FEDERAL COURT OF AUSTRALIA

AIC16 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 531

ORDERS

THE COURT ORDERS THAT:

1.    The appellant have leave to rely on the amended notice of appeal filed on 7 November 2018.

2.    The appeal be dismissed.

3.    The appellant pay the first respondent’s costs of the appeal, including reserved costs, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

4.    Within 7 days, the parties file any agreed proposed minute of orders fixing a lump sum in relation to the costs referred to above.

5.    In the absence of agreement, the matter of appropriate lump sum figures for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

MORTIMER J:

1    By orders made on 7 August 2018, the appellant was granted an extension of time in which to file a notice of appeal in this proceeding, and leave to file an amended notice of appeal by 21 September 2018: see my decision in AIC16 v Minister for Immigration and Border Protection [2018] FCA 1178. In my reasons for that decision, I set out the background to the appellant’s claims for protection, and the process undertaken by the then Refugee Review Tribunal (now the Administrative Appeals Tribunal) to consider and review those claims. I do not repeat that information here, unless necessary to deal with the grounds of appeal.

2    I also ordered that the appellant be referred for pro bono legal assistance. It took considerably longer than anticipated to secure pro bono representation for the appellant. Once pro bono counsel was retained, a proposed amended notice of appeal was filed together with submissions on behalf of the appellant on 7 November 2018.

3    Most of the grounds in the amended notice of appeal relate to challenges to the Tribunal’s fact-finding. I deal with those grounds as a group. Those are grounds 1, 2, 5 and 6, which I refer to in these reasons as “the fact-finding grounds”.

4    The appellant further contends the Tribunal failed to address and consider the “cumulative risk” and/or the appellant’s individual circumstances by failing to consider “the significance of his coming afresh to the attention of the authorities” upon his return to Sri Lanka, with the consequence that the Tribunal constructively failed to perform its statutory task. That is ground 3.

5    There is also a challenge to the Tribunal’s use of “formulaic” conclusions in its reasoning relating to the risk of harm faced by the appellant as a result of the prison conditions likely to be experienced by him if he were returned to Sri Lanka and, as the Tribunal found may occur, detained for a short period of time. That is ground 7.

6    Ground 4 of the amended notice of appeal was not pressed by the appellant on the appeal.

7    The Federal Circuit Court’s decision on the appellant’s judicial review application is reported as AIC16 v Minister for Immigration & Anor [2018] FCCA 885. The appellant was unrepresented before the Federal Circuit Court and did not advance any developed grounds of review. The Federal Circuit Court considered the Tribunal decision and satisfied itself, appropriately given the appellant was unrepresented, that there was no jurisdictional error apparent in the Tribunal’s reasons. It accordingly dismissed the appellant’s judicial review application. Any error in the Federal Circuit Court’s orders, if established, will arise from the new arguments put on behalf of the appellant for the first time on appeal.

8    However, for the reasons set out below, I have found there are no such errors, and the appeal must be dismissed. That outcome is not to devalue the thorough and comprehensive arguments put on behalf of the appellant before this Court by pro bono counsel. The appellant has had the benefit of having arguments put on his behalf to a high standard, and the Court has been greatly assisted in discharging its task on appeal. The Court expresses its gratitude to counsel for the appellant.

Resolution of the fact-finding grounds

9    The appellant fled Sri Lanka in May 2012. His claim for protection, based principally on his Tamil ethnicity, was said by him to stem particularly from an incident outside a shop in a town in the north-west of Sri Lanka a few months before he fled, during which he had a confrontation with a man who turned out to be an army officer. He claimed to have been assaulted by this man. When the appellant and his family found out that man was an army officer, the appellant claimed his uncle had encouraged him to go to the army camp to apologise. The purpose of going to the army camp was one of the issues on which the Tribunal found the appellant gave inconsistent accounts. The appellant claimed he continued to experience harassment (including violence) from this army officer, and it was this harassment, and his fear of its escalation, which had caused him to flee Sri Lanka.

10    The appellant also claimed to fear harm on return to Sri Lanka on a number of bases stemming from his illegal departure, to which I refer as necessary when explaining my reasoning on the grounds of appeal.

11    The appellant’s fact-finding grounds are expressed in the following way:

1.    The Tribunal failed to appreciate the nature of its task in assessing credibility, or failed to perform it reasonably and fairly, or constructively failed to carry out its statutory task by failing to engage in a process of evaluating and weighing the significance of purported “inconsistencies” in the applicant’s evidence with reference to all relevant factors.

Particulars

In having regard to “inconsistencies” in the applicant’s evidence relating to:

i.    the intention of the applicant and his uncle going to the army camp to “complain” and/or “apologise”;

ii.    the means by which the army camp commander identified the soldier who had fought with the applicant;

iii.    the applicant encountering the soldier by chance a few days later and being attacked again;

iv.    the soldier coming to the applicant’s home to look for him; and the applicant’s movements between his uncle’s shop and prawn farm between March and May 2012;

the Tribunal failed to engage in the task of evaluating the significance and weight that ought properly be assigned to each such “inconsistency” either at all, or in the light of all material factors including:

a.    the objective extent of the “inconsistency”, and whether it relates to evidence that is directly contradictory and incompatible or only to potential variation in emphasis and detail;

b.    the individual significance of the discrete facts said to be “inconsistent” in the context of the applicant’s evidence as a whole, and the overall degree of consistency in the applicant’s evidence as a whole compared with the extent of “inconsistency”;

c    the nature of human memory and factors to do with the capacity to consistently recall details when giving evidence, both generally and in aspects specifically relevant to the applicant - including the use of an interpreter, the passage of a substantial amount of time between events and recollection, and the applicant having been required to repeat his evidence multiple times with substantial gaps in time over a period of years;

d.    the nature and purpose of the interview, review and hearing process, and the reasonable expectation that process will provide the opportunity for an applicant to elaborate on or explain aspects of the narrative he has provided;

e.    in respect of the “inconsistency” referred to at (iii) above, the fact that when the applicant did not mention the incident during his interview with the delegate, he had already mentioned it in his statutory declaration dated 31 August 2012 which formed part of his evidence before the delegate;

f.    also in respect of the “inconsistency” referred to at (iii) above, the chronology of the narrative - ie. the fact that this incident was claimed to predate the soldier’s visits to the applicant’s home as a possible explanation for any variation / escalation in the soldier’s degree of hostility toward the applicant at different times; and

g.    in respect of the “inconsistency” referred to at (v) above, the applicant’s previous explanation to the delegate that his hiding only at the prawn farm, and his going between the prawn farm and the shop, were both true and each referred to two distinct periods of time (the former from about February/March to March/April; the latter from about March/April to May).

2.    The Tribunal, in assessing the applicant’s claim to fear harm from people smugglers involved in his departure, fell into jurisdictional error by:

a.    failing to have regard to material relevant to the critical questions before it, by finding that the navy was not “in any way involved in the applicant’s departure from Sri Lanka” without any consideration of the submissions and country information provided by the applicant’s representatives in relation to the involvement of Sri Lankan security forces and authorities in people smuggling;

b.    failing to have regard to material relevant to the critical questions before it, namely submissions and country information provided by the applicant’s representatives in relation to a documented allegation of harm to a returnee at the hands of people smugglers and the Australian government’s approach to investigating allegations of that type; and/or

c.    basing its ultimate finding upon an unwarranted assumption, not based in any evidence, that the applicant’s ability to provide information on the identity and actions of people involved in people smuggling would be “of little value” and would not “lead to further charges” against any people involved.

…

5.    The Tribunal, in considering submissions of the applicant’s representatives in relation to the weight that should be given to DFAT assessments in the light of the political imperatives of co-operation between Australia and Sri Lanka, failed to have regard to material relevant to the critical questions before it; namely, the further detail provided in later submissions as to how co-operation between the two countries was said to manifest in the Australian government’s investigations of claims of mistreatment made by returnees to Sri Lanka.

6.    The Tribunal, in finding that the applicant had family members who could:

a.    “stand as guarantor for him” to be granted bail; and

b.    “financially assist him” to pay a fine for illegal departure;

made findings without any identified basis in the evidence available to it, in relation to the nature of his relationships with family members or the financial resources available to the applicant and his family members, or without taking account of the applicant’s evidence that he had never had any significant relationship with his mother or sister.

12    On ground 1, the appellant submitted that while the Tribunal was entitled to be “pedantic”, it had failed to “engage properly or at all in the necessary exercise of assessing the relative significance of each ‘inconsistency’ in the context of its assessment as a whole”. The appellant contends the Tribunal treated every inconsistency it identified as, in effect, “decisive” and did so “without any process of reasoning whether and why it ought to be treated as decisive”. The appellant relied on the Full Court’s decision in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 in his written submissions on grounds 1 and 7, to support the characterisation of the Tribunal’s approach as one involving jurisdictional error.

13    In terms of how the review of the rejection of his visa application proceeded before the Tribunal, the appellant emphasised, and I accept, that he was placed in a particularly invidious position, through no fault of his own. The appellant’s review was first determined (adversely to him) in June 2013. His first hearing, and opportunity to give evidence before the Tribunal, occurred during that process. He succeeded on judicial review of the Tribunal’s decision and the matter was remitted to the Tribunal in March 2014. He attended a second review hearing on 11 August 2014. At some time in the second half of 2014, the Tribunal was reconstituted and a new Tribunal member was assigned to conduct the review. The Tribunal scheduled a third hearing on 17 December 2015. Following that hearing, in January 2016, the appellant provided another statutory declaration to the Tribunal. By this stage, the appellant’s review had been on foot for around three years, and he had been required to give evidence at hearings on three separate occasions, in circumstances where the facts and events of the narrative underlying his claims had occurred around four years prior.

14    In AVQ15 at [25] the Full Court referred to the following observations of an earlier Full Court in W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757 at [15]:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

15    In addition to what was said by the Full Court in AVQ15 at [22]-[28] about the way an administrative decision-maker such as the Tribunal should approach consideration of variations in accounts of events given by a protection visa applicant, in ASB17 v Minister for Home Affairs [2019] FCAFC 38 another Full Court said (at [39]-[45]):

39    On this appeal, and despite what the Full Court in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 said at [22]-[28], the Minister’s submissions at some points continued to use the term “inconsistent” and “inconsistency” as something of a global label. The Authority’s reasons also tend to do this. The difficulty with this approach, as the Full Court observed in AVQ15 at [27], is that such labels can mask the need for deeper analysis.

40    The adjective “inconsistent” means, according to the Macquarie Dictionary:

1.    lacking in harmony between the different parts or elements; self-contradictory.

2.    lacking agreement, as one thing with another, or two or more things in relation to each other; at variance.

3.    not consistent in principles, conduct, etc.

4.    acting at variance with professed principles.

5.    Logic incompatible

41    The Oxford English Dictionary defines the adjective in the following way:

[of related things] Not consisting; not agreeing in substance, spirit, or form; not in keeping; not consonant or in accordance; at variance, discordant, incompatible, incongruous;

[of a single thing] Wanting in harmony between its different parts or elements; self-contradictory; involving inconsistency.

42    Differing accounts of the same event may not be “inconsistent” at all. One may be more detailed than another. One may have different emphasis. One may include a particular incident that another does not. Differences in accounts may arise from the kinds of factors to which the Full Court referred in AVQ15 at [24] and [25].

43    On the other hand, differences in accounts may be rationally and reasonably capable of giving rise to concerns about a person’s credibility, or (perhaps more likely) reliability. Or they may not. Simply (and incorrectly) attaching the label “inconsistent” to differing accounts of an event, or differing narratives, does not make them so. Where an adverse finding is made on the basis of differences in accounts, it will usually be necessary to properly discharge the fact-finding task for a decision-maker to explain why she or he has found those differences of such a nature as to justify rejection of the narrative or account given by a person.

The effect of inconsistencies

44    Some true “inconsistencies” may be objectively irrelevant to the fact-finding of a decision-maker. Some may be explicable, or excusable. Some may be critical to fact-finding. Some may reflect on the credibility or reliability of an applicant, and some may not. As the Full Court said in AVQ15 at [28], the decision-maker’s task requires her or him to “assess the significance of that inconsistency and the weight to be given to it”. Again, simply attaching the label “inconsistency” and moving immediately from the label to an adverse finding of credibility or reliability, may not be a rational or legally reasonable approach.

45    It is also worth recalling that complete consistency in a narrative or an account of events, especially traumatic events, or events occurring some time ago, may in some circumstances be probative of a lack of credibility. There may come a point at which a person’s narrative of past events is too complete, making no allowance for the imperfections of human observation and memory, and that may in itself demonstrate lack of reliability or credibility. This is a further illustration of why, as the Full Court said in AVQ15, where a person has been required to give more than one account or narrative of events, often separated by considerable periods of time and circumstances, care needs to be taken in weighing and assessing the probative value of various accounts.

Ground 1: credibility findings

16    At [28]-[30] of its reasons, the Tribunal dealt with the appellant’s evidence of why he went to the army camp following the incident which occurred between the appellant and the army officer outside the shop. At [28], the Tribunal set out what it considered to be the different “versions” in the account provided by the appellant:

The applicant claimed following the incident outside the shop, after telling his uncle about what had happened, his uncle took him to the army camp. In his statutory declaration attached to his protection visa application, the applicant claimed he and his uncle went to apologise and they did so to the army commander. However, in the hearing with the first Tribunal the applicant’s evidence suggested that he and his uncle went to the army camp to complain about the officer’s treatment of the applicant. He stated that they went to the army camp as they wanted to inform the chief that a member of the Army had hit him. When asked why he wanted to do this, the applicant stated that he was hit without any reason and his uncle wanted to know the reason why he had been hit. However, he subsequently claimed that when he and his uncle got to the camp and the officer who hit him came out the front, his uncle advised him to seek the forgiveness of the army officer. The Tribunal notes that it was put to the applicant that his evidence indicated his uncle was going to the army camp to complain and he was asked why then did his uncle advise him to apologise. In response the applicant stated that he might have done this so there would be no problems in the future. The applicant was asked if it was the plan, when he and his uncle left home, to apologise and the applicant stated that he did not know; his uncle did not discuss the reason why they were going to the army camp.

17    At [29], the Tribunal continued to set out these different “versions” of the appellant’s account, and referred to what was said by the appellant in a statutory declaration submitted to the Tribunal, and a subsequent hearing before the Tribunal:

However, in the applicant’s statutory declaration submitted to the current Tribunal on 11 June 2014, he stated that on the way to the army base his uncle persuaded him to also apologise to the army officer, even though he wanted to complain, as apologising would de-escalate the issue. In the hearing with the current Tribunal (before the previous Member) on 11 August 2014 the applicant asserted that his intention was to complain about the officer’s behaviour but on the way his uncle explained to him that he would aggravate the situation and he persuaded him to change it to an apology so the matter was resolved safely.

18    At [30], the Tribunal found the appellant’s evidence to be inconsistent:

The Tribunal finds that the applicant’s evidence regarding the purpose of his visit to the army camp to be inconsistent. The Tribunal has taken into consideration the adviser’s argument that somehow it was both a complaint and apology but finds that this does not satisfactorily account for the evolution of the applicant’s evidence and its variability as discussed above.

19    Between [31] and [36] of its reasons, the Tribunal considered other aspects of the appellant’s narrative where it found he offered different versions of that narrative at different points during the visa application process.

20    The Tribunal concluded at [37]:

Based on all of the above, although the Tribunal accepts that the applicant may have been involved in what appears to be a relatively minor altercation with an army officer after he refused to buy the officer cigarettes, the Tribunal does not accept that the applicant went to the army camp with his uncle to complain about the officer’s treatment of him or to apologise to the army officer for his behaviour. It does not accept that a few days after this incident, he ran into this army officer when he was coming home from the shop and the officer hit him in the cheek or back. The Tribunal does not accept that there were any visits to the applicant’s home by this army officer and his associates or that the applicant went into hiding. It therefore does not accept that there were any further visits made by this officer after the applicant’s departure from the country, including in December 2012 or some two years later, three months after his hearing in August 2014, as he claimed during the hearing on 17 December 2015. The Tribunal finds that the applicant did not have any adverse profile with the authorities (including individual official/s) at any time, or was in hiding out of fear of harm from the SLA officer (or associates) as a result of the altercation he had with the army officer. It does not accept, as asserted by the applicant’ adviser, that the applicant has been subjected to violence and ongoing threats from state agents, specifically this particular army officer or the army more generally. While it is not implausible that a Tamil could face targeted adverse attention and harassment over a personal matter, for the reasons discussed above it finds the applicant’s personal account to be unreliable and implausible. As the Tribunal does not accept the applicant's claims regarding this officer seeking revenge against him for the relatively minor incident which occurred in 2012, it does not accept that there is a real chance that the applicant will face serious harm, including being abducted, tortured or killed, by this officer or his associates on his return to Sri Lanka, now or in the reasonably foreseeable future. Accordingly, the Tribunal does not accept the submissions made that the applicant will be denied protection for a Convention reason, including his Tamil race, membership of the particular social groups young Tamil males and/or failed asylum seekers deported to Sri Lanka and an imputed political opinion of being opposed to the Sri Lankan government, from the private harm he fears at the hands of this army officer or his associates.

(Original emphasis.)

21    The appellant’s counsel accepts there were some variations in the appellant’s account, and does not challenge the factual accuracy of what was said by the Tribunal in its reasons. However, the appellant submits the real question for the Tribunal, which it did not deal with, was how those discrepancies could reasonably be used as a basis for making an adverse credibility finding, and for not accepting the appellant’s narrative.

22    The appellant says the Tribunal’s reasoning involved two steps: identifying an inconsistency, and then using the inconsistency to make a global adverse credibility finding (at [37] of the Tribunal’s reasons). The appellant submits, in substance, that the Tribunal did precisely what the Full Court in AVQ15 cautioned against – which is to identify a variation in an applicant’s account or evidence and to move immediately from that to making an adverse credibility finding, without engaging in any process of weighing the significance of the variation, or assessing the context in which the variation arose.

23    I reject the appellant’s contentions on this ground. As the Minister emphasised, the Tribunal’s finding at [37] was prefaced with the words “based on all of the above”. It is a single paragraph, but it contains some extended reasoning by the Tribunal, based on the variations it had already identified, about the way it was not persuaded by the appellant’s account. The Tribunal’s approach may seem harsh; it may seem to fasten onto matters which the appellant sought to explain in a way which was not implausible. However, these were all judgments for the Tribunal to make, and not this Court. This Court must be careful not to engage in an assessment of the nature and weight to be given to variations in the account of a visa applicant. Unless there is something in the nature of irrationality in the Tribunal’s reasoning, or its conclusion can properly be characterised as legally unreasonable, or it can be said to have failed to understand that it needed to weight the significance of any variations or discrepancies that it found to exist, then its identification of “inconsistencies” which another person making the decision might not have fastened onto will generally not be sufficient to conclude the Tribunal has exceeded its jurisdiction.

24    In the present case, the Tribunal’s reasoning in [37] did seek to explain, to an acceptable extent, why the inconsistencies it had identified in the appellant’s account had led to it rejecting certain aspects of the appellant’s narrative and to the making of an adverse credibility finding. Whether or not another approach might have been open to the Tribunal, I find there was no excess of jurisdiction in the approach it took in the circumstances.

The decision in CWR16

25    The parties were given an opportunity to file post-hearing submissions on a recent decision of the Chief Justice in CWR16 v Minister for Immigration and Border Protection [2018] FCA 859. The parties’ attention was drawn to the decision during oral argument as a decision which might be relevant to the appellant’s arguments on ground 1.

26    The appellant submitted CWR16 was to be distinguished from the Tribunal’s review in the present case for at least two reasons. First, the ground of review in CWR16 was legal unreasonableness. The appellant submitted that in a case such as the appellant’s, the term “unreasonableness” would “usually mean that the ‘inconsistencies’ relied upon were so ‘objectively minor’ that they could not possibly reasonably form the basis for rejecting an applicant’s entire account”. The appellant contended that ground 1 in the present appeal “does not necessarily depend on the ‘inconsistencies’ rising to that level”. Second, and contrary to the appellant’s submissions on the present appeal, the Tribunal in CWR16 had given consideration to the weight and significance to be afforded to various “inconsistencies” it had identified.

27    The Minister agreed that CWR16 was distinguishable. He contended that, unlike the situation in CWR16, it was accepted by the appellant on the present appeal that the Tribunal made findings that “were based on an accurate understanding of the facts and upon having considered all matters that were advanced by the appellant and which required consideration”.

28    I accept the parties’ submissions and do not consider CWR16 has any specific relevance to the resolution of ground 1 of this appeal.

Ground 2: the people smuggling claims

29    The contentions advanced by the appellant under this ground are identified in three separate sub-grounds (referred to as (a), (b) and (c)), which I have set out at [11] above. The appellant submits that “[e]ach of the three sub-grounds of ground 2 is identifiable as a discrete jurisdictional error”.

30    Under sub-grounds 2(a) and (b), the appellant submits the Tribunal overlooked material provided by the appellant concerning his claim that the navy were involved in his departure from Sri Lanka, and his fear of harm from individuals involved in people smuggling networks. Under sub-ground 2(c), the appellant submits the Tribunal made an “assumption” about whether the appellant’s evidence regarding people smuggling operations would be of value to law enforcement in a way that was “unexplained, unwarranted and without basis in the material before it”.

31    The Tribunal described the aspect of the appellant’s claims dealing with people smuggling at [53]-[54] of its reasons:

The Tribunal has also taken into consideration the applicant’s claims that he fears harm from the smuggling networks that organised his illegal departure from the country. The Tribunal notes that this claim was initially raised in post-hearing submissions received by the first Tribunal. In the applicant’s statutory declaration received on 11 June 2014, he explained that after the hearing with the first Tribunal he had since thought about these claims and feared the authorities would pressure him to reveal the names of those involved in the people smuggling network that organised for him to flee Sri Lanka and if he does reveal these names and details to the authorities, those involved will come after him and harm him. The applicant also claimed that he feared that when these people were investigated the police will let them know that he was the one who informed on them and that he also believes officers from the security forces and authorities are involved in people smuggling networks. The applicant claimed in this statutory declaration, that when he was transferred from the smaller boat to the bigger boat when fleeing Sri Lanka, it was navy officers who helped them do that.

In the hearing, when asked about his concerns of what might happen to him if he returned to Sri Lanka from the people smugglers, specifically the people involved in his travel to Australia, the applicant claimed that some of the smugglers have been arrested and are in detention and they may think that the people who travelled or whom they assisted may have dobbed on them or given their name to the Australian authorities, who passed this information on to the Sri Lankan authorities. He claimed that when he returns to Sri Lanka he may be viewed as a potential witness and he fears he may face some threats and danger from them.

32    At [55]-[59], the Tribunal rejected the appellant’s claims to fear harm from people smugglers, making a positive finding that the Sri Lankan navy were not involved in the illegal departure of the boat on which the appellant travelled, and finding that the appellant’s fears of being harmed by those involved in people smuggling networks on his return were “speculative”.

33    In support of his arguments under ground 2(a), the appellant relies on the decisions in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67, ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; 250 FCR 109 and BXK15 v Minister for Immigration and Border Protection [2018] FCAFC 76.

34    The Minister concedes the material referred to in ground 2(a) (being what the appellant described as country information provided in post-hearing submissions “relating to the involvement of Sri Lankan authorities, and the navy in particular, in people smuggling networks”) was not specifically mentioned by the Tribunal and could have led to the Tribunal making different factual findings. The Minister submits that, having regard to the reference to the appellant’s post-hearing submissions at [53] of the Tribunal’s reasons and the fact that country information “related to a peripheral and unimportant issue”, the “better inference” is that the Tribunal did consider that material but did not consider it necessary to specifically mention the material in its reasons. Alternatively, the Minister submits that even if it is found this material was not considered by the Tribunal, the evidence was only contained in newspaper reports and was not so central to the appellant’s claims that overlooking it constituted a jurisdictional error, because the fact that there was some evidence the navy was involved in people smuggling did not necessarily relate back to supporting the proposition that the appellant would be targeted by those involved in people smuggling when he returned home to Sri Lanka.

35    On ground 2(a), I reject the appellant’s submissions that the Tribunal overlooked substantive material which caused its task to miscarry. While the Tribunal did not refer in its reasons to the country information on which the appellant relied, this country information was at a level of generality which did not, as the Minister submits, provide much of a connection to the objective basis for the appellant’s fears of harm. Of more substance was the appellant’s own evidence about how he knew navy officers were involved in people smuggling, but this was rejected by the Tribunal, for reasons it explained, and that fact-finding involved no jurisdictional error.

36    As to ground 2(b), it is correct that at [58], the Tribunal made a positive finding that:

… there is nothing before it addressing or supporting the view that returnees who departed illegally have been harmed by smugglers or their associates due to giving, or having the potential to give, witness evidence.

37    It is also correct that the appellant’s post-hearing submissions dated 3 September 2014 refer to a specific example of alleged torture of a returned asylum seeker by people smugglers, relying on country information. Although the submissions then move from this example (and other examples of alleged torture by returned asylum seekers at the hands of Sri Lankan authorities) to discussing the risks facing the appellant from retribution sought by people smugglers, there is, as the Minister submitted, nothing in the country information which explains why that particular individual was tortured, and whether there was any connection between that torture and any suspected disclosure by that individual of witness evidence about people smuggling to the authorities, which was the issue being addressed in the finding at [58] of the Tribunal’s reasons. While the Tribunal’s finding at [58] is expressed in absolute terms, and on one view does fail to refer to some country information before it, the Tribunal’s focus (correctly) is on any evidence of a causal link between any harm suffered by returnees and having given evidence against people smugglers. The country information did not expressly draw this causal link.

38    Again, the Tribunal approached this issue predominantly by examining the appellant’s own evidence. In my opinion, the country information was at a level of generality that entitled the Tribunal, taking into account the qualitative assessment it was required to conduct of whether there was a “real chance” of the appellant suffering serious harm, to focus on what the appellant himself said, rather than on the country information. Objectively, there was little in the appellant’s evidence, beyond assertion, to link the risks identified in the country information to his own fears of what would happen to him at the hands of people smugglers. The Tribunal dealt specifically with what the appellant had said about the two individuals involved in smuggling him out of the Sri Lanka, and their arrests. It engaged in further fact-finding at [68] of its reasons:

The Tribunal has also particularly considered whether the applicant faces a real risk of significant harm from people smugglers or their associates in Sri Lanka. The Tribunal has taken into consideration the applicant’s evidence that both the principal smuggler and the second-in-command from his area have been imprisoned. Even if the applicant were asked to provide details of his smugglers, the Tribunal does not accept there is any real risk that the applicant personally would be known to the smugglers, particularly in light of his evidence in the hearing that he did not make the arrangements for his departure (his family did) and he had no personal contact with them, or identified personally as a witness or that the authorities would report the applicant’s personal return and personal information to the smugglers or their associates, such that there is any real risk he will face death as claimed, or ‘significant harm’ in any form defined in the Act. As put to the applicant in the hearing, there is nothing before the Tribunal to support the view that returnees - including Tamil returnees who departed illegally by boat - have faced harm from smuggling networks or their associates, including rogue navy personnel who may have assisted such networks.

39    While, as the appellant submits, he did refer to fearing harm from “associates” of these people smugglers as well, the Tribunal’s findings should be read as fairly encompassing this claim, especially given the lack of specificity in the appellant’s evidence before the Tribunal regarding that claim. On the material before it, it was not legally impermissible for the Tribunal to describe the appellant’s fears as “speculative”. Ground 2(b) fails: the Tribunal did not overlook any information before it which was material to its determination of this aspect of the appellant’s claims.

40    Finally, as to ground 2(c), it was open to the Tribunal to find, as it did at [57] of its reasons, that “any information the applicant may be able to provide in relation to the people who organised his travel to Australia is of little value given that his evidence was that both the organiser and the sub agent have been arrested, charged and convicted”. While it is true the only evidence about the charging and conviction of these two individuals came from the appellant himself (and the Tribunal appeared to accept this evidence from him, notwithstanding it found other aspects of his evidence unreliable), that did not oblige the Tribunal to accept the appellant’s claims about the significance of that evidence. In assessing the level of risk to him from these two individuals and others involved in smuggling the appellant out of Sri Lanka, the Tribunal was entitled to give weight to the fact that on the appellant’s own evidence, those two individuals were in custody. While the appellant’s submissions on the appeal demonstrate there might have been other ways of approaching the fact-finding on these issues, the approach taken by the Tribunal did not result in it exceeding its jurisdiction.

Ground 5 – effects of alleged cooperation between DFAT and Sri Lanka

41    The appellant contends the Tribunal only considered one of his arguments about the effect of this alleged cooperation on the objective basis for his fear of harm, or on the serious risk of harm he faced: namely, his former adviser’s assertion that the country assessments made by DFAT regarding Sri Lanka were “politicised”. The appellant submits the Tribunal did not look at subsequent material filed by the appellant with the Tribunal which indicated how “the imperative of cooperation between the countries” might affect the reliability of DFAT’s assessments about the stability of the situation in Sri Lanka, and the level of risk faced by returning failed asylum seekers.

42    The Tribunal’s finding which is impugned by the appellant appears at [52] of its reasons:

The Tribunal is mindful of the applicant’s previous adviser’s submissions in relation to the weight that should be given to the assessments made by DFAT given that they are driven, in large part, by the political imperative of increasing co-operation between the Australian Federal police and the Sri Lankan navy and the reduction in numbers of successful Sri Lankan asylum seekers in order to create a deterrent to boat journeys. It was submitted that little weight should be placed on information coming from Australian government sources actively co-operating with Sri Lankan authorities. The Tribunal accepts that there is a degree of co-operation between the Australian and Sri Lankan governments, particularly in relation to their efforts in dealing with people smuggling in Sri Lanka. However, the Tribunal does not accept the adviser’s assertions that co-operation between the countries in relation to this particular issue puts in question the accuracy or reliability of information from DFAT or other foreign governments.

43    The section of the subsequent material filed by the appellant with the Tribunal in a set of post-hearing submissions provided in September 2014, on which reliance was placed in this appeal, was mostly concentrated on cases of alleged mistreatment and torture of returned asylum seekers by Sri Lankan authorities. This material included one example of alleged mistreatment of an individual which was discussed in an Australian Senate Estimates hearing, at which it was denied that the Australian Federal Police, or AFP officers, were aware of or had any direct involvement in that individual’s mistreatment. There are no references in this section of the post-hearing submissions to facts or information which would support an allegation of some kind of inappropriate collusion between DFAT and the Sri Lankan Government, although there are allegations that the AFP and the Australian Government were refusing to involve themselves in allegations of mistreatment of failed asylum seekers in Sri Lanka. The Tribunal’s findings at [52] are not a legally impermissible way of dealing with these submissions, and do not demonstrate that the Tribunal ignored or overlooked the submissions made on behalf of the appellant in September 2014.

44    There is no basis in the evidence before the Court to support the submissions made on behalf of the appellant under this ground. Accordingly, this ground must fail.

Ground 6 – fact-finding concerning assistance from family members

45    The impugned finding on this ground was made by the Tribunal at [49]-[50] of its reasons:

As the Tribunal put to the applicant in the hearing, the information suggests that in most cases returnees have been granted bail, based on personal recognisance, with the requirement for a family member to stand guarantor. The Tribunal notes, as it did in the hearing, the applicant has his mother and sister in Sri Lanka, in addition to his grandfather and uncle, who can stand as guarantor for him. The Tribunal therefore does not accept looking at the applicant's particular circumstances and the country information, he would face extended administrative detention on his return or that he would face serious harm during any brief period he may be remanded, depending on when he arrives in the country.

The Tribunal has had regard to the penalties which the applicant may face as a result of his contravention of the Immigrants and Emigrants Act. The Tribunal notes that DFAT reports that it has been informed by Sri Lanka's Attorney General’s Department that no person who was just a passenger on a people smuggling boat had been jailed for departing Sri Lanka illegally and that in most cases people have been bailed immediately, and later fined between 5000 and 50,000 rupees. The Tribunal does not accept that the applicant would not be in a position to pay a fine which may be imposed on him given that he has family members in Sri Lanka who could financially assist him. Therefore in light of the provisions of the law and the information regarding its application, which suggests that imprisonment does not happen in practice, the Tribunal finds the chance of the applicant facing a term of imprisonment, now or in the reasonably foreseeable future, remote.

46    Prior to this finding, the Tribunal had accepted (at [48] of its reasons):

… as a returnee who departed the country illegally he will face brief questioning (in relation to determining ID, right of entry and criminal history), he will be photographed and fingerprinted and then taken to the Negombo Magistrate’s Court at the first available opportunity after investigations are completed. He may be held in police custody at the CID Airport Office for up to 24 hours and should a magistrate not be available in this time, for example on weekends or public holidays, he will be held at Negombo prison until a magistrate is available. The Tribunal notes that DFAT assesses that Sri Lankan returnees are treated according to these standard procedures regardless of their ethnicity and religion. DFAT further assessed that detainees are not subject to mistreatment during their processing at the airport. The Tribunal does not accept on the information before it that the applicant would face mistreatment from the authorities whilst he is held in remand given that he does not have an adverse profile.

47    These latter findings were not impugned in the appellant’s grounds of appeal.

48    The Tribunal appeared to have accepted the appellant’s evidence about his family situation: see a relatively general finding at [25] of its reasons, which is the only finding on issues concerning the appellant’s background. The Tribunal did, however, refer to the appellant’s evidence about his family at [22] of its reasons, but without making a finding. Relevantly, that evidence was as follows (and was reproduced in the Tribunal’s reasons):

I have never met my father. He might have passed away when I was a child but nobody ever told me and I never asked. I don’t know anything about him.

Because I would have grown up without a father my mother made arrangements for me to live with my grandfather and my uncle when I was a child. I don’t know when this happened as long as I can remember I was living in my uncles and his fathers house. My grandfather and my uncle are not really related to me. My mother just made the arrangement for me to live with them because my father was not there. I don’t know if I was adopted but all important decisions were always made by them.

My mother does live in the same village with my sister. I know them and visit them but I live with my uncle and my grandfather.

49    The Minister submits that “[t]he evidence in respect of the appellant’s relationship with his grandfather and uncle” supports the findings made by the Tribunal at [49] of its reasons. The Minister did not identify for the Court any further information that was before the Tribunal about the appellant’s family or financial circumstances, although submitted that the prospect the appellant might be detained and required to pay a fine had been the subject of some findings by the first Tribunal in its reasons. However, there were references in the material put forward by the appellant that his family operated a prawn farm. In the material before the Tribunal (including in the delegate’s decision and the first Tribunal decision), the farm was referred to as belonging to the appellant’s uncle, his grandfather, or the appellant’s “family” more generally. The Tribunal referred to the prawn farm at [22], [35] and [36] of its reasons. It did not refer to the prawn farm in its findings about the ability of the appellant’s family to stand as guarantors, or the likelihood the magistrate would accept them as guarantors. Nevertheless, and contrary to the appellant’s submissions, there was some material before the Tribunal on which it was able to base its finding that the appellant’s family, and in particular his uncle and grandfather, could put themselves forward as guarantors for the appellant so as to secure his release from prison.

50    The Tribunal did not find the appellant or his family would be required to pay a bond, or any other price for his release. It therefore did not need to examine in any detail the financial circumstances of the appellant or his family. The fact that the Tribunal was clearly aware the appellant’s uncle and grandfather operated a prawn farm provided a sufficient basis for its finding that they would be able to stand as guarantors to secure the appellant’s release from prison (and its implicit finding the magistrate would be likely to accept such a guarantee).

51    This ground must fail.

RESOLUTION OF The “cumulative risk” or “individual circumstances” ground: ground 3

52    The appellant contends the Tribunal did not examine how the fact of the appellant’s previous (and accepted) adverse interaction with the army, and the army officer in particular, might affect the attention given to him by the Sri Lankan authorities upon his return. This was a matter the appellant expressly raised in his own evidence:

When you are in my position and experience such things first hand, you are afraid for your safety and life. Once an army officer or the authorities come after you in Sri Lanka, there is no protection against them, especially when you are Tamil. These are the realities on the ground in Sri Lanka. The army officer who wanted to hurt me is part of the Sinhalese majority. He is in a position of authority. I would have no protection from the harm I fear.

53    The premise of this ground is, as the appellant submits, that the previous interaction with the army officer has given the appellant some kind of “profile” which would mean he might be singled out for differential treatment on return to Sri Lanka.

54    I accept the Minister’s submission that the Tribunal rejected that premise where, at [37] of its reasons, it found the incident with the army officer occurred, but was relatively minor, and rejected the appellant’s claims that he would suffer further “revenge”-based harm directed at the appellant by the army officer and his colleagues.

55    This ground must fail.

RESOLUTION OF the “Formulaic” ground: ground 7

56    This ground concerns the prison conditions the appellant might experience when remanded for a short period of time (as the Tribunal found may occur) on return to Sri Lanka, because of the likelihood he will be charged with having departed Sri Lanka illegally. The appellant submits there were no findings by the Tribunal about the risks of harm to the appellant arising from “poor prison conditions” he may experience when detained upon his return, for the purpose of the Tribunal measuring those factual findings against the statutory definition of “serious harm” and/or “significant harm”. Rather, the appellant contends the Tribunal’s fact-finding concerned only the absence of intention to harm on the part of the Sri Lankan prison authorities. The Minister accepted in his submissions that the Tribunal’s reasons focused on “the intention requirement”, but contended it was entitled to take that approach.

57    The relevant part of the Tribunal’s reasons is at [64]-[65]:

In light of the relevant definitions set out at s.5(1) of the Act, and the independent information regarding the situation for Tamils in Sri Lanka since the cessation of the civil war in 2009, the Tribunal does not accept that there is a real risk of the applicant being arbitrarily deprived of his life, subjected to the death penalty, tortured or subjected to cruel or inhuman or degrading treatment or punishment from the Sri Lankan authorities or anyone else because of his Tamil ethnicity or an imputed political opinion based on his Tamil ethnicity or his membership of a particular social group of young Tamil males or any combination of these factors. The Tribunal refers to the country information it put to the applicant in the hearing which suggests that the situation has improved somewhat for Tamils since the end of the war. UNHCR have said that there was no longer a need for group-based protection mechanisms for Tamils. Rather, they identified amongst its potential risk profiles persons suspected of having links with the LTTE, which for the reasons provided above, the Tribunal does not accept the applicant falls within. The Tribunal finds that neither the applicant or members of his family, (real or unofficially adopted), had any links to the LTTE. The Tribunal does not accept that the applicant’s departure from Sri Lanka or the fact he has been abroad for some time in Australia, in combination with him being a young Tamil male, would lead to the applicant facing a real risk of significant harm from the authorities in Sri Lanka on suspicion of being anti-government and/or supporting the LTTE an Tamil independence.

The Tribunal notes the applicant’s illegal departure from Sri Lanka and the possibility that he may be subject to a lawful penalty. While the Tribunal accepts on the basis of the country information cited above, that the applicant would likely face arrest on charges of leaving the country illegally, he may be detained briefly (depending on when he arrives in the country) prior to being released on bail and he will face a penalty, the Tribunal does not accept on the country information before it, and the Tribunal’s earlier reasoning referred to above, as well as having regard to the PAM 3 complementary protection guidelines in relation to imprisonment and prison conditions, that he faces a real risk of being significantly harmed during this process. Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation. Nor does the Tribunal accept, for the reasons discussed above, that the applicant would be singled out for mistreatment, and suffer significant harm as a result, during any period he is held in remand.

58    The Full Court in AVQ15 dealt with a similar ground at [50]-[74], and indicated if it had been necessary to decide the ground on that appeal (which it was not) the Full Court would have been likely to uphold it. In those passages, the Full Court described what would be necessary for an inquiry by a decision-maker such as the Tribunal, for the purposes of assessing a claim for complementary protection, and in particular when determining if a visa applicant might be at risk of experiencing “degrading treatment”, or “cruel and inhuman treatment” in prison. At [72], in a passage on which the appellant relied in this appeal, the Full Court said:

The task is unlikely to be performed according to law by a summary and formulaic finding such as that made by the Tribunal in its reasons and which we have extracted at [63]-[64] above. The Tribunal was not only required to determine the appellant’s contentions about a risk of torture. The Tribunal was required to decide whether it was satisfied there was a real risk the appellant would suffer “degrading treatment”, and to undertake that task it needed to understand what degrading treatment was in the statutory context, and then by reference to the evidence and material before it, explain why it did or did not consider that that was the kind of treatment the appellant had a real risk of facing if he were to be remanded for a period of several days, including determining whether there was an “actual subjective intention” to inflict degrading treatment, or cruel and inhuman treatment.

59    The review before the Tribunal in this proceeding, in contrast to the circumstances in AVQ15, was not one where there was a great deal of material placed before the Tribunal about the nature of the prison conditions the appellant was likely to face in Sri Lanka. The post-hearing submissions filed on behalf of the appellant on 28 January 2013 referred to country information with a level of generality on this matter. There were references in those submissions (see [24]-[26]) to matters such as “deplorable levels of overcrowding” and “lack of hygiene, inadequate medical care, the non-separation of convicted and remand prisoners and the failure to keep adult detainees and juvenile offenders separate…”. However, the references were relatively brief.

60    The focus of the January 2013 post-hearing submissions was otherwise on the risk of intentional mistreatment by reason of the appellant’s ethnicity, and the risks of harm arising from his previous interactions with authorities, his illegal departure from Sri Lanka and the manner of his return as a failed asylum seeker, as well as the risks posed to him from revenge sought by people smugglers. There were limited references to the kind of prison conditions the appellant might face if detained upon his return.

61    In those circumstances, the brevity of the Tribunal’s fact-finding about the prison conditions being “poor” is explicable. The Tribunal’s focus on the absence of any intentional behaviour on the part of the prison authorities is explicable by reason of the High Court’s decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405. If the appellant’s representatives sought to distinguish the outcome in SZTAL by submissions to the Tribunal that the conditions in which people such as the appellant might be kept in Sri Lankan prisons, even if they were only detained for a few days, could satisfy the requirements of s 5(1) of the Migration Act 1958 (Cth), including the need for intentional conduct, then more needed to be done in the submissions than relatively general references to prison conditions and a reference to s 5(1). While, as the Full Court pointed out in AVQ15 at [72], the task on review will seldom be performed in accordance with law if “summary” or “formulaic” findings are made, it is also the case that the Tribunal must perform its task on the material before it. If the material remains at a level of generality, the Tribunal’s findings may be briefer than if the material had descended into more detail, and submissions had been made specifically linking a visa applicant’s fears to objective and detailed material about prison conditions. I accept the Minister’s submission that in the context of the appellant’s claims in this review, and the material put forward on his behalf, the Tribunal did not exceed its jurisdiction (or fail to perform its statutory task) because it did not address in more detail what kind of prison conditions the appellant might experience during the period the Tribunal found he might be detained in prison, which was, on the Tribunal’s findings, likely to be “brief” and potentially restricted to being held over a weekend.

62    This ground must fail.

CONCLUSION

63    As the appellant has not succeeded on any of his grounds of appeal, the appeal is dismissed. Orders will be made to address the matter of the costs of this appeal and reserved costs from the appellant’s extension of time application.

Associate:

Dated:    17 April 2019