SZWBR v Minister for Immigration and Border Protection

1. The appeal be allowed.
2. Set aside the orders of the Federal Circuit Court made on 11 October 2016 in SZWBR v Minister for Immigration & Anor in file SYG295/2015 and in lieu thereof order that:
3. A writ of certiorari issue to the Second Respondent absolute in the first instance quashing the decision it made on 9 January 2015 in file CLR2012/211601 to affirm the delegate's decision.
4. A writ of mandamus issue to the Second Respondent absolute in the first instance in the same matter directing it to decide the Applicant's review application according to law.
5. The First Respondent pay the Applicant's costs of the proceedings as taxed or agreed.
6. The First Respondent pay the Appellant's costs of the appeal as taxed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 This is an appeal from the Federal Circuit Court: SZWBR v Minister for Immigration [2016] FCCA 2621. That Court refused the Appellant's application for judicial review of an earlier decision of the Refugee Review Tribunal ('the Tribunal') to affirm a decision of a delegate of the Minister not to grant the Appellant a Protection visa. The Appellant is a citizen of Sri Lanka and is of Tamil ethnicity. In 2012 he set sail on a vessel from Sri Lanka bound for Australia. He did so in circumstances which were illegal under the law of Sri Lanka. The vessel had been chartered by a people smuggler and was intercepted in Australian waters around 20 June 2012. The vessel was given the codename 'Jarklin' by Australian authorities. The Appellant was transferred to Christmas Island on 20 June 2012 and thereafter transferred to the Wickham Point Immigration Detention Centre in Darwin. He was interviewed whilst at Wickham Point by officials from the Department of Immigration and Border Protection. 2 Because the Appellant was an unauthorised maritime arrival within the meaning of s 5AA of the Migration Act 1958 (Cth) ('the Act') he was barred from applying for a Protection visa by s 46A unless the Minister first formed the view that it was in the public interest to permit him to apply for a visa. On 4 September 2012, the Minister formed that view and permitted the Appellant to apply for a Protection visa. On 11 October 2012, the Appellant was granted a Bridging visa which permitted him, and continues to permit him, to be in the community whilst his visa application is processed. On 13 November 2012, he lodged with the Minister an actual application for a Protection visa. 3 The basis of his claim for protection was that as a Tamil with a political profile he faced a risk of persecution from the Sri Lankan authorities if returned to Sri Lanka because he might be perceived to have been associated with the Liberation Tigers of Tamil Eelam ('LTTE'). The LTTE had waged an unsuccessful civil war against the government to establish a Tamil home state. The Appellant was not actually associated with the LTTE but his concern was that as a Tamil he would be perceived to have that association and be treated accordingly. He was also concerned about the consequences of his own activities in Tamil politics. He claimed to have participated extensively in the affairs of a political party known as the Tamil National Alliance ('TNA'). This was said to expose him to a risk from another Tamil faction known as the Tamil Makkal Viduthalai Pulikal which was also known as the TMVP or the Karuna group. The Karuna group were said to be Tamil extremists who sought to persuade members of the TNA to leave the TNA and support instead the Karuna group. The Appellant claimed that the Karuna group used violence extensively to achieve that aim. He also believed that the Karuna group had come into a possession of a list of persons who had actively assisted the TNA and that it was attacking the people on that list. This was a concern because he understood himself to be on the list. 4 The delegate did accept that the Appellant had had some dealings with the TNA but thought that he had greatly overstated them. She concluded that his profile was so low that there was no risk to him either from the Sinhalese government authorities or, for what it was worth, the Karuna group. The basic conclusion was that whilst Tamils with a sufficiently prominent political profile might have legitimate concerns this was not so for Tamils with no significant profile. In the delegate's view, the Appellant was just such a person. That conclusion was sufficient to permit the delegate to conclude that the Appellant was not entitled to a Protection visa. 5 Australia has non-refoulement obligations not to remove a person to another State if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the removal, the person will suffer significant harm. The obligations have been held by various international bodies to arise from the Convention relating to the Status of Refugees ('Refugees Convention), the International Covenant on Civil and Political Rights ('ICCPR') and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ('CAT'). It is possible that a person may be exposed to such a risk in circumstances where that risk does not provide a basis for the existence of a well-founded fear of persecution under the Refugees Convention. Usually, this will be because the harm is likely to be inflicted on the person for reasons which are unrelated to their membership of any particular group. 