AAV15 v Minister for Immigration
[2016] FCCA 2913
•2 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAV15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2913 |
| Catchwords: MIGRATION – Application to review decision of former Refugee Review Tribunal – whether the Tribunal misconstrued the expressions “intentionally inflicted” and “intended to cause” in the definitions of concepts amounting to significant harm in the Migration Act 1958 (Cth) or failed to consider whether there was a real risk the Applicant would suffer significant harm by reason of the Sri Lankan Immigrants and Emigrants Act. |
| Legislation: Migration Act 1958 (Cth), s.477(2) |
| Cases cited: AAV15 v Minister for Immigration and Border Protection (2015) 230 FCR 465; [2015] FCA 700 |
| Applicant: | AAV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 457 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 2 November 2016 |
| Delivered at: | Sydney |
| Delivered on: | 2 November 2016 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The name of the Second Respondent be amended to "Administrative Appeals Tribunal".
The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 457 of 2015
| AAV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application for review of a decision of the former Refugee Review Tribunal dated 2 January 2015 affirming a decision of a delegate of the First Respondent not to grant the Applicant a protection visa. The Applicant a citizen of Sri Lanka, arrived in Australia as an irregular maritime arrival in July 2012. He participated in an entry interview.
In December 2012 he applied for a protection visa. The application was refused and he sought review by the Tribunal. He attended a Tribunal hearing. The hearing was adjourned due to the Applicant’s medical condition. He attended a resumed hearing on 12 