SZSZQ v Minister for Immigration and Border Protection

Federal Court of Australia|2018-03-28|Before: Katzmann J

Background 2 The appellant is a Sri Lankan national of Tamil ethnicity. He left Sri Lanka illegally by boat, landing at Christmas Island without a passport on 1 May 2012. He later applied to the Minister for Immigration and Border Protection for a protection visa, claiming to fear persecution in his country of nationality. But the Minister, through his delegate, refused to grant it and the Refugee Review Tribunal (the functions of which are now performed by the Administrative Appeals Tribunal) affirmed the delegate's decision. The appellant then sought judicial review of the Tribunal's decision but his application was dismissed. This is an appeal from that decision.

Eligibility for a protection visa 3 The criteria for the grant of a protection visa appear in s 36 of the Migration Act 1958 (Cth). This case is concerned with the criterion in s 36(2). Section 36(2) contains four alternatives. Only the first two are relevant to the appeal. At the time of the Tribunal's decision, they specified that the applicant be either: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm[.] 4 In substance, the first alternative, commonly referred to as the refugee criterion, requires that the applicant be a refugee as defined by Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol (together the Convention). In the context of the present case, this meant that the appellant had to satisfy the Minister's delegate in the first instance and, if not him, the Tribunal that: (1) he was outside his country of nationality; (2) he had a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion; and (3) by reason of that fear, he was unwilling to avail himself of the protection of his country of nationality. 5 At the relevant time, however, s 91R(1)(a) of the Migration Act provided that Article 1A(2) of the Convention did not apply to persecution unless one or more of the reasons referred to in (2) above is "the essential and significant reason(s)" for the persecution, the persecution involves "serious harm" to the applicant and "systematic and discriminatory conduct". "Serious harm" is defined in para (1)(b). 6 For the purposes of the second alternative, commonly referred to as the complementary protection criterion, "significant harm" was (and is) defined in s 36(2A) in the following way: A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 7 Each of "torture", "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" was (and is) defined in s 5(1) of the Act. 8 "Cruel or inhuman treatment or punishment" means: an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature; but does not include an act or omission: (c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 9 "Degrading treatment or punishment" means: an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission: (a) that is not inconsistent with Article 7 of the Covenant; or (b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 10 "Torture" means: an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: (a) for the purpose of obtaining from the person or from a third person information or a confession; or (b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or (c) for the purpose of intimidating or coercing the person or a third person; or (d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or (e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant; but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 11 The reference to "the Covenant" in each of these definitions is a reference to the International Covenant on Civil and Political Rights (ICCPR). Article 7 of the ICCPR states: No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. 12 The background to the introduction of these provisions was discussed by the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; 91 ALJR 936 (SZTAL (HC)). See also Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 (Lander, Jessup and Gordon JJ) at [17]-[19].

The appellant's claim for protection 13 In a statutory declaration accompanying his visa application, completed with the assistance of a migration agent who is also a lawyer, the appellant identified three reasons that he feared persecution: (1) his Tamil ethnicity or race; (2) his (imputed) political opinion both as a suspected member of the Liberation Tigers of Tamil Eelam (LTTE) and for refusing to join the Karuna Group; and (3) his membership of the particular social group of failed Tamil asylum seekers. 14 Those three grounds were also identified in a submission dated 27 March 2013, prepared by the appellant's migration agent, made in support of his application to the Tribunal. The submission further identified two additional questions relating to the appellant's fear of being exposed to a real risk of significant harm. 15 The salient aspects of the appellant's claims were as follows. 16 The appellant is not and never has been a member or supporter of the LTTE and neither has any member of his family. Nevertheless, people in his village were (and continue to be) rounded up about 15 times a month by armed Sri Lankan Army (SLA) officers "for head counts, for identifying supporters of the [LTTE] and for identifying people to be detained for questioning". Those who could not remember their National Identification Card Numbers were beaten and suspected of being members of the LTTE. 17 Sometimes people are detained by government authorities for questioning and never return. Sometimes people around the area where the appellant lived are abducted by paramilitary groups and held for ransom. If the money is not paid the people are shot. 18 In 2010 the appellant witnessed a neighbour being abducted by two men in a white van. He was frightened by the sight of the van and retreated to his house. His neighbour has not been seen or heard of since. He does not know the identity of the culprits. 19 Sometime after the abduction (two to three months according to the statutory declaration but two days later according to the submissions made to the Tribunal) the Army did a "round up" of suspected members of the LTTE in Udappu, where his village is situated. Early one morning they came to his village and rounded up all the Tamil men, taking them to the SLA camp near the village. While some were released, he was not. The appellant was taken by three officers to a room where he was kicked and beaten, sustaining injuries, and subjected to questioning about his neighbour. In the submissions to the Tribunal he was said to have been sexually abused, too, a matter he claimed he was too embarrassed to mention to the Minister's delegate. The account he gave was said to be "synonymous with accounts of other Tamils who have been detained for suspected links with the LTTE". 20 A few days after the beating, his mother told him that it was no longer safe for him to stay in Udappu so he left for another district (Mankani scil.), leaving behind his wife and children. He returned only once - in April 2012, the day before he fled the country. In Mankani, the Karuna Group (an LTTE splinter group) pressured him to join and threatened to kill him if he did not. Consequently, he fled the district and went into hiding for about five days before returning to Udappu. There, according to the submission to the Tribunal from his migration agent, his mother told him that "the white van" had been to the house looking for him three or four times a month since his departure, most recently the previous day. She encouraged him to leave. His uncle told him that there were ships going to Australia and suggested he go. 21 In the March 2013 submission, the appellant's agent referred to various independent reports of conduct similar to that described by the appellant occurring to suspected members of the LTTE. He also referred to independent reports concerning the conditions in Sri Lankan prisons (at and after the time the appellant fled) which the appellant contended he would face on his return. He submitted that the appellant would be tortured, subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment and thus that he faced a real risk of significant harm if he were repatriated to his country of nationality.