6 The delegate concluded, largely for the same reasons as had guided her decision in relation to the Protection visa, that the Appellant did not face such a risk. The delegate appeared, however, to overlook the Appellant's claim that he also faced such a risk from the fact that he had departed Sri Lanka unlawfully. Here his contention had been that on his return he would be arrested and put in prison for that offence and he would be exposed to a real risk of harm just by being in a Sri Lankan prison. 7 The matter then moved to the Tribunal following the Appellant's application for a review. The Tribunal reached similar conclusions to the delegate on the Protection visa issues - the Appellant lacked a significant political profile and would not be at risk. On the issue of complementary protection, however, the Tribunal also considered whether the Appellant would be exposed to a risk of harm by reason of the fact that he might be imprisoned on his return for having departed Sri Lanka unlawfully (that is, the argument overlooked by the delegate). 8 The Appellant's representatives submitted in writing to the Tribunal that (a) he would be imprisoned for at least one year on his return and (b) he would face an unacceptable risk of harm within the Sri Lankan prison system. The former (a) was the case because it was an offence under s 34 of the Sri Lankan Immigrants and Emigrants Act No 31 of 2006 to leave Sri Lanka other than through an approved port or, under s 35, to leave without holding a valid passport. The Appellant had committed both offences. By s 45(1)(b) of the same law the penalty was 'imprisonment…for a term of not less than one year'. The latter (b) was said to be so because of the dangerous state of the Sri Lankan prison system. Importantly, the Appellant also made a detailed written submission to the Tribunal to the effect that regardless of whether he ultimately received a custodial sentence or not he would, in the interim, be remanded in custody on his return until he obtained bail. The Appellant put material before the Tribunal which suggested that this detention on remand could be up to two weeks in duration. 9 The Tribunal rejected the former argument holding at [82] that '...the Tribunal is not satisfied there is a real chance (real risk) the applicant would be subject to a custodial sentence in Sri Lanka (including for having exited unlawfully)'. This conclusion followed from earlier observations it had made that whilst it accepted that the Appellant had departed from Sri Lanka illegally, it was unlikely that he would be imprisoned on his return with the much more likely outcome being that he would be fined: [61]-[62]. That conclusion was, in turn, based on country information from the Department of Foreign Affairs and Trade ('DFAT') that it had been informed by the Sri Lankan Attorney-General's Department that no person who illegally departed Sri Lanka on a boat merely as a passenger had been given a custodial sentence although such persons had been fined. 10 As to the latter argument (about the state of the Sri Lankan prison system), the Tribunal appeared (at [80]) to accept a report prepared by the Home Office of the United Kingdom that prison conditions in Sri Lanka were very poor. That report suggested overcrowding, unsanitary conditions, lack of food and incidents of ill treatment including torture. Indeed, the Home Office had apparently concluded that the non-refoulement obligation which exists under the European Convention on Human Rights might well be engaged by the conditions of prisons in Sri Lanka. 11 The Tribunal reasoned that Australia's complementary protection obligations would not be engaged unless it was shown that the harm which might be inflicted on the Appellant would be intentionally inflicted. The Tribunal said that this requirement came from the Refugees Convention and the provisions dealing with complementary protection in the Act. It then appeared to accept that some criminals in Sri Lanka did die in custody but noted that the Sri Lankan police had argued in those cases that this had occurred in self-defence. The Tribunal's reasoning on this issue was as follows at [80]-[84]: '80. Based on those of the applicant's claims that I have accepted, and the country information in the sources cited herein, I do not accept the applicant has a real risk of suffering the death penalty in Sri Lanka. That said, and with respect to prison