Proposed ground two
42 By his second proposed ground, the appellant asserts that the IAA failed properly to determine whether there was a real risk that the appellant would be subjected to degrading, cruel or inhuman treatment or punishment; and that that failure amounts to a constructive failure on its part to exercise its jurisdiction.
43 Counsel for the appellant submitted that the Prison Claims were put to the IAA; specifically, that, due to his having left Sri Lanka unlawfully, the appellant would be detained upon return, and would have neither sufficient money nor family support to secure bail, such that he would then be subjected to poor prison conditions. It was said that the IAA should have recognised the significance of the Prison Claims, especially in relation to pre-sentence remand, and should have recognised the capacity of the Prison Claims rationally to affect the assessment of whether the appellant would face a real risk of significant harm.
44 Counsel for the appellant asserted that, although the IAA considered the period of time over which the appellant may be detained at the airport, the appellant's claim was not merely about poor airport prison conditions; but extended to poor prison conditions during any time that he spent detained. It was submitted that the ASRC Report noted that a returnee might be remanded for a period of time at Negombo prison, and that the IAA's contrary conclusion was demonstrative of its having failed to consider the possibility of pre-sentence remand. Because the IAA did not consider the possibility of pre-sentence remand, it was said that it had failed properly to consider the appellant's prospects of securing bail and therefore being subjected to poor prison conditions.
45 Counsel for the appellant compared the present case with what was considered in BXK16 v Minister for Home Affairs [2022] FCA 251 (hereafter, "BXK16") and AVQ15 v Minister for Immigration and Border Protection and Another [2018] FCAFC 133 (hereafter, "AVQ15"). BXK16 was said to be an example of where a tribunal observed a clear distinction between remand and a custodial sentence. AVQ15 was said to stand for the contention that the IAA "did at least have to consider the question [that a period on remand did give rise to a risk of harm] in order to discharge its statutory task", because even a short period of time on remand would not necessarily fall outside the definitions of cruel or inhuman treatment or punishment, or degrading treatment or punishment (see s 36(2A)(d) and (e)).
46 The appellant relied upon the distinction between analogous cases in which the court found jurisdictional error, namely:
(1) Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (Griffiths J); and
(2) ABA15 v Minister for Immigration and Border Protection [2016] FCA 1419 (Charlesworth J; hereafter, "ABA15"),
and cases in which it did not, such as:
(3) SZTAP v Minister for Immigration and Border Protection [2017] FCA 1370 (Griffiths J); and
(4) DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (Beach J, O'Callaghan J, Anastassiou J; hereafter "DCP16"),
The appellant asserts that this appeal is more similar in its circumstances to those where jurisdictional error was found to have been committed.
47 The Minister submits that the cases in which jurisdictional error was recognised should be distinguished from this appeal for three reasons, namely because:
(1) in ACF17 v Minister for Immigration and Border Protection [2019] FCA 1902 (hereafter, "ACF17"), Moshinsky J held (at [32]) that:
In SZTQS, the Tribunal found that bail is routinely given on the accused's own recognisance "although a family member is also required to provide surety". This was one of the matters that Griffiths J considered provided an adequate basis for the primary judge's finding and conclusion: see SZTQS at [43]-[45]. Contrastingly, in the present case, the Tribunal found that the returnee "may" be required to have a family member act as guarantor.
(2) ABA15 was a procedural fairness case under Part 7 of the Act, whereas this is an IAA case under Part 7AA of the Act, in respect of which the requirements of procedural fairness have been excluded by statute; and
(3) in DCP16, the Court held (at [100]):
In our view the primary judge was correct to find that ABA15 was distinguishable. In the present case the Authority's finding was that a family member may have to act as guarantor, not that a family member "is also required" to act as guarantor as discussed in ABA15 (at [46], [49], [50] and [52]). Therefore, any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority's reasons (cf ABA15 at [53], [57] and [58]). But in any event ABA15 may go too far. In particular, it may not be necessary for a decision-maker to have positive evidence that a family member is willing to act as guarantor for a person (cf ABA15 at [52]). Rather, if there is evidence that a person has family in the country of return, a decision-maker may permissibly reason that a family member may be prepared to act as guarantor (if that is required), unless the person puts forward reasons why the family member cannot or will not do so. But to so reason may first require that the decision maker has put the person on notice as to the guarantee question.
