SZWMO v Minister for Immigration and Border Protection

Grounds of application to the FCCA 8 The primary judge recorded the grounds of the applicant's application to the FCCA at J[18] of his reasons as follows (as written): 1. The Tribunal fell into jurisdictional error in making a finding on submissions not made by the applicant. Particulars a. At [29] the Tribunal accepted that DFAT does not monitor the situation for returnees, but does not accept the submissions that it relies on "no reports" to state that nothing is happening to returnees. 2. The Tribunal considered the wrong issue of duration of remand in its assessment of whether the applicant would suffer serious or significant harm while being persecuted under the Sri Lankan Immigrants and Emigrants Act for illegal departure. Particulars a. At [31] the Tribunal accepted that DFAT and various other groups have reported that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance and limited reform regarding violence and maltreatment. However, the Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for only a short period in remand and will then be bailed. 3. The Tribunal failed to consider the lack of standardise procedures for the application and administration of the Sri Lankan Immigrants and Emigrants Act. Particulars a. A discretionary decision has to be made as to when a returnee is taken before a Magistrate for a bail hearing which will be carried out in the Sinhala language; b. Whether there is a family members who can attend the bail hearing in either Colombo or Negombo; c. Whether an assurance can be provided; d. A discretionary decision as to the amount of the assurance required and whether a family member can provide the assurance; e. If there are any problems for non-Sinhala speaking returnees and family members in participation in the bail and final hearings and how they are treated; f. The Magistrate in Negombo is reported to hand down the amount of fines ten times more than the Magistrate in Colombo indicating further there are no standardised procedures; g. The applicant will return to his home village with a conviction; and h. As there are no standardised procedures there is a real chance that the applicant would be treated in a systematic and discriminatory manner in the administration of the Sri Lankan Immigrants and Emigrants Act. 4. At [37] the Tribunal considered the wrong test by applying refugee convention grounds to the complementary protection provisions. 5. At [38] the Tribunal considered the wrong question as to whether the conditions in remand constitutes degrading treatment or punishment because it held the applicant would most likely only be held for a short period of a fortnight. Particulars a. The conditions in remand in Sri Lanka are well-known and documented and the act of holding people in such conditions is intentional and constitutes degrading treatment and punishment; and b. In Price v UK UK prison authorities had no intention to humiliate Ms Price but the conditions in prison caused Ms Price extreme humiliation and embarrassment.

The application to this Court 9 The applicant is a litigant in person. He did not file written submissions. He appeared at the hearing of the application and made oral submissions. The hearing was conducted with the assistance of an interpreter. 10 The Minister filed written submissions and appeared by his legal representative. 11 The applicant's proposed ground of appeal was set out in the draft notice of appeal filed on 14 December 2018. The proposed ground is, in essence, that the primary judge erred because he failed to find that the Tribunal "declined its jurisdiction" on the basis of the grounds set out in his application to the FCCA. The applicant's ground of appeal therefore points to no specific legal error of the primary judge but cavils with the outcome of his judicial review application. His oral submissions were primarily addressed to his disagreement with Australian Government policy in relation to Sri Lankan asylum seekers. He expressed concern about the accuracy of country information on which the Tribunal relied in relation to the treatment he and other failed asylum seekers may expect to experience upon their return to Sri Lanka when a protection visa is not granted. Those submissions were generally not responsive to the ground on which the applicant was invited to make submissions. 12 For the following reasons, I find that the proposed grounds of appeal have no reasonable prospect of success.

Ground 1 13 This ground asserts that the Tribunal took into account an irrelevant consideration in the DR at [29] because it rejected a submission that the applicant did not make. The primary judge found (at J[19]) that this ground fails for lack of evidence, in particular, because there was no transcript in evidence to support it. 14 Paragraphs [28]-[29] of the decision record are as follows (footnotes removed, emphasis added): 28. The Tribunal had regard to the submissions from the applicant's advisers regarding the situation for returnees, both upon their immediate arrival and after their return to the village. 29. The Tribunal accepts that there is some evidence of returnees suffering harm and that there remains a pervasive culture of violence within the Sri Lankan military, police and government. The Tribunal also accepts that DFAT does not monitor the situation for returnees, but does not accept the submission that it relies on 'no reports' to state that nothing is happening to returnees. The Tribunal is satisfied that DFAT has relied on evidence from reliable sources and the weight of the evidence indicates that the cases in relation to returnees overwhelmingly involve persons who have had reasonable links with the LTTE or who are suspected of such linkages, or persons who have criminal connections. The information from DFAT also indicates that allegations of mistreatment of returnees without such links have not been substantiated. Further information from the Canadian Immigration and Refugee Board in January 2013 was that the treatment of people at the airport did not depend on their ethnicity but on their political activities. The information before the Tribunal, including from DFAT, the Upper Tribunal and UNHCR also indicates that standardised procedures apply to all cases, regardless of a persons' ethnicity or circumstances in which they left the country. 15 The primary judge gave more extensive consideration to the ground at J[25]-[28]. The primary judge set out [28] of the decision record at J[26] and went on to find at J[27] that it was clear from the Tribunal's reasons that submissions made by the applicant's representative formed the basis of its finding in relation to country information in the DR at [29]. In the absence of a transcript of the Tribunal hearing, the primary judge found that the applicant's representative made the submissions referred to in the DR at [29], that the Tribunal's findings in relation to those submissions were open to it, and that it is well settled that the country information to which the Tribunal has regard and the weight it gives to it are factual matters for the Tribunal. The primary judge accepted the Minister's submission that this ground is an attempt at impermissible merits review. 16 The applicant submitted orally that the country information was not reliable because it relied primarily on reports which emanate from the Sri Lankan Government. He says that most complaints are made orally so that it is difficult to get evidence of them and that no one knows what happens to people after they return to their villages. The applicant submitted that the primary judge rejected this ground because he did not believe him. 17 I accept the Minister's submissions that: (1) In the absence of evidence to the contrary, it was open to the primary judge to find that the submissions referred to in the DR at [29] are those of the applicant's representative referred to in the DR at [28]. (2) The applicant's submissions to this Court cavil with the content of the country information rather than whether his representatives made the submissions referred to in the DR at [29]. These submissions seek impermissible merits review. (3) The applicant has not identified any error by the primary judge in making the findings that he did for the reasons that he gave.

Ground 2 18 The primary judge found that this ground raised the claim that the Tribunal considered the wrong issue in focusing on the length of any period of remand which the applicant may face upon his return to Sri Lanka rather than the physical conditions in which persons are held in remand. 19 The primary judge noted that at DR[34], the Tribunal accepted the possibility that the applicant would be held in remand "in conditions that can be poor due to overcrowding and unsanitary conditions", without addressing whether this amounted to "serious harm" within s 91R(1)(b) of the Migration Act 1958 (Cth) as then enacted. However, it found that the requirement of s 91R(1)(c), that the persecution involves "systematic and discriminatory" conduct, was not met. The Tribunal was not satisfied that any problems faced by the applicant due to questioning or the conditions in remand would result in harm for any Refugee Convention related reason. Instead, it found that any such factors would be faced by the general population. The primary judge found that the Tribunal was acting within jurisdiction in taking into account the length of any possible detention. 20 The primary judge accepted that, at its highest, this ground raised an allegation of error which was considered and rejected by the High Court in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; 254 CLR 610 (MIBP v WZAPN): J[30]. Further, insofar as Ground 2 alleges a misapplication of the test for significant harm, the reasoning of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947; 229 FCR 477 had no application to the concept of "significant harm" in the context of a finding on complementary protection: J[31]-[32]. 21 The applicant submitted: That the people who are detained in poor conditions are mostly Tamils and that the Sri Lankan Government is not concerned about the nature of the crime which has purportedly been committed, only about the ethnicity of the accused. He came to Australia because he was concerned for his life but the Australian Government accepts no responsibility for what will happen to him if he returns to Sri Lanka. 22 While I accept that the applicant's submissions were sincere, they identified no error in the primary judge's reasoning. Rather, they cavil with the findings made by the Tribunal that: (1) The weight of evidence established that returnees would be held in remand for a short period before being bailed but it does not establish that they would be subject to torture or other forms of deliberate mistreatment: DR at [31]. (2) It was not satisfied that the applicant will be imputed with a political opinion because he left Sri Lanka illegally or because he sought asylum overseas or that he would be singled out or treated differently because he is a member of a social group of failed asylum seekers. The Tribunal accepted that there was a possibility that the applicant would be held in remand for a limited period while awaiting bail in conditions that can be unsanitary and poor due to overcrowding. It was satisfied that any problems he may face as a result of being questioned, charged and placed on remand in those conditions was not because he is a Tamil or aimed at him for a Convention reason but because he left Sri Lanka illegally. It found that these are factors which apply to the general population and not specifically to Tamils. It was therefore not satisfied that those factors amount to systematic and discriminatory conduct under s 91R(1)(c): DR at [34]. 23 Section 91R of the Migration Act as enacted at the time the Tribunal made its decision provided (in effect) that for the purposes of that Act and the regulations made under it, (a) a Convention ground must be the essential and significant reason for the persecution; (b) the persecution must involve serious harm to the person (as non-exhaustively defined in s 91R(2)); and (c) the persecution must involve systematic and discriminatory conduct. Each of paragraphs (a), (b) and (c) must be satisfied otherwise a claim to protection against serious harm under the Refugees Convention cannot be made out and each paragraph calls for a qualitative judgment: see MIPB v WZAPN at [35], [39] and [68]-[71] per French CJ, Kiefel, Bell and Keane JJ. 24 It was open to the Tribunal to find that s 91R(1)(c) was not satisfied for the reasons that it gave. Further, in determining whether s 91R(1)(b) is satisfied having regard to s 91R(2)(a) (threat to a person's life or liberty), the High Court in MIBP v WZAPN accepted that detention does not automatically constitute a threat to liberty, but rather it is necessary for the Tribunal to evaluate the nature and gravity of the loss of liberty having regard to the circumstances and consequences of that detention: [45] per French CJ, Kiefel, Bell and Keane JJ. To the extent that the ground raised this issue, it was open to the primary judge to find that the Tribunal acted within jurisdiction in considering the length of possible detention. 25 In relation to complementary protection, the Tribunal found that it was not satisfied that the applicant would suffer harm for reasons of his race, ethnicity, actual or imputed political opinion or because he is a failed asylum seeker. It accepted that, having left the country illegally, he was likely to face questioning at the airport and arrest and that he may face a fine and be placed in remand for up to two weeks in conditions which are cramped, uncomfortable and unsanitary. It did not accept that that would amount to "significant harm" under s 36(2A) of the Migration Act or "cruel or inhuman treatment" for the purposes of s 5(1) of the Migration Act because it did not accept that the conditions were "intended to cause" extreme humiliation as required by the definition of "degrading treatment or punishment": DR at [36]-[43]. There is no error evident in the way the Tribunal approached this issue and the applicant's submissions do not establish any error of a relevant kind by the Tribunal or the primary judge.

