SECOND TRIBUNAL DECISION
34 On 30 January 2017, the Second Tribunal again affirmed the delegate's decision not to grant the appellant a protection visa.
35 The appellant was represented by his present lawyers. Those lawyers provided written submissions on 11 January 2017. Early in the submissions, it was stated why the matter had been remitted and the notation made in the Federal Circuit Court orders made on 4 October 2016 was set out. The submissions then identified five issues arising on the review before the Second Tribunal:
A Credibility
B Does the Applicant have a well-founded fear of persecution on the basis of his race?
C Does the Applicant have a well-founded fear of persecution on the basis of his imputed political opinion?
D Does the Applicant have a well-founded fear of persecution on the basis of membership of a particular social group?
E. Is the Applicant entitled to complementary protection?
36 In addressing whether the appellant had a well-founded fear of persecution on the basis of membership of a particular social group (issue D above), the submission stated (footnotes omitted):
There is a real risk that if forcibly returned to Sri Lanka, the Applicant will face significant harm (in the form of arbitrary deprivation of life, torture, or cruel, inhuman or degrading treatment or punishment) as a result of:
a. Suffering from mental health issues; and
b. Failed Sri Lankan asylum seekers.
37 In addressing the contended particular social group of "failed Sri Lankan asylum seekers", the submission opened with these words under the heading "Failed Tamil Asylum Seekers":
The Member in the First Tribunal Hearing was of the view that the Applicant does not face a well-founded fear of persecution due to his illegal departure from Sri Lanka [citing "Tribunal Decision, page 19"].
38 A number of submissions were then made. It was submitted that Australia had done little to monitor the treatment of returned asylum seekers. The submission then set out various accounts or reports of asylum seekers being mistreated upon their return to Sri Lanka. This part of the submission concluded (at [95]) with:
Accordingly, if the Applicant is forcibly returned to Sri Lanka, it is plausible he will be subjected to the deep rooted torture imposed against Tamils who are identified as being failed asylum seekers.
39 Under the heading "Is the applicant entitled to complementary protection?", the submission opened with these words (footnotes omitted):
If forcibly returned to Sri Lanka, the Applicant will be arrested, interrogated, imprisoned and tried for charges relating to his illegal departure. The Applicant fears this criminal prosecution will result in torture; cruel or inhuman treatment or punishment; and/or degrading treatment or punishment.
40 The submission then set out articles 34, 35 and 45 of the IEA. The appellant submitted (footnotes omitted):
98. Relevantly, Art 33 states that Arts 34 and 35 apply to all persons unless exempted from the provisions of the Act. In the present case it was accepted that the Applicant did not leave Sri Lanka from an approved port of departure or with a valid passport (or approved travel documentation). Accordingly, the Member in the First Tribunal Decision accepted that the Applicant would, upon return to Sri Lanka, be arrested by the relevant authorities and charged for contravening Arts 34 and 35 of the [IEA].
99. From this premise the Applicant contends (and did so before the Tribunal) that:
(a) Upon being charged and arrested, the applicant will be held on remand (i.e. imprisoned);
(b) Upon prosecution he will be convicted, the applicant clearly having contravened Arts 34 and 35 [of] the [IEA];
(c) Upon conviction, he will be liable to be sentenced to imprisonment; and
(d) During the course of his inevitable imprisonment - either whilst on remand in Negombo prison or as a result of having received a custodian sentence as [sic] - he will face a real risk of significant harm because of:
(i) The widespread prevalence of torture in Sri Lankan prisons, which is inflicted by state actors (i.e. prison guards); and
(ii) The conditions of Sri Lankan prisons, including those in Negombo prison where the applicant will be remanded upon arrival back in Sri Lanka, which are so poor so as to cause (at the very lease) extreme humiliation that is unreasonable to those confined in them.
