FEDERAL COURT OF AUSTRALIA

SZWCB v Minister for Immigration and Border Protection [2019] FCA 139

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1    On 25 July 2018, the Federal Circuit Court of Australia dismissed an application for judicial review of a decision of the Refugee Review Tribunal (by then the Administrative Appeals Tribunal) which had affirmed a decision of the delegate of the then Minister for Immigration and Citizenship (now the Minister for Home Affairs), refusing to grant the appellant a Protection (Class XA) visa.

2    Before the Federal Circuit Court, in order to be successful, the appellant (being the judicial review applicant) had to establish jurisdictional error on the part of the Tribunal: s 474 of the Migration Act 1958 (Cth); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [83] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). The appellant relied upon three grounds of review, each of which was rejected: SZWCB v Minister for Immigration & Anor [2018] FCCA 2220. The grounds relied upon before the Federal Circuit Court were, in substance, the same as the grounds relied upon on this appeal.

3    Before this Court, the appellant must establish that the Federal Circuit Court erred. The appellant says the Federal Circuit Court erred in failing to conclude that the Tribunal’s decision was affected by jurisdictional error on the grounds he advanced before the Federal Circuit Court.

BACKGROUND

4    The appellant is a citizen of Sri Lanka who arrived in Australia as an irregular maritime arrival on 29 May 2012. He lodged an application for a protection visa on 14 September 2012, claiming he feared persecution for a range of reasons, including his ethnicity, his imputed political opinion and his membership of certain identified social groups.

5    The appellant’s visa application was refused by a delegate on 19 July 2013. The appellant applied to the Tribunal for review. The Tribunal affirmed the delegate’s decision and the appellant commenced proceedings in the Federal Circuit Court, which dismissed his application on 5 March 2015: SZWCB v Minister for Immigration & Anor [2015] FCCA 528. That decision was set aside by consent in this Court on 9 September 2015, and the matter was remitted to the Federal Circuit Court for determination.

6    As mentioned earlier, the Federal Circuit Court again dismissed the remitted application for judicial review on 25 July 2018.

7    It is not necessary to set out in detail the claims which the appellant had made in his visa application. Those claims were summarised by the Tribunal and recorded by the Federal Circuit Court at J[7] in the following way:

a)     when the Sri Lankan civil war resumed in 2004, he was forced to work for the Liberation Tigers of Tamil Eelam (“LTTE”) as a tailor. He did this for about two years;

b)     in 2006 his village was attacked and much of it was destroyed;

c)     in about mid-2007 he received a one-month LTTE training course;

d)     in 2008 he and his family were forced to relocate on a number of occasions before finally settling in a camp for internally displaced persons which was controlled by the Sri Lankan Army (“SLA”);

e)     his wife was injured by shrapnel in 2008;

f)     whilst in the SLA camp, he was regularly interrogated by SLA officers about his involvement with the LTTE. He always denied any involvement for fear of detention and torture;

g)     in November 2011 the Criminal Investigation Department (“CID”) allowed the applicant and his family to resettle into the community. However, prior to being released the CID told him that they knew he had been lying about his involvement with the LTTE and said that he was being released on condition that he report to them on a monthly basis. They also told him that they would arrest him “for life” if they were able to prove that he had been involved with the LTTE;

h)     save for the first month after he was released, the applicant reported to the camp on a monthly basis until May 2012 (when he left for Australia); and

i)     he feared imprisonment, torture and death at the hands of Sri Lankan authorities, particularly the CID, if he returned to Sri Lanka. He would be harmed or mistreated because of his Tamil ethnicity, his imputed political opinion and his membership of a particular social group, namely, a former employee of the LTTE and a failed asylum seeker.