conditions, the UK Home Office reported: 3.16.10 Conclusion: Conditions in prisons and detention centres remain poor. Taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of ill treatment, including torture, are likely to reach the Article 3 [European Convention on Human Rights] threshold and a grant of humanitarian protection may be appropriate… 81. However, Article 3 of the European Convention on Human Rights is 'without exception', and does not impose the qualifications for the grant of protection that are contained in both the Refugees Convention (the Refugees Convention nexus) and the material complementary protection provisions of the Migration Act (including the need to determine whether the material harm is intentionally inflicted on a person). Further country information stated: Deaths in custody 4.11 Although there are no reliable figures available, some criminal suspects have died while in custody. In some instances, police argued the deaths were in self-defence. Deaths in custody are generally unrelated and isolated in nature. Disciplinary and legal actions related to such incidents have been recorded. 82. That said, based on the country information considered, the harm to which prisoners may be subject appears to be random and there does not appear to be material evidence in support a finding that the material harm is intentionally inflicted on a person. Be that as it may, and as set out above, the Tribunal is not satisfied there is a real chance (real risk) the applicant would be subject to a custodial sentence in Sri Lanka (including for having exited unlawfully). 83. Based on the accepted facts and the country information in the sources cited herein, the Tribunal is not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to Sri Lanka. If he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment. 84. Next, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment). Again, if he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment. Next, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (torture). Again, if he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment. Finally, none of the country information in the sources cited herein, have satisfied me the applicant has a real risk of suffering arbitrary deprivation of life in Sri Lanka.' (emphasis in original) 12 These findings are related to the terms of the complementary protection provisions of s 36(2)(aa) and (2A) of the Act. These provide: '36 Protection visas-criteria provided for by this Act … (2) A criterion for a protection visa is that the applicant for the visa is: …. (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; or … (2A) 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. …' 13 It is clear that the Tribunal certainly turned its mind to the state of Sri Lankan prisons under s 36(2A)(c)-(e). It rejected that claim on the basis that each of s 36(2A)(c)-(e) have an intentional element. It was correct to do so for it has been held that harm to an applicant caused by overcrowding, poor sanitary conditions and limited access to food in the Sri Lankan prison system does not constitute torture, cruel or inhuman treatment or punishment under s 36(2A)(c)-(e). To be clear, the claim being considered here was a claim based on squalor. The Tribunal was not considering a claim consisting of a factual assertion that someone was being actually tortured rather than kept in poor conditions. The Tribunal was correct to conclude that poor conditions did not satisfy s 36(2A)(c)-(e) because those three subsections have an intentional aspect to them: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 ('SZTAL') at 412-413 [26]-[29] per Kiefel CJ, Nettle and Gordon JJ; 432 [103] and 434-435 [112]-[114] per Edelman J. 14 But there is a puzzle about the Tribunal's reasons. It had noted country information at [80] which explicitly referred to 'incidence of ill treatment, including torture'. That country information had itself been referred to by the Appellant in his written submission to the Tribunal which, having quoted from it, then formally submitted '[g]iven the prevalence of torture, cruel or inhuman and degrading treatment or punishment in Sri Lankan prisons, the Tribunal should accept that there is a real risk the Applicant will face significant harm'. So there is no doubt that a claim of torture, cruel or inhuman or degrading treatment or punishment (collectively, the 'torture claim') was on the table and needed to be dealt with. Nor do I read the reference in this context to torture as including the claim based on poor conditions. 15 But is unclear how the Tribunal addressed it. The passage which was quoted at [81] from the DFAT country report of 3 October 2014 certainly referred to inmates having died in custody. It reported police claims that these had been in self-defence and it noted they were unrelated and isolated in nature. But nothing in that quote provided any kind of answer to the torture claim. 