BRY15 v Minister for Immigration and Border Protection

Federal Court of Australia|2017-05-30|Before: Bromwich J

The appeal be dismissed.
The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 This is an appeal from orders of the Federal Circuit Court of Australia made on 9 December 2016, dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal, made on 27 July 2015. The Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a protection visa. 2 The appellant is a 33 year old Tamil citizen of Sri Lanka who arrived in Australia by boat at Christmas Island on 13 June 2012. He applied for a protection visa on 30 October 2012. On 6 January 2014, a delegate of the first respondent, the Minister for Immigration and Border Protection, refused the grant of a protection visa. On 27 July 2015, the Tribunal affirmed the delegate's decision. On 9 December 2016, the Federal Circuit Court dismissed the appellant's judicial review application. 3 On 19 December 2015, the appellant filed a notice of appeal in which the grounds of appeal were expressed as follows (verbatim): The Federal Circuit court failed to find, in respect of the Respondent, on 9 December 2016, that the AAT declined its jurisdiction to me on the basis of grounds stated in my Federal Circuit Court Application. I have stated my grounds of review and the particulars of the grounds in my Federal Circuit Court application lodged with your court. I still rely on the grounds and the particulars for the judicial review with the Federal Court of Australia. 4 The grounds of review before the primary judge were as follows (verbatim): 1. The tribunal made a legal error in asking itself the wrong question. Particulars a) At [86]-[87] the tribunal asked itself whether the applicant was of "adverse interest to anyone" or "a level of adverse profile" when assessing the complementary protection; b) An "adverse interest" is another way of stating the persecution test of motivation; and c) This is the wrong test when assessing complementary protection and the Tribunal has failed to assess complementary protection in accordance with the definition provided by s.5(1) of the Act. 2. The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act I 958. Particulars a) Similarly to the findings in ARS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2135, the Tribunal failed to take into account the PAM 3 Protection Visas complimentary protection guidelines when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment. 3. The Tribunal failed to take into account a relevant consideration in relation to complementary protection. Particulars a) In Portorreal v Dominican Republic, Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987) was a decision in which there was close analysis of the conditions to which the person was exposed for no more than 50 hours, but nonetheless there was a finding of a violation of Article 7. Those conditions are similar to those that obtain in Negombo Prison in Sri Lanka. 5 Both in this Court and before the primary judge, the appellant made no submissions beyond a brief reference to the merits of his case. He said that the primary judge had "not considered properly" his case, without elaboration, which was unsurprising given that he was neither legally trained, nor legally represented. It follows that this is a pure rehearing of the appellant's case as run before the primary judge, with the need for error to be established on the part of his Honour in accordance with the principles conveniently summarised in Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [45].

