AAD16 v Minister for Immigration

[2017] FCCA 2399

FEDERAL CIRCUIT COURT OF AUSTRALIA

AAD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2399

Catchwords:
MIGRATION – Claim that the Tribunal failed to give weight to particular country information – whether the Tribunal considered whether the Sri Lankan Authorities intended to cause cruel or degrading treatment or punishment – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.5(1)

NABE v The Minister for Immigration & Multicultural & Indigenous Affairs(No.2) (2004) 144 FCR 1
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: AAD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 7 of 2016

Judgment of: Judge McNab

Hearing date: 27 September 2017

Date of Last Submission: 27 September 2017

Delivered at: Melbourne

Delivered on: 27 September 2017

REPRESENTATION

Counsel for the Applicant: Mr Krohn

Solicitors for the Applicant: Ambi Associates

Counsel for the Respondent: Ms Lucas

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The amended application filed on 11 September 2017 be dismissed.

2. The applicant pay the First Respondent’s costs fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 7 of 2016

AAD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(delivered ex tempore)

1. By an amended application filed on 11 September 2017, the applicant seeks judicial review of a decision of the second respondent dated 9 December 2015, which affirmed a decision of the delegate of the Minister refusing to grant the applicant a protection visa.  The amended application raises three grounds of review.

2. Ground one is that “[t]he Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.”

3. There are two particulars in relation to that ground.  The substance of the first ground is:

   ….The Tribunal, however, did not consider whether the inconsistencies in the applicant’s evidence may have been because of his distress at his father’s mental illness and the death of his brother (both of which events accepted had happened), and because, if they were true, the applicant’s claimed experiences of having been abducted by LTTE, interrogated by the Army, and being shot at, were distressing and traumatic.

4. The second particular is that “the Tribunal did not have regard to information from sources other than the Department of Foreign Affairs and Trade in determining that it did not accept that there is a real risk that the applicant ‘will experience torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment during any period which he may spend in gaol or on remand.”

5. Ground two provided that the Tribunal fell into jurisdictional error in that it misrepresented or misapplied the law. The particular of that ground is, in substance, that the Tribunal failed to give consideration to the question of whether the Sri Lankan authorities intended that a person in the position of the applicant would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment, as defined in s.5(1) of the Migration Act 1958 (Cth).

6. Ground three is that: “the Tribunal fell into jurisdictional error in that it acted illogically, unreasonably, or without rationally probative evidence.”

7. The first particular of that ground is that:

   The Tribunal was contradictory in accepting that ‘there is evidence … that some failed asylum seekers who have returned to Sri Lanka have been arrested and tortured…”, but then in concluding, solely by reference to advice by the Department of Foreign Affairs and Trade that allegations of mistreatment have not been substantiated, that it did not accept that there is a real risk that the applicant ‘will experience torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment during the period which he may spend in gaol on remand.’

8. The second particular of ground three is that the Tribunal acted “unreasonably in not accepting that, if the applicant spent up to a fortnight in such a prison on remand amounts to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as defined in s.5(1) of the Migration Act.”  The reference to “such a prison” was a reference to prison conditions referred to in paragraph [76] of the Tribunal’s decision.

Background

1. The background to the matter as put by the Applicant has been set out in the first respondent’s outline of submissions and, although in a different form, in the applicant’s outline of submissions.  There are no material differences in the substance of the background.

   a)The applicant is in his twenties. He is not married, and has no children.

   b)The applicant is a national of Sri Lanka and of no other country.

   c)He was born in the Northern Province of Sri Lanka, and spent his life in various places in that province until he left his country to seek protection in Australia.

   d)He has no right to enter and to reside in any other country.

   e)The Applicant is of Tamil ethnicity.

   f)The Applicant is a Hindu.

   g)The applicant grew up in the area of Vanni. When he was about 12 years old, during the period of the civil war between the LTTE and the government of Sri Lanka, he was kidnapped by the LTTE to work for them, but he escaped after two days. His family then moved to Jaffna to avoid further problems with the LTTE.

   h)From about 2006, the applicant’s father was harassed by the Army, taken from home, questioned about being in Vanni and any connection with the LTTE, and beaten. As a result of this treatment, the applicant’s father developed mental health problems.

   i)After the applicant’s father developed mental health problems, the applicant himself was taken and questioned by the Army. He was beaten and tortured.

   j)In 2007, the applicant’s brother was shot and killed after a mine exploded near some shops. The applicant and his family did not know who shot his brother.

   k)Men came to the applicant’s home searching for him. On one occasion he was there, and ran away. The men shot at him, missing him but killing the family’s dog.

   l)In 2001 army officers came looking for the applicant. He had to report to their office. They wanted information about the LTTE. He went to their office, and was told he would have to return. The men have continued coming to his home.

   m)The applicant was afraid after this, and stayed at different places. In 2012, men from the army came looking for him again. He was not at home, did not go to report, and made arrangements to leave Sri Lanka. Since leaving Sri Lanka, he has been told that the men have continued coming to his home, looking for him.

   n)The applicant feared torture or death if he returned, for his suspected involvement with the LTTE, as a Tamil from Vanni. He also feared harm as a returned failed asylum seeker, and as an illegal emigrant.

2. The applicant placed an emphasis on four particular aspects of the background, those being (as set out in the applicant’s outline of submissions) that:

   a)From about 2006, the applicant’s father was harassed by the army, taken from home, questioned about being in Vanni and any connection with the LTTE and beaten.[1]  As a result of this treatment, the applicant’s father developed mental health problems.

   b)After the applicant’s father developed mental health problems, the applicant himself was taken and questioned by the Army.  He was beaten and tortured. 

   c)In 2007, the applicant’s brother was shot and killed after a mine exploded near some shops.  The applicant and his family did not know who shot his brother.

   d)Men came to the applicant’s home searching for him.  On one occasion he was there, and ran away.  The men shot at him, missing him but killing the family’s dog.