Ground 3 26 The primary judge found that this ground asserts that the Tribunal failed to consider the lack of standardised procedures for the application and administration of the Immigration and Emigration Act 1949 of Sri Lanka. 27 The primary judge found that this ground failed because no lack of standardised procedures (as opposed to the application of those procedures in particular cases) for the administration and application of the Immigrants and Emigrants Act appears from the decision record or the applicant's claims: J[21]. In considering this ground, the primary judge noted that the DR at [30] sets out the circumstances in which a person might be processed under the Immigration and Emigration Act. To the extent that the particulars of the ground seek to align the facts of this case with the decision in Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069 (MIBP v SZTQS), the primary judge found that no error or breach of s 425 of the Migration Act can be established. The primary judge found that it was clear from the decision of the Full Court in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175; 238 FCR 404 (SZTAP v MIBP) at [77] that MIBP v SZTQS is a case which is confined to its particular facts relating to SZTQS' background before he left Sri Lanka and the Court found it unnecessary to consider whether that case was correctly decided. The primary judge noted that a further factor confining MIBP v SZTQS to its own facts is that the Full Court at [80] relied on the fact that the FCCA in SZTQS' case appeared to assume that "providing surety involved the payment of money", perhaps because SZTQS's mother had paid bail money to secure his release from a cell in a police station while he was in Sri Lanka: J[35]-[36]. 28 In relation to this ground, the applicant submitted that if he is returned to Sri Lanka, he may be released on bail, which may be a small amount of money, but "they" may come back and ask for more money. He is concerned that, even if he is released, he will face harm later on and the Australian Government does not follow up or take responsibility for what happens to returnees after they are released. His parents may even get caught up if they protest against any ill-treatment he receives. He says that Tamils have no faith in the Sri Lankan Government. In reply to the Minister's submissions, the applicant suggested that it might be necessary to pay bribes to secure someone's release and the authorities do not respect procedures. 29 The Minister submitted that the primary judge was correct to conclude that no failure to comply with s 425 of the Migration Act arose because of any failure of the Tribunal to give the applicant an opportunity to comment on the implications for him of the need to obtain bail or having a family member provide security having regard to the Full Court's decision in SZTAP v MIBP. 30 The last four sentences of the DR at [29] quoted at [14] above indicates that the Tribunal turned its mind to the question of the nature of the procedures under the Immigration and Emigration Act and, based on country information from DFAT, the UK's Upper Tribunal and UNHCR, found that standardised procedures applied in all cases regardless of a person's ethnicity and the circumstances in which they left the country. At [30], the Tribunal did consider the procedures adopted in Sri Lanka. It concluded (emphasis added): As a result of tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach [of] immigration laws are arrested at the airport and brought before a court to apply for bail. Bail is routinely given on the person's recognisance, although a family member is also required to provide security. If the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison until a bail hearing is available. 31 As in SZTAP v MIBP, at a general level of abstraction, there is a similarity between MIBP v SZTQS and this case, as is revealed by the words emphasised in bold in the Tribunal's finding at [30] of the decision record set out above. Further, as in SZTAP v MIBP, the Tribunal's reasons do not suggest that, prior to making its decision, it raised with the applicant any issue concerning whether a family member would provide surety in order secure his release on bail after his return to Sri Lanka. 32 In SZTAP v MIBP at [76], the Full Court opined that MIPB v SZTQS did not stand for a high-level proposition that every reference to a family member being required to provide security involves a breach of s 425(1) of the Migration Act. The Full Court noted at [78] that in MIBP v SZTQS part of the background circumstances were that before leaving Sri Lanka, the appellant had been taken to the police and two days later to the local court house where his mother paid bail for his release. He had also given a statutory declaration that he had an outstanding hearing for a charge of trying to leave Sri Lanka illegally and without permission. The Full Court found, at [81], that it was not necessary for it to rely on s 424A(3)(a) of the Migration Act in relation to the country information of general application from which the Tribunal's conclusions had been drawn in order to find that there was no breach of s 425(1) of the Migration Act. On the specific facts of that case, the delegate had extensively set out country information and it had been responded to extensively by the appellant in written submissions. 