16 The critical conclusions in [82] are twofold. First, the harm suffered in prisons was 'random'; secondly, there was no material evidence to support a finding that any of it was intentionally inflicted on a person. I take the reference to 'random' to be a reference to the material in [80] that the deaths in custody were unrelated and isolated in the absence of anything else to which it could refer. However, I am unable to see how the Tribunal could arrive at the view that the torture material to which it had referred (and about which a submission had been made) did not reveal harm which was intentionally inflicted. 17 It is not altogether clear whether the first sentence of [82] does in fact involve a finding of fact. But this does not seem to me to matter too much. A claim of torture was made, the Tribunal referred to the material on which that claim was made but the Tribunal did not in terms explain why the torture claim was rejected. There are four possibilities: (a) it failed to consider the torture claim; or (b) it impliedly rejected the torture claim because of the reason set out at [81]-[82] (that is, there did not appear to be material evidence in support a finding that the material harm would be intentionally inflicted on a person); or (c) it impliedly rejected the torture claim for some other reason which it has not identified; or (d) it impliedly rejected the torture claim for no reason at all. 18 In other cases involving the Sri Lankan prison system and refugee claims the Tribunal has explicitly dealt with the torture claim. For example, a torture claim was made to the Tribunal in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 but was no longer material by the time the matter got to the High Court. It is recorded in the Full Federal Court's reasons in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; 243 FCR 556 at 561 [11]. The Tribunal there held: 'There are reports of mistreatment of both Tamil and Sinhalese prisoners in Sri Lanka's prison system. Freedom from Torture reported on a number of claims of torture in 2012 and identified that "those at particular risk included Tamils with an actual or perceived association with the LTTE including those returning from abroad". The applicant has not made any claim of an actual or perceived connection to the LTTE and the Tribunal does not accept he would be targeted in the prison system for this reason. The evidence before the Tribunal does not indicate that returnees who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand. … For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment.' 19 The Tribunal there made a direct finding that there was no real risk the applicant would be subject to torture. It was that finding that then meant that the torture issue did not further persist in that litigation. The Tribunal in this case, by contrast, appears to have eschewed a direct treatment of the issue. 20 Which of the possible readings of (a) to (d) is the correct one? I do not think (c) or (d) are very likely to be the case. If the Tribunal had a separate reason for rejecting the torture claim then it is much more likely that it would have stated it. So too, (d) involves the Tribunal acting on a whim which is also unlikely. So the choice is really between (a) and (b). I think (b) must also be discounted as a possibility because I should proceed on the basis that the Tribunal was competent. It would not be competent to reject the torture argument on the basis of what was said at [81]-[82]. The Tribunal appeared to discount the reference to torture in UK Home Office report quoted at [80] on the basis that Article 3 of the European Convention on Human Rights is 'without exception' and does not impose an intentional aspect. But that does not in itself resolve the Appellant's torture claim. Without a direct finding on the torture claim, to reason that way would reveal a process of reasoning which, even for a high volume administrative tribunal such as this one, would be unsatisfactory. That seems to me unlikely. 21 That leaves the possibility that the claim was overlooked. There are difficulties with this possibility too. As the Full Court of this Court observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 at 604-605 [47] the notion that the Tribunal has failed to consider an issue which was raised is 'not too readily to be drawn'. Despite that, it seems to me the most likely reading. 22 Ms Graycar, who appeared for the Minister, submitted that [82] should not be read as not having involved a consideration of the Appellant's remand argument. The first step in that argument was the observation that the Tribunal had certainly dealt with the remand argument in the context of dismissing the Appellant's claims under the Refugees Convention. One of his claims had been that he was a member of a particular social group of failed asylum seekers (he also claimed to be a member of other social groups such as Tamil males with a political profile but this is presently of no moment). 