The Tribunal decision 22 The Tribunal accepted that the appellant was a Sri Lankan citizen, a resident of Udappu, and an ethnic Tamil. It also accepted that he was married and that he had worked as a fisherman. But the Tribunal expressed "strong doubts" about the credibility of the appellant's account, pointing to the absence of independent evidence to support it, inconsistencies within it, and aspects of it that the Tribunal simply considered implausible. Ultimately, it was not satisfied of the truth of major elements of the appellant's account, including the following: that he or other Tamils in Udappu were subjected to frequent round-ups by the SLA; that he was ever interrogated and harmed through such a process in 2010; that a friend or neighbour was abducted in a white van in 2010, as a result of which the authorities came to suspect the appellant of involvement with the LTTE; that the appellant was ever a target because he was a witness to such an event; that the CID (Criminal Investigation Department of the Sri Lankan police) came to his house in search of him or that they made repeated visits to his house; or that he was ever threatened by the Karuna Group for any reason. 23 The Tribunal considered the appellant's claims for protection under the refugee criterion by reference to actual or imputed political opinion (against the Karuna Group or the government, or in favour of the LTTE), his ethnicity (as a Tamil) and his membership of a particular social group (constituted of failed asylum seekers). The Tribunal also purported to consider his claim for protection under the complementary protection criterion, making specific reference to whether the appellant was at a real risk of facing significant harm as a failed asylum seeker who had left Sri Lanka illegally. 24 Having regard to the evidence and the information before it, the Tribunal was not satisfied that the appellant had ever been imputed with a political opinion against the Karuna Group or the government or in favour of the LTTE. Nor did the Tribunal consider that there was any reason to believe that such an opinion would be imputed to him in the future. Consequently, the Tribunal was not satisfied that the appellant would be harmed for such a reason if he were to return to Sri Lanka. 25 The Tribunal then considered and rejected the appellant's claim based on his race or ethnicity as a Tamil. It found that the situation in Sri Lanka had stabilised since the end of the civil war in May 2009 and the risks to Sri Lankan Tamils arising by reason only of their Tamil ethnicity were "substantially reduced". 26 The Tribunal also rejected the appellant's claim for protection as a refugee based on his status as a failed asylum seeker. 27 When discussing this aspect of the application, the Tribunal referred to reports that some recent failed asylum seekers returning to Sri Lanka from the United Kingdom had been tortured and otherwise abused by the authorities. It observed, however, that these cases overwhelmingly involved returnees who had or were suspected of having some form of connection with the LTTE or were criminal suspects. Based on its earlier conclusions, it considered that the appellant did not fall into any of those categories. Rather, it found that the appellant would be subjected to standardised procedures applying to all cases, which in the opinion of the Tribunal did not constitute harm in the relevant sense. 28 The Tribunal's reasons on the complementary protection criterion were brief. In short, the Tribunal repeated its conclusion as to the appellant's credibility on his refugee claims and, although it accepted that on his return he would likely be arrested, charged and convicted of an offence or offences relating to his illegal departure and that he could be imprisoned albeit only for "a relatively brief period while awaiting a bail hearing", it concluded that this would amount to neither serious harm "in a Convention sense" nor significant harm "in terms of Australia's complementary protection arrangements".

The application in the Federal Circuit Court 29 In his application before the Federal Circuit Court, the appellant alleged that the Tribunal had fallen into jurisdictional error in the following respects: (1) by failing to apply the correct test for "degrading treatment or punishment" when considering the likely consequences of the appellant's illegal departure from Sri Lanka; (2) by failing to engage in "an active intellectual process" in resolving the issues raised by his possible detention on return to Sri Lanka and, in particular, by failing to give specific consideration to whether such detention could amount to degrading treatment or punishment or could result in extreme humiliation of the appellant; (3) by failing to address a "centrally relevant" submission, namely, that "detention in cramped and unsanitary conditions for one or more days could amount to degrading treatment or punishment and could result in extreme humiliation"; and (4) by failing to address the appellant's "clearly articulated" claims to fear harm from paramilitary groups and as a member of the social group of "failed Tamil asylum seekers". 30 The first three grounds, the primary judge considered, related to the Tribunal's disposition of the complementary protection claim. In substance, ground 3 was another way of putting ground 2.

Ground 1: failing to apply the correct test for "degrading treatment or punishment" 31 The primary judge rejected the first ground, accepting the Minister's submission that the Tribunal's reasons demonstrated that it was aware of the elements of "significant harm", despite its "rolled up" conclusion at the end. 32 Her Honour said that the Tribunal's findings in relation to complementary protection had to be read with its earlier findings about the "possibly" cramped and unsanitary conditions in which the appellant might be placed pending his release on bail. Her Honour said that "[r]eading the Tribunal decision fairly and as a whole" the Tribunal's findings in relation to complementary protection were clearly based on its earlier findings made in the context of its consideration of the refugee criterion. Her Honour was of the view that the fact that the Tribunal expressed its conclusion by reference to whether significant harm might befall the appellant did not support the appellant's contention that the Tribunal failed to appreciate "the content of the concepts amounting to significant harm". She pointed to the acknowledgment by the Tribunal of the submission made by the appellant's agent that "relevant categories of significant harm would be established in relation to any period of detention". I take this to be a reference to the last dot point in the Tribunal's summary of the agent's submissions: Any period of detention, including while awaiting a court appearance, would expose the [appellant] to significant harm, in particular torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. 33 The primary judge also noted the Tribunal's consideration of media reports referring to conditions on remand as overcrowded and unsanitary. She emphasised, however, that, although the Tribunal accepted that the appellant "could well be placed in remand", its conclusion as to the conditions he would face were tentative, describing them as "possibly" cramped and unsanitary. Furthermore, her Honour noted, the Tribunal had mentioned that there were no reports of returnees held on remand in Negombo prison awaiting bail hearings having been subjected to "torture or other forms of deliberate mistreatment". This latter reference, her Honour said, was "relevant to the 'intention' aspect of the definitions in issue". 34 Her Honour considered that the appellant had not established that these findings could not be reconciled with the Tribunal's decision on the question of complementary protection so as to justify the conclusion that the Tribunal had failed to appreciate the content of the definition of "degrading treatment or punishment" and failed to apply the correct test. 35 Nor, her Honour held, was the Tribunal's failure to refer to international jurisprudence cited in the appellant's written submissions indicative or supportive of a conclusion that the Tribunal had failed to apply the correct test. Her Honour said (at [77]) that "[i]nternational jurisprudence about poor prison conditions for those convicted of offences was not directly relevant" because the Tribunal did not accept that there was a real chance the appellant would be imprisoned upon conviction. Her Honour inferred that the Tribunal did not refer to the international jurisprudence because it did not consider it relevant. She referred at length to the joint judgment of Kenny and Nicholas JJ in the Full Court's decision in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556 (which was upheld by a majority in the High Court), emphasising their Honours' opinion to the effect that the international jurisprudence on Article 7 of the ICCPR or Article 3 of the European Convention on Human Rights did not assist in determining the meaning of intention in the definitions in s 5 of the Migration Act.

Ground 2: Failing to engage in an active intellectual process before dismissing the appellant's claim to be at real risk of significant harm because of the conditions in which he would likely to be held on his return to Sri Lanka 36 The primary judge rejected ground 2 for similar reasons (at [95]-[98]).

Ground 3: Failing to address the appellant's submission as to the effect of detention 37 Ground 3 of the application pleaded that the Tribunal failed to address a "submission centrally relevant to the decision being made" in that it made no reference to, or finding about, whether the appellant's detention could relevantly constitute degrading treatment or punishment. The ground was said to relate to Parts D and E of the March 2013 submission. The primary judge summarised the argument in support of it at [103]-[104] of her reasons. 38 The primary judge found that the Tribunal had had regard to the submission but "implicitly" rejected the broad proposition advanced in it that "any" period of detention could expose the appellant to significant harm. Further, her Honour held that the references to general prison conditions in the submission were not relevant because, having regard to the Tribunal's findings, the situation in this case concerned a possible short-term detention on remand pending a bail hearing, rather than imprisonment after conviction. 39 The primary judge held that the Tribunal did consider the appellant's claims about the prospect of mistreatment while in Negombo prison awaiting bail, but attached significance to the absence of any reports of "torture or other forms of deliberate mistreatment" of returnees held there (except in particular circumstances such as for those returnees with links with the LTTE). 40 Her Honour concluded that ground 3 was not made out, emphasising again the uncertainty in the Tribunal's language: Insofar as this ground suggests that the Tribunal accepted that the [appellant] would necessarily be detained on remand and, if so, would face cramped and unsanitary conditions, that is not the case. Rather, the Tribunal accepted that returnees believed to have departed illegally who returned to Sri Lanka on a weekend or public holiday would be detained on remand in Negombo prison until a bail hearing was available. While the Tribunal did accept on this basis that the [appellant] may "well" be detained on remand for a few days (or a "relatively brief period") in conditions that were "possibly" cramped and unsanitary, it was clearly of the view that detention for a few days in such conditions in circumstances where there was no evidence of deliberate mistreatment could not reasonably be said to amount to either serious or significant harm.