33 Both the primary judge and the Minister in his submissions relied solely on the distinguishing factor of the particular circumstances of SZTQS to say that s 425(1) had not been breached in this case. It is clear that in SZTAP v MIBP at [81] that the Full Court did more than that by explicitly discussing the detail of the submissions made to the Tribunal and the content of the delegate's decision to draw out the difference between the circumstances of the appellant in that case and SZTQS. That approach was not taken in submissions in relation to this application for extension of time in these proceedings. 34 Neither of the Minister nor the applicant took the Court to the Court Book which had been before the primary judge which customarily contains the delegate's decision and any written submissions made by the applicant or his representative to the Department or the Tribunal. However, I accept the Minister's submission that there is nothing in the applicant's submissions which suggests that the primary judge's findings were not open to him. Further, the DR at [28] indicates that the applicant's advisors made submissions regarding the situation for returnees, both upon their immediate arrival and after their return to the village. The applicant did not submit that he would be unable to obtain bail or that no family member would be willing to provide surety. To the contrary: his submissions to this Court suggest that he has maintained a relationship with his parents which is supportive of him. Last, in this case, the Tribunal based its conclusions on country information, being information that was not specifically about the applicant or another person and was just about a class of persons (returnees) of which the applicant is a member to the effect that bail would be given on the returnee's recognisance and surety from a family member. It is difficult to see why the country information needed to have been drawn specifically to the applicant's attention for comment having regard to s 424A(3)(a). In those circumstances, I do not see that the applicant would have a reasonable prospect of succeeding in an appeal on this ground.

Ground 4 35 The primary judge found that the fourth ground takes issue with [37] of the decision record and alleges that the Tribunal considered the "wrong test" by applying "Refugee Convention grounds to the complementary protection provisions". This ground was rejected on the basis that it could not be made out as the Tribunal had considered the applicant's claims under complementary protection and whether he would be subject to "significant harm" on return to Sri Lanka: J[37]-[38]. 36 The applicant submitted again that Tamils are detained in Sri Lanka and that if he goes back the Australian Government cannot and will not do anything to prevent him from being detained. 37 The Minister submitted that this ground cannot be made out factually. He submitted that the primary judge was correct when he found (at J[22]) that this ground fails because the Tribunal did not consider the wrong test for complementary protection. In particular, the Tribunal's reference in the DR at [37] to its findings in relation to his protection claims under the Refugees Convention were included to make clear that its factual findings also bore on the complementary protection findings. 38 The Minister went on to submit that the applicant's submissions identified no error in the primary judge's reasoning. Paragraphs [38]-[41] of the decision record considers the impact of the Immigration and Emigration Act having regard to ss 5(1) and 36(2A) of the Migration Act. The Tribunal set out its findings in relation to the harms faced by the applicant upon his return to Sri Lanka and his village, singularly and cumulatively at [42]-[43] in concluding that the applicant will not face "significant harm" upon his return. 39 I accept the Minister's submissions and find that the applicant would have no reasonable prospect of success on appeal on this ground.

Ground 5 40 The primary judge found that Ground 5 alleges that the act of holding people in detention demonstrates an intention to cause extreme humiliation which the Tribunal failed to consider. The primary judge noted that in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 he had rejected this ground on the basis that the intention required by the statutory definition of "significant harm" is the existence of "an actual, subjective, intention on the part of the [actor] to bring about suffering" and that this decision had been upheld on appeal by the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. 41 The applicant submitted that in Sri Lanka everything was planned and intentional. This submission did not advance the applicant's argument. 42 This ground cannot be made out having regard to the High Court's decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405 at [26]-[27] which upheld the interpretation of the complimentary protection provisions referred to at [40] above by majority (Gageler J dissenting).

Conclusion 43 Had the merit of the applicant's proposed ground of appeal been stronger, a delay of seven weeks in commencing proceedings in this Court may not have been an obstacle to an extension of time being granted, although Courts do not lightly disregard those provisions of the Federal Court Rules designed to ensure that litigation is conducted efficiently and fairly in so far as that is possible. However, for the reasons set out above, the proposed ground is not sufficiently meritorious. The application for an extension of time should be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.