BEV15 v Minister for Immigration and Border Protection

The Tribunal's reasons 20 The Tribunal had serious credibility concerns about the appellant's claims of any association by him or by his family with the LTTE. Accordingly, that aspect of his claim failed outright and has not been pursued further. 21 The Tribunal then turned to the remaining ground, which entailed (at [44]): … an assessment of the risk of the applicant suffering serious harm on the only grounds which arise in this case which are that he is a Tamil man from Jaffna who had lived in an area formerly controlled by the LTTE, who left Sri Lanka illegally and will return there as a failed asylum seeker from Australia. 22 At [49] the Tribunal stated: DFAT stated that, in general, prison conditions in Sri Lanka do not meet international standards but that is because of a lack of resources, overcrowding and poor sanitary conditions.21 The Tribunal notes that DFAT specifically mentions that it is people suspected of committing serious crimes including people smuggling or terrorism offences who would undergo extended periods of pre-trial detention.22 Pursuant to Sri Lankan law, the penalty for leaving Sri Lanka illegally can be a custodial sentence of up to five years and a fine of up to 200,000 Sri Lankan Rupees.23 No returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for illegal departure.24 Rather, fines are imposed on such people in the range of 5,000 to 50,000 Sri Lankan Rupees and in most cases returnees have been granted bail on personal reconnaissance immediately by the magistrate.25 Again, those suspected of organising or facilitating the people smuggling venture will be treated differently.26 (emphasis added) 23 The footnote to the second last sentence above (footnote 25, referred to above) was as follows: 25. See page 23 of the [3 October 2014 DFAT] report. DFAT adds that a family member must act as guarantor and 'sometimes' returnees need to wait until a family member comes to court to collect them. 24 The Tribunal at [53] found that although Sri Lankan law provided for a custodial sentence as a penalty for leaving Sri Lanka illegally, the risk of this occurring to an appellant solely on that ground was remote. Such persons were granted bail by magistrates and then received a fine in amounts which did not amount to serious harm. 25 The Tribunal at [55] expressly took into account the submissions to the delegate of 24 December 2013 and the submissions to the Tribunal of 15 May 2014 and 4 May 2015. As part of this detailed consideration, the Tribunal (at [73] - [75]) turned to the risk asserted by the appellant's migration agent of the appellant suffering harm by virtue of the possibility of being held on remand after he arrived in Sri Lanka and before being brought before a magistrate. 26 The appellant's representative had produced isolated reports containing assertions by returnees that they had been held in remand for between four and 15 days, and one source from July 2011 asserting that returnees could be held for months in indefinite detention. However, the Tribunal did not accept that the appellant was in a category to which that risk applied. Rather, the Tribunal preferred country information from a 21 December 2012 United Nations High Commission for Refugees (UNHCR) report, which indicated that the profile giving rise to detention for a long period was those suspected of association with the LTTE. The Tribunal did not accept that the appellant had that profile. In relation to more general assertions about people being held for lengthy periods, the Tribunal preferred the 3 October 2014 report from DFAT which indicated that the possibility of being held on remand for a person in the appellant's position was likely to arise only if the appellant arrived in Sri Lanka on a day when a magistrate was not available. 27 On the issue of complementary protection, the Tribunal found that the risk of the appellant suffering significant harm in the process of returning to Sri Lanka and being prosecuted for his illegal departure was remote. Although returnees would be held in custody on arrival for checks to be made, they would not be subject to mistreatment. 28 At [88], the Tribunal again stated that returnees would be brought before a magistrate at the earliest opportunity and would only be held in prison should they arrive in Sri Lanka on a day when a magistrate was not available. Any period of time spent in prison would be brief and due to the non-discriminatory enforcement of Sri Lanka's laws regulating the manner in which people can depart from that country. The complementary protection claim therefore failed for similar reasons as the substantive Convention claim based on a Tamil departing illegally and returning as a failed asylum seeker. 29 On 10 June 2015, the Tribunal affirmed the decision of the delegate not to grant the appellant a protection visa.