100. The Member in the First Tribunal Hearing dismissed the Applicant's contention in respect of the asserted real risk of significant harm arising from the applicant's illegal departure from Sri Lanka and his certain imprisonment (for a variable length of time) in prisons of utterly deplorable conditions. It rejected the assertion put by the Applicant's representative that: "any level of interaction with Sri Lanka's interrogation process and prison system will result in the Applicant experiencing significant harm".
41 The submission then set out updated country information. Amongst those submissions was the following (footnotes omitted):
105. Most - but not all - returnees are granted bail based on personal recognisance with a family member standing as guarantor. Certain returnees (including repeat offenders and those suspected of facilitating the illegal movement of people) are not granted bail. Returnees granted bail must return to court at a later date to answer to charges under the [IEA]. By law, convicted returnees are liable for up to five years in prison or a fine up to 200,000 SLR.
106. A Sri Lankan police spokesman commented that a group of 41 asylum seekers returned to Sri Lanka by Australia would face "two years of rigorous imprisonment" if found to be guilty of leaving Sri Lanka illegally.
107. These facts demonstrate that the Applicant will be:
a. identified as a failed asylum seeker to the Sri Lankan authorities;
b. arrested upon arrival in Sri Lanka and taken into police custody;
c. interrogated by the [Department of Immigration and Emigration], the [Criminal Investigations Department], the [State Intelligence Service] and / or the [Terrorist Investigation Department] at the airport for an unspecified period of time;
d. detained at Negombo Prison for an unspecified period of time;
e. forced to find someone to post bail for his release and regularly report to the authorities on bail conditions;
f. tried and convicted of charges relating to his illegal departure; and
g. face detention of up to two years imprisonment and required to pay a fine of up to 200,000 SLR.
108. Even if the Applicant was issued with a fine and not sentenced to a term [of] imprisonment, the Applicant will unlikely be able to pay the required fine given that he has minimal work experience sharpening knifes [sic]. Since arrival in Australia, the Applicant has not been able to engage in any form of employment and therefore has no savings to pay the necessary fine. Therefore the Applicant fears that he will be detained in police custody.
42 The submissions then addressed evidence relating to prison conditions and the treatment of prisoners and stated (at [113]):
The above information demonstrates that the degrading treatment or punishment during imprisonment and interrogation processes in Sri Lanka is part of a systematic effort to break down, humiliate and degrade individuals in detention. Given the prevalence of torture, cruel or inhuman and degrading treatment or punishment in Sri Lankan prisons, it [the Tribunal] should accept that there is a real risk the Applicant will face significant harm.
43 The submission then set out facts which it was said had been found by the First Tribunal in respect of the claim for complementary protection under s 36(2)(aa) and reasons why its conclusion in that respect was unreasonable or irrational. One submission made was (at [116]):
Secondly, it is put to the Tribunal that the First Tribunal Decision erred in construing what constituted "cruel or inhuman treatment or punishment" and "degrading treatment or punishment": …
(d) Unexplained by the Tribunal was why the provision restricting the Applicant from leaving Sri Lanka except via an authorised port and with a passport was not in violation of Art 12 of the ICCPR [International Covenant on Civil and Political Rights]: and see James C. Hathaway, The Rights of Refugees under International Law (2005), p 309-313; James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed., 2014), p 248. Arts 34 and 35 clearly do restrict departure from Sri Lanka, yet the Tribunal did not elucidate as to why those provisions were appropriately adapted to meeting a legitimate end. It clearly misunderstood the effect of Art 12(2).
44 A hearing was conducted on 16 January 2017. It is convenient to set out a few paragraphs of the decision record at this point. After setting out at T[2] a summary of the reasons for the matter having been remitted (set out fully at paragraph [33] above), the Second Tribunal stated at T[3]:
The matter is now back before the Tribunal pursuant to the orders made by the Federal Circuit Court. Since it has been held that it is incumbent on the Tribunal in a case such as this to make it clear on the face of its reasons how it has discharged its obligation to reconsider the matter according to law I note that, as referred to below, I have not considered it necessary to deal with the issue of [the appellant's] ability to pay any fine which may be imposed on him under the [IEA] in light of the decision of the Federal Court in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245.