Ground 4: Failing to address the appellant's "clearly articulated" claims to fear harm from paramilitary groups and as a member of the social group of "failed Tamil asylum seekers" 41 As no complaint is pressed on the appeal about the primary judge's consideration of the Tribunal's treatment of the second of these claims, it is only necessary to refer to her Honour's consideration of the first of them. 42 The primary judge accepted that the failure to consider a substantial clearly articulated argument that, if accepted, might make out either the refugee or the complementary protection criterion could amount to a jurisdictional error. She also accepted that the Tribunal was required to consider a claim that squarely arises on the material. But she did not accept that the appellant had advanced such an argument or claim in relation to paramilitaries generally or in addition to his claim to fear harm from the Sri Lankan authorities and the Karuna Group. 43 In any case the primary judge considered that the Tribunal's findings were sufficiently broad to capture such a claim, since the basis of the argument was the appellant's claim to fear persecution because of his ethnicity and imputed political opinion and the Tribunal had dealt with both those claims.

The appeal 44 Ten grounds of appeal were pleaded in the notice of appeal. Two (grounds 9 and 10) were not pressed. Without alteration the remaining eight grounds are: 1. The Federal Circuit Court (The Court) erred by concluding that the Tribunal's finding that the applicant "could well be" held on remand on return to Sri Lanka was not a finding that detention was "likely". 2. The Court also concluded the use of the words "could well be" and "possibly" indicated that the Tribunal had considered that the conditions the applicant faced on remand were not necessarily cramped and uncomfortable. The judge should have concluded that these words, if used to diminish the significance of the harm faced by the applicant such that there was not a real likelihood that it would occur, or in some other way affected the seriousness of the harm faced by the applicant, in fact supported the applicant's argument that the Tribunal misunderstood the applicable test. The Judge erred in failing to so conclude. 3. The Court erred in concluding that the Tribunal had not erred in its understanding of the applicable law when it found that having regard to the country information and its findings about the Applicant's personal circumstances, that the conditions in detention on remand for a relatively brief period while awaiting a bail hearing could not reasonably be said to amount to significant harm within any of the concepts defined in s.5(1) of the Act. 4. The Court erred in finding that International jurisprudence about poor prison conditions for those convicted of offences was not directly relevant.to the question of whether imprisonment on remand (with convicted criminals and others on remand) was significant harm. 5. The Court erred in finding that International jurisprudence about poor prison conditions was not relevant to the question of whether imprisonment on remand in Sri lanka was significant harm. 6. The Court erred in finding that the Tribunal had meaningfully engaged with the submissions of the applicant's adviser that detention in poor prison conditions for even a short period of time could amount to significant harm. 7. The Court erred in finding that a claim to fear paramilitaries did not arise clearly from the material. 8. The Court erred in finding that the Tribunal considered the bases underlying any fear of paramilitary groups generally on the part of the Applicant and such findings were sufficiently broad to encompass any claimed fear of paramilitaries arising on the material before the Tribunal. 45 The notice of appeal was unnecessarily prolix. I am reminded of what Branson J said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549 at [4]: A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the court in the exercise of its appellate jurisdiction. Not every grievance entertained by a party, or its legal advisors, in respect of the factual findings or legal reasoning of the primary judge will constitute a ground of appeal. Findings as to subordinate or basic facts will rarely, if ever, found a ground of appeal. 46 Her Honour went on to observe (at [5]) that "[a] useful practical guide is that a notice of appeal which cannot be used to provide a sensible framework for the appellant's submissions to the Full Court is almost certainly a notice of appeal which fails to comply with the requirements of O52 r 13(2)(b) [now r 36.01(2)(c) of the Federal Court Rules 2011 (Cth)]", which requires that a notice of appeal state "briefly but specifically the grounds relied on in support of the appeal". Plainly, the notice of appeal provided no such framework. In his written submissions the appellant dealt with grounds 1, 2, 3, 5 and 6 together, without identifying which submission went to which ground. Though it was intimately connected with grounds 5 and 6, ground 4 was oddly singled out for separate treatment. At the outset of his written submissions, the appellant purported to identify the issues but then set out his argument without reference to them. Unfortunately, the position was not greatly advanced in oral argument. 47 The three issues the appellant identified in his written submissions were: first, whether the primary judge erred in concluding that there was no need for the Tribunal to engage with the appellant's submissions about the international jurisprudence concerning poor prison conditions; second, whether the primary judge erred in finding that the Tribunal's reasoning process did not reflect a misunderstanding of the applicable law about "significant harm"; and third, whether the primary judge erred in concluding that the Tribunal was not required to address the appellant's alleged fear of paramilitary groups. This analysis was unhelpful. The description of the first issue did not do justice to the appellant's grounds of appeal or to the force of his argument about the Tribunal's inattention to his submissions. None of the identified issues focussed on the true basis of the appellant's argument: that the Tribunal had failed to complete its statutory task or constructively failed to exercise its jurisdiction.

