CAT/C/58/D/599/2014 4.19 In summary, the Tribunal did not consider that the complainant ran a real risk, on return to Sri Lanka, of suffering serious harm that would amount to persecution because of his Tamil ethnicity, the political opinion imputed to him or the fact that he is part of the particular social group of failed asylum seekers. The complainant does not claim to fear harm for any other Convention reason and no other reason is apparent from the information before the Tribunal. The Tribunal also did not consider that the complainant had a wellfounded fear of persecution for a Convention reason upon return to Sri Lanka, either now or in the reasonably foreseeable future, or that he was a refugee in need of protection. 4.20 Moreover, the country information provided by the Department of Foreign Affairs and Trade was considered in the assessments of the complainant’s requests for ministerial intervention. It was verified that, although failed asylum seekers are detained on return to Sri Lanka under the laws relating to leaving the country illegally, all persons are granted bail if a family member stands as guarantor, with no discrimination as to ethnicity or religion. It was noted that the complainant has family — his mother and seven siblings — residing in Sri Lanka who can assist him. There is no information to indicate that he would not be granted bail or that he would be discriminated against or tortured because he is a failed asylum seeker and/or Tamil. Complainant’s comments on the State party’s observations 5.1 On 4 February 2015, counsel for the complainant submitted his comments on the State party’s observations. Regarding the State party’s submission that the complainant would likely be arrested on charges of having left the country illegally and could be placed in remand for a relatively brief period while awaiting a bail hearing and that the Tribunal did not consider that this would involve treatment that could reasonably be said to engage Australia’s non-refoulement obligations, the complainant submits that this reasoning was found to constitute a legal error in WZAPN v. Minister for Immigration and Border Protection [2014] FCA 947. In that case, the Federal Court found that “by making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of section 91R(2)(a), and thereby fell into jurisdictional error” (para. 45). 5.2 Furthermore, with regard to his application to the Federal Circuit Court, the complainant was not represented by counsel. He had to find a lawyer on his own and had little English-language skills. He submits that this was a breach of article 14 of the International Covenant on Civil and Political Rights. The complainant also submits that his particular status in relation to the particular social group of failed asylum seekers is much broader in that he is a failed asylum seeker suspected of LTTE connections and he left the country illegally. The complainant submits that his claims have merit and that he should be protected from refoulement as there are substantial grounds for believing that there is a real risk in the foreseeable future that he would face torture and other cruel, inhuman and degrading treatment or punishment upon return to Sri Lanka. 5.3 On 16 August 2015, counsel for the complainant submitted his comments on the State party’s request of 21 May 2015 to lift the interim measures. The complainant noted that, at the first court hearing on 29 May 2013, the Court had indicated to the complainant that his application did not have any prospect of success and that he should seek the advice of a lawyer. He submits that he detected a “jurisdictional error” in the Tribunal’s decision record, himself. The complainant submits that, at a subsequent court date on 22 November 2013, he did not file anything further and confirmed that he had spoken to a lawyer. He also submits that the minister’s lawyer requested that the Court proceed immediately to a “show cause” hearing in order to dismiss the application. The court did so and ruled that the complainant’s application was an impermissible merits review and did not disclose any 8