8    During the Tribunal hearing, the appellant also claimed that:

(1)    two of his colleagues with whom he had worked in a factory making clothes for the LTTE had been taken away by the authorities shortly before the appellant’s departure from Sri Lanka;

(2)    after he left the Sri Lankan Army (SLA) camp, the authorities visited him repeatedly;

(3)    after he left the SLA camp, the authorities also interrogated him repeatedly; and

(4)    when questioned by the Criminal Investigation Department while living in the SLA camp, he told them he had worked in a factory that was under the control of the LTTE.

THE APPEAL

Ground 1

9    Ground 1 was in the following terms:

The Tribunal failed to comply with s 424A or 424AA of the Migration Act 1958 (“the Act”) in respect of information that it considered would be there [sic] reason or part of the reason for affirming the decision under review.

Particulars

The Tribunal considered information that had been given by the Applicant orally to the Minister’s Department at a “maritime arrival interview” in determining whether the Applicant was a truthful witness. That information was not put to the Applicant in accordance with s 424A or 424AA of the Act.

1.     In para 36 of the AAT decision the Tribunal noted that in his maritime arrival interview he said that he received training from the LTTE for one day. The Tribunal further noted that in his statement he said that training was one-month long. This is an information covered under S 424 A or 424 AA because the applicant did not provide such information to the Tribunal. The Tribunal in its hearing noted that the applicant’s representative did not provide decision record of the delegate of the Minister. As such, any information, the applicant said orally or noted by the delegate of the Minister from his entry interview would be covered under Section 424A or Section 424 AA.

10    Section 424AA provides:

Information and invitation given orally by Tribunal while applicant appearing

(1)    If an applicant is appearing before the Tribunal because of an invitation under section 425:

(a)    the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)    if the Tribunal does so—the Tribunal must:

(i)    ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and

(ii)    orally invite the applicant to comment on or respond to the information; and

(iii)    advise the applicant that he or she may seek additional time to comment on or respond to the information; and

(iv)    if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.

(2)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

11    Section 424A provides:

Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

   (c)    that is non-disclosable information.

(4)    A reference in this section to affirming a decision that is under review does not include a reference to the affirmation of a decision that is taken to be affirmed under subsection 426A(1F).

12    The appellant attended a “maritime arrival interview” on 10 July 2012 at which an interpreter was present. The Appeal Book contained a record of an exchange between the appellant and the interviewing officer in which the appellant is recorded as having given the following oral answer to the question: “What type of training did you receive from the LTTE?”:

They gave me mostly fitness training and using wooden sticks and to shoot using an AK47. It was just a trial and only one day we were given the training, all the other days it was self defence. It was compulsory for everyone to have that training, all the civilians to have that training.

13    The Minister did not contend that this was information which fell within paras (b) or (ba) of subs 424A(3). If the information did fall within either para (b) or (ba), the obligation created by s 424A(1) would not have applied.

14    In SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17] and [18], the High Court of Australia (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ) said (footnotes omitted):

17.    Secondly, the appellants assumed, but did not demonstrate, that the statutory declaration “would be the reason, or a part of the reason, for affirming the decision that is under review”. The statutory criterion does not, for example, turn on “the reasoning process of the tribunal”, or “the tribunal’s published reasons”. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. The tribunal does not operate in a statutory vacuum, and its role is dependent upon the making of administrative decisions upon criteria to be found elsewhere in the Act. The use of the future conditional tense (would be) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance — and independently — of the tribunal’s particular reasoning on the facts of the case. Here, the appropriate criterion was to be found in s 36(1) of the Act, being the provision under which the appellants sought their protection visa. The “reason, or a part of the reason, for affirming the decision that is under review” was therefore that the appellants were not persons to whom Australia owed protection obligations under the Convention. When viewed in that light, it is difficult to see why the relevant passages in the appellants’ statutory declaration would itself be “information that the tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”. Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants’ claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.

18.    Thirdly and conversely, if the reason why the tribunal affirmed the decision under review was the tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of para (a) of s 424A(1). Again, if the tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [(2004) 206 ALR 471 at 476-477] that the word “information”:

… does not encompass the tribunal’s subjective appraisals, thought processes or determinations … nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc …

If the contrary were true, s 424A would in effect oblige the tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.