The Tribunal's obligations under the Migration Act 48 Before turning to the issues, it is useful to reflect on the obligations imposed on the Tribunal by the Migration Act. 49 The power to grant or refuse a visa is vested in the Minister (s 65), although it may be delegated to another person (s 496). After consideration of a valid application, the Minister is obliged to grant the visa if he is satisfied that certain criteria are made out, the requisite fee is paid, and the grant is not prevented by Commonwealth law. The criteria upon which that decision is made are laid down by the Migration Act and Regulations. 50 Section 414(1) of the Act imposes on the Tribunal an obligation to review the decision of the Minister (or his delegate as the case may be). The question for the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before the Minister, but whether it is the correct or preferable one on the material before the Tribunal: Drake v Minister of Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420; 24 ALR 577 at 589; 2 ALD 60 at 70. 51 For the purpose of conducting the review the Tribunal "stands in the shoes" of the Minister: Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440. It may exercise all of the powers and discretions conferred by the Act on that person: s 415(1). 52 Thus, like the original decision-maker, in accordance with the requirements of s 65, the Tribunal is required to consider the application and decide whether it is satisfied that the applicant meets the necessary criteria for the grant of the visa. That exercise is a "predictive" one, "involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past": Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [33], citing Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391, 432 and Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 571-573. 53 The material before the Tribunal upon which the decision is to be made means all the material provided by the applicant and his or her agents (both orally and in writing), as well as information it acquires for itself under s 424 of the Act. The applicant is entitled to present written arguments relating to the issues arising in relation to the decision under review: s 423. The Tribunal, it may be inferred, is bound to take those arguments into account. It is also bound to consider any evidence the applicant may give or arguments he or she may present at a hearing to which the applicant is invited under s 425 of the Act: SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, (2014) 142 ALD 150; 317 ALR 365 at [56]. These obligations, though not express, are implied. 54 The Tribunal's decision must be recorded in a written statement: s 430. That statement must: (a) [set] out the decision of the Tribunal on the review; and (b) [set] out the reasons for the decision; and (c) [set] out the findings on any material questions of fact; and (d) [refer] to the evidence or any other material on which the findings of fact were based[.] 55 If the Tribunal does not set out a finding on a question of fact, that will indicate that it made no finding on that matter: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [5] (Gleeson CJ). In such a case the Court may infer that the Tribunal did not regard the question as material, for the Tribunal is only required to set out its findings on the questions of fact it considers material to the decision: Yusuf at [68] (McHugh, Gummow and Hayne JJ), [37] (Gaudron J), [216]-[217] (Callinan J). The Tribunal's identification of what it considers to be the material questions of fact may disclose that it had regard to irrelevant matters or that it failed to take into account a relevant matter. A failure to take into account a relevant matter may reveal a constructive failure by the Tribunal to exercise its jurisdiction for it may indicate in the particular circumstances that the Tribunal misunderstood its duty or applied itself to the wrong question and therefore failed to conduct the review required by s 414 of the Act. See Yusuf at [41]-[42] (Gaudron J), [69] (McHugh, Gummow and Hayne JJ). If the Tribunal fails to take into account material the Act requires it to take into account, it "exceeds its authority or powers" and the decision is made without jurisdiction: Yusuf at [83] (McHugh, Gummow and Hayne JJ). It may also demonstrate that the Tribunal's understanding of the law was erroneous: Ibid at [84]. 56 If the Tribunal fails to consider submissions, evidence and material advanced by an applicant, the Tribunal will have failed to perform the task required of it by the Act. Where it considers some submissions and not others and/or some evidence or material and not others, it may (depending on the nature of these matters) have failed to complete the task. A failure to perform or complete the statutory task, whether actual or constructive, is a jurisdictional error. 57 There are two important deficiencies in the way in which the Tribunal in the present case carried out its review, which resulted in a constructive failure by the Tribunal to exercise its jurisdiction. First, it did not consider the appellant's claims by reference to the statutory definition of "significant harm" and, in particular, by reference to the component parts of that definition, themselves the subject of statutory definitions. This caused the Tribunal to overlook a substantial and clearly articulated argument. Secondly, to the extent that the Tribunal did consider the appellant's claims on the issue of prospective detention for having left Sri Lanka illegally, it did not engage with the appellant's submissions or, save for one newspaper article, the material upon which he relied. The two errors are inter-related.

Did the primary judge err in concluding that the Tribunal had not misunderstood the applicable law (grounds 1-3)? 58 The appellant submitted that in order to answer the statutory question the Tribunal was required to consider whether the conditions in which the appellant "could well" have been held while awaiting bail (in the likely event that he would be charged with an offence arising from his illegal departure from Sri Lanka) fell within the definition of "significant harm" in s 36(2A) of the Act. That in turn required the Tribunal to consider whether those conditions would satisfy the definitions in s 5 of "torture", "cruel or unusual treatment or punishment" or "degrading treatment or punishment", particularly the latter. In the light of the definition of "degrading treatment or punishment", it was necessary for the Tribunal to decide whether the prison conditions in Sri Lanka would amount to "extreme humiliation". The Tribunal did not undertake this exercise and so fell into jurisdictional error and the primary judge erred by failing to come to this conclusion. The submission was based on the following matters. 59 First, save for the reference (at [8] of its reasons) to the appellant's submission that "any period of detention … would expose [the appellant] to significant harm, in particular torture, cruel or inhuman treatment or punishment or degrading treatment or punishment", the Tribunal did not mention the definition of "significant harm" in s 36(2A). Contrary to the primary judge's opinion (at [73]), the mere reference to this submission was not a matter of any moment. Without more, it does not demonstrate that the Tribunal had regard to the statutory meaning of "significant harm". 60 Second, the Tribunal did not advert to the definitions in s 5. The term "extreme humiliation" did not appear anywhere in its reasons. These omissions of themselves indicate that the Tribunal did not ask itself the right questions. In essence, the member reached a conclusion (as to the absence of a risk of significant harm) without applying his mind to the question of what constitutes significant harm within the meaning of the Act. 61 Third, a wealth of independent country information from a variety of reliable sources was presented to the Tribunal. It vividly demonstrated that prison conditions, for both convicted and remand prisoners, were deplorable: chronically overcrowded and unsanitary. These were conditions which the appellant expressly contended (in the March 2013 submission to the Tribunal) amounted to "extreme humiliation". 62 In these circumstances, the appellant submitted, the Tribunal's assertion that the conditions in which the appellant could be detained on his return to Sri Lanka "could not reasonably be said to amount to significant harm" cried out for an explanation. In the absence of an explanation, the appellant submitted, the Court should conclude that the Tribunal did not understand that it was required as a matter of law to consider "whether the prison conditions would expose the [appellant] to extreme humiliation". 63 On no fewer than five separate occasions the primary judge emphasised the Tribunal's finding that any period for which the appellant could be held on remand would last for "a few days in possibly cramped and unsanitary conditions" (original emphasis). This was the subject of grounds 1 and 2 of the appeal. 64 This Court has held that the level of risk for significant harm is no different from the risk involved in the real chance test of serious harm required to satisfy the refugee criterion: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [246]-[247] (Lander and Gordon JJ) (Besanko and Jagot JJ agreeing at [296] and Flick J at [342]). The effect of the decision of the High Court in Chan is that "a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate": Guo at 572. It follows that a real possibility of significant harm will suffice to establish the existence of a "real risk" of such harm. 65 For this reason I consider that the emphasis the primary judge placed on the possibility, rather than probability, of overcrowding and unsanitary conditions was a distraction. The appellant was correct to submit that the Tribunal's assessment that the appellant could well be held on remand and that there was a possibility that the conditions there would be overcrowded and unsanitary were findings in favour of his claim. 66 It is possible but unlikely that the Tribunal was not cognisant of the definition of "significant harm" in s 36(2A). It seems to me that on this matter the Tribunal's reference at [8] of its reasons to the appellant's submission is proof enough. 67 The failure to advert to the definitions in s 5, however, is troubling. In the circumstances of this case, where the appellant had submitted that there was a real risk that the conditions in which the appellant could be detained would subject him to "extreme humiliation", the absence of any reference to the term "extreme humiliation" rather suggests that the Tribunal did not consider the statutory meaning of "degrading treatment or punishment". The primary judge held otherwise. But apart from the acknowledgment of the appellant's submission in [8] of its reasons (see [59] above), which failed to mention the definitions in s 5, the only matter upon which her Honour relied was the reference by the Tribunal in [32] to "the absence of reports of returnees held in Negombo prison on remand being subjected to 'torture' or 'other forms of deliberate mistreatment'". 68 The primary judge considered that this reference was "relevant to the 'intention' aspect of the definitions in issue". It is far from clear, however, that this reference was intended to pick up the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment". Indeed, I think it unlikely, given that at this point in the Tribunal's reasons it was not dealing with the complementary protection criterion and therefore had no cause to consider the definitions of "significant harm". It is difficult to see how the primary judge could be satisfied that the Tribunal had considered the elements of the statutory test for significant harm, including the requirement for intention. "Serious harm" under s 91R may amount to "significant harm" under s 36(2A) but the two expressions are not synonyms. 69 On balance, I respectfully disagree with the primary judge on this point. I am of the opinion that the Tribunal member did not turn his mind to the questions posed by the definitions in s 5(1). Strictly speaking, this is probably not a case of the Tribunal misunderstanding the law but of failing to apply itself to it. Either way, it was a jurisdictional error: R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission (2000) 203 CLR 194 at [31].

