Appeal in this Court
26 In his notice of appeal filed 22 June 2016, the appellant raises the following grounds of appeal:
1. The Federal Circuit Court failed to find that the RRT erred in law and declined its jurisdiction on the basis of grounds and particulars stated in my Court application filed with the Court on 16 October 2014 and the Amended Application filed with the Court.
2. When the AAT deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the AA T has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The AAT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.
27 The appellant did not file any written submissions prior to the hearing but appeared, as a self-represented party, at the hearing with the assistance of an interpreter and made brief submissions concerning some factual matters.
28 The Minister, through counsel, made submissions both in writing and orally at the hearing.
29 In his amended application for judicial review of the Tribunal's decision, which was prepared by counsel (the amendments being underlined), the appellant raised the following four grounds:
Ground 1
The Tribunal erred when assessing complementary protection that short time detention would not amount to 'significant harm' (s 36(2A)) or 'serious harm' (s 91R(2)) of the Migration Act and thereby committed jurisdictional error and / or failed to apply correct test in respect of Convention nexus and / or consider complementary protection for consequences of illegal departure and / or denied capacity to subsist.
Particulars
(i) The Tribunal stated in its findings: 'The Tribunal accepts .... that there is real chance that the applicant may be arrested and imprisoned for a few days ... having left the country [Sri Lanka] illegally ... ... Negombo prison may be crowded and poor ... ' (CB264, RRT dec p45 at [274]). This constitutes 'serious harm' pursuant to (s 91R(2)(a) - (c)) of the Act.
(ii) Short term detention for illegal departure was not considered under Complementary protection nexus (or if so was considered generally). The short term detention constitutes 'significant harm' pursuant to (s 36(2A) (a), (d) and (e)) of the Act.
(iii) Fishing as deprivation of livelihood constituted significant harm was not considered.
(iv) The Tribunal stated that in detaining the Applicant (Convention nexus) was non· discriminatory (CB 264 at [277-78]] presumably as a law of general application and fell into error in failing to make findings and deal with the claims such as 'large scale killings' (CB 169.1) and failed to deal with the claims (and who was previously detained for 14 days (CB92).
(v) Further fell into error in failing to make findings and address the law was reasonable and proportionate to achieve it objectives.
Ground 2
The Tribunal committed jurisdictional error (and denied procedural fairness) when it failed to consider the Appellant's membership of a particular social group a Convention nexus specifically claimed by the Appellant.
Particulars
(i) The Applicant claimed particular social group with attributes such young Tamil men from North West of Sri Lanka who left illegally. The Tribunal has not made any assessment of a particular social group claim.
(ii) The Tribunal committed jurisdictional error when it failed to properly identify, assess and address the risk of harm in respect of the Applicants' particular social group advanced by the Applicant.
Ground 3
The Tribunal denied the Applicant procedural fairness / was unreasonable when it refused the Applicant's adviser's request to file further submissions on behalf of the Applicant and thereby committed jurisdictional error.
Particulars
(i) The Tribunal rejected the adviser's request that the Applicant to be permitted to file further submissions (made at September 2014 hearing).
(ii) The Tribunal thereby denied procedural fairness and / or was legally unreasonable within the meaning of Minister for Immigration & Citizenship v Li [2013] HCA 18; 249 CLR 332.
Ground 4
The Tribunal fell into error when it failed to consider applicant's claims and I or denied the Applicant procedural fairness and thereby committed jurisdictional error when it failed to put determinative issued to the Applicant to deal with the Applicant's sur place claims as Convention nexus claim and / or complementary protections claims and constructively failed to to exercise jurisdiction and / or applied the incorrect test in relation to the threat.
Particulars
(i) The delegate did not make determinative findings about the various incidents that were accepted by the delegate.
(ii) The Applicant had claimed that he would suffer harm upon return to Sri Lanka from boat crew identified as Janaka and / or Janaka's associates in Sri Lanka (CB 151 - 152).
(iii) The Tribunal was aware of the claim (CB230 at [101]).
(iv) The Tribunal did not make any findings on the claims.
(v) The Tribunal committed jurisdictional error by ignoring the claim / integer of claims and keys evidence in relation to this claims.
(vi) Alternatively applied the incorrect test (CB261 - 2 at [269] - [270]) when the Tribunal looked for comparator by reference to country information instead of dealing with the claims at hand and making findings on the claim.
30 At the commencement of the hearing before the primary judge, at which the appellant was not legally represented, the appellant requested an adjournment in order to allow him to seek advice from an individual who was not a lawyer. This request was apparently made due to the appellant's counsel having ceased to act for the appellant prior to the commencement of the hearing. The primary judge refused this request on the basis that his Honour was not satisfied the appellant intended or would be able to obtain further legal advice if an adjournment were granted.
31 The appellant was assisted at the hearing by a Tamil interpreter. When given an opportunity to elaborate on his grounds of review, the appellant either asserted that those grounds were correct or did not say anything. Effectively, the appellant adopted the same position at the hearing of this appeal.
32 In considering the appellant's application, the primary judge expressed difficulties understanding the grounds of review raised. In the circumstances, his Honour considered it appropriate to apply "the most liberal view of the grounds" possible. That was a reasonable position for the primary judge to take.
33 With regard to ground 1, the primary judge was satisfied that the Tribunal's summary at [228] of its reasons was a comprehensive list of the bases for the appellant's claim to fear persecution. His Honour considered the Tribunal's key finding to be that the appellant had fabricated his claims and was not a credible witness; something the first ground appeared to overlook when asserting that particular claims were not considered. I agree with the primary judge's observation.
34 The primary judge went on to note that the concept of serious harm referred to in ground one was not relevant to the assessment of complementary protection complained of under s 91R(2) of the Act. In any event, his Honour dealt with the individual elements raised in the ground and the particulars due to the appellant being a self-represented litigant.
35 To this point there are no proper grounds for complaint by the appellant. What the primary judge stated is unexceptional. No error in reasoning is revealed.
36 With regard to the appellant's complaint that the Tribunal erred when it found that the appellant being held in remand for a few days on return to Sri Lanka did not amount to "significant harm" (for s 36(2)(aa) purposes) or "serious harm" (for s 91R(2) purposes), the primary judge held that there was no jurisdictional error. The primary judge noted that the Tribunal in its reasons addressed this claim, accepted that was the case and that the Sri Lankan authorities would have knowledge of this on the appellant's return to Sri Lanka, and referred to relevant country information. It then found that while Sri Lankan prison conditions may be crowded and poor, returnees would not be mistreated, and so being held on remand in those conditions and the subsequent penalty for illegal departure, would not amount to serious harm as defined in s 91R(2) of the Act. The Tribunal then considered the claim in light of the complementary protection criteria and the question of a real risk of significant harm in s 36(2)(aa) of the Act, and found that the appellant would not suffer significant harm for reason of his detention or the imposition of the likely penalty for illegal departure.
37 The primary judge held that these findings of fact were reasonably open on the evidence before the Tribunal and that the Tribunal provided a rational and reasonable explanation for its findings. As such, his Honour considered that the appellant's complaints could only be seen as a request for the Court to engage in impermissible merits review and did not reveal jurisdictional error.
38 In my view, this is a correct finding. The Tribunal and the primary judge here dealt with the quality or nature of the impugned Sri Lankan sanctions, not the question of intent, subjective or otherwise, in creating or imposing these sanctions or their outcomes.
39 However, for completeness, I accept the Minister's submission that there would be no error even if the Tribunal had relied on an absence of intention given the Full Court of this Court's recent decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. While this decision is currently subject to a special leave to appeal application in the High Court of Australia, I do not consider it is necessary to await the outcome of that matter given the particular findings made by the Tribunal in this case.
40 The primary judge interpreted the appellant's complaint in particular (iii), that "[f]ishing as deprivation of livelihood constituted significant harm was not considered", as possibly meaning that the Tribunal did not address, when it came to complementary protection, whether the appellant would suffer significant harm because of the likelihood that he would be deprived of his livelihood as a fisherman. In this regard, the primary judge noted that the Tribunal rejected the appellant's claim on this basis because it preferred the evidence given by the appellant himself at the hearing, that he had worked as a fisherman only for a short time many years ago, over the statements in the written submissions prepared by the appellant's representative.
41 Again this finding was open to the primary judge and no error is evident.
42 The primary judge held that these findings were all reasonably open to the Tribunal on what was before it, and noted that the Tribunal then relied on these in the assessment of the complementary protection criteria. His Honour went on to state that on the evidence before the Court, he could not see that the appellant ever claimed to the Tribunal, or that it arose in the circumstances presented, that the appellant feared significant harm because he would be deprived of his livelihood as a fisherman. At its highest, the primary judge considered, the appellant's relevant claim was that as a fisherman from Udappu he would be perceived as an LTTE supporter; a claim that the Tribunal dealt with and rejected for reasons open on the material before it.
43 The primary judge therefore did not consider that particular (iii) to ground one revealed jurisdictional error. No error is revealed by the judge so finding.
44 With regard to the complaint in particular (iv), that the Tribunal did not consider the appellant's claims relating to what were said to be "large scale killings", the primary judge noted that this was a reference to the appellant's representative's written submissions of 24 September 2013, filed in the Tribunal proceeding, in which the representative referred, under the heading of "Complementary Protection", to country information reports of an incident involving "large scale killings" in a Sri Lankan prison. In context, the primary judge considered the appellant's claim to be that he would suffer significant harm while held on remand in a Sri Lankan prison and that a part of the country information before the Tribunal referred to a report of killings in a Sri Lankan prison.