Before the Tribunal 6 The Minister's submissions at [3] contain a pithy summary of the nature of the appellant's claims. This accords with the matters canvassed by the Tribunal's reasons, as follows: The Appellant claimed to fear harm in Sri Lanka for reasons of his Tamil ethnicity, imputed political opinion in support for the [Liberation Tigers of Tamil Eelam] LTTE, illegal departure from the country and membership of particular social grounds comprising young Tamil males from the north and failed asylum seekers. Specifically, the Appellant claimed that he had assisted his aunt in getting his cousin released from detention in 2009. The Appellant's other cousin was also allegedly detained by the CID for 18 months and the authorities were looking for him following his release. The Appellant's uncle was also of adverse interest to the authorities but the Appellant noted that this had been resolved in 2009. The Appellant also claimed that his brother was beaten and detained by police in March 2012 after transporting the associate of a Sinhalese Minister in his rickshaw. After the police came looking for the Appellant's brother, the Appellant was forced to go into hiding. The Appellant claimed further that he would be arrested by the authorities as a failed asylum seeker and would not have any support as his parents had applied for visas to the United Kingdom. … 7 The Tribunal carefully and methodically considered the appellant's claims and evidence against the backdrop of an outline of the relevant law in terms of the criteria for refugee status, the criteria for complementary protection, and the requirement to take into account Ministerial Direction No. 56 made under s 499 of the Migration Act 1958 (Cth). When it came to consideration of those claims and evidence, the Tribunal expressed serious concerns as to the truth of significant parts of the appellant's claims and considered that he had fabricated aspects of his history so as to enhance his claims for a protection visa. 8 While the Tribunal was prepared to accept that the appellant was a Sri Lankan citizen, was a Tamil, and was from the particular province in Sri Lanka that he identified, it did not accept that anything from his past would cause him any ongoing concern or adverse interest from the authorities or anyone else on his return to Sri Lanka. The Tribunal rejected claims that the Sri Lankan authorities were interested in the appellant due to an incident involving his brother, or that the authorities would arrest him by reason of being unable to locate his brother. The Tribunal similarly did not accept that matters relating to his uncle from 2008 to 2009, which were resolved in 2009 without ongoing repercussions, would give rise to any ongoing interest or concern. 9 In relation to claims that the authorities would be interested in the appellant because he assisted his cousin to be released from a internally displaced persons centre, the appellant conceded that the documents submitted with his application were falsified in relation to his name identification number and signature, but said that the falsified parts of the document were done by his relatives in Sri Lanka. The Tribunal did not accept as true that the appellant had any involvement in the release of his cousin and did not accept it was reasonable to believe that he was not aware of the falsified content of the submitted document. The Tribunal found he had knowingly submitted a falsified document and had fabricated his claims of involvement in his cousin's released to give a reason for wanting to depart from Sri Lanka and fearing return. 10 The Tribunal did not accept the appellant's claims that he would be suspected of being a member of the Liberation Tigers of Tamil Eelam (LTTE) due to his association with his brother and cousin or by reason of being a young Tamil male. The Tribunal did not accept that the appellant, his brother, or his cousin had any profile that would cause the authorities to think any of them had any such association. 11 The Tribunal similarly did not accept that a robbery incident, a fear of Sinhalese people in general, or his parents' possible visa to the United Kingdom, even if true or of any significance, would cause him any concern if he returned to Sri Lanka in the reasonably foreseeable future. 12 The Tribunal considered the more general claim that the appellant was at risk for reasons of being a Tamil man and also, more generally, his Tamil race or ethnicity. The Tribunal referred to the country information as being conflicting but generally indicating a decline in risks since the defeat of the LTTE by the Sri Lankan Army. The Tribunal noted that the 2012 UNHCR eligibility guidelines cautioned that an assessment based on individual circumstances was still necessary and being Tamil could increase the vulnerability of persons within other risk profiles and that those profiles should not be seen as being exhaustive. 13 The Tribunal accepted that on return to Sri Lanka, the appellant would be doing so as a failed asylum seeker from a Western country and that he would be questioned. The Tribunal accepted that this questioning would include being asked about the arrangements and smugglers involved in him departing and that it was reasonable to accept that he would be arrested and held on remand for a few days while awaiting a court appearance. The Tribunal accepted that the conditions in the prison at which he would be held were cramped and probably unsanitary and was aware of reports indicating people might be possibly detained for three days after which time they would be bailed for a future court appearance and later fined. The reports indicated that the appellant would be arrested and charged with illegally departing from Sri Lanka. However, the Tribunal considered that this feared harm or persecution would not be motivated by a Convention ground, reflecting only the implementation of a law of general application relating to illegal departure from Sri Lanka. No element of membership of a particular social group was able to be identified except as defined by the harm feared, which is not a basis upon which such a group can be identified (an unstated source of that long-standing principle is Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225). 14 The Tribunal in any event found that being detained for a few days and fined did not meet the description of serious harm amounting to persecution within the terms of s 91R(1)(b) of the Migration Act. The Tribunal did not accept that the appellant had a level of profile that would cause him to be considered as a suspect by the authorities for any matter. 15 The Tribunal therefore concluded that the appellant's fear of harm and return to Sri Lanka in the reasonably foreseeable future was not well-founded and that there was no real chance that he would suffer serious harm amounting to persecution. Accordingly, the Tribunal was positively satisfied that the applicant did not have a well-founded fear of persecution for reasons of a Convention ground. 16 The Tribunal also considered the complementary protection requirements in s 36(2)(aa) of the Migration Act and whether the appellant was a person in respect of whom Australia had protection obligations under that provision. That required consideration of whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to a receiving country, there was a real risk that he or she would suffer significant harm. The Tribunal referred to the definition of "significant harm" as defined, but did not accept the appellant's claims to be of adverse interest to anyone. While he may be arrested on return and held on remand awaiting the grant of bail, and most likely would be fined as well as being questioned about where he had been, the Tribunal did not accept that anything other than this would happen. The Tribunal did not accept that the appellant was at any risk of significant harm as contemplated by s 36(2A) of the Migration Act. Accordingly the Tribunal was not satisfied that the appellant was a person in respect of whom Australia had protection obligations under s 36(2)(aa). 17 The Tribunal therefore affirmed the decision of the delegate not to grant the appellant a protection visa.