Did the primary judge err by declining to hold that the Tribunal failed to give meaningful consideration to the appellant's submissions concerning the conditions in Sri Lankan prisons (ground 6)? 70 The appellant's contention, in essence, is that the Tribunal did not carry out the review required by s 414 of the Act because it failed to consider in any meaningful way a clearly articulated submission about a matter of substance. 71 If that contention is made out, then the Tribunal will have fallen into jurisdictional error: SZSSC. See also Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 73 ALD 321; 197 ALR 389; 77 ALJR 1088. One must always be alert to the possibility that a contention that an administrative decision-maker failed to give meaningful or "proper, genuine and realistic consideration" to an argument (see Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 713; (1987) 14 ALD 291 at 292 per Gummow J) or, for that matter, a piece of evidence, might in truth be an invitation to engage in impermissible merits review (see Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339 at [45]). Yet, the Tribunal's duty to consider the appellant's arguments, and the material relied on in support, required that it engage in "an active intellectual process": Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107; (2017) 347 ALR 173 at [46]. The Minister did not argue otherwise. In this respect his position is consistent with that taken by the Minister in other cases, such as NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at [37] and [171], Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [29], and more recently Carrascalao. 72 The Tribunal's findings on complementary protection appear at [38]-[39]. No mention is made of conditions in Sri Lankan gaols: 38 As noted, I am not satisfied as to the credibility of the [appellant's] claims that he would suffer harm of any kind on return to Sri Lanka for the reasons he has claimed. While I accept [the appellant] would likely face arrest on charges of illegal departure, that he could well be placed in remand for a relatively brief period while awaiting bail hearing, and that he would later be fined if found guilty I am not satisfied that this treatment could reasonably be said to amount either to serious harm in a Convention sense or significant harm in terms of Australia's complementary protection arrangements. Nor am I satisfied that he would be exposed to significant harm for any other reason. 39 Having considered these circumstances I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the [appellant] being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm in terms of s.36(2)(aa) of the Act. 73 There is little doubt that, if these paragraphs of the Tribunal's reasons were to be read in isolation, the appellant's contention would be well founded. But it would be wrong to read those reasons in isolation. The primary judge was correct to point out that the Tribunal's conclusion on the complementary protection claim was based on anterior factual findings it had made on an aspect of his refugee claim. The underlying factual basis was similar, if not identical. 74 In dealing with the social group claim, the Tribunal said at [28] that it had considered the material before it on returned asylum seekers, including the submissions made by the appellant's migration agent on 27 March 2013 (scil.). The real question is whether it did so in the way the Act requires. 75 Of the Tribunal's anterior findings, the only ones to which the Minister or the primary judge adverted were those made at [32]-[33]. 32 The information before the Tribunal indicates that under tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants Act) are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the accused's own recognisance although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison, possibly for some days, until a bail hearing is available. Conditions in remand have been described in media reports … as overcrowded and unsanitary, although there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment. The penalties eventually imposed on returnees by the courts for illegal departure take the form of fines ranging up to Rs 100,000. 33 Taking together the country information and my findings about the [appellant's] personal circumstances I am not satisfied that being questioned at the airport on arrival, detained for a few days in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined could reasonably be seen as constituting serious harm. I accept, as the advisor submits, that the Immigrants and Emigrants Act provides for penalties of both imprisonment and fines on conviction for illegal departure. However, on the information before the Tribunal I am not satisfied that, in practice, imprisonment is actually imposed in such cases, or that the courts do not have discretion in sentencing. I am not satisfied there is a real chance that the [appellant] would suffer imprisonment or that he would be subjected to other than a fine. Nor am I satisfied that the scale of the fine imposed could reasonably be seen as constituting serious harm. 76 The reference to imprisonment in the third last line of [33] is plainly a reference to imprisonment following conviction. 77 Unlike the primary judge, I am persuaded that the Tribunal did not meaningfully engage with either the appellant's submissions or the material upon which it was based. I have reached this conclusion for a number of reasons. 78 First, the Tribunal paid scant attention to the material in its reasons. 79 Secondly, the Tribunal made no mention of "humiliation" or "extreme humiliation". Nor did it refer to the appellant's clearly articulated submission that prison conditions in Sri Lanka for both convicted and remand prisoners, including those who had not been admitted to bail, would expose him to extreme humiliation. 80 Thirdly, the Tribunal was obliged by the terms of s 430 of the Act to set out its findings on material questions of fact. Consistently with what the High Court said in Yusuf¸ the inference to be drawn from the absence of a finding on the question of whether the prison conditions in Sri Lanka would expose the appellant to extreme humiliation is that the Tribunal did not consider the question to be material. That also tends to indicate that the Tribunal had not considered his submission. 81 The migration agent's submissions on the question of "significant harm" were 12 pages long. I accept, of course, that the Tribunal need not refer to every item of evidence (by which I include referenced material) or every argument. I also accept that the Tribunal is entitled to prefer other evidence. The Minister submitted that this is what the Tribunal did in this case. But this is not a case of preferring some evidence over other evidence. In order to prefer some evidence over other evidence it would be necessary to engage with the other evidence. Apart from an article by the journalist, Ben Doherty, published in the Sydney Morning Herald on 8 December 2012, however, the Tribunal mentioned none of the material canvassed there - even obliquely. 82 The Tribunal certainly engaged with the Doherty article but the appellant's case did not rest on this document or media reports. The appellant also relied on a number of reports from apparently reputable non-media sources. Some of those reports were discussed at length in the March 2013 submission and extracts from several of them were included. 83 The additional material which the Tribunal did not mention consisted of: (1) a report published by the Immigration and Refugee Board of Canada in February 2013 entitled "Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants; information on specific asylum cases, including the Tamil asylum-seeker boat that stopped in Togo, the return of Sri Lankan asylum seekers from Australia in 2012, and any cases of voluntary repatriation (August 2011-12 February 2013)". (2) a documentary by the Asian Human Rights Commission entitled "SRI LANKA: The Police Torture Epidemic in Sri Lanka - a documentary", released in May 2012; (3) a report about the continuing use of torture in Sri Lanka despite the end of hostilities by the French chapter of ACAT (Action by Christians for the Abolition of Torture) and the Asian Legal Resource Centre (ACAT Report) funded by the European Union in June 2012; (4) a report by the United States Department of State on human rights practices in Sri Lanka published in May 2012; (5) a report by the United Nations Committee against Torture (UNCAT) published in December 2011; and (6) an "operational guidance note" on Sri Lanka issued by the United Kingdom Home Office in April 2012. 84 The submission also referred to a decision of the European Court of Human Rights and a number of decisions of the United Nations Human Rights Committee. This was the international jurisprudence to which the appellant submitted the Tribunal should have had regard. 85 The primary significance of this material in the light of the Tribunal's findings was that conditions which arguably met the definitions of one or more of the indicia of significant harm were ubiquitous, they obtained to all prisons, and they affected convicted and remand prisoners alike. 86 The ACAT Report, for example, quoted a former prison commissioner saying: [V]iolations and degrading treatment are committed daily in every prison. Physical assaults and forms of intimidation are the methods used to run Sri Lankan prisons … (Emphasis added.) 87 The ACAT Report also referred to the violent beating of a number of Tamil detainees who had been on remand for several years. 88 The submission included a number of other extracts from the report. The agent argued that it "exposed the most common forms of severe pain and suffering … intentionally inflicted by authorities in Sri Lanka". A graphic summary of victims' accounts, taken verbatim from the report, followed. That was material from an apparently reputable source which should have been taken into account in any genuine review. There is nothing in the Tribunal's reasons to indicate that it was. 89 The material in the ACAT Report was corroborated by the US State Department report which referred to torture methods used on former detainees of the Terrorist Investigation Division (TID) of the Sri Lankan police. 90 It is true, as the primary judge observed, that the Tribunal spoke of a submission concerning "the poor standard of prison conditions" and that it implicitly rejected the appellant's submission that any period of detention would expose him to significant harm. What it did not do, however, is consider whether the prison conditions in which he could well be held while awaiting bail satisfied the statutory definition of "cruel or inhuman treatment or punishment" or "degrading treatment or punishment". 