Before the Federal Circuit Court and on appeal 30 On the appeal in this Court, the appellant relied upon an amended notice of appeal dated 28 April 2016, the filing of which was not opposed by the Minister. The first ground of appeal was a restatement of the unsuccessful ground of appeal maintained before the primary judge. The substance of that ground was that the Tribunal was alleged to have committed a jurisdictional error by reason of failure to comply with s 425(1) of the Migration Act in accordance with SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, and that his Honour therefore erred in not finding such an error. 31 The second ground of appeal was that the primary judge erred by making a finding without evidence to support the finding.

Ground 2 - alleged finding without evidence 32 It is convenient to deal with the second ground first. The primary judge's reasons at [19] state: The Tribunal in the present case made reference to the country information identifying that in most cases returnees have been granted bail on personal recognisance immediately by the magistrate and identified the ability of a family member to act as guarantor. (emphasis added) 33 The error alleged by the appellant was that the last phrase in that paragraph "and identified the ability of a family member to act as guarantor" was a finding without evidence because at no stage did the Tribunal identify any family member of the appellant who could act as a guarantor. It is common ground that the Tribunal did not do this. 34 This ground depends upon a misinterpretation of what the primary judge was saying. On the face of [19], the primary judge was adverting to the fact that the Tribunal had referred to country information and that this information had identified two things. The first was that in most cases returnees had been granted bail on a personal recognisance immediately by a magistrate. The second was that the country information had identified the "ability" of a family member to act as a guarantor for such returnees. Nothing in this case turns on the issue of whether a family member merely had the ability to be a guarantor, or whether that was a requirement. 35 The above interpretation is supported by reference to the passage of the Tribunal's reasons to which it appears the primary judge was referring, namely [49] and footnote 25 which are reproduced at [22] - [23] above, including the phrase "in most cases". On this basis, there was no finding without evidence by the primary judge as alleged. 36 I therefore conclude that ground two fails.

Ground 1 - alleged failure to comply with s 425(1) of the Migration Act 37 The first ground of appeal, being identical to the sole ground before the primary judge, relied upon the assertion that this case fell squarely within what was said to be the principles laid down in the decision of a single judge of this Court exercising appellate jurisdiction, Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069; (2015) 148 ALD 507. 38 In SZTQS, Griffiths J dismissed an appeal by the Minister from orders of a judge of the Federal Circuit Court of Australia. The relevant unsuccessful ground was rejected because Griffiths J held that it was reasonably open to the primary judge to find on the particular facts of that case that a "crucial plank" in the Tribunal's reasoning was that the visa applicant would not be subjected to significant harm on return to Sri Lanka because a member of his family would provide surety for him: see SZTQS at 516 [41]. The summary of the Tribunal's chain of reasoning which led to the visa applicant's success before the primary judge in that case was that, while the Tribunal had found that bail was routinely given on the accused's own recognisance, a family member was also required to provide a financial surety. 39 It was essential to the Tribunal's reasoning in SZTQS that the visa applicant would be granted bail and therefore not be held for a prolonged period and, moreover, that bail would only be granted if a member of his family provided surety (which included the deposit of money). Neither the delegate nor the Tribunal in that case raised the issue of whether the visa applicant in that case had a family member who could and would provide such a financial surety. Importantly, and in distinction to this case, it was not an issue otherwise known to that visa applicant. It did not apparently feature in his submissions to the delegate or Tribunal in that case. 40 The appellant in this case contended that the ability for a family member to provide surety was a "crucial plank" in the Tribunal's reasoning, as it had been in SZTQS. The appellant contended that the apparent absence of the need for payment in this case compared to the need for such a payment in SZTQS was not a relevant distinguishing feature. 41 In substance, the appellant's solicitor contended before me from the Bar table that in order for surety to be provided by a family member, the family member had to be available and willing to attend court, have financial resources, and be willing to make a surety payment in order that the process of obtaining bail could be completed. However, there was no support that I could find in any of the material before me for the proposition that any payment was required by a family member in order to be a guarantor for bail. 42 The primary judge, dealing with substantially the same argument at [21] - [27], distinguished SZTQS upon the basis that: (a) in SZTQS there was a reference to an obligation for a family member to pay money beyond acting merely in the role of an unfunded "suretyship", whereas in this case there was no suggestion that any money was required to be paid; (b) unlike SZTQS, the subject matter and the topic of bail were addressed in submissions on behalf of the applicant so that it could not be said that the issue had not been raised; and (c) SZTQS was a case that turned on its own facts and materially on the requirement that a family member had to pay something in order to act as a surety to obtain bail, which is not the position in the present case, with there being no finding by the Tribunal that there was any sum that had to be paid to support the obtaining of bail. 43 During the course of the hearing I asked the solicitor for the appellant appearing on his behalf whether the factual distinctions drawn by the primary judge between this case and SZTQS did or did not exist. He ultimately declined to address me on that issue. I therefore proceed upon that basis that the factual distinctions drawn by the primary judge have not been demonstrated to be wrong or even ill-founded. It follows that whether or not the grant of bail was a crucial plank in the Tribunal's reasoning, the payment of money for bail was not a plank at all.