23 When the Tribunal came to consider the claim based on being a failed asylum seeker it did address itself to the risk posed to the Appellant by reason of being held briefly on remand. It did so, however, on the basis that any harm which befell him during that short period of detention would not be inflicted on him for a Convention reason. Perhaps expanding on that slightly, what was being said was that if the Appellant was exposed to a risk of being killed by the police whilst on remand that would have nothing to do with the fact that he was a failed asylum seeker. The relevant finding was at [66]: 'The evidence of the sources cited herein, indicate the Sri Lankan prison population is broadly representative of the country's overall ethnic and religious composition. It is also the case that conditions in Sri Lankan prisons are poor. That said, based on the country information and accepted facts, the Tribunal is not satisfied there is a real chance the applicant would be subject to a custodial sentence in Sri Lanka (including for having exited unlawfully). The Tribunal is not satisfied (for instance) the applicant falls within any of the risk profiles (including those provided by UNHCR) and is not satisfied his situation would be exacerbated on return for reason of any of his accepted claims. However, and though I am sufficiently satisfied of my immediately above finding, even if he was subject to a brief period in detention, the evidence I have seen has not satisfied me that an essential and significant reason for any harm to which he may then be subject, would include at least one of the Refugees Convention grounds. For instance none of the evidence I have seen has satisfied me that (for instance) prisoners are 'harmed' for that reason in Sri Lanka. Neither have I seen any material evidence indicating that persons, who formerly held 'public service' positions prior to illegally departing Sri Lanka, may be subject to different treatment on return (as failed asylum seekers).' (emphasis in original, footnotes omitted) 24 It followed, according to Ms Graycar's submission, that one should come to [82] fully cognisant of the fact that the Tribunal was well-aware of the remand claim and had rejected it. 25 It is certainly the case that one can be confident that the Tribunal was aware of the remand claim in the context of the Refugees Convention. But the reasoning it utilised to dispose of that claim is not available under the rubric of complementary protection erected by s 36(2A). The Tribunal did not dispose of the argument by denying the risk existed; it assumed the risk existed at [66] but said that the risk was not related to the Appellant's membership of a particular social group. Accordingly, I reject the submission. 26 I conclude that the Tribunal overlooked the Appellant's claim that he would be tortured whilst on remand. A failure to deal with a substantial and clearly articulated case involves a constructive failure to exercise the Tribunal's jurisdiction and, as such, is a jurisdictional error: NABE v Minister for Immigration and Ethnic Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 at [55]-[63]. 27 In the Court below this point was dealt with as follows at [23]-[25]: '23. Mr Mostafa of Counsel on behalf of the applicant confirmed that Ground 1 was no longer pressed. Mr Mostafa of Counsel conceded that Ground 2 could not succeed unless Ground 3 succeeded. 24. In substance, Ground 2 sought to advance an argument that the Tribunal had directed itself to a custodial sentence, and not taken into account the applicant's claims in respect of detention whilst he was in remand. 25. On a fair reading of the Tribunal's reasons, it is apparent that the Tribunal took into account the detention to which the applicant may be exposed as a result of having illegally departed Sri Lanka. Ground 2 fails to make out the jurisdictional error.' 28 There is some mystery about the concession referred to in [23]. It is surprising in the sense that ground 2 was not connected to ground 3 in any way. But regardless, his Honour does not seem to have acted on the concession but to have decided the ground for himself. 29 Unfortunately, the reasoning at [25] contains error. The grounds of review in the Federal Circuit Court were explicit in identifying the risk of harm as arising from pre-trial detention. His Honour was correct to think that the Tribunal had dealt with that issue but he failed to grasp that it had only done so in the context of the claim under the Refugees Convention. As I have endeavoured to explain, the Tribunal did not deal with the Appellant's case about torture whilst in remand detention under the complementary protection provisions. In that way his Honour erred. 30 I would make the following orders: