He is from the area around Batticaloa in the Eastern Province of Sri Lanka. On 1 August 2012, the appellant arrived in Australia on Christmas Island. On 28 March 2013, the appellant applied for a Protection (Class XA) Visa, but on 7 March 2014, a delegate of the Minister refused that application.

4    The appellant’s claims for protection related primarily to his religion including his religious and political activities. As to his religious activities, he said that he was prominent in his village due to his work for a youth group and temple group and that he feared harm from the local Muslim population who targeted Hindus in racial or religious clashes. The delegate of the Minister accepted that the appellant had been involved in conflicts between Hindus and Muslims.

5    As to his political activities, the appellant said that he was a supporter of the Tamil National Alliance (TNA) political party and that because of his political activities he was at risk of harm from a pro-government group, the Tamil Makkal Viduthalai Pulikal (TMVP).

6    The appellant claimed to have experienced a number of instances of past harm. In this regard he claimed the following:

(a)    He claimed that his family home had been burnt down twice in conflicts with Muslims, once in 1989 and once in 1990. The delegate of the Minister accepted that claim, as I will discuss in more detail later.

(b)    He claimed that from 1990 to 1993, the religious conflict was so severe that he and his family had to live in a refugee camp in Batticaloa.

(c)    He claimed that between 2008 and 2012, he received many threats mainly by phone but also reflected on various occasions by knocks on the door at night that the appellant would not answer.

(d)    He claimed that he was threatened by the TMVP, including during election campaigns in 2009 and 2012.

(e)    He claimed that in June 2012 he was personally threatened by local Muslims and warned to stop his religious and political activities.

(f)    He claimed that in late 2012 after he had left Sri Lanka, a group of unknown Muslim men went to his house in Sri Lanka and enquired as to his whereabouts.

7    I would note that the delegate of the Minister accepted that in 2006 the appellant’s family shop was bombed, that in 2008 the appellant was questioned by police, and that in 2012 the appellant was spoken to by a man on a motorbike, however the delegate did not accept that this man was armed.

8    Let me also note three other findings of the delegate that relate to factual aspects of the appellant’s protection claims. First, the delegate found that the appellant might continue to support the TNA if returned to Sri Lanka but that he did not face a real chance of harm on the basis of being a low-level supporter of the TNA. Second, the delegate did not consider that the appellant faced a real chance of harm on account of the bombing of his family shop in 2006. Third, the delegate accepted that there had been a history of tension between Hindus and Muslims in the appellant’s home area, but was not satisfied that there was a real chance of harm to the appellant by reason of his religion.

9    Further, the appellant also claimed to fear harm if returned to Sri Lanka, on the basis of being a failed asylum seeker who had left Sri Lanka illegally.

10    As I say, the delegate refused the appellant’s application. On 25 March 2014, the appellant lodged an application with the Tribunal for a merits review of the delegate’s decision.

11    On 25 May 2015, the Tribunal hearing took place. On 27 June 2015, the Tribunal affirmed the delegate’s decision to refuse the appellant’s application for a protection visa. Let me refer to some of the Tribunal’s reasoning at this point.

12    The Tribunal found that whilst parts of the appellant’s evidence were credible, for example, his claim to have had some involvement with the TNA, the appellant had exaggerated his evidence. The Tribunal also observed that the appellant’s evidence was in some respects vague and lacking in detail where reasonable details could reasonably have been expected to have been given.

13    The Tribunal considered the appellant’s claims as they related to his Tamil ethnicity, but was not satisfied that there was a real chance that the appellant would suffer serious or significant harm on account of his Tamil ethnicity should he return to Sri Lanka.

14    The Tribunal considered the harm feared by the appellant from Muslims, on account of the appellant’s Hindu religion. The Tribunal noted that the country information indicated that as a Hindu in Sri Lanka the appellant did not face a real chance of serious harm by reason of his religion.

15    The Tribunal accepted that the appellant’s family home was burnt down twice in 1989 and 1990, but did not accept that this was for a Convention reason on either of those occasions.

16    The Tribunal accepted that there may have been instances of disrespect of Hindu practices by Muslims in the appellant’s village. However, the Tribunal was not satisfied that this amounted to serious harm and was not satisfied that there was a real risk in the reasonably foreseeable future that the appellant would face harm from the Muslims in his village, by reason of his religion.

17    The Tribunal was not satisfied that there was a real risk that the appellant would face harm from the TMVP on his return to Sri Lanka, on account of his involvement with the TNA. The Tribunal found that the appellant did not face a real chance of serious harm on the basis of his political activities or his family’s political activities.

18    Further, the Tribunal accepted that upon the appellant’s return to Sri Lanka, at the airport in Colombo the appellant would be questioned by the authorities and they would likely establish that he had departed Sri Lanka in breach of the relevant Immigrants and Emigrants Act. And the Tribunal accepted that the appellant would then be detained in Negombo prison for a few days before appearing before a magistrate and being bailed pending the imposition of a fine. But the Tribunal found that the Sri Lankan laws in relation to illegal departure were laws of general application that were applied in a non-discriminatory manner, and which served a legitimate purpose of dealing with people who had departed Sri Lanka unlawfully.

19    In relation to the appellant’s complementary protection claim, the Tribunal considered whether there was a real risk that the appellant would face significant harm whilst being detained pending an appearance before a magistrate. The Tribunal accepted that there were concerns about overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence in prisons in Sri Lanka. But the Tribunal found that the appellant would likely be remanded for only a short period, up to several nights. The Tribunal did not accept that a relatively short period of remand amounted to the intentional infliction of significant harm. Moreover, the Tribunal did not accept that there was an intention by the Sri Lankan authorities to inflict cruel or inhuman treatment or punishment or degrading treatment through the temporary detention of returnees pending the grant of bail.

20    On 31 July 2015, the appellant applied to the Federal Circuit Court for judicial review of the Tribunal’s decision essentially raising three grounds of jurisdictional error; the fourth ground may be put to one side. On 16 June 2016, the Federal Circuit Court hearing took place. On 17 August 2016, the primary judge dismissed the appellant’s application for judicial review (BPF15 v Minister for Immigration & Anor [2016] FCCA 2112).

21    The primary judge dismissed the first ground in relation to failing to afford procedural fairness and failing to comply with subs 425(1) of the Act on the basis that the delegate did not accept or reject the appellant’s claims that his family home was burnt down twice by Muslims, and that “the important factor” was the country information that related to current and future harm. This first ground has been reformulated and pressed again before me.

22    In relation to the second ground, namely, that the Tribunal had failed to consider an integer of the appellant’s claim that Muslims would occupy his land, the Tribunal found that “the applicant’s claim about Muslims surrounding his village was part of his claim about religious conflict and the conflict between Muslims and Tamils”. But the primary judge did not accept that the Tribunal failed to consider an integer of the appellant’s claim.