Assumption of bail issue 44 The primary judge said at [11] that the Tribunal member made it clear that the appellant being granted bail was an assumption being made and, as such, it was an obvious and live issue. The Minister took issue with the correctness of this finding. With the consent of the appellant, I gave the Minister leave to file a notice of contention in relation to that issue by 4.00 pm on 9 May 2016, so as to protect his position. That leave was not availed of. The point was nonetheless raised and should be addressed. 45 The Minister's main basis for saying that the primary judge was wrong to characterise the Tribunal as having made an assumption that bail would be granted turns on the component of the Tribunal's hearing transcript quoted in the primary judge's reasons at [7], and reproduced at [15] above. The Minister suggested that the passage which was emphasised in bold by the primary judge, namely "on the day you arrive in Sri Lanka you could be held briefly in a prison and when you go to courts [sic] you will get bail", was not a reference to "you" in the sense of the appellant, but rather in the sense of "one" or "a person" to which the country information was generally referring. 46 In my view the Minister's interpretation was either not available, or was not a conclusion or interpretation that the primary judge was bound to reach. It is not the way in which I would read the passage, and I therefore not only find that the primary judge was entitled to reach that conclusion, but agree with his Honour and reach the same conclusion. I consider that a fair reading, consistent with the primary judge's finding, is that the Tribunal put to the appellant that the country information indicated that upon his return he would be held briefly in a prison, be granted bail when he went to court, and would subsequently get a fine for leaving Sri Lanka illegally. The Tribunal then referred to suggestions of harm and said the country information suggested that the risk of serious harm from leaving illegally and applying for protection in Australia was remote. It was that reasoning and likely conclusion that caused the appellant's migration agent to seek time to speak to the appellant and to take up the offer to provide post-hearing submissions. 47 In my view, based on the passage from the Tribunal hearing transcript, and based on what was said in the Tribunal's reasons, especially at [74] and [75], putting this scenario to the appellant did entail an assumption by the Tribunal that he would get bail, based on the country information. In any event, there was no error on the part of the primary judge in making that finding, even if an alternative finding could have been available.