Before the primary judge 18 The primary judge characterised this ground of review (now effective ground of appeal), as relating to what the Tribunal said at [86]-[87] of its reasons for decision as follows: 15. This ground relates to what the Tribunal said in paragraphs 86 and 87 of its reasons for decision. At paragraph 86 the Tribunal said that, "[a]s detailed above", the Tribunal found the applicant was not a credible witness and, therefore, did not accept the applicant's claims that he was of adverse interest to anyone. In paragraph 87 of its reasons, the Tribunal concluded that "[a]s detailed above and for the same reasons", the Tribunal did not accept the applicant has a level of adverse profile such that he is of any adverse interest to the authorities or anyone else in Sri Lanka. This ground claims the Tribunal applied the incorrect test when assessing the applicant's claims against s.36(2)(aa) of the Act. 19 In relation to the appellant's case on this ground, the primary judge said the following: 16. The applicant appears to claim the Tribunal applied the incorrect test when it considered the complementary protection criterion because it asked the same question it asked when it considered whether the applicant had a well-founded fear of persecution. That question was whether the applicant had a particular profile that would cause him to be of adverse interest to the authorities or anyone else in Sri Lanka. That by itself, however, does not mean the Tribunal asked itself the wrong question. 17. The complementary protection criterion provided by s.36(2)(aa) of the Act, just like the criterion provided for by s.36(2)(a) of the Act, required the Tribunal to assess the risk of future harm to the applicant. The nature of the harm the applicant claimed he faced was one that arose from his having a particular profile, namely, being a male Tamil. Whether or not the applicant had that profile was relevant to the assessment both of harm under s.36(2)(a) of the Act and under s.36(2)(aa) of the Act. When assessing the risk of harm to the applicant, the Tribunal was aware that it had to assess that risk by reference to two different criteria, that provided for under s.36(2)(a), and s.36(2)(aa) of the Act. And that is what the Tribunal did. The Tribunal, therefore, did not misunderstand the question it was required to ask when assessing the applicant's claims against s.36(2)(aa) of the Act.

Minister's submissions on appeal 20 The Minister submitted that the substance of the appellant's case is that the Tribunal asked itself the wrong question in assessing the appellant's claims for complementary protection because it asked itself whether the appellant was of "adverse interest" to anyone or had an "adverse profile". This ground suggested that "adverse interest" was another way of stating the persecution test of motivation and therefore that the Tribunal had failed to apply the complementary protection provisions as required. The Minister submitted that this was not a fair reading of the Tribunal's reasons as required by Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. The Minister submitted that the paragraphs from the Tribunal's reasons referred to by the primary judge reproduced above were plainly referring to its previous findings (at [68] and [80]) that the appellant had no profile that would cause the Sri Lankan authorities to think that he had an LTTE connection or was a suspect for any matter. The Minister submitted that was a factual conclusion relevant to assessing whether the appellant was owed protection under the complementary protection provisions. The Minister submitted that the Tribunal was entitled to refer to its previous findings when considering complementary protection, placing reliance upon the following cases: (1) SZSCA v Minister for Immigration and Citizenship [2013] FCA 774 at [56]; (2) SZSHK v Minister for Immigration and Citizenship [2013] FCAFC 125; 138 ALD 26 at [32, [34]; and (3) SZUYK v Minister for Immigration and Border Protection [2016] FCA 216 at [36]. 21 Accordingly, it was submitted on behalf of the Minister that the primary judge correctly dismissed this ground of review.

Consideration 22 It suffices for the purposes of determining this ground of appeal to have regard to a part of what was said by the Full Court in SZSHK at [32] as follows: … We can understand that a claim under the refugees Convention may fail because, on the facts, harm was suffered but not for a refugees Convention reason. However, where there is a finding that no harm as claimed was suffered, that finding is relevant to a complementary protection claim, that is, to whether the Minister has substantial grounds for believing that there is a real risk of significant harm for the purposes of s 36(2)(aa) of the [Migration] Act. 23 That is precisely the situation in this case. The Tribunal made a series of adverse credit findings and, at a factual level, did not accept that there was any basis for the appellant to be at risk of harm beyond arrest, questioning, a short period of detention, bail and a fine. It was open to the Tribunal to find that this did not constitute a real risk of significant harm. In those circumstances it cannot be said that the Tribunal asked the wrong question and accordingly there was no error on the part of the primary judge in reaching the same conclusion. 24 This ground of appeal must therefore fail.

Ground 2 - failing to comply with Ministerial Direction No. 56

Before the primary judge 25 The substance of the appellant's case before the primary judge relied upon the obligation imposed by Ministerial Direction No. 56 made under s 499 of the Migration Act to take account of policy guidelines prepared by the Department of Immigration, relevantly "PAM3: Refugee and humanitarian - Complementary Protection Guidelines" and "PAM3: Refugee and humanitarian - Refugee Law Guidelines". The appellant's case was that it was not sufficient simply to refer to those guidelines and to say that they had been taken into account, but rather that they had to be specifically referred to when the Tribunal identified the matters it had taken into account. Before the primary judge, the appellant relied upon a decision of another Federal Circuit Court judge in ARS15 v Minister for Immigration [2015] FCCA 2135, especially at [6] and [10] at which such a finding was made. The primary judge considered ARS15 and found that it was distinguishable on the facts. His Honour reasoned that, unlike the Tribunal in ARS15, this Tribunal expressly referred to having considered the guidelines, referred to country information and further referred to the conditions in the prison as being been cramped and probably unsanitary, which indicated an engagement with the direction that was not apparent in the Tribunal's decision in ARS15. His Honour was not satisfied the Tribunal did not take into account Direction No. 56 and for that reason this ground of review did not succeed.

Minister's submissions on appeal 26 The Minister submitted that the claim that the Tribunal had failed to comply with Direction No. 56, which required it to take into account the PAM3 complementary protection guidelines, entailed an unfair reading of the Tribunal's reasons. The Minister pointed out that the Tribunal had acknowledged its obligation to take account of the guidelines at [19] and asserted that it had done so. It was submitted that there was enough in the reasons to infer that the Tribunal had complied with the direction and that the burden was on the appellant to displace that inference, relying upon AYI15 v Minister for Immigration and Border Protection [2016] FCA 1554 at [26]-[27]. 27 It was further submitted that the Tribunal's reasoning at [77] and [87], concerning whether brief detention in prison conditions described as "cramped and probably unsanitary" (at [76]) could amount to open "significant harm", indicated that the Tribunal was aware of the guidelines and did not have to expressly mention them at that point. In that regard, reliance was placed upon AUE15 v Minister for Immigration and Border Protection [2016] FCA 331; (2016) 239 FCR 148 at [31]-[38], and, in particular, Rares J's observations at [34]: The introduction to the PAM3 guidelines stated that they were designed to provide advice and assistance to decision-makers on the law relevant to the assessment of whether Australia owed protection obligations to applicants under the complementary protection provisions of the Act. In my opinion, it is plain beyond argument that the Tribunal did have regard to matters in the PAM3 guidelines that it found were relevant to the issues under s 36(2A)(e) in considering the appellant's situation were he to return to Sri Lanka as an illegal departee. I accept that the Tribunal did not mention the PAM3 guidelines expressly in the section of its reasons dealing with the illegal departee issue, or make any reference to, for example, the matters discussed in para 29 of those guidelines, as examples of prison conditions, that could constitute, depending on the circumstances, breaches of Art 7 of the Covenant. However, the Tribunal expressly had regard to the factors relevant to that subject that were in the country information and submissions of the appellant, namely, whether extremely cramped or unsanitary conditions in the circumstances would amount to significant harm for the purposes of s 36(2A)(e). The Tribunal also had regard to the fact that the statutory definition of "degrading treatment or punishment" had two elements, namely, whether the relevant matter complained of caused extreme humiliation that was unreasonable and also was intended to cause that outcome. 28 The Minister submitted that there was no basis to suggest that the Tribunal had not complied with Direction No. 56. Accordingly, it was submitted that the primary judge correctly dismissed this ground of review.