91 In his submissions counsel for the appellant focussed on the question of "degrading treatment or punishment". It will be recalled that, omitting the exception, "degrading treatment or punishment" is defined in the Act to mean "an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable". Yet the Tribunal failed to advert to the definition. Nor did it refer to the appellant's submission that if he were subjected to the kind of prison conditions described by the independent country information and international jurisprudence, "his mistreatment would result in extreme humiliation". Moreover, it made no relevant finding on this question. Having regard to the submission, it was necessary for the Tribunal to form a view about the relevance and reliability of the material in the various reports to which it referred and consider whether, if the appellant were to be held in conditions of the kind described in them, albeit for a matter of days if not longer, he would be subjected to acts and/or omissions that cause extreme humiliation and, if so, whether that was unreasonable and intentional. 92 While the Tribunal noted that conditions for remand prisoners in Negombo prison had been described in media reports (citing the Doherty article as an example) as "overcrowded and unsanitary", it did not consider whether those conditions could amount to "extreme humiliation". 93 Given the failure of the Tribunal to refer to the definition of "degrading treatment or punishment" or to the appellant's submission that his mistreatment would result in extreme humiliation, I respectfully disagree with the primary judge's conclusion, which the Minister sought to uphold, that the reference to the absence of reports of "torture or other forms of deliberate mistreatment" of returnees held in Negombo prison awaiting bail indicates that it considered that submission. The simple fact is that we do not know what the Tribunal member had in contemplation when he spoke of "deliberate mistreatment". I acknowledge that courts are not to be concerned with loose language or "unhappy phrasing" in the reasons of an administrative decision-maker: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. I accept that those reasons should be given a beneficial interpretation: Wu Shan Liang at 271-2. But in view of the fact that the words in question were used in the context of the Tribunal's consideration of the refugee criterion and that the Tribunal did not refer to the definitions in s 5, it would be a leap of faith to conclude that the Tribunal member had in mind the statutory definitions of "cruel or inhuman treatment or punishment" or "degrading treatment or punishment". As Stone J observed in SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26], the requirement to take a beneficial approach to the Tribunal's reasons does not mean that the Court should resolve every ambiguity in the Tribunal's favour. 94 In any case, noting that there was an absence of reports that other returnees had been tortured or deliberately mistreated could not conclude the inquiry. The Tribunal had to assess the significance of the matter. After all, just as the absence of past persecution does not gainsay the real possibility of future persecution (Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 at [74] per Gummow and Hayne JJ), an absence of reports of past deliberate mistreatment does not deny the real possibility of it occurring in the future. What is more, the Tribunal had to assess the significance of the matter together with the material raised by the appellant's submissions against the statutory definitions of "torture", "cruel or inhuman treatment or punishment" and "degrading treatment or punishment". It did neither. Without taking the next step of reasoning from the absence of evidence that the risk of significant harm (as defined) was not a real possibility, the Tribunal did not complete its statutory task. In taking that step it would have to decide whether the descriptions of prison conditions in the reports to which the appellant referred in his submissions were apt to describe the conditions in which the appellant could be held. To that end it would need to evaluate the material upon which the appellant relied and decide, amongst other things, whether remand prisoners were held with convicted prisoners and whether conditions in all Sri Lankan prisons were alike. 95 As the primary judge appears to have accepted, it is no answer to the appellant's argument to point to the Tribunal's reasons at [38]-[39]. They were merely conclusory. Whether there was a real risk of "significant harm" had to be determined by reference to the prospects that the appellant would be subjected to "torture", "cruel or inhuman treatment or punishment" or "degrading treatment or punishment" and it had to be determined after an evaluation of the appellant's evidence and arguments against the definitions of each term. It is an error to approach the assessment of "significant harm" in a "rolled-up" fashion as the Tribunal appears to have done. 96 As Mortimer J pointed out in Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 146 ALD 418 at [60], an administrative decision-maker who deals with detailed submissions "globally, or in a summary way" may "stray from the task in the statute". In that case, the applicant suffered from a number of medical conditions and applied to the NDIA for inclusion in its scheme. The agency denied his request and the AAT affirmed its decision. Eligibility depended on whether he met the disability requirements set out in s 24(1) of the National Disability Insurance Scheme Act 2013 (Cth). One of those requirements (contained in para (c)) was that he had an impairment or impairments resulting in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of six itemised activities. Mortimer J concluded that the Tribunal did address and resolve Mr Mulligan's submission that he satisfied s 24(1)(c). By taking a global approach, however, her Honour considered that the Tribunal had failed to perform its statutory task, concluding at [60]): By not examining individually, and by reference to the specific evidence and material before it, whether Mr Mulligan's circumstances satisfied any of the four categories in s 24(1)(c) he relied upon, the tribunal did not perform its task on review. That task required, in my opinion, a more detailed and particular consideration of each activity in s 24(1)(c) than the tribunal embarked upon. That is because the evidence and material before the tribunal did differ in respect of each category, and each category in s 24(1)(c) has a different focus. Parliament had made it clear an applicant need only satisfy one of the six categories set out in s 24(1)(c). Global consideration is likely to obscure particular aspects of the evidence and material before the tribunal, as in my opinion it did in this case. 97 Section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) is very similar to s 430 of the Migration Act. Both require the Tribunal to include in written reasons its findings on material questions of fact and to refer to the evidence or other material on which those findings were based. 98 In the present case, the primary judge dismissed the significance of the appellant's submissions in the light of the Tribunal's finding (at [33]) that there was no real chance that the appellant would be imprisoned upon conviction. Her Honour said that it was unnecessary for the Tribunal to refer to the country information about the use of torture by police in interrogation and about prison conditions more generally, as that evidence related to "general prison conditions (not possible short-term detention on remand in Negombo prison pending a bail hearing)". For the same reason, the primary judge also held that it was unnecessary for the Tribunal to refer to the appellant's submission on prison conditions generally. 99 Accepting the Tribunal's assumption that the appellant would be taken to Negombo prison (and not another gaol), the primary judge fell into error because she overlooked the following matters, to which the Tribunal did not refer and which were relevant to the conditions the appellant was liable to encounter. 100 The Doherty article included an account by a failed Tamil asylum seeker returning from Australia that he had been incarcerated in Negombo prison with "murderers" and "drug addicts". The ACAT report stated that, because of a lack of space, in the largest prison in the country convicted and remand prisoners were not always separated. According to the US State Department, this was a frequent occurrence in Sri Lankan gaols. A similar observation was made by the UN Special Rapporteur on the question of torture noted by UNCAT in its report. The ACAT report also noted that 75% of the prison population was made up of detainees on remand who were too destitute to afford bail. 101 For these reasons I respectfully disagree with the primary judge's conclusion that the evidence about conditions in Sri Lankan gaols was irrelevant. 102 A failure by the Tribunal to deal with a submission does not necessarily amount to jurisdictional error. But the Tribunal's duty to review the Minister's decision imposes an obligation on the Tribunal to consider and deal with "submissions of substance which are clearly articulated": SZSSC at [81]. The appellant's submission that the conditions of both convicted and remand prisoners in Sri Lankan gaols were such as to expose the appellant to a real risk of extreme humiliation was such a submission. The Tribunal's failure to discharge this obligation by evaluating the evidence and engaging with the submission was a jurisdictional error, either because it denied the appellant procedural fairness or because it amounted to a constructive failure to exercise the jurisdiction: see generally SZSSC and the authorities referred to there, and also CPE15 v Minister for Immigration and Border Protection [2017] FCA 591 (Mortimer J). 103 It follows that ground 6 of the notice of appeal is made out. 104 Of course, even if the Tribunal were satisfied that there was a real risk that the conditions would expose the appellant to extreme humiliation, before the Tribunal could conclude that they met the definition of "degrading treatment or punishment" it would have to consider whether it would be intentionally inflicted. The appellant did not refer to any material upon which the Tribunal could make that decision. But the Minister did not file a notice of contention. Nor did he argue that it would be futile to grant relief because there was no evidence or material before the Tribunal upon which a finding of intention could be made. And I am not satisfied that there was no such material. For a start, the statement of the former prison commissioner cited in the ACAT Report (reproduced at [86] above) indicates that there was. In those circumstances it would be inappropriate to dismiss the appeal or to refuse relief on discretionary grounds.

Did the primary judge err in her conclusions as to the relevance of the international jurisprudence (grounds 4 and 5) 105 As I have already observed, the March 2013 submission drew attention to several cases in which the UN Human Rights Committee had found that detention for only a few days in overcrowded and unsanitary conditions amounted to both inhuman and degrading treatment. In some of these cases the conditions extended to exposure to cold; inadequate ventilation, bedding, clothing, and nutrition; a lack of clean drinking water; the inability to exercise; and the denial of medical treatment. One of these cases involved a Dominican man who was held for 50 hours in a cell measuring 20 by 5 metres with about 125 others who were accused of common crimes. According to the Committee, owing to lack of space some detainees had to sit on excrement. The Dominican detainee was deprived of food and water until the day after his arrest. The Committee apparently found that his treatment was both inhuman and degrading. In another case, the Committee apparently found that the treatment of a Zairean detainee who was deprived of food and drink for four days after his arrest and later "interned under unacceptable sanitary conditions" was inhuman. 106 The appellant argued that, if he were subjected to interrogation and prison conditions of this kind, "his mistreatment would result in extreme humiliation". In this context, he referred to a judgment of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 at [52]. There, the Court was considering the types of treatment which fall within the scope of Article 3 of the European Convention on Human Rights, which provides that "[n]o one shall be subjected to torture or to inhuman or degrading treatment of punishment". The Court said (case references omitted): Where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 … 107 The primary judge considered that the Tribunal did not refer to international jurisprudence including the cases cited in the appellant's March 2013 submission because it did not consider it was relevant in the particular circumstances of this case. Her Honour held that this was not indicative of jurisdictional error for two reasons. The first reason she gave was that the Tribunal did not accept that there was a real chance that the appellant would be imprisoned after conviction and the international jurisprudence concerned poor prison conditions for people who had been convicted. The second reason she gave was that the Tribunal did not base its decision on the aspects of the definitions in s 5, particularly the exceptions that refer to the ICCPR. In support of this latter reason her Honour relied on the joint judgment of Kenny and Nicholas JJ in the Full Court in SZTAL at [65]. 108 The appellant accepted that the international jurisprudence did not govern the construction of the expressions "cruel or inhuman treatment or punishment" or "degrading treatment or punishment" as used in the Migration Act. But he submitted that it was not irrelevant, given that the complementary protection provisions of the Act give "effect to Australia's non-refoulement obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) (the CAT) and the International Covenant on Civil and Political Rights (1966) (the ICCPR)": SZTAL (HC) at [1] (Kiefel CJ, Nettle and Gordon JJ). 109 Indeed, in SZTAL (HC), their Honours acknowledged at [18] that "words taken from an international treaty may have another, different, meaning in international law". The adoption of those words may in some cases be suggestive of a legislative intention to import that meaning. The focus of that case, however, was on the concept of intention in the definitions contained in s 5(1), which does not appear as an element of "cruel, inhuman or degrading treatment or punishment" in the ICCPR. Further, their Honours observed that the concept of intention does not have a settled meaning in international law and therefore international jurisprudence on that question would be of little utility. See also Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [42]. 110 I respectfully disagree with the primary judge's explanation for the Tribunal's failure to refer to the international jurisprudence in this case. First, as I have already observed, the material upon which the appellant relied showed that there was no material difference between the conditions in which remand and convicted prisoners were held. Secondly, the two cases I have referred to above involving the Dominican and the Zairean detainees dealt with detention for similar periods of time. On the face of things, the facts of those cases as outlined in the appellant's March 2013 submission were not so very different from the conditions described in the Doherty article and in the other reports referred to in that submission. Thirdly, her Honour's interpretation of the joint judgment in SZTAL (FC) was too narrow. More likely than not the international jurisprudence was not mentioned because the Tribunal did not give due consideration to the appellant's submission. 111 That said, the real question is whether the Tribunal was required to consider the international jurisprudence cited in the appellant's March 2013 submission, either as a relevant consideration in its decision-making or as part of a substantial and clearly articulated argument. On balance, I do not think so. "Cruel or inhuman treatment or punishment" and "degrading treatment or punishment" are defined in the Migration Act. It is those definitions that mattered (as to which, see consideration of grounds 1-3 above). As the Full Court observed in MZYYL at [18], the definitions in the Act are different from those referred to in international human rights treaties and commentaries. No attempt was made (either in the submission to the Tribunal or on appeal) to explain the interaction of the international jurisprudence cited in the submission with the relevant terms of the Act. 112 These grounds of appeal are not made out.

Did the appellant make a claim to fear "paramilitaries"? Was the matter addressed in any event (grounds 7 and 8)? 113 These grounds arise out of the treatment by the Tribunal of the appellant's refugee claims. They are concerned with the primary judge's refusal to find that a claim to fear "paramilitaries" did not arise clearly from the material before the Tribunal and her conclusion that, even if it did, it had in fact been addressed. 114 The first alleged error is said to have been made at [150] of the primary judge's reasons. There, her Honour said: The fact that the representative's submission quoted an earlier Tribunal decision which referred to harassment of Tamils suspected of LTTE involvement by security forces and paramilitary groups did not clearly or squarely [raise] a claimed fear of harm from paramilitaries generally such that it had to be considered by the Tribunal (see NABE (No.2)). Identification of such a claim would have required "constructive or creative activity by the Tribunal" (see NABE (No.2) at [58]). Moreover, unlike the applicant in SZSKH v Minister [2014] FCCA 135 the [appellant] and/or his representative did not claim that he could be the victim of serious criminal activities on the part of the paramilitaries groups. 115 The appellant submitted that he had made "an express claim", which was supported by the submissions of his migration agent. He pointed to the statement he made in his statutory declaration that: Sometimes people around Udappu are abducted by paramilitary groups and held for ransom. If they do not receive the money the people are shot. 116 The support said to have been provided by the submissions of the agent is this: In 1214278 [2012] RRTA 1148 (17 December 2012) the Tribunal referenced a report from the US Department of State (USDOS) indicating that young and middle-aged Tamil men continue to be harassed by security forces and paramilitary groups in the predominantly Tamil areas of Sri Lanka[.] 117 The failure by the Tribunal to make a finding on "a substantial, clearly articulated argument relying upon established facts" amounts to a constructive failure to exercise jurisdiction or, put differently, "a failure to carry out the review required by the Act": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]. Either way, the omission will be a jurisdictional error. In the present case, however, there was no such omission. 118 First, there was no clearly articulated claim to fear harm at the hands of "paramilitaries" in general. The appellant claimed to fear harm at the hands of one particular paramilitary organisation, the Karuna. As the primary judge observed at [151], the Tribunal expressly considered and rejected that claim. 119 Secondly, the appellant's submissions take the references to paramilitary groups out of context. The statement about abductions by paramilitary groups in the statutory declaration was made in the context of the account of the abduction of the appellant's neighbour. The appellant did not say that he was afraid that he might also be abducted by paramilitary groups. Nor does his statutory declaration suggest that this was his concern. The statement came immediately after his assertion that he did not know why his neighbour had been taken and was followed by the statement "I do not know who took [the neighbour]". It was no more than speculation as to what might have happened to him. The account was given as background to his apprehension, detention and assault by army officers. In answer to the question "Who I think will harm/mistreat me if I was forced to return to [Sri Lanka]", the appellant replied: I fear I will be harmed, mistreated or killed by the Sri Lankan authorities, including the SLA and CID, if I … return to Sri Lanka. 120 He added (without alteration): I fear I will be harmed, mistreated or killed by the Karuna if I to return to Sri Lanka. 121 There is no mention of a fear of any other paramilitary organisation in the delegate's account of his interview with the appellant. According to the delegate's decision, when the appellant was then asked why he feared returning to Sri Lanka, he replied that he had been "affected a lot in Sri Lanka by the army and other Tamils". He told the delegate that by "other Tamils" he meant the Karuna Group. 122 It is true that there are references in the appellant's written submissions to the Tribunal of armed attacks by paramilitary groups and of young Tamil men being harassed by "security forces and paramilitary groups" and to the involvement of "paramilitaries" assisting government forces in attacks on civilians, including harassing Tamil men. But, like the primary judge, (the Karuna apart) I cannot see that the submission squarely raised a claim that the appellant feared he would be persecuted by paramilitary groups. Certainly the agent did not suggest that the abduction of the neighbour put the appellant in fear of paramilitaries. That is abundantly clear from what the agent said at [60]-[61] of the written submissions: 60 The visit by the men in the white van to the [appellant's] house on the night after [the neighbour's] abduction and their repeated visits throughout the year after the incident all point towards the [appellant's] profile with the Sri Lankan authorities and his imputed political opinion as a result of his association with [the neighbour]. 61 The [appellant] fears that he will again fall victim to the perpetration of physical and sexual abuse by the Sri Lankan security personnel if he were to return to Sri Lanka. There is information to suggest that since the end of the armed conflict in 2009 there has been no decline in the use of torture against LTTE suspects. In actual fact it is said there has been a sharp increase in abductions of Tamils suspected of links with the LTTE. (Emphasis added.) 123 The reference to harassment of young and middle-aged Tamil men by security forces and paramilitary groups in the report cited in the agent's submissions was followed by the submission that, if the appellant were to return to Udappu, he would be "targeted by the authorities". I do not understand that to embrace paramilitary organisations. 124 The appellant acknowledged that the Tribunal rejected the appellant's claim "of past harassment by the Karuna group" but submitted that it did not consider the possibility of future harm from paramilitaries. If this submission is to be taken as referring to the Karuna Group, I cannot accept it. 125 Read fairly, the Tribunal's reasons show that it was not satisfied of the truth of the appellant's account of his relations with the Karuna Group and, on that basis, was not satisfied that if he were to return to Sri Lanka he would be harmed by its members for the reason he claimed. That is apparent from what the Tribunal said at [19] ("I do not accept there is a history by which he is already adversely known to … the Karuna group") and [22] ("I am not satisfied that he has ever been imputed with a political opinion against the Karuna group … This being the case, I am not satisfied he would be harmed for such a reason if he were to return to Sri Lanka"). It is not erroneous to reason that harm is unlikely to occur in the future if it has not occurred in the past. As the plurality observed in Guo at 575: Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 126 Although the test is not whether an applicant would be harmed but whether there is a real chance of (serious) harm (see Chan), the appellant does not complain (and did not complain in the court below) that on this question the Tribunal had applied the wrong test. Doubtless, that is because, when summarising the various refugee claims (at [35]), the Tribunal expressly stated that it was not satisfied that there was a real chance that on return to Sri Lanka the appellant would suffer serious harm for any of the Convention reasons raised. 127 The primary judge was correct. Ground 7 should be rejected. In the circumstances, there is no need to consider ground 8.

Conclusion 128 I am satisfied that the primary judge erred in relation to her disposition of grounds 1 to 3 of the application for judicial review. I am also satisfied that the Tribunal fell into jurisdictional error. For these reasons her Honour's order dismissing the application should be set aside and in lieu thereof orders made quashing the decision of the Tribunal and remitting the matter to the Administrative Appeals Tribunal for determination according to law. 129 Costs should follow the event. The appellant should have his costs both of the appeal and of the proceeding in the court below. I certify that the preceding one hundred and twenty-nine (129) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Mulligan v National Disability Insurance Agency [2015] FCA 544; (2015) 146 ALD 418 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 Pretty v United Kingdom (2002) 35 EHRR 1 R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 Swift v SAS Trustee Corporation [2010] NSWCA 182; (2010) 6 ASTLR 339 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 234 FCR 549 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, (2014) 142 ALD 150; 317 ALR 365 SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 347 ALR 405; 91 ALJR 936

At a glance

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Judgment (16 paragraphs)

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Legislation Cited (4)

Cases Cited (30)

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