15    The use which the Tribunal made of the statement contained in the maritime arrival interview (referred to at [12] above) was to contrast the content of it with other statements made by or on behalf of the appellant. To the extent the Tribunal used the statement, it used it in the process of assessing the reliability of the claims and evidence of the appellant.

16    Inconsistencies in evidence do not constitute “information” within the meaning of s 424A(1) because inconsistencies do not, of themselves, constitute a “rejection, denial or undermining” of the appellant’s claims to a protection visa: SZBYR at [17]-[18]; Minister for Immigration and Citizenship v SZFLX (2009) 238 CLR 507 at [22]. Thus, whilst there might be an obligation under s 424A(1) in relation to a particular statement which does comprise “information”, assuming that information otherwise falls within s 424A, that provision does not oblige the Tribunal to give a visa applicant particulars of inconsistencies, doubts or potential adverse credibility findings.

17    The oral statement in the maritime arrival interview to which the Tribunal referred did not, in terms, contain a rejection, denial or undermining of the appellant’s claim to be a person to whom Australia owed protection obligations. Indeed, it supported his claims, or would have if it had been accepted. The oral statement was not the subject of any obligation under s 424A in those circumstances. Nor was the statement the subject of the discretion contemplated in s 424AA. The meaning of “information” in that provision is not relevantly different from the meaning of that word in s 424A.

18    In any event, even if there had been an obligation imposed by s 424A, or some breach of or failure to consider s 424AA, no material consequence is shown to have flowed.

19    The appellant’s statement in his maritime arrival interview is set out at [12] above. In his visa application, the appellant stated:

In about mid-2007, I was also forced to complete a one-month LTTE training course. We received fitness training and I was taught how to use wooden sticks and how to handle an AK47. Included self defence training.

20    In a statement declared before a migration agent on 14 September 2012, the appellant stated:

In about mid-2007, I was also forced to complete a one-month LTTE training course. We received fitness training and I was taught how to use wooden sticks and how to handle an AK47. As part of the course, we also completed self-defence training. This self-defence training was compulsory for all civilians of [Town A], including the women.

21    Shortly before the Tribunal hearing, the appellant’s legal representatives wrote, in a letter dated 19 November 2014:

The main facts, inter alia, are that: …

•    In about mid-2007, the applicant was forced to complete a one-month LTTE training course …

22    In its reasons for decision, The Tribunal stated at T[11] to T[13]:

11.    The applicant’s documents included the following.

12.    First, the applicant’s irregular maritime arrival interview dated 10 July 2012. This provides a general overview of his time in refugee and Army camps. He states that he was forced to work for the LTTE as a tailor for about two years. During this time he was taught to handle an AK47, and underwent some weapons training for a day. Because of his employment with the LTTE, he was often questioned by the CID for long periods. He was terrified of being taken away to be tortured.

13.     Secondly, a statement of the applicant dated 14 September 2012. Here the applicant states that he was born on 10 October 1979 in [redacted], in the Northern Province of Sri Lanka. He married in 2002. When the civil war resumed in 2004, he was forced to work for the LTTE as a tailor. In about mid-2007 he received a one month LTTE training course. In 2006 his village of [X] was attacked and much of it destroyed. In September 2008 he and his wife, and their children, relocated to another village, [Y], in order to avoid the air strikes. When his wife was injured by shrapnel in [Y], they then relocated to another village, [Z]. They relocated on a number of other occasions before finally settling in the [K] Relief Village, a camp for internally displaced persons, which was controlled by the Sri Lankan Army (SLA).

23    The Tribunal gave detailed consideration to issues of credibility from T[21] to T[37], concluding that the appellant was not credible. Its reasons included that the appellant “was prepared to give untrue evidence to the Tribunal”: T[25], T[27]. That conclusion was based, amongst other things, on the concession made by the appellant’s legal representatives, in submissions of 10 December 2014, that the appellant “embellished” his evidence on three issues because of his fear of returning to Sri Lanka. The three issues were:

(1)    that two of his six colleagues working with him at the factory had been taken away by the authorities shortly before the applicant left Sri Lanka;

(2)    that he had been repeatedly visited by the authorities after leaving the camp;

(3)    that he had been repeatedly interrogated by the authorities after leaving the camp;

24    A statutory declaration was attached to the submissions and included:

The claims that two people in my unit of six were taken away; the number of visits by the Sri Lankan authorities and the issue of my statement not dealing with the interrogations

I acknowledge that I gave new information during the hearing in relation to the above-mentioned. I do not discuss them in my entry interview, statement or interview with Immigration. I admit that I made-up that two people were taken away and I over-exaggerated the number of visits by the Sri Lankan authorities and the interrogations associated with that. The authorities would threaten me when I reported so. The information that I gave in my entry interview, statement an [sic] interview with immigration was correct. I’m sorry that I told the tribunal those things that are not true. The reason that I did that was because I am scared to return to Sri Lanka for the reasons that I had previously given. That fear increased after the refusal by Immigration.

25    Clearly, the statutory declaration contained admissions to the effect that the appellant’s evidence was in some respects false and in some other respects exaggerated.

26    The Tribunal proceeded to itemise a number of other inconsistencies in the appellant’s evidence. The Tribunal’s consideration of these other inconsistencies included:

30.    There were other inconsistencies between what the applicant told me and what appeared in his statement and application. There are almost always differences between the evidence given to peers in an application and supporting documents and the application and the evidence given at the hearing. This is because evidence is given, and statements taken, in a variety of circumstances, at a variety of times. Sometimes these differences are inconsequential, on other occasions the differences, or the inability to explain the differences, are of some significance.

 31.     I note the following matters.

32.     First, [h]e told me that when the SLA attacked his village in 2006, while much of it was destroyed, the factory he was working was not. I put to him that paragraph 6 of his statement states that the factory was destroyed. I asked him to explain this discrepancy and he told me that while other factories were destroyed, his was not, as it was given protection.

33.     Secondly, [h]e told me that in about September 2008 his wife was injured by shrapnel from the bomb in [V]. I put to him that paragraph 9 of his statement states that she was injured in [Y]. I asked him to explain this discrepancy and he told me that two villages are very close, and that the hospital she attended was in [Y].

34.     Thirdly, [t]he applicant was released from the village in 2010. Upon his release he had to report to the army head office in [W]. In his statement he says that he had to report back to the camp. I put this inconsistency to him and he said that the office was just outside the camp.

35.     Fourthly, [h]e told me that for the first one or two months he did not report because there were bombs. However his statement says that he was too afraid to return to the camp. I put this this [sic] discrepancy to him and he denied that he was afraid to return to the camp. He had no explanation for the discrepancy.

36.     I find all these explanations to be unconvincing. I also note that in his maritime arrival interview he said that he received training from the LTTE for one day. In his statement he said that training was one month long.

27    The Tribunal’s adverse credibility finding was principally based on the matters it discussed from T[21] to T[35], which did not include any consideration of the particular statement in the maritime arrival interview that the appellant had received training from the LTTE. That is made clear by the first sentence of T[36]. The second sentence of T[36] is by way of further observation. The Tribunal’s adverse credibility finding was supported by an independent line of reasoning and facts which could not sensibly be regarded as being affected by any error (if there is one) with respect to the conclusion in the second sentence of T[36].

28    Whilst it is debatable whether there was any real or material inconsistency between the statement the appellant is recorded as having made in his maritime arrival interview and his later statements, the existence of any such inconsistency did not play any material role in the Tribunal’s adverse credibility finding. At T[37], the Tribunal concluded:

In circumstances where the applicant admits that he intentionally chose to mislead the Tribunal in his evidence and invented untrue evidence to corroborate his application, and further given his unpersuasive explanations of inconsistencies in his evidence, it is difficult, if not impossible, to be satisfied that the account the applicant gives about his personal circumstances and fears returning to Sri Lanka are true. I consider that the applicant has invented much of his account to improve his chances of being granted protection.

29    Accordingly, ground 1 fail. Neither s 424A nor s 424AA operated to require the Tribunal to give particulars of the record of the appellant’s statement at the maritime arrival interview to the appellant. Even if either of those sections did so operate, any failure to comply with those provisions, or any resulting jurisdictional error cannot be regarded as material to the Tribunal’s decision: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at [29]-[31].

Ground 2

30    Ground 2 is in the following terms:

The Tribunal relied on a direction purportedly made by the Minister under s 499 of the Act which was not a valid direction under that section.

Particulars

Direction 56, purportedly made by the Minister under s 499, directs decision makers including the Tribunal to “take into account” certain “country information assessments” prepared by the Department of Foreign Affairs and Trade. In so far as those assessments contain factual information or inferences drawn from factual information the necessary inference to be drawn from the Minister’s direction is that the information is to be given a special status or special weight compared with any other information that the Tribunal might have access to. As such the direction is a fetter on the free exercise of the Tribunal's power to independently assess the claims of the Applicant and is therefore in excess of the power to make directions in s 499.

31    “Ministerial Direction No 65 – Consideration of Protection Visa applications” is made under s 499 of the Act. That section relevantly provides:

Minister may give directions

(1)      The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

(a)      the performance of those functions; or

(b)      the exercise of those powers.

(1A)      For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)      Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

 (2A)      A person or body must comply with a direction under subsection (1).

…

32    Clause 3 of the Direction provides:

Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.

33    As the Federal Circuit Court observed, the Direction does not require the Tribunal to place any particular weight on country information or assessments prepared by the Department of Foreign Affairs and Trade (DFAT); it merely requires that they be taken into account, and then only “where relevant”. The terms of the Direction do not give rise to an inference that DFAT country information should be given any special status or weight; cl 3 of the Direction neither says, nor implies, that more weight should be given to DFAT country information than to other country information. The clause expressly notes that other country information can also be taken into account. It cannot be said that the Direction impermissibly fetters the Tribunal’s exercise of power.

34    At T[10], the Tribunal made it plain that it only needed to consider country information assessments “to the extent that they are relevant to the decision under consideration”, stating:

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

35    The Tribunal considered both the DFAT country information and other country information. At T[53] and T[61] it stated:

53.    In the applicant’s submissions of both 19 November 2014 and 10 December 2014 reference was made to a variety of country information and other reports relating to the treatment of Tamils in Sri Lanka. I have considered this information and do not accept that the applicant will face harm in Sri Lanka simply on account of being a Tamil. In my view the DFAT reports I have referred to dated 3 October 2014 should, on account their recency, be treated as reliable.

…

61.    The applicant submits that other country information (namely the DFAT Country Report for Sri Lanka of3 l July 2013) including reports from Canada (namely the Canadian Immigration and Refugee Board report relating to the treatment of Tamil returnees to Sri Lanka of 12 February 2013) and the United Kingdom Home Office Country Information and Guidance Report on Tamil Separatism of 28 August 2014 should be preferred. I prefer the DFAT reports of 3 October 2014 on the basis of their recency.

36    The Tribunal gave weight to the country information in a manner which was not shown to be erroneous. It did not treat the DFAT country information as necessarily to be preferred, or of greater weight, on account of the Direction.

37    It follows that ground 2 must fail.

Ground 3

38    Ground 3 is in the following terms:

The AAT failed to provide adequate procedural fairness to the applicant.

Particulars

The AAT advert that that the applicant would be face fine under the Immigration and Emigration Act, however, failed to engage to assess whether the applicant has the means to pay fine, in particular it failed to consider and failed to invite the applicant to provide his response for the following:

 a.     Whether the applicant has any means to provide bail money?

b.     Whether applicant has any relatives who would travel to Colombo to provide any bail surety.

c.     Whether the applicant has any relatives who would be able to provide any bail surety.

d.     What would happen if the applicant does not have the means or does not have any relatives who would be able to provide financial surety and whether he would face longer imprisonment and if there is longer imprisonment whether he would face significant harm.

The above issues the AAT either did not consider or did not give an opportunity to the applicant to respond.

Accordingly, it is submitted that the Tribunal decision is infected by legal error.

39    The Tribunal concluded that the appellant, upon return to Sri Lanka, would be detained for questioning, undergo security and character checks, be remanded for a brief period and charged with an offence under the Immigrants and Emigrants Act 1948 (Sri Lanka), and face penalty – namely, a fine – but probably not a custodial sentence. More specifically, the Tribunal stated at T[62] and T[68]:

62.    Based on the information provided by DFAT I find that the applicant will be detained for questioning on his return to Sri Lanka, undergo security and character checks, be remanded for a brief period, charged with an offence under the Sri Lankan Immigrants and Emigrants Act (I&E Act), and a penalty imposed. While a custodial sentence is possible under the I&E Act, no country information suggests that a custodial sentence has been imposed on an illegal returnee, unless the person is suspected of facilitating or organising a people-smuggling venture.

…

68.    Because of my findings set out above, I do not accept that there is a real chance of the applicant suffering serious harm in Sri Lanka for reasons of his Tamil ethnicity, political opinion or membership of any of the particular social groups he claims. While I am satisfied that the applicant will be charged with offence under the I&E Act if he returns, that he will be remanded in custody and that will face the penalty of a fine, I am not satisfied that this treatment could reasonably be seen to constitute significant harm under Australia's complementary protection arrangements set out in s.36(2A) of the Act, in that it does not constitute the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

40    The Tribunal found also that “[b]eing investigated on return and being detained is the result of the non-discriminatory enforcement of a law of general application”: T[63].

41    The appellant had notice about the likely consequences on his return to Sri Lanka when he received the delegate’s decision. The potential consequences were extensively set out by the delegate and included (footnotes omitted):

A report prepared in October 2012 by DFAT advised that the Sri Lankan Immigration and Emigration Act of 1948 provides penalties for offences, such as departing without a valid travel document. DFAT advised that penalties include a prison sentence from 1 to 5 years and a fine of 50,000 Sri Lankan Rupees (LKR) to 200,000 LKR may be applicable, however, in reality this is seldom enforced. DFAT has further advised that Sri Lanka’s Attorney-General’s Department has provided information that people being intercepted on people smuggling boat ventures in Sri Lanka are considered to be “victims” and are not given a custodial offence but are issued a fine for the offence of departing Sri Lanka illegally. DFAT has indicated that these laws are applied to Tamils, in the same manner as any other Sri Lankan citizen who is returning.

DFAT also advised the following in their report:

“Post’s understanding is that a returnee with an outstanding warrant for their arrest due to a prior criminal offence may be arrested on return to Sri Lanka. This is dependent on whether the person’s name is on INTERPOL or on a immigration “watchlist” held by the Department of Immigration and Emigration. If the returning person's details do not exactly match records then the person may pass through immigration without being identified.

It is procedure for non-voluntary/forced returnees and/or voluntary returnees who have departed Sri Lanka illegally to be processed at the international airport by Sri Lanka’s Department of Emigration and Immigration (DIE) [sic]. State Intelligence Service (SIS) and Police’s Airport Criminal Investigation Department (CID). Procedures include Airport CID obtaining police and security clearances including from the person's local police office to determine there are no outstanding warrants against the person before they are allowed to exit the airport. In post’s experience up until 16 October 2012, no failed asylum seekers who have returned from Australia have been charged under the I&E Act Section 45(1)(a) for offences related to their irregular departure from Sri Lanka on their arrival back in Sri Lanka.”

DFAT also provided advice on 29 November 2012 which indicates that from 2 November 2012, Sri Lankan irregular maritime arrivals that have been non-voluntarily returned from Australia, have been charged under Sri Lankan law for offences related to their irregular departure from Sri Lanka and remanded in custody. DFAT further clarified in a response dated 1 March 2013 that in their experience most returnees are arrested and held in police custody throughout the investigation period (which can last up to 24 hours) before being produced before the Magistrate’s Court to determine if an individual is released on bail. Bail requires a personal guarantee and no payment is required; the Court may decide not to grant bail if a person is found to be the facilitator/organiser of people smuggling or there may be specific conditions attached to bail if the person is a repeat offender. The advice also states that post has not received any allegations of mistreatment of a returnee since 2009; specifically it noted that it followed up an allegation of mistreatment made by a returnee in 2009 and no evidence was found to substantiate the allegation. DFAT also notes that it contacted the British High Commission regarding allegations documented by the organisation Freedom from Torture in September 2012 regarding Sri Lankan Tamils being tortured on return from the UK. The British High Commission responded to the request noting that they received no substantiated cases of mistreatment on return for their returnees and claims made by organisations such as Freedom from Torture and Human Rights Watch were not supported by the High Commission’s interlocutors.

42    Before the Tribunal, where the appellant was legally represented, he did not address any issue of his or his family’s capacity to pay a fine or provide surety. He did not make a claim of any inability to pay a fine or provide surety. Nor did he claim any fear of persecution on this basis. As the Federal Circuit Court observed at J[18]:

The answer to the applicant’s third allegation lies in the fact that he never suggested to the Tribunal that he would be unable to satisfy such bail requirements or pay such fine as might be imposed on him for being charged with and/or found guilty of breaching Sri Lanka’s I&E Act. This is notwithstanding that the applicant claimed to fear harm as a failed asylum seeker and the fact that the delegate’s decision expressly referred to the likely bail situation and probable ultimate imposition of a fine for breaching the I&E Act.

43    The DFAT Country Report for Sri Lanka dated 3 October 2014 made extensive reference to the treatment of returnees and the possible consequences. This report had only recently become available at the time of the hearing before the Tribunal on 26 November 2014. The Tribunal provided the report to the appellant and his legal representatives and allowed them further time to lodge any submissions – see: T[18]. The appellant submitted that other country information ought be preferred – see: T[61]. Ultimately, the Tribunal preferred the DFAT Country Report dated 3 October 2014.

44    The Federal Circuit Court stated at J[19] and [20]:

19.    The applicant’s own advisers addressed the same issues in their written submissions to the Tribunal on 19 November 2014. The Tribunal gave them the opportunity to address fresh DFAT information but in their further written submissions of 10 December 2014 they did not take up that opportunity, at least in relation to the matter raised by the applicant’s third allegation in these proceedings. Nor did the applicant in his statutory declaration of 10 December 2014.

20.     In circumstances where the applicant never made the claim now sought to be relied upon, and where he was given more than one opportunity to do so, the allegation of denial of procedural fairness made in the applicant’s third allegation is not made out.

45    Those conclusions have not been shown to be incorrect. The appellant was not denied procedural fairness on the basis alleged.

conclusion

46    Accordingly, the appeal must be dismissed.

47    The Minister applied for costs of the appeal. The appellant indicated that he is unable to pay costs. Whilst the Court is sympathetic to the appellant’s position, impecuniosity is not a reason for displacing the ordinary rule that the successful party is entitled to costs. The appellant did not submit there was any other reason why the usual rule should not apply.

48    In the circumstances, it is appropriate to order that the appeal be dismissed with costs.

Associate:

Dated:    15 February 2019