45 At T[48], the Tribunal stated:
I noted that at the moment I wanted to focus on the [IEA]. I put to [the appellant] that I might take the view that if he were dealt with under this Act this would be the non-discriminatory enforcement of a law which applied generally to everyone in Sri Lanka. I put to him that, so far as the complementary protection criterion was concerned, the risk to him in this context was the same as that to anyone else who had broken this law and once again I might not accept that the law would be applied to him in a discriminatory manner. I put to him that this meant that the risk to him was one which applied generally to the population of Sri Lanka and not to him personally and that it was therefore excluded from the complementary protection criterion. [The appellant] asked who would take up the matter if he was abducted and killed on his return the Sri Lanka.
46 At T[52], the Tribunal stated:
I asked [the appellant] if there was anything further he wanted to say before I closed the hearing. He asked if I could make it happen so that he could stay here longer with his child. He said that this would give him an opportunity to settle his debt prior to returning. He repeated that if he were permitted to work here he would be able to repay his loan and secure something in Sri Lanka like a house or property and then he would return voluntarily. He said that he would have to hang himself if he returned because he would have no means of survival. I asked [the appellant's] representative if she thought that there was anything we had not covered. She raised the issue of [the appellant's] ability to pay any fine. [The appellant] said that he would not be able to pay a fine. I indicated to [the appellant's] representative that for the reasons I had discussed with [the appellant] I did not think that this issue arose for consideration. I referred to the decision of the Federal Court in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 which I noted had been delivered after the first Tribunal had made its decision. I noted that this decision said that if someone had broken the law, and the law was not applied in a discriminatory manner, then the consequences of breaking the law did not come within the complementary protection criterion. I gave [the appellant's] representative until 23 January 2017 to make further submissions.
47 As is noted in the last sentence of the paragraph of the Second Tribunal's reasons just set out, the Second Tribunal indicated the relevance it saw in the decision of Rares J in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 and invited the appellant to make further submissions.
48 The appellant availed himself of that opportunity by providing a submission dated 23 January 2017 which addressed whether the appellant:
(1) had a well-founded fear of persecution on the basis of his religion or ethnicity or his membership of a particular social group such that Australia owed a protection obligation under s 36(2)(a). As to the contended particular social groups, the submissions identified two: "failed Tamil asylum seeker" and "individuals suffering from mental health issues". This part of the submission did not address any issue with respect to imprisonment associated with his illegal departure and the potential consequences as a result of the IEA;
(2) was entitled to complementary protection under s 36(2)(aa). Under this heading, the appellant addressed two issues concerning the IEA: first, whether it was a law of 'general application'; and secondly whether it was appropriate and adapted to achieving a legitimate object.
49 Included in that part of the appellant's post-hearing submission which addressed the claim for complementary protection was the following (footnotes omitted):
Consequently, the [IEA] cannot be said to be a law of 'general application' as it discriminates against individuals who have sought asylum by departing illegally either due to a lack of means (financial) or ability to do so in a legal manner. The timing of reimplementation of the relevant provisions of the [IEA] indicate an intent to selectively punish those who have departed Sri Lanka by boat to seek asylum.
50 What this history makes clear is that the appellant's contended inability to pay a fine, and his fears in relation to imprisonment, were raised in respect of his claim for complementary protection under s 36(2)(aa) and were not advanced in relation to a claim of well-founded fear under s 36(2)(a). The Second Tribunal understood the case being put to it as being that the decision of Rares J in SZSPT and the question of the appellant's ability to pay a fine was relevant to the claim under s 36(2)(aa). This understanding was not contradicted or corrected by the appellant, including by his post-hearing submissions. The appellant was at all times represented.