45 The primary judge noted the Tribunal's considerations in this regard, including its consideration of the information provided by the appellant's representative in relation to prison conditions. The primary judge held that the Tribunal's subsequent rejection of the appellant's claim that he would suffer harm for reason of being imprisoned, was reasonably open on the material before it. His Honour considered that the Tribunal giving weight to some country information over other country information, or not being persuaded by a particular piece of country information, did not, in the circumstances, reveal legal error. See NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11].
46 The primary judge stated that the Tribunal did not need to refer to all of the detail provided in the appellant's submissions. His Honour held that, in rejecting the appellant's claim to fear harm because of being imprisoned, the Tribunal considered all the claims expressly made or clearly arising from the circumstances presented. See Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263; and Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184.
47 Again, I can see no error in the primary judge's findings in each respect.
48 With regard to what the primary judge considered to be the second complaint in particular (iv), that the appellant had been detained for 14 days in 2003, the primary judge held it was clear, having regard to the Tribunal's reasons, that the Tribunal did consider this particular of the appellant's claim. The primary judge further held that the Tribunal's finding that this did not occur was reasonably open to it. As such, his Honour considered that this particular could only be understood as seeking impermissible merits review.
49 Again, the primary judge's reasoning reveals no error.
50 With regard to particular (v) to ground one, that the Tribunal failed to consider whether the law relating to illegal departure was reasonable and proportionate to achieve its objective, the primary judge held that once the Tribunal found that the relevant law did not discriminate on a Convention basis, it was not necessary to conduct the analysis that the appellant proposed. See Minister for Immigration and Border Protection v WZAPN and Another; WZARV v Minister for Immigration and Border Protection and Another (2015) 254 CLR 610 at [77] (French CJ, Kiefel, Bell and Keane JJ); [2015] HCA 22. The primary judge cannot be said to have erred in so finding.
51 In the result, the primary judge held that ground one was not made out and no error is revealed in that decision.
52 With regard to ground 2, the primary judge considered that the particular social group of "young Tamil men from the North West of Sri Lanka who left illegally" was not identified to the Tribunal as one to which the appellant belonged. However, his Honour considered that the characteristics of that group were all variously parts of the appellant's claims that were considered by the Tribunal in finding that he did not face a real chance of serious harm because of any real or imputed political opinion, his Tamil race, or his membership of any particular social group.
53 The primary judge accepted the Minister's submission that once the Tribunal made that finding, which encompassed all of the appellant's claims and integers of his claims, it was not necessary for the Tribunal to then also consider whether the social group which was then alleged by the appellant was, in fact, a social group, or that the appellant was a member of such a social group, or that he feared harm for this reason. In reliance on this Court's decisions in SZNOE v Minister for Immigration and Citizenship [2012] FCA 96 at [78] and SZUXM v Minister for Immigration and Border Protection [2015] FCA 1514, the primary judge held that ground two was not made out.
54 In my opinion, having regard to the particular facts of this case, the primary judge was correct in so finding.
55 With regard to ground 3, the primary judge stated that the difficulty for the appellant was that, despite having the opportunity to do so, he had not put into evidence any transcript of the Tribunal hearing or, indeed, any evidence of what occurred at the Tribunal hearing. His Honour noted that orders in this regard were made while the appellant was legally represented.
56 The primary judge noted that the Tribunal's account revealed that the representative made oral submissions at the hearing, and apparently did not seek more time to make further written submissions. In the circumstances, given the absence of any relevant evidence from the appellant, the primary judge held that it was not now open to the Court to speculate as to what may have otherwise occurred at the Tribunal hearing. See NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241.
57 In the result, the primary judge held that ground three was also not made out. I consider no error is revealed by this reasoning.
58 Finally, the primary judge held that ground 4 was also not established in circumstances where the Tribunal made a finding about the appellant's claim presented in his representative's written submissions of 24 September 2013 under the heading of "Additional Sur Place". In this regard, his Honour noted that the Tribunal considered the claim in some length and, in rejecting the claim, gave reasons which were open on the evidence before it.
59 With regard to the final ground, ground 4, in the amended application that the Tribunal "failed to deal with the appellant's sur place claims", I accept the Minister's submission that the particulars refer to the appellant's claim to fear harm from members of the boat crew, and that this claim was rejected by the Tribunal. The particulars also claim that the Tribunal "looked for comparator by reference to country information" instead of dealing with the claim. The Minister reasonably submits it is unclear what this particular means, and the Tribunal addressed the claim by rejecting it. Consequently, the Minister says the primary judge was correct in also dismissing this ground.
60 To the extent it seeks to repeat, or it overlaps with the s 36(2)(aa) or s 91R(2) issues, it fails for the same reasons those issues failed, as explained above.
61 In the result, the Minister says the appeal should be dismissed with costs.