23    In relation to the third ground concerning the Tribunal’s consideration of the risk faced by the appellant in detention and that the Tribunal had asked itself the wrong question or applied the wrong test by “treating the length of imprisonment as determinative of the question whether imprisonment amounted to serious or significant harm”, the primary judge held that this ground was not made out. This third ground has been reformulated and has now been re-agitated before me.

24    On 7 September 2016, the appellant filed a notice of appeal in this Court from the primary judge’s decision.

25    The hearing of the appeal was initially listed for 8 March 2017 before another judge. But on 2 March 2017, the hearing was vacated pending the High Court’s decision in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34. The High Court’s decision in that case was delivered on 6 September 2017. The hearing of the appeal was then re-listed before me on 27 February 2018.

26    On 27 February 2018 at the hearing before me, the appellant abandoned ground 3 of his notice of appeal. Nothing further need be said about it. I heard argument on grounds 1 and 2. During oral argument it became apparent that one of the appellant’s arguments had not been adequately captured by his notice of appeal. The appellant foreshadowed that he wanted to seek leave to file and serve an amended notice of appeal making modifications to ground 1. Further, in relation to ground 2 the parties sought an opportunity to file further written submissions.

27    Accordingly, at the conclusion of the 27 February 2018 hearing I made the following orders:

(a)    First, that the appellant file and serve any proposed amended notice of appeal.

(b)    Second, that both parties file further submissions relating to the question of whether there is any necessary requirement for an act or omission in or of an official capacity in aspects of the definition of “significant harm” as set out in paras 36(2A)(c) to (e) of the Migration Act 1958 (Cth).

28    On 13 March 2018, the appellant filed further submissions and a proposed amended notice of appeal. On 27 March 2018, the Minister filed further submissions and indicated that he did not oppose leave being granted to the appellant to file and serve an amended notice of appeal in the form proposed. I will grant such leave.

29    Further, on 28 May 2018 my chambers received a communication from the appellant’s representatives drawing to my attention the decision of Perram J in SZWBR v Minister for Immigration and Border Protection [2018] FCA 644 delivered on 11 May 2018. The appellant considered that Perram J’s decision had similarities with the present case and requested that both parties be given an opportunity to address the decision in short written submissions. I made orders permitting both parties to file further submissions in relation to that decision, which they did on 5 June 2018.

30    It is convenient to now discuss the grounds of appeal.

GROUNDS OF APPEAL

31    As I have indicated, there are two grounds of appeal and it is convenient to discuss each in turn.

(a)    Ground 1

32    Ground 1 (as amended) is that the primary judge erred in failing to conclude that the decision of the Tribunal was affected by jurisdictional error because the Tribunal failed to afford the appellant procedural fairness and failed to comply with its obligations under subs 425(1) of the Act. The appellant particularised this ground in the following fashion:

(a)    In the decision under review by the Tribunal, a delegate of the Minister had accepted the appellant’s claim that his family’s home had previously been burnt down twice in the Muslim/Tamil conflict.

(b)    It was not in issue before the delegate whether the family home had been burnt down as a result of the Muslim/Tamil conflict.

(c)    But in contrast with the delegate’s finding, the Tribunal accepted that the appellant’s family home was burnt down twice in 1989 and 1990 but did not accept that this was for a Convention reason on either of those occasions.

(d)    It is said that the Tribunal failed to indicate to the appellant that the cause of the family home being burnt down was in issue, and so failed to notify the appellant that this matter was an issue arising in relation to the decision under review.

(e)    It is said that the failure of the Tribunal to alert the appellant that it might disbelieve this claim deprived the appellant of the opportunity of addressing the Tribunal on this issue and also from potentially altering the Tribunal’s view of the appellant’s credibility.

(f)    It is also said that the primary judge in her reasons (at [10]) misconstrued the appellant’s argument. It is said that the appellant did not state that it could be inferred from the “paragraph above” that the delegate accepted that the family home was burnt down twice in the Muslim/Tamil conflict. Rather, the appellant argued that it could be inferred that the delegate accepted that the appellant’s house was burnt down twice by Muslims from the following matters:

(i)    the delegate’s finding that the home had been burnt down twice;

(ii)    the delegate’s finding that the appellant had been involved in conflicts between the Hindus and Muslims;

(iii)    the absence of any finding rejecting the appellant’s claim in relation to why his house was burnt down; and

(iv)    the Tribunal recording in its reasons that the delegate had accepted that the appellant’s family home was burned down as claimed.

(g)    The primary judge (at [21] and [32]) erred by treating the critical issue as “the country information whether there is a serious risk of harm now or in the future”.

(h)    The primary judge (at [25] and [26]) erred by treating the critical issue as “whether or not the appellant’s claim that his family home was burnt down twice [by] Muslims was dispositive”.

Appellant’s arguments

33    It was pointed out on the appellant’s behalf that the appellant claims that his family’s home has been burnt down twice, in 1989 and 1990, as a result of the conflict with the Muslims. It is said that the appellant consistently referred to this claim in his entry interview, his statutory declaration (at [8] of that declaration), and at the Tribunal hearing (at p 11 of the transcript, lines 29 to 37). It is said that it was also referred to in the appellant’s written submissions to the Tribunal:

When the applicant was a child, his house was burnt down in 1989 and then in 1990 by the Muslim people, with the support of the police and military. The situation became so serious the family had to live in a refugee camp in Batticaloa from 1990 [to] 1993.

Since that time the local Muslims have continued to burn Hindu homes and desecrate the Temples in the area. According to the applicant, the Muslim people of the area are also trying to occupy their land and village.

34    The appellant says that this claim was connected to his claim that the conflict between the Tamils and Muslims had continued to the present time (at [9] of the appellant’s statutory declaration), giving rise to his claim that the Muslims in his area wanted to occupy his village and to take the property from the Hindus.

35    The appellant submits that it should be inferred that the delegate accepted that the appellant’s house was burnt down twice by Muslims from the following:

(a)    The delegate’s finding that the home had been burnt down twice;

(b)    The delegate’s finding that the appellant had been involved in conflicts between the Hindus and Muslims;

(c)    The absence of any finding rejecting the appellant’s claim in relation to why his house was burnt down; and

(d)    The Tribunal recording in its reasons that the delegate had accepted that the appellant’s family home was burned down “as claimed” (at [22]). There appears to be a minor error in the Tribunal’s reasons in that the Tribunal stated that the delegate “accepted the applicant’s family was burned down as claimed”.

36    At the very least, so it is said by the appellant, it is clear that the delegate did not reject the appellant’s claim in relation to his house being burnt down by Muslims.