   [1] Applicant’s outline of submissions [6(h)].

3. The matters raised above are put by way of background and were in part not accepted by the Tribunal to have occurred for the reasons advanced by the applicant. 

Finding

Ground one

1. In relation to ground one, the difficulty with this ground is that the Tribunal considered the issue of the applicant’s father’s mental health problems and the death of the applicant’s brother in 2007. It stated at [61]:

   I accept that Mr T’s father has mental health problems but for the reasons given above I do not accept that these mental health problems were caused by him being interrogated by the army as Mr T has claimed.  I likewise accept that Mr T’s next oldest brother was killed in July 2007 but that, as he has said, they do not know who was responsible.

2. In those circumstances, it was not necessary for the Tribunal to consider whether the mental health problems of the father and the death of the brother may have had an impact on the applicant’s ability to be an accurate historian for the purposes of his claims or impact on his credibility.

3. At [60] the Tribunal stated that it did not accept the Applicant’s claims that he had been abducted by the LTTE, interrogated by the SLA or had been shot at and therefore did not have to consider those matters in assessing whether they impacted on his capacity to recount events.

4. A second issue that arises in relation to this ground is that it was not a claim that was expressly put by the applicant that these issues had caused him to be a less than accurate historian or caused him to give inconsistent accounts.

5. It was not a claim that was directly raised and it is not a ground that squarely arises from the material that was before the tribunal. In that regard I refer to the decision of NABE v The Minister for Immigration & Multicultural & Indigenous Affairs(No.2) (2004) 144 FCR 1 where the Court stated:

   …The use of the adverb “squarely” does not convey any precise standard but indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.  Such a claim will not depend on its exposure on constructive or creative activity by the Tribunal.[2]

   [2] [58].

6. In my view, the claims now made by the applicant do not arise squarely from the material.  The references to the applicant having “problems” are not sufficient as a basis for suggesting that the claims do squarely arise.[3]

   [3] [56].

7. The Tribunal at [53] – [61] gave detailed and comprehensible reasons why it did not accept the Applicant’s account. 

8. The second particular fails on the basis that the applicant is asking the Court to express a view as to which material the Tribunal ought to have given weight to or considered in relation to country information. It is apparent from the Tribunal’s decision that it considered material which had been placed before it by the applicant and his representatives.  In that regard, I refer to the passages of the decision from paragraph [22] – [27], where specific reference is made to the material submitted by the applicant.

9. At paragraph [63] of the decision, the Tribunal made specific reference to submissions made by the applicant’s representatives to the Department on 6 August 2013, which included references to submissions made to the Canadian Immigration and Refugee Board in 2011 and also to a US State Department country report and human rights practice document.[4]

   [4] [64].

10. The criticism of the Tribunal is that it made reference to and relied upon country information from DFAT, in particular a DFAT report of 16 February 2015.  Having regard to the decision of the Full Court of the Federal Court in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, in particular at paragraphs [11] – [13] of that decision, the ground advanced must fail. The Court stated:

    It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on “country information” that is not true.  The question of the accuracy of the “country information” is one for the Tribunal, not for the Court.  If the Court were to make its own assessment of the truth of “country information”, it would be engaging in merits review.[5]

    [5] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 [11].

11. The Court went on to state:

    Both the choice and the assessment of the weight of such material were matters for the Tribunal.  The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.[6]

    [6] Ibid [13].

12. There is no error apparent in the Tribunal’s treatment of country information and reliance on DFAT country information rather than the information advanced by the applicant. 

Ground two

1. In relation to ground two it is put that the Tribunal failed to make a finding that there was no intention on the part of Sri Lankan authorities to subject the applicant or persons in the position of the applicant to degrading treatment or punishment, or cruel and inhuman treatment or punishment by reason of subjecting them to conditions in Sri Lankan prisons.

2. The Tribunal found that there was only a remote chance that the applicant would spend any longer than a fortnight in gaol on remand in Sri Lanka.  The Tribunal made reference to submissions to the Tribunal dated 31 July 2014 by the applicant’s representatives which outlined very poor conditions in Sri Lankan prisons.  The Tribunal held:

   Even taking into account the evidence regarding the conditions in prisons in Sri Lanka, I do not accept that spending a brief period in such a prison on remand amounts to ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ as defined in subsection 5(1) of the Migration Act.[7]

   [7] Tribunal decision [76].

3. The words “degrading treatment or punishment” is defined in s.5(1) of the Migration Act 1958 (Cth) as “an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission.” By reference to that specific provision, the Tribunal found that spending a brief period of time in prison did not amount to punishment or treatment of the kind referred to in that section, and therefore the Tribunal had considered whether the prison conditions were intentionally inflicted. Having regard to the decision of the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, the approach taken by the Tribunal is correct. For these reasons, I see there is no error in the Tribunal’s approach.

Ground three

1. In relation to ground three, the particulars in subparagraph (a) are in a large part a reiteration of the criticisms of the Tribunal’s reliance upon DFAT country information. For the reasons that I have given in relation to ground 1(b), that ground must fail. 

2. In relation to particular (b), for the reasons that I have given in relation to ground 2, this ground must also fail. Furthermore, this ground is simply asking the Court to engage in merits review.

3. For those reasons I dismiss the application. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge McNab

Associate: 

Date:  28 September 2017