Consideration 29 This case is on all fours with the decision of Rares J in AUE15. While the primary judge did not refer to that decision, his Honour's reasoning was indistinguishable in substance. In particular, the Tribunal stated at [67] the following: The country information is as detailed in the delegate's decision and also in the various submissions from the applicant's agents. I have considered that information including PAM 3 guidelines. I have also considered information mentioned above, and the following: [a detailed consideration of country information then follows] 30 In all circumstances, it is not possible to accept that the Tribunal did not have due regard to the guidelines as required, especially as express consideration was given to the likely conditions in detention pending bail and its short duration. There is no proper basis for concluding that the Tribunal erred, as suggested by the appellant in his ground of review, as repeated on appeal. Not only did the primary judge not err, but in my opinion, His Honour's conclusions were plainly correct. 31 It follows that this ground of appeal must fail.

Ground 3 - failing to take into account a relevant consideration in relation to complementary protection

Before the primary judge 32 The substance of this ground of review and now of appeal is that the Tribunal failed to take into account a relevant consideration in relation to complementary protection, being the prior decision of Portorreal v Dominican Republic, Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987) by the Human Rights Committee (HRC), a body established by the International Covenant on Civil and Political Rights to ensure compliance with that instrument by State parties. In that decision, the HRC's close analysis of the conditions in which a person had been detained led to its conclusion that there had been a violation of article 7 of the ICCPR, notwithstanding that the detainee's period of exposure to those conditions was no longer than 50 hours. The primary judge acknowledged that the Tribunal did not refer to that particular decision, but noted that this did not necessarily mean that the Tribunal did not consider it. His Honour assumed that the decision was referred to in the PAM3 guidelines, but given that he was not satisfied the Tribunal did not consider those guidelines, his Honour was not satisfied the Tribunal did not consider that decision.

Minister's submissions on appeal 33 The Minister submitted that this ground of appeal should fail for the same reason as ground 2, namely that, on a fair reading, the Tribunal was aware of the guidelines, including the decisions mentioned in them, and had therefore taken that decision into account. It was further submitted that because, as was the case in AYI15 at [23]-[25], the HRC decision was not sufficiently factually relevant, one would not expect the Tribunal to mention it expressly.