37    The appellant says that on the basis of the delegate’s decision, he and his advisers were entitled to assume that the appellant’s claims regarding the burning down of his family’s home were not in issue. He pointed out that his written submissions to the Tribunal were structured around the issues that arose before the delegate and gave particular focus to “[m]atters of concern to the delegate”.

38    It is said that the Tribunal accepted that the appellant’s family home was burnt down twice in 1989 and 1990, but in contrast to the delegate it did not accept that this was for a Convention reason on either of those occasions.

39    The appellant submits that the Tribunal was required to notify the appellant, but failed to notify him, that his claim that it was Muslims who twice burnt down his family home was in issue. He says that rather than do this, the Tribunal instead focused on what was not accepted by the delegate and invited the appellant to comment on those topics.

40    The appellant says that during the Tribunal hearing he repeated his claim that his house had been burnt down twice by the Muslims, but the Tribunal failed to indicate to him that it may not accept his claim as made regarding his family home.

41    The appellant contends that this failure of the Tribunal amounted to a failure to accord the appellant procedural fairness because “the Tribunal did not give the appellant a sufficient opportunity to give evidence, or make submissions” about this issue (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [44]).

42    Further, the appellant submits that it is not an answer to this claim to find that the delegate did not accept or reject the appellant’s claim about who burnt his family home down, as found by the primary judge (at [35]). He says that it is enough that the delegate did not find any deficiency in the appellant’s claim in this regard, and points to SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169, where Edmonds J stated the principle from SZBEL v MIMIA as follows (at [14]):

If the Tribunal proposes to make an adverse finding on a matter where the delegate accepted or found no deficiency in the applicant’s claims and the applicant has not otherwise been notified that the matter is in issue, the Tribunal should disclose to the applicant that it has a concern about the matter. [citation omitted]

43    It is contended that the Tribunal’s disbelief of the appellant’s claim in relation to who burnt his house down is linked to the Tribunal’s findings related to the appellant’s credibility. The appellant says that the Tribunal stated that it did not accept that Muslims burnt down the appellant’s home “having regard to its assessment of the applicant’s evidence and his exaggeration of his evidence, when considered in the context of the prevailing circumstances at the time” (at [83]).

44    The appellant submits that there is a non-linear nature to the way credibility is assessed, and that disbelief of a litigant or witness on one point might carry over to affect the decision-maker’s disbelief of the same person on other points (VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [79] to [81]). He says that the failure of the Tribunal to alert him that it might disbelieve his claim in relation to the conflict between the Tamils and the Muslims deprived the appellant of the opportunity of addressing the Tribunal on this issue and potentially altering the Tribunal’s view of his credibility.

45    Further, it is said that it is impossible to state with certainty whether, had the appellant been afforded procedural fairness on this issue, it would not have affected the Tribunal’s view of his credibility and would not have affected the outcome. It is said that relief for a breach of procedural fairness should be refused only if the breach could not have affected the outcome (VAAD v MIMIA at [81]). Further, the appellant submits that the primary judge (at [33] to [35]) erred in her reliance on SZYBR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26.

Analysis

46    It is not in doubt that the Tribunal was obliged pursuant to subs 425(1) of the Act to conduct a hearing “relating to the issues arising in relation to the decision under review”. Moreover, in SZBEL v MIMIA, the High Court relevantly stated (at [36]):

[U]nless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

47    The Tribunal is not, however, confined to the issues that the delegate considered.

48    Subsection 425(1) of the Act requires that an applicant have a meaningful opportunity to participate in a hearing before the Tribunal to give evidence and present arguments “relating to the issues arising in relation to the decision under review”. And a visa applicant is entitled to consider that those issues will be the issues that were dispositive of the matter before the delegate unless the Tribunal identifies any new issue. And if the Tribunal considers that a different issue is dispositive and that such an issue is not apparent to the applicant, it must take steps to bring the issue to the applicant’s attention so that he can give evidence and present arguments in relation to that issue.

49    Now there is little doubt that before the delegate the appellant claimed that his family home had been burnt down twice in conflicts with Muslims in 1989 and 1990; indeed his application for a protection visa claimed as much. Further, he had provided a statutory declaration to this effect.

50    Further, the delegate said:

In weighing up the applicant’s credibility in this case, I have assessed the applicant has provided a plausible account of some of his life experiences. I do however consider that the applicant has embellished some of his claims.

After considering all information available, I accept the following:

•    The applicant is a Sri Lankan Tamil of Hindu religion from Batticaloa district in the Eastern Province.

•    The applicant’s family home was burned down in 1989 and 1990.

•    The applicant’s family shop was bombed in 2006.

•    The applicant was questioned by police in 2008.

•    The applicant has been involved in conflicts between Hindus and Muslims.

51    I think that a fair reading of the delegate’s decision is that the delegate accepted the appellant’s claim that his family home had been burnt down by Muslims. The delegate went on to say that the appellant had embellished some claims, but did not say that the appellant had embellished the claim that the family home had been burnt down by Muslims in 1989 and 1990. Now true it is that the delegate’s recitation concerning the family home did not expressly link the cause of it being burnt down to Muslims. But what the delegate recited was merely a summary. There is nothing in the delegate’s reasons suggesting that he found the causal link to be an embellishment. But I do accept that ultimately the delegate may have placed little weight on the 1989 and 1990 claim. The delegate went on to say that he accepted that there had been “a history of tension between Hindus and Muslims in the applicant’s home area” but was not satisfied that there was a real chance of serious harm. The delegate said:

I accept that there has been a history of tension between Hindus and Muslims in the applicant’s home area and that there have been attacks on temples in Sri Lanka. However, I am not satisfied that there is a “real chance” of serious harm to the applicant for the reason of his religion. In his statement of claim, the applicant stated that while he was in a Muslim area, local Muslims grabbed his shirt and warned him to stop what he was doing with the Temple and Youth groups. The applicant also submitted that he received phone threats between 2008 and 2012 and knocks on the door at night. The applicant stated in the PV interview that Muslims could take drugs and kill him and that killing is not a big deal for the Muslims. At PV interview, I asked the applicant is he knew of anyone who had been killed by the Muslims and he responded in the negative.

While I note a history of tension between Hindus and Muslims, there is no country information that indicates Hindus are at a real chance of serious harm as outlined in S91R(1)(B) and S91R(2).