51 At T[36], the Tribunal stated:
In relation to complementary protection [the appellant's] representatives submitted that he would be arrested, interrogated, imprisoned and tried for charges relating to his illegal departure and that he feared that this criminal prosecution would result in torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. They submitted that [the appellant] would inevitably be sentenced to imprisonment but amendments made to the [IEA] in 2006 removed a legislative requirement for a minimum sentence of imprisonment for a conviction under paragraph 45(1)(b) of the Act (relating to leaving Sri Lanka in contravention of the provisions of the Act) and they removed paragraph 45(6)(a) of the Act, thus restoring the judicial discretion under section 303 of the Code of Criminal Procedure to suspend any sentence of imprisonment on a conviction under paragraph 45(1)(b) of the Act. They referred to a media report suggesting that a Sri Lankan police spokesman had said that a group of 41 asylum seekers returned to Sri Lanka from Australia in 2014 would face two years rigorous imprisonment but the Australian Department of Foreign Affairs and Trade has reported that according to the Sri Lankan Attorney-Generals [sic] Department, which is responsible for the conduct of prosecutions, no returnee who was merely a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but that fines have been issued to act as a deterrent to people departing illegally in the future.
52 The fact that being charged with respect to illegal departure was seen as relevant to complementary protection accorded with the written submissions advanced to the Second Tribunal, both before and after the hearing.
53 The Second Tribunal accepted, at T[47], that the appellant would be charged under the IEA because he had left Sri Lanka illegally, but put to the appellant that there was nothing in the evidence to suggest he would be treated differently for one or more of the Convention reasons from anyone else charged with that offence.
54 At T[76] and T[77], the Second Tribunal stated:
76. As I indicated to [the appellant], I accept that he will be returning to Sri Lanka as a failed asylum-seeker. As I put to him, the Australian Department of Foreign Affairs and Trade assesses that returnees are treated according to standard procedures, regardless of their race or religion. In their post-hearing submission [the appellant's] representatives submitted that it would be erroneous to rely on this assessment because the Australian Department of Foreign Affairs and Trade has not been effectively monitoring individuals who had returned as failed asylum-seekers. However the assessment relates to the processing of returnees at the airport and it refers to observations made by officers of the Australian Department of Immigration and Border Protection with regard to the processing of returnees.
77. I accept that [the appellant] will also be charged under the [IEA] because he left Sri Lanka illegally but, as I put to him, there is nothing in the evidence before me to suggest that he will be treated differently, for one or more of the five Convention reasons, from anyone else who had been charged with such an offence. In their post-hearing submission [the appellant's] representatives argued that the [IEA] could not be considered appropriate and adapted to achieving a legitimate objective but they referred in this context to the quantum of the fines imposed whereas the case which they cited clearly establishes that a law may be one of general application even if the punishment for breach of the law is death or something else which is harsh and totally repugnant to the fundamental values of both Australian society and the international community. [The appellant's] representatives submitted that the [IEA] discriminated against individuals who had sought asylum by departing illegally due to a lack of financial means or the ability to do so in a legal manner but [the appellant] was able to obtain a passport and to travel to India by air in 2005. The Act does not prevent people like [the appellant] from leaving Sri Lanka: it simply attempts to dissuade them from departing illegally.
55 Paragraph T[77] directly engaged with and addressed the submission, set out at [49] above, which had been put to the Second Tribunal in the post-hearing submissions in the context of the complementary protection claim.
56 At T[78], the Second Tribunal stated:
[The appellant's] representatives also submitted that the fact that the provisions of the [IEA] had not been enforced against failed asylum-seekers returned from Australia until 29 November 2012 indicated an intent to punish selectively those who had departed Sri Lanka by boat to seek asylum. However the information available to me indicates that Sri Lankan returnees from Australia are being charged with offences in relation to suspected illegal departure irrespective of whether they left to seek asylum or for other reasons and that the only discrimination involved relates to the distinction drawn between those merely suspected of being passengers on a people-smuggling venture and those suspected of facilitating or organising the irregular migration of people from Sri Lanka. I do not accept on the evidence available to me that [the appellant] will be singled out or treated differently, for one or more of the five Convention reasons, from anyone else who may have departed Sri Lanka illegally in breach of the relevant provisions of the [IEA]. I do not accept, therefore, that one or more of the five Convention reasons is the essential and significant reason for any persecution which he may fear in consequence of his illegal departure as required by paragraph 91R(1)(a) of the Migration Act. As I put to [the appellant], I take the view that if he is charged in relation to his illegal departure it will be as a result of the non-discriminatory enforcement of a law that applied generally to everyone in Sri Lanka.
57 This paragraph addressed the appellant's contention of discriminatory or selective enforcement of a law of general application (the IEA) against "failed Tamil asylum seekers returning from Australia" or "failed Sri Lankan asylum seekers", being the particular social groups identified in written submissions for the purposes of the claim under s 36(2)(a). The Tribunal concluded that the appellant would not be treated differently for one of the five Convention reasons and, therefore, that he could not be a "refugee" by reason of the operation of s 91R(1)(a). The Tribunal concluded that the IEA was not being selectively enforced against those particular social groups. This aspect of the claim under s 36(2)(a) therefore failed. That conclusion was open to the Tribunal on the material before it and in respect of the particular social groups which had been identified by the appellant's representatives. The appellant does not suggest otherwise.
58 It is relevant to note:
(1) first, no case had been put that the IEA was discriminatory because it operated disproportionately on a particular social group;
(2) secondly, there was no identification of a particular social group on which the IEA was said to have a disproportionate effect;
(3) thirdly, the appellant did not put at all that the particular social group of which he was a member was: "Tamils who departed Sri Lanka illegally and travelled to Australia (being a Tamil diaspora country) in search of Asylum"; and
(4) fourthly, no express case had been put that there was a claim under s 36(2)(a) of a fear of "serious harm" constituted by "significant economic hardship that threatens the person's capacity to subsist" within the meaning of s 91R(2)(d).
59 At T[82], the Second Tribunal stated:
Putting to one side [the appellant's] new claims with regard to what happened when he returned to Sri Lanka for the second time in February 2012, which I have rejected above, he does not claim that he has ever had any association with the LTTE [Liberation Tigers of Tamil Eelam] or with political activity in support of Tamil separatism, either inside or outside Sri Lanka, nor that he has ever been perceived or suspected by the Sri Lankan authorities of any association with the LTTE or of any political activity in support of Tamil separatism. I do not accept on the evidence before me that there is a real chance that, if he returns to Sri Lanka now or in the reasonably foreseeable future, he will be tortured or otherwise persecuted because of his race as a Tamil, his imputed political opinion in support of the LTTE or his membership of the particular social groups of 'Failed Tamil Asylum seekers returning from Australia', 'Male Tamils suspected of being connected to the LTTE', 'young Tamil males in Sri Lanka' or 'Failed Sri Lankan asylum seekers'.
60 At T[87] the Second Tribunal rejected the s 36(2)(a) case, stating:
For the reasons given above I do not accept that there is a real chance that, if [the appellant] returns to Sri Lanka now or in the reasonably foreseeable future, he will be persecuted because of his race as a Tamil, his imputed political opinion in support of the LTTE or his membership of the particular social groups of 'Failed Tamil Asylum seekers returning from Australia', 'Male Tamils suspected of being connected to the LTTE', 'young Tamil males in Sri Lanka', 'Failed Sri Lankan asylum seekers' or 'Individuals suffering from Mental Health Issues' as has been submitted. I have considered the totality of [the appellant's] circumstances as a young male Tamil who is suffering from anxiety and depression, who may have other health problems, who left Sri Lanka illegally and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.
61 The Second Tribunal also rejected the s 36(2)(aa) case. At T[97], the Second Tribunal stated:
For the reasons given above I consider that the consequences of [the appellant's] breach of the [IEA] by departing Sri Lanka illegally fall within the exception in paragraph 36(2B)(c) of the Migration Act. I have considered the totality of [the appellant's] remaining circumstances as a young male Tamil who is suffering from anxiety and depression, who may face other health problems, and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.