Consideration 34 While I consider that it was open to the primary judge to reason as he did in concluding that it had not been demonstrated that the Tribunal had not had regard to the HRC decision, I would prefer to deal with this somewhat differently and in line with the reasoning of Nicholas J in AYI15, where his Honour said as follows: [21] The terms of Direction No. 56 make clear that the Tribunal is only required to take account of the Guidelines to the extent that they are relevant to the decision under consideration. In the present case it is not open to infer that the Tribunal's failure to refer to the Guidelines (beyond what appears in [19]) can be explained on the basis that they were not relevant. Both parties accept that they were relevant. [22] The appellant submitted that it is unthinkable that the Tribunal would not have made any reference to the Guidelines (beyond what appears in [19]) in this case if it had taken them into account. I do not accept this submission. [23] In his submissions, counsel for the appellant referred me to the Guidelines in some detail including the discussion of some of the UNHRC decisions in which breaches of Article 7 of the ICCPR were found to have occurred in circumstances involving lawful detention in extremely cramped or unsanitary conditions. One of these decisions is referred to in an endnote (note 62) to the Guidelines which refers to the UNHRC decision in Portorreal v Dominion Republic, Comm No 188/1984 UN Doc CCPR/C/OP/2 (5 November 1987) in which it held that Mr Portorreal was "subjected to inhuman and degrading treatment and to lack of respect for his inherent human dignity during detention." [24] I was taken to the UNHRC's reasons for decision in Mr Portorreal's case which concerned his unlawful detention for some 50 hours in what were alleged to be overcrowded and unsanitary conditions. The appellant sought to support the drawing of the inference that, despite what appears in [19] of the Reasons, the Tribunal did not take account of the Guidelines on the basis that Mr Portorreal's circumstances and experience were not dissimilar to those that may be experienced by the appellant if he is required to return to Sri Lanka. [25] Mr Portorreal was, according to the UNHRC's reasons for decision, a Law Professor who appears to have been detained for political reasons, without ever being informed of the reasons for his arrest, apparently with a view to intimidating and damaging the reputation of the political association of which he was the Executive Secretary. I do not think any inference can be drawn from the failure to refer to this decision or any of the other six decisions referred to in Part 30 of the Guidelines which I have previously discussed. None of them appear to me to have any particular relevance to the appellant's case. I certainly do not regard them as being of such relevance as would justify the drawing of an inference, based upon the absence of any specific reference to them in the Tribunal's Reasons, that the Tribunal did not take account of the Guidelines. [26] In its Reasons at [19] the Tribunal expressly noted that it was required to take account of the Guidelines. On a fair reading of the Tribunal's Reasons, I think it should be accepted that the Tribunal did this: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 271-272. [27] I came to the same conclusion in a very similar matter in SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 ("SZTCV") at [14]. In that matter, the Tribunal included the following paragraph in its reasons: 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 - to the extent that they are relevant to the decision under consideration. I have done so. 35 In common with Nicholas J, I do not accept that an obligation under with Direction No. 56, which required the Tribunal to take into account the PAM3 complementary protection guidelines, required reference to, or reliance upon, each and every detail of those guidelines. The evident purpose of those guidelines is to ensure that matters required to be considered are taken into account if relevant to the case at hand, and only to the extent of such relevance. The HRC case referred to is illustrative of the need to look to the particular circumstances in which a person may be detained upon the basis that even if the detention is not of an extended duration, it may yet amount to a risk of significant harm for the purposes of complementary protection. 36 The HRC case illustrated the duration of detention may not of itself be determinative of whether the requisite threshold of a risk of significant harm is exceeded, depending on what is likely to happen during that period. The likely circumstances of such detention in a particular case may require closer examination. There is no proper basis for suggesting that the Tribunal has not carried out the required task, including by reference to the relevant substance of Direction No. 56. The Tribunal did consider not just the likely duration of detention, but the conditions in which it was likely to take place. The situation which the Tribunal identified as being likely is to be contrasted with the circumstances in the HRC case, the relevant passages of which were reproduced in the primary judge's reasons at [28] as follows: 2.2 Later the same day, the author was allegedly separated from the other political opposition leaders and transferred to another cell (known as the "Viet Nam cell"), measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held. Conditions were allegedly inhuman in this overcrowded cell, the heat was unbearable, the cell extremely dirty and owing to lack of space some detainees had to sit on excrement. The author further states that he received no food or water until the following day. … 9.2 Mr. Ramon B. Martinez Portorreal is a national of the Dominican Republic, a lawyer and Executive Secretary of the Comite Dominicano de los Derechos Humanos. On 14 June 1984 at 6 a.m., he was arrested at his home, according to the author, because of his activities as a leader of a human rights association, and taken to a cell at the secret service police headquarters, from where he was transferred to another cell measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released. At no time during his detention was he informed of the reasons for his arrest. 37 It follows that I do not accept the premise contained within ground 3 of review, repeated as the third ground of appeal. In the circumstances, it was not a relevant consideration in the sense of being mandatory that the Tribunal have regard to the Potorreal decision, whether contained in the guidelines in or not, in considering what may happen to a protection visa applicant upon return and whether that could amount to a real risk of suffering significant harm for the purposes of the complementary protection criteria. 38 This ground of appeal must therefore fail.

Conclusion 39 As all three grounds of appeal must fail, this appeal must be dismissed. The appellant must pay the Minister's costs. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.

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