52    Further, before the Tribunal there is little doubt that the appellant persisted with his claim that Muslims had burnt down the family home in 1989 and 1990. Indeed the appellant gave evidence before the Tribunal on this aspect. The following exchange occurred (p 11 of the transcript):

Appellant:    I lived (indistinct). On this side of my house is Tamils and on the other side of the house, Muslims live there. Time to time we have been always having problems. Disputes. They have always burned down houses and they have also cut and shot our people. Unfortunately, the government supports the Muslims. They also work along with the Muslims and come and attack us. Burn down everything. Twice we have lost our house – they have it destroyed. Anything can happen at any time. Whenever they want to bash somebody they can do it. Whenever they want to touch somebody, they can do it.

Member:    Can I just ask you before you go on too much further. You say that the government supports the Muslims, but that’s not actually the dominant religion in Sri Lanka; it’s Buddhism, isn’t it? And, you know, in terms of the law, the constitution in Sri Lanka it’s – you know, Buddhism is foremost. Why do you think the government supports the Muslims and not the Hindus?

53    Nothing was put to the appellant by the Tribunal casting doubt on the causal link that it had been Muslims who twice burnt the family home down. Further, at p 16 of the transcript the Tribunal later referred to the delegate’s findings without disagreement. But the delegate did not find that the appellant had embellished his claims concerning the family home being burnt down twice by Muslims.

54    Now the Tribunal at [76], [79], [80] and [83] of its reasons said the following:

[76]    The applicant described how his village, Manchanthoduwai, is some 5km from Batticaloa and is bordered by Muslim areas. He claimed that Muslims make up around 40% of the population and that the Hindus have been targeted by local Muslims for a long time and there have been racial/religious clashes. He claims his family home was burned down twice in conflicts with Muslims in 1989 and 1990, and that the conflict became so serious that in 1990 to 1993 his family had to live in a refugee camp in Batticaloa. He claims they were able to move back to his village in 1993, however, the conflict with the Muslim community has continued to the present day.

…

[79]    The Tribunal considered the country information, the gist of which was provided to the applicant at the hearing, which indicates that as a Hindu in Sri Lanka, he does not faces [sic] a real chance of serious harm for reasons of his religion. In particular, the Tribunal considered the DFAT 15 January 2015 Country Report, and the USDOS 2013 Report on International Freedom, extracted below. The Tribunal notes the latter indicates an increase in reports of societal abuses and discrimination based on religious affiliation, belief, or practice. However, the Tribunal notes from these reports that the primary group which appears to be targeted is not the Hindus but rather the Muslims. The Tribunal accepts that the applicant may find the Muslims represent a significant proportion of the population surrounding his village, however, based on the country information before it, the Tribunal is not satisfied that the applicant has been threatened as he claims. In light of the country information before it, and having regard to its assessment of the applicant’s unreliability as a witness, the Tribunal rejects his claim that in 2012 he was warned by a group of Muslims to stop his activities in the Temple or youth group. Further, based on the country information indicating a reasonably high level of religious tolerance in Sri Lanka, notwithstanding that Buddhism is regarded as the foremost amongst the religions, the Tribunal is not satisfied that the applicant faces a real chance of serious harm as he has claimed if he returns to Sri Lanka. In this respect, the Tribunal considers the applicant has exaggerated his claims for the purpose of strengthening his application for the Protection visa.

[80]    The Tribunal accepts the USDOS report indicates Buddhist nationalist groups led campaigns targeting Muslims and Christians in 2012, and DFAT and USDOS both report attacks on places of worship, including Hindu temples. However, the Tribunal notes these do not report that there are significant occurrences of physical violence against Hindus, although the reports indicate some incidents against Muslims suggested there was physical violence. The Tribunal considers that if the incidence of physical violence or killings of Hindus by Muslims motivated by religious reasons was anything more than rare or remote such that the circumstances in Sri Lanka presented a real chance that a person in the applicant’s position faced serious or significant harm in the reasonably foreseeable future, then the country information would report and reflect a greater incidence of such incidents. However, having regard to all the country information, and to the applicant’s circumstances, the Tribunal is not satisfied there is a real chance or a real risk he faces serious or significant harm for reasons of his religion as he has claimed.

…

[83]    The Tribunal considered the applicant’s claims that his family house was burned down twice. He claimed this occurred in 1989 and 1990. The Tribunal is prepared to accept as plausible that his home was in fact burned down twice. However, having regard to its assessment of the applicant’s evidence and his exaggeration of his evidence, when considered in the context of the prevailing circumstances at the time, that is in context of a violent civil war, the Tribunal does not accept the motivation behind the burning down of the house was for one of the Convention grounds. Further, in light of the present circumstances and improved security situation in Sri Lanka as reflected in relevant country information, the Tribunal finds the past burning down of the applicant’s home does not result in him facing a real chance, or real risk of serious or significant harm now or in the reasonably foreseeable future if he returns to Sri Lanka.

55    What is apparent from the Tribunal’s reasons is that the Tribunal rejected the appellant’s claim and evidence concerning the causal reason for the family home being burned down twice. But the delegate had accepted the causal reason. Moreover, the Tribunal never put to the appellant or suggested that this causal reason was false. Now the Tribunal did go on to say that the past burning down “does not result in him facing a real chance, or real risk of serious or significant harm now or in the reasonably foreseeable future if he returns to Sri Lanka” (my emphasis). But in my view there is a difficulty that I will return to in a moment.

56    Now as to all of this, the primary judge said at [26]:

In my view the dispositive issue for the delegate was not whether or not the family home was burnt down my Muslims. That took place over 25 years ago. The dispositive issue with respect to the matters argued under ground one was whether or not the country information supported the applicant’s claim that he would fear persecution because of the conflicts with Muslims if he returned to Sri Lanka.

57    And I agree with that characterisation. But the problem that I have is that the Tribunal made an adverse credit finding on a matter that the delegate had in my view accepted in the appellant’s favour and could have affected the Tribunal’s assessment of the reliability of the appellant’s claims and evidence more generally. Moreover, the Tribunal had not suggested that this matter was the subject of any challenge.

58    For this reason alone, I consider that the Tribunal did not accord procedural fairness. Moreover, in my view the primary judge’s reasons at [38] to [44] are not an analysis that I can agree with. The appellant was not properly on notice that he had embellished and exaggerated his evidence concerning the reasons for the family home being burnt down, and indeed twice.

59    Further, in my view it is not a remote chance that the Tribunal’s inappropriate credit finding infected more generally its assessment of the appellant’s other evidence and claims. Accordingly, I do not consider that the Tribunal’s finding in the last sentence of [83] of its reasons is any answer to the present point. Now the Minister says that the issue that was dispositive before the Tribunal was the same as before the delegate. The Minister says that the Tribunal’s appraisal of country information revealed that even if there was a Convention basis to the burning in 1989 and 1990, the situation had substantially changed and it provided no support for a claim to future risk of serious harm (at [79] to [85]). The Minister says that this issue was the same issue that was dispositive of the matter before the delegate. He therefore says that the Tribunal did not breach subs 425(1) in dealing with the issue on that basis. Now so much may be true, but it is no answer to the adverse credibility question. The Tribunal ought to have properly identified that it was challenging the appellant on this aspect of the matter, particularly as it may have affected the Tribunal’s assessment of the appellant’s credibility and reliability more generally.

60    Given my analysis above, I do not need to discuss other problematic aspects of the primary judge’s reasoning concerning this aspect of the matter. In my view, her Honour ought to have identified a jurisdictional error.

61    In summary, I uphold the appellant’s first ground of appeal.

(b)    Ground 2

62    Ground 2 asserts that the primary judge erred in failing to conclude that the decision of the Tribunal was affected by jurisdictional error because the Tribunal asked itself the wrong question or applied the wrong test. This ground relates to the Tribunal’s consideration of the complementary protection claim(s). It is said that the Tribunal erred by treating the length of imprisonment as determinative of the question of whether imprisonment amounted to significant harm. The appellant particularised this ground in the following fashion:

(a)    It is said that the Tribunal found that on the appellant’s return to Sri Lanka he would be remanded for a short period.

(b)    Further, it is pointed out that the Tribunal accepted that there were concerns about overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence in prisons in Sri Lanka.

(c)    It is then said that in determining whether the appellant’s experience whilst in prison amounted to serious or significant harm, the Tribunal considered only the period of time that the appellant would be incarcerated.

(d)    But it is said that the Tribunal failed to take into account the other forms of harm, namely, torture, maltreatment and violence, instances of which it is said that the Tribunal accepted were a concern in relation to prisons in Sri Lanka.

(e)    It is said that to the extent that the primary judge relied (at [61]) on the observations in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556 at [94] and [95], she erred because she failed to recognise that the findings of fact made by the Tribunal in that matter were not made by the Tribunal in the decision under review. Further, it is said that the primary judge’s reasons did not adequately disclose the reasoning process taken by her. As to this last aspect, I will ignore this assertion as it goes nowhere given that I have reviewed the Tribunal’s reasons for myself in order to determine whether they disclose the jurisdictional error asserted.

Appellant’s arguments

63    Now the appellant emphasises the Tribunal’s reasons (at [116]) where:

(a)    the Tribunal accepted that there were concerns about overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence in prisons in Sri Lanka.

(b)    the Tribunal found that the appellant would be remanded for a short period, between one and several nights, but did not accept that a relatively short period of remand amounted to significant harm.

64    The appellant submits that the fact that the imprisonment may be of a short duration is not determinative of the relevant issue. It is said that the length of imprisonment is only one factor the Tribunal needed to consider. The appellant submits that this is particularly so where there are findings that imprisonment may be accompanied by other forms of harm, such as torture.

65    Now the appellant has referred to the decision of Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610, where French CJ and Kiefel, Bell, and Keane JJ (at [63]) referred to international jurisprudence that “detention of a short duration which is not accompanied by other forms of harm does not ‘rise to the level’ of persecution” (emphasis added) including the decision of the United States Court of Appeals, First Circuit in Vasili v Holder 732 F3d 83 (2013) at 89 to 90. But the appellant submits that in the present case there was a clear finding by the Tribunal (at [116]) that instances of torture, maltreatment and violence were a concern in Sri Lankan prisons. It is said that this amounts to a finding that detention could be accompanied by another form of harm. In the context of this finding, the appellant submits that the Tribunal failed to complete its statutory task because it treated the length of detention as determinative of whether there was a real chance that the appellant would suffer harm. As a result, so it is said, the Tribunal failed to consider and make a finding regarding whether there was a real chance that, in the appellant’s circumstances, he would or was likely to fall victim to the torture, maltreatment and violence that the Tribunal accepted was a concern in Sri Lankan prisons.

66    At this point I should set out what the Tribunal said at [116] to [118] so that the appellant’s submissions can be appreciated:

The Tribunal considered whether there is a real risk of the applicant facing significant harm while being detained pending appearance before a Magistrate for the purpose of the Immigrants and Emigrants Act charge. The Tribunal accepts country information indicates that prison conditions in Sri Lanka may not meet international standards. It accepts there are concerns about overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison. However, the Tribunal finds that based on credible country information that the applicant will be remanded for a short period, between one night to several nights. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.

Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law.

Having regard to all of the evidence before it, and the evidence which indicates that the application of the Immigrants and Emigrants Act is a law of general application which is not applied in a discriminatory way and that all Sri Lankans who depart in a manner contrary to the manners permitted will be detained and prosecuted, the Tribunal does not find that there is an intention by the Sri Lankan authorities to inflict cruel or inhuman treatment or punishment or degrading treatment or punishment through the temporary detention of returnees pending the grant of bail.

67    Further, the appellant complains that it is difficult to discern the reasoning process of the primary judge. The appellant contends that insofar as the primary judge relied (at [61]) on the comments in SZTAL v MIABP (2016) 243 FCR 556 at [94] and [95], she erred; I will refer to the decision of the High Court in the same matter later. It is said that the Full Federal Court decision in SZTAL v MIABP should be distinguished from the present case. In the matter of SZTAL v MIABP, the Tribunal considered the other forms of harm that may occur while in detention and found:

There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka’s prison system. Freedom from Torture reported on a number of claims of torture in 2012 and identified that “those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad”. The applicant has not made any claim of an actual or perceived connection to the LTTE and the Tribunal does not accept that he would be targeted in the prison system for this reason. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally inflicted act or omission ...

68    But the appellant before me says that, in contrast, in the present case the Tribunal accepted that torture, maltreatment and violence were matters of concern in prisons in Sri Lanka (at [116]). It is said that such a finding includes acts that are intentional and cannot be conflated with a finding in relation to the conditions in prison and acts the Tribunal has found are not or could not be intended.

69    Therefore, so the appellant submits, the Tribunal’s finding that torture, maltreatment and violence was a concern in prisons in Sri Lanka was left unresolved as it related to the appellant. The appellant says that such a finding could not be resolved by only considering the length of detention to which the appellant would be subjected. The Tribunal was required to consider, but failed to consider, whether there was a real risk that the appellant would be subjected to torture, maltreatment or violence that was intentionally inflicted.

Analysis

70    Now before I proceed further, there is a question of principle that I need to consider relating to the meaning of “torture”. Does “torture” as defined in subs 5(1) of the Act require an act or omission of a State actor, its agent, anyone acting in an official capacity or with the State’s actual or apparent authority? In other words, can “torture”, in this context within a prison in Sri Lanka, be say through a third party actor such as another prisoner?

71    There is no requirement of any act or omission in or of an “official capacity” in paras 36(2A)(c) to (e). Subsection 36(2A) defines “significant harm” as follows:

(2A)    A non-citizen will suffer significant harm if:

(a)    the non-citizen will be arbitrarily deprived of his or her life; or

(b)    the death penalty will be carried out on the non-citizen; or

(c)    the non-citizen will be subjected to torture; or

(d)    the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

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

72    Specifically, there is no requirement in para 36(2A)(c) or indeed in the definition of “torture” in subs 5(1) that the torture be committed by a person who is a public official or acting in an official capacity. This is confirmed by the explanatory memorandum to the Migration Amendment (Complementary Protection) Bill 2011 (Cth) (the Explanatory Memorandum) at [52] which states:

The purpose of stating expressly what torture does not include, is to confine the meaning of torture to the meaning expressed in international expert commentary (for example, commentary by relevant international human rights treaty bodies) on the meaning of that term as defined by this item. As for items 2 and 3, this definition covers acts or omissions which, when carried out, would violate Article 7 of the Covenant. For the purposes of this definition, the act or omission is not limited to one that is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as is required under Article 1(1) of the CAT [Convention against Torture]. Torture may be committed by any person, regardless of whether or not the person is a public official or person acting in an official capacity. In choosing to adopt a definition that is broader than the definition outlined in Article 1(1) of the CAT, Australia is mindful that Article 1(2) of the CAT enables States Parties to adopt national legislation that contains provisions of wider application than the CAT definition.

73    What is embraced by “torture” is defined in subs 5(1) in the following terms:

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)    for the purpose of obtaining from the person or from a third person information or a confession; or

(b)    for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)    for the purpose of intimidating or coercing the person or a third person; or

(d)    for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)    for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

74    “Covenant” is defined in subs 5(1) and means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in sch 2 to the Australian Human Rights Commission Act 1986 (Cth). I will use the term “Covenant” in these reasons.

75    But unlike the definition of “torture” in subs 5(1), the definition of “torture” in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention Against Torture) is stipulated in the following terms:

Article 1

1.    For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2.    This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

[emphasis added]

76    Likewise, there is no requirement that cruel or inhuman treatment or punishment under para 36(2A)(d) and degrading treatment or punishment under para 36(2A)(e) be perpetrated in an official capacity. The words of the Act do not refer to any requirement that cruel or inhuman treatment or degrading treatment or punishment be carried out in an official capacity.

77    Paragraph 36(2A)(d) refers to “cruel or inhuman treatment or punishment”. This is defined in subs 5(1) as follows:

cruel or inhuman treatment or punishment means an act or omission by which:

(a)    severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)    pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)    that is not inconsistent with Article 7 of the Covenant; or

(d)    arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

78    Paragraph 36(2A)(e) refers to “degrading treatment or punishment”. This is defined in subs 5(1) as follows:

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)    that is not inconsistent with Article 7 of the Covenant; or

(b)    that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

79    Neither of the above definitions contain a requirement that the significant harm be perpetrated in an official capacity and no such requirement is to be read into these definitions. Moreover, paras 36(2A)(d) and 36(2A)(e) are to be read in the context of the remainder of subs 36(2A), and the associated definitions in subs 5(1). There is no reference to an official capacity requirement in any of the paragraphs, which set out, exhaustively, what constitutes significant harm.

80    Further, the Explanatory Memorandum does not refer to an official capacity requirement for paras 36(2A)(d) and 36(2A)(e). Moreover, the purpose of the introduction of subs 36(2A) and, more broadly, the “complementary protection” regime was to (Explanatory Memorandum at p 1):

establish an efficient, transparent and accountable system for considering complementary protection claims, which will both enhance the integrity of Australia’s arrangements for meeting its non-refoulement obligations and better reflect Australia’s longstanding commitment to protecting those at risk of the most serious forms of human rights abuses.

81    The non-refoulement obligations arise from Australia’s ratification of international treaties including the Covenant, the Second Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of the Death Penalty, the Convention on the Rights of the Child and the Convention Against Torture (Explanatory Memorandum at p 1).

82    The terms “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” as they appear in the wording of paras 36(2A)(d) and 36(2A)(e) are derived from art 7 of the Covenant (Explanatory Memorandum at [20] and [24]). Article 7 states:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

83    Further, the Covenant does not contain any definition of torture, cruel, inhuman or degrading treatment or punishment. In particular, the Covenant does not contain any requirement that torture, cruel, inhuman or degrading treatment or punishment be perpetrated by someone acting in an official capacity.

84    Further, the United Nations Human Rights Committee which monitors the implementation of the Covenant has stated that art 7 of the Covenant does not require the perpetrator to be acting in an official capacity:

The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity. [emphasis added]

UN Human Rights Committee, General Comment 20: Article 7 (Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment) (10 March 1992) at [2].

85    Further, Australia’s non-refoulement obligations are not to be narrowed by reading into paras 36(2A)(d) and 36(2A)(e) an official capacity requirement. This would be contrary to the purpose of the introduction of the complementary protection regime, namely, to establish an accountable system to enable Australia to meet its non-refoulement obligations. Subsection 36(2A) was inserted into the Act to respond to non-refoulement obligations on Australia arising under particular treaties to which Australia is a party (see the Explanatory Memorandum at p 1 and Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [18]). Those treaties impose obligations on the State-parties to those treaties to adhere to particular human rights standards. Those treaties contain express and implied obligations on a State not to return a person to a place where he or she will face a real risk of a significant breach of his or her rights (Minister for Immigration and Citizenship v MZYYL at [18]). Further, subs 36(2A) is a part of a code which ought to be given effect in its own terms (Minister for Immigration and Citizenship v MZYYL at [18] to [20]), even accepting that where legislation is intended to respond to Australia’s obligations under a treaty, it may be permissible to refer to the terms of the treaty to confirm the meaning of the words used in the domestic statute (Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 at [34] per Gummow ACJ, Callinan, Heydon and Crennan JJ).

86    Now it is apparent that paras 36(2A)(d) and (e) are intended to embrace, at least in part, art 7 of the Covenant.

87    Of course, art 7 must be read with art 2, which obliges States to take measures to ensure people within its territory enjoy the rights recognised in the Covenant or to have available a remedy in the case of a breach of those rights. So, arts 2 and 7 do not directly fix a State with responsibility for conduct of non-State actors. Rather, States are obliged to take steps to ensure the relevant rights are enjoyed and there is a remedy for their breach.

88    In summary, in my view the wording of subs 36(2A) together with the relevant definitions in subs 5(1) do not distinguish between acts or omissions of State and non-State actors. Accordingly, if the act or omission is sufficient to amount to one of the defined harms, that is sufficient under the legislative scheme for the harm to amount to “significant harm” including “torture”, even if carried out by a non-State actor.

89    Let me return now to the central question. The appellant says that the primary judge failed to identify that the Tribunal fell into jurisdictional error at [116] by focusing on the likely length the appellant would be detained on his return to Sri Lanka without properly considering the risk of other forms of harm during any detention.

90    Now according to the primary judge, she did not accept that the Tribunal found that any detention of the appellant would be accompanied by other forms of harm. The primary judge accepted that the Tribunal found that the relevant prison conditions may cause the appellant “some discomfort” (rather than other more serious forms of harm) and that he would be detained for a short duration.

91    The primary judge was reinforced in her view by her reference (at [61]) to the reasons of the Full Federal Court in SZTAL v MIABP (at [94]):

Although the RRT referred more generally (at [70] and [76]) to prison conditions in Sri Lanka, to reports of instances of torture and to reports of mistreatment, those references do not support any argument that the RRT contemplated as likely that any of the appellants were, or would be, in such a situation. The contrary is the case.

92    Further, the Minister contended that the appellant’s argument does not properly take account of the Tribunal’s consideration of the issue. The Tribunal noted (at [116]) that there were “concerns” about a number of aspects of prison conditions in Sri Lanka, including “instances of torture”. But the Minister says that the Tribunal made no finding that there is a real risk that the appellant will suffer any of the matters that it identified. Rather, it found that the applicant “may suffer discomfort”.

93    Further, the Minister says that the Tribunal (at [117] and [118]) correctly concluded that para 36(2)(aa) required a subjective intention on the part of Sri Lanka to cause the relevant harm and on the facts this subjective intention was absent. The Minister says that that accords with the proper interpretation of the provision (see SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34 at [26] per Kiefel CJ, Nettle and Gordon JJ). Further and in any event, so the Minister contends, the Tribunal concluded (at [116]) that the appellant’s “relatively short period of remand” in a Sri Lankan prison did not rise to the level of “cruel or inhuman”.

94    Now the Minister accepted that the length of any detention is not always determinative of whether there is a real risk of significant harm in the absence of any other harm being found. But he says that the Tribunal did not err in focusing on the length of any likely detention in determining whether the element of intention was satisfied. Further, to the extent that it might be said MIABP v WZAPN supports a different proposition, that case was dealing with the presence of “serious harm” for the purpose of persecution and the then s 91R (and now s 5J) of the Act. Accordingly, it has little if any relevance to the question of conditions of detention and the risk of significant harm.

95    Now the Minister says that in the present case the Tribunal seems to have accepted that one claim made by the appellant that arose on the material before it was that he would be exposed to a real risk of torture in the “one or two or several days” that he spent on remand before being taken before a magistrate. The Minister says this is referred to and dealt with by the Tribunal (at [116]) in the following terms:

The Tribunal considered whether there is a real risk of the [appellant] facing significant harm while being detained pending appearance before a Magistrate for the purpose of the Immigrants and Emigrants Act charge. The Tribunal accepts country information indicates that prison conditions in Sri Lanka may not meet international standards. It accepts there are concerns about overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison. However, the Tribunal finds that based on credible country information that the applicant will be remanded for a short period, between one night to several nights. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which [particular heads of significant harm is inflicted]. [emphasis added]

96    The Minister says that the Tribunal subsequently reached a global conclusion (at [119]) that the appellant did not fall within the terms of para 36(2)(aa) of the Act. The Minister says that it is plain that in the final two sentences of [116] together with [117] and [118] the Tribunal was grappling with the question of whether placing a person in the acceptedly poor prison conditions for a short period could amount to significant harm. But the Minister says that the complete sentence emphasised above should be understood as an expression of the Tribunal’s finding as to what the appellant would face when on remand. In other words, having mentioned the “concerns” about Sri Lankan prisons, the Tribunal then drew conclusions about what the appellant would (and would not) face, namely, poor conditions, overcrowding and discomfort, but (inferentially) not torture, maltreatment and violence; I would note at this point that the Minister’s reference to “inferentially” points out the apparent weakness in his submission.

97    Further, the Minister contends that the definitions of “torture”, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” contain a significant limitation that is relevant to the present case. That is, under the relevant definitions in subs 5(1), an act or omission will not amount to relevant significant harm if it is incidental to lawful sanctions that are not inconsistent with the Covenant.

98    Now the Minister points out that the Tribunal concluded that the appellant’s treatment by Sri Lankan authorities on his return would be in accordance with a law of general application being the Immigrants and Emigrants Act (see at [100] to [103], [118]) and that returnees were not being mistreated by Sri Lankan authorities during the relevant process (at [101]). Indeed, the appellant would only likely be detained for a short period of time on remand before securing bail (at [100] and [116]). Accordingly, so the Minister says, the relevant inquiry for the Tribunal was whether there was a real risk of significant harm occurring during that anticipated brief period of remand.

99    The Tribunal accepted that within Sri Lanka prisons there were “concerns about … instances of torture, maltreatment and violence” (at [116]). But the Minister says that having regard to the Tribunal’s conclusion that the appellant would be subject to a law of general application, but taking into account any “concerns” about “torture, maltreatment and violence” perpetrated by non-State actors within the prison, and bearing in mind that the Tribunal had concluded that returnees were not being mistreated by authorities, the question is whether the possibility of any such treatment would be “incidental” to a lawful sanction, and therefore not “significant harm” for the purpose of the Act.

100    I would note that the word “incidental” relevantly means “[o]ccurring or liable to occur in fortuitous or subordinate conjunction with something else of which it forms no essential part; casual” (Oxford English Dictionary). According to the Minister, in the case of the relevant definitions in subs 5(1), that means that although a person placed in a gaol might suffer actions from other prisoners that might otherwise amount to significant harm, if that is “casual” or not directly relevant to the operation of the law of general application, then it will not amount to significant harm for the purpose of the Act.

101    In this case, so the Minister contends, having regard to the Tribunal’s conclusion that the appellant’s treatment would be in accordance with a non-discriminatory law of general application, any risk of torture, maltreatment or violence by a non-State actor could only be incidental to the lawful sanction being applied under the relevant Sri Lankan law. Accordingly, so the Minister contends, it follows that the Tribunal was not obliged to consider whether there was a real risk that the appellant would suffer “torture, maltreatment and violence” whilst on remand because even if he were to do so it could not fulfil the statutory definition of significant harm.

102    Let me make the following points as succinctly as I can.

103    First, the Tribunal accepted that the appellant was likely to be imprisoned for a short period. Further, the Tribunal accepted that there were instances of torture in prisons (at [116]). And as I say, such torture can be by a non-State actor and meet the subs 5(1) definition.

104    Second, the Tribunal appears to have failed to consider the combination of the short period and torture together. Its reasons at [116] appear to be based upon considering the combination of a short period with discomfort. Moreover, in the last two sentences of [116] it is apparent that it was considering but rejecting various characterisations of the “short period of remand” and looking at the “short period of remand” as to whether it or its imposition amounted to the relevant act or omission.

105    Third, and consistently with what I have just said, when it was looking at the question of subjective intention, it was only considering the “intention by the Sri Lankan authorities” (see at [118]). It was not considering the intention of non-State actors engaging in torture in prisons. This confirms the second point I have just made, namely, that the Tribunal did not consider the combination of a short period of detention and torture together.

106    Fourth, the Minister has pointed to [100] to [104] of the Tribunal’s reasons. But I am not sure where this takes the Minister. They are dealing with different statutory provisions, and in any event do not address the risk of torture in prison from a non-State actor.

107    Fifth, the Minister has put a persuasive argument referring to the carve out to the definition of, inter-alia, “torture”, which “does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant”. The Minister may well be correct as to this argument, but it seems to me that this is a matter for the Tribunal to consider and determine. I cannot say now on the limited material before me that the Minister’s contention would be unanswerable by the appellant and that therefore remitting the matter back to the Tribunal would be an exercise in futility.

108    Let me now deal with one further matter.

109    Subsequent to the hearing, the appellant drew my attention to Perram J’s decision in SZWBR v Minister for Immigration and Border Protection [2018] FCA 644.

110    SZWBR v MIABP concerned an appeal from the Federal Circuit Court dismissing an application for judicial review from a decision of the then Refugee Review Tribunal. Perram J found that the Federal Circuit Court had erred in dismissing the appeal and that the Tribunal had erred by failing to deal with SZWBR’s claim under the complementary protection provisions in relation to the risk that he would be tortured whilst in remand detention for having departed Sri Lanka illegally. Now the appellant before me has contended that the factual circumstances are analogous to the present matter. It is said that Perram J’s reasoning supports the arguments made by the appellant in the matter before me that, by asking the wrong question, the Tribunal failed to consider and make a finding on whether there was a real risk that the appellant would fall victim to the torture, maltreatment and violence that the Tribunal accepted was a concern in Sri Lankan prisons.

111    Now the appellant submits that Perram J distinguished between the Tribunal’s consideration of prison conditions that SZWBR would face, and the need to separately consider the issue raised by the country material before the Tribunal and by SZWBR in submissions, namely, the “incidence of ill treatment, including torture” (at [13] and [14]). His Honour considered that the Tribunal was correct to conclude that poor conditions in prison did not satisfy paras 36(2A)(c), (d) and (e) because those three paragraphs have an intentional aspect to them. But his Honour considered that this did not address the claim that was “on the table”, namely, the “torture claim” (at [13] to [15]).

112    The appellant submits that in the matter before me the claim regarding torture was likewise “on the table” due to the Tribunal’s explicit acceptance (at [116]) that there were concerns about instances of torture, maltreatment and violence in prisons in Sri Lanka. Further, the appellant stated at the Tribunal hearing:

If I go back then maybe the [sic] will hurt me. That is a normal thing because whoever breached their immigrations or – and left illegally will be arrested. [at p 9 of the transcript, lines 14 to 16]

113    The appellant points out that Perram J stated that he was “unable to see how the Tribunal could arrive at the view that the torture material to which it had referred (and about which a submission had been made) did not reveal harm which was intentionally inflicted” (at [16]). The appellant submits that this appears to be referring to the fact that torture is, by definition, intentional. Hence, so the appellant submits before me, this is why his Honour was not able to see how the Tribunal could refer to material that revealed torture in Sri Lankan prisons but did not reveal harm that was intentionally inflicted.

114    His Honour found that the Tribunal did not explain why the torture claim was rejected. His Honour considered that either the Tribunal failed to consider the claim, or impliedly rejected the torture claim for various reasons including because of its reasoning that there did not appear to be material evidence in support of a finding that material harm would be intentionally inflicted on a person. His Honour rejected the latter possibility.

115    Similarly, the appellant submits that in the case before me, the Tribunal erred by focusing on the length of time the appellant would be in detention, which was not sufficient to resolve the appellant’s torture claim. In addition, the Tribunal considered that the imposition of remand related to a law of general application, and that there was no intention by the Sri Lankan authorities to inflict cruel or inhuman treatment or degrading treatment or punishment. But the appellant says that none of these considerations resolve the relevant torture claim.

116    Additionally, so the appellant submits, Perram J distinguished the High Court’s decision of SZTAL v MIABP (2017) 347 ALR 405; [2017] HCA 34 from the matter before him on the basis that the Tribunal in the High Court’s case had made a direct finding that there was no real risk the applicant would be subject to torture. Before me, the appellant also submits that SZTAL v MIABP can be similarly distinguished.

117    In my view, SZWBR v MIABP is of little assistance in resolving the proper interpretation of the Tribunal’s reasons in the case before me. In SZWBR v MIABP, Perram J noted (at [14]) that the Tribunal referred to country information in its decision, which explicitly referred to the “incidence of ill treatment, including torture”. But that country information had itself been referred to by the appellant in that case in his written submissions to the Tribunal which, having quoted from it, then formally submitted “[g]iven the prevalence of torture, cruel or inhuman and degrading treatment or punishment in Sri Lankan prisons, the Tribunal should accept that there is a real risk the [appellant] will face significant harm”. Perram J concluded that, having regard to the Tribunal’s reasons (at [80] to [84]), the Tribunal erred as it had “overlooked the Appellant’s claim that he would be tortured whilst on remand” (at [26]).

118    But in the case before me, the Tribunal’s reasons need to be considered against the background of the case advanced by the appellant. In that regard it is significant to note that the Tribunal recorded at [112]:

At the hearing, the applicant submitted, through his representative that there would not be any additional claims under complementary protection as he was of the view that all his claims fell within the Convention grounds.

119    Nevertheless, it is clear that the Tribunal considered that a claim involving torture arose having regard to country information and the circumstances of the appellant.

120    There is no point of principle emerging from SZWBR v MIABP that I am bound to follow. Both the case before Perram J and the case before me involve an enquiry as to whether a claim was dealt with by the Tribunal in a manner sufficient to discharge its review function. In the present case the Tribunal accepted such a claim was made and dealt with it, but in my view in a manner disclosing jurisdictional error. In my view the primary judge was also in error in not so finding.

CONCLUSIONS

121    In my view, each ground of appeal has been established. I will set aside the decision below and also quash the Tribunal’s determination, with any necessary consequential orders.

Associate:

Dated:    26 June 2018