Alleged points of distinction between this case and SZTQS 48 The Minister's oral submissions in response to the submissions for the appellant were put in three parts. The first part identified three points of distinction between this case and SZTQS: (a) unlike SZTQS at [43] - [45], the Tribunal in this case made no finding that a family member needed to act as a guarantor in order for the appellant to obtain bail; (b) unlike SZTQS, there was no finding by the Tribunal in this case that the appellant would obtain bail; and (c) unlike SZQTS, there was no finding by the Tribunal in this case that a family member would provide surety or act as guarantor. 49 The Minister is correct in his submission that there was no express finding in relation to those three points. However, the finding of the primary judge (with which I agree) that the Tribunal had assumed that the appellant would be granted bail, and the consequential implication that to the extent that there was a need for a family member to be a guarantor, that would be forthcoming, means that these points of distinction are illusory. I am unable to agree with the Minister's submissions insofar as they are contrary to the assumption of bail being granted and the implication of that assumption concerning the availability of a guarantor. 50 The Minister also argued that the Tribunal in its reasons at [49] did not assume that any payment of money was involved. The 6 March 2012 and June 2012 country information referred to at [63] in the appellant's 24 December 2013 submissions to the delegate was earlier in time and predated the 21 December 2012 UNHCR report and the 3 October 2014 and 16 February 2015 DFAT reports upon which the Tribunal expressly placed reliance. I note that the Minister's submission on this point is supported by the references at [65] and at [70] of the Tribunal's reasons to the effect that the Tribunal preferred those more recent sources, as was the Tribunal's prerogative. 51 The Minister relied upon the comments by the plurality in the Full Court decision of SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175 at [80] in which their Honours said that there could not be any assumption in that case, unlike SZTQS, that providing surety involved the payment of money. I accept this argument. There is nothing in the material in this case to support the proposition that payment of money was required for bail to be granted to a returnee in the circumstances of the appellant. Indeed, not only could there not be any assumption that providing surety involved the payment of money, but additionally the Tribunal decision in SZTQS was made on 6 November 2013, well before the abovementioned DFAT reports of 3 October 2014 and 16 February 2015 relied upon by the Tribunal in this case. Those DFAT reports (directly in the case of the 3 October 2014 report, and inferentially in the case of the 16 February 2015 report which the Tribunal said at [49] was the same on these issues) refer to the need for a family member to be a guarantor, but make no reference to any financial surety being required. That is a further reason for distinguishing SZTQS, which involved different facts and different evidence being available at a different decision-making point in time. 52 The Minister also submitted, principally in his written submissions, that unlike SZTQS and like SZTAP at [79], the Tribunal's reasons at [74] and [75] meant that the provision of surety by a family member was not a "crucial plank" of the Tribunal's reasons. The Tribunal had in contemplation that the remand period would be brief, which would not constitute persecution. The appellant, both in this case and in SZTAP, did not assert that he would not be detained. 53 I agree with the Minister's submission that the provision of a guarantee was not a crucial plank in the Tribunal's reasons. It is, however, an implication flowing from the assumption that bail would be granted, based on country information known to the appellant via his advisors. The appellant was squarely on notice of that assumption because it was directly raised with him, as evidenced in the extract of the transcript reproduced by the primary judge at [7] of his reasons, and also reproduced at [15] above. He was given an opportunity to address the issue of bail being granted in post-hearing submissions, and took advantage of that opportunity. At no stage did he raise any problem with having a family member being a guarantor for bail, despite that being a requirement known to him via his advisors. The opportunity to make those submissions arose directly from the Tribunal's indication that the country information indicated that the appellant would be likely to be released on bail, rendering a risk of harm remote.