48 The Minister also submits that ACF17 is distinguishable from the present case because of what Moshinsky J held at [29], namely:
Secondly, unlike ABA15, this is not a case where any implicit finding that a family member would provide surety for bail, was a critical step in the Authority's finding that any period of detention would be brief. In ABA15, the Tribunal found that bail is routinely given on the accused's own recognisance, although a family member "is also required to provide surety": ABA15 at [46]. In contrast, in the present case, the Authority found that in most cases where a returnee pleads guilty, they are immediately granted bail on personal surety, or they "may" be required to have a family member act as guarantor. In these circumstances, any implicit finding about whether a family member would act as guarantor was not a critical step in the Authority's reasons: see DCP16 v Minister for Immigration and Border Protection [2019] FCAFC 91 (DCP16) at [100] per Beach, O'Callaghan and Anastassiou JJ. See also at [101] and [102].
49 The Minister submits that the IAA satisfactorily considered the remand question because it expressly found that the appellant would not face a real chance of a custodial sentence, and expressly had regard for the appellant's capacity to pay bail money or a fine, concluding that the appellant would not face any period of custody beyond a few days at most. It was said that the IAA did so having considered, in substance (and albeit from different sources), the information that was erroneously excluded from consideration. There was, it was said, no reason to infer that either the prison conditions or the inability to secure bail was not considered by the IAA.
50 The Minister relies, in part, on BXK16 in support of the argument that is open to the court to find that, notwithstanding that the IAA did not specifically address the appellant's capacity to pay for bail, that the words "personal surety" or "personal guarantee" in the IAA's reasons should be understood as the IAA concluding that no exchange or requirement to pay money would be required in order for the appellant to secure bail.
51 The IAA's analysis in relation to any potential loss of liberty was as follows (references omitted; emphasis added):
I accept that the [appellant] would be returning to Sri Lanka after having departed the country illegally. While the [appellant] has advised that he holds a valid Sri Lankan passport, he did not use this passport to leave the country. The [appellant] has not indicated whether he would return to Sri Lanka using his own passport or whether he would return on temporary travel documents. DFAT reports that for returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background, or trying to avoid court orders or arrest warrants. This often involves interviewing the returning passenger, contacting the person's claimed hometown police, contacting the person's claimed neighbours and family, and checking criminal and court records. All returnees are subject to these standard procedures, regardless of ethnicity and religion. While returnees might be at the airport for several hours while these procedures take place and due to being processed en masse, DFAT understands returnees are not subject to mistreatment during processing at the airport. I am not satisfied that the [appellant] will come to any particular attention of the authorities as a result of this process as I do not consider that he has any profile of interest to the Sri Lankan authorities beyond having departed the country illegally.
Where an illegal departure is suspected, returnees are charged under the Immigrants and Emigrants Act (I&EA). DFAT understands that in most cases, these individuals are arrested at the airport. As part of this process, police will take photographs, finger prints and statements and make relevant enquiries and checks to be sure that the person is not trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants. At the earliest available opportunity police transport the individual to the closest Magistrates Court. The Court then makes a determination as to the next steps for each individual. Should a magistrate not be available - for example, because of a weekend or public holiday - those charged may be held in a holding cell at the airport for up to two days. As noted above, DFAT understands that returnees are not subject to mistreatment during processing at the airport.
Country information from DFAT indicates that penalties applicable for passengers illegally departing in this context can include up to five years imprisonment and fines of up to 200,000 Sri Lanka Rupees. A guilty plea will attract a fine which, if the [appellant] does not have the means to pay, can be arranged to be paid by instalment and the defendant is free to go. Where a returnee pleads not guilty, the magistrate will usually grant bail on the basis of personal surety or guarantee by a family member and they are free to go. In particular, advice from Sri Lanka's Attorney General's Department to DFAT is that no returnee who left Sri Lanka unlawfully as a simple passenger on a people smuggling vessel has been given a custodial sentence for their breach of the I&EA. If the [appellant] is charged and fined under the I&EA, the country information indicates he would be released, or released on personal surety or guarantee by a family member. There is no suggestion the [appellant] was anything other than an ordinary illegal departee from Sri Lanka. In that context, I find that he would not face a real chance of a custodial sentence. As noted above, the [appellant] may be detained for up to two days in a holding cell at the airport whilst waiting to be brought before a magistrate. He may incur legal and transport costs travelling to and from court and he may spend many years on bail which can involve monthly reporting to police at the returnee's expense. On the evidence before me, I am not satisfied that a brief period of detention at the airport, the imposition of any fine, possible surety or guarantee and associated costs and reporting requirements would constitute serious harm for the [appellant], noting that fines can be paid by instalment.
52 Counsel for the Minister submitted that what the IAA considered in relation to any custodial sentence was that "in no universe, whether he pleads guilty or not guilty, [would] he be sentenced to a term of imprisonment" - in other words, that the question of remand had been considered by the bolded sections of the extract above.
53 It is apparent that the IAA came to the conclusion that, on any eventuality, the appellant would, upon seeing a magistrate, likely be released. Notably, however, the IAA used the phrase "bail on the basis of personal surety or guarantee by a family member" (emphasis added). There are two possible interpretations of that aspect of the IAA's reasons, namely that:
(1) in the usual case, a returnee might, at his or her option, offer either a guarantee by a family member or some personal surety; or
(2) in the usual case, the magistrate may decide which of the two options should be required.
54 On the first interpretation, assuming that a personal surety does not require any exchange or payment of money, it matters not whether the appellant pleads guilty or not guilty: the appellant would be free to go upon pleading before a magistrate.
55 If, however, the second interpretation is accepted, then:
(1) if the appellant were to plead not guilty; and
(2) if the magistrate were not to be satisfied by personal surety alone; and
(3) if the appellant is unable to obtain a guarantee by a family member (as he claims),
then, on the IAA's reasons, the appellant would not be granted bail. On this second interpretation - and in circumstances where the appellant submitted that his relatives would not be able to furnish any financial or personal guarantee - the IAA perhaps should specifically have considered the Prison Claims.
56 However, even if the second interpretation were preferable, the IAA did not reason that a guarantee by a family member would be required, only that it may be required. This appeal is thus more akin to ACF17 and DCP16, in that any requirement that a family member should act as guarantor was not a critical step in the IAA's reasons. To the extent that the second interpretation is preferable, the failure specifically to consider the Prison Claims is not an error of jurisdiction.
57 Regardless of which interpretation is to be accepted, the appellant also submits that a personal surety may - on the IAA's reasons - require payment of money, which neither the appellant nor his family could provide. As such, it was said to be incumbent upon the IAA to consider the possibility of remand and resulting prison conditions, which it failed to do by virtue of having failed properly to consider the Prison Claims.
58 However preferable it might have been for the IAA to have expressly considered the possibility that the appellant might be required to pay money in order to secure bail, at its highest the requirement to pay money to secure bail is nothing more than a mere possibility. It was not a critical step in the IAA's path of reasoning and, as such, any failure to consider the possibility was, at most, an error within jurisdiction: ACF17 and DCP16.
59 Further, the Minister claims that any failure properly to consider the Prison Claims was immaterial because:
(1) the relevant provisions in the Sri Lankan law are laws of general application;
(2) any period of imprisonment (and consequential exposure to harm) lacked any element of intention necessary to qualify as the infliction of significant harm.