Interaction between ss 424A(3)(a) and 425(1) of the Migration Act 54 The second part of the Minister's argument asserted that, as the issue of bail and guarantee was something that arose in the independent country information, this was not something that required disclosure because of the operation of s 424A(3)(a) of the Migration Act. The Minister submitted that s 425(1) should not be interpreted in a way that created an obligation which was expressly dispensed with by s 424A(3)(a). It was argued that to do so would make nonsense of the exclusion in the latter. 55 I am not convinced that the interplay between s 424A(3)(a) and s 425(1) is necessarily, and in all cases, as simple as that. I can envisage situations that might give rise to issues particular to an individual protection visa applicant of the kind contemplated by s 425(1) by reason of country information which may or may not be sufficiently addressed by s 424A(3)(a). Indeed, this case may be such an example. I therefore approach this argument with caution. 56 The Minister pointed to the fact that this issue had been squarely raised in SZTAP at [70], but that the plurality of the Full Court had not found it necessary to answer the question: see [81]. That prudent approach reinforces my sense of a need for caution. 57 The Minister also referred to the single judge appeal decision ACC15 v Minister for Immigration and Border Protection [2016] FCA 97 at [29], in which the observation was made that the information relied upon by the Tribunal in that case as to the granting of bail was country information which, by reason of s 424A(3)(a) of the Migration Act, was not required to be brought to the attention of the appellant. However, that may simply mean that ACC15 was a case in which, on its particular facts and circumstances, s 424A(3)(a) was a complete answer to the issue of the requirements of s 425(1). The issue in this case is not whether, in a particular case, s 424A(3)(a) was a complete answer to the issue to the requirements of s 425(1), but whether that is a proposition of universal application. 58 While s 424A(3)(a) may be a complete answer to the requirements of s 425(1) in a given case, it is difficult to say in the abstract that will necessarily be so in all cases. I do not mean to convey by these comments that s 424A(3)(a) cannot be interpreted as providing a complete answer to the requirements of s 425(1) in relation to country information. Rather, attempting to resolve that issue would be obiter dicta, because I do not need to resolve the question of the interaction between ss 424A(3)(a) and 425(1) in this case. That is because there is no question that the issue of the need for a family member to be guarantor raised by the country information was at least constructively known by the appellant. That topic was part of the submissions made to the Tribunal on his behalf in the pre-hearing letter of 15 May 2014 at [119], reproduced at [12] above. 59 Irrespective of whether the obligation to bring the matter to the attention of the appellant was absolved by s 424A(3)(a), or instead was still required by s 425(1) to be raised by the Tribunal in the absence of it already being known by the appellant, there was no need for any additional notification in this case because the issue was plainly known. Moreover, the Tribunal raised with the appellant the fact that the country information suggested that he would be held briefly in a prison and when he went to court he would get bail. 60 The appellant was already aware, via his advisors, that country information indicated this would be subject to a family member at least being willing to be guarantor, because that was part of the submissions already made on his behalf. As there was no suggestion of a need for any financial commitment on the material before me, there is nothing to suggest that the Tribunal's assumption of bail, as found by the primary judge, was ill-founded as a matter of fact-finding within jurisdiction, let alone was capable of constituting any jurisdictional error. There was nothing in the material before me, or in the submissions put to me orally or in writing, to suggest that there was any issue before the Tribunal in relation to a family member being unable to be a guarantor for bail, without any payment being required.

Appellant on notice of bail obligations and opportunities to raise issue 61 The third overall submission made by the Minister was that, even if the question of the need for a guarantee by a family member before bail could be granted was an issue, the appellant was plainly aware of this because it was referred to in three different submissions made on his behalf, being those made to: (1) the delegate dated 24 December 2013 (at [63]); (2) the Tribunal pre-hearing on 15 May 2014 (at [119]); and (3) the Tribunal post-hearing on 4 May 2015 (at [6]). I have already acknowledged and accepted this point in the reasoning above. 62 As already noted, I agree with the primary judge that the grant of bail was an assumption made by the Tribunal. However, there was nonetheless no error, let alone jurisdictional error by the Tribunal. I can discern no error on the part of the primary judge. As already observed, the question of the grant of bail, and the requirement for the guarantee by family member, were both plainly known to the appellant because his submissions, particularly the pre-hearing Tribunal submissions at [119], expressly refer to it. 63 When the Tribunal member at the hearing referred to the country information indicating that the appellant might be held in prison briefly, but when he went to court he would get bail, that answer to his claims of a fear of harm, either within the Convention or the complementary protection regime, was squarely raised. He was on notice that the Tribunal was considering that this was an answer to his fears. He had ample opportunity in which to put to the Tribunal a submission that he would not be able to get bail because he did not have any family member who could be a guarantor. That was never suggested, in all probability because it was not so. The Tribunal was under no obligation to make the appellant's case for him. 64 I therefore conclude that ground one also fails.

Conclusion 65 The appeal must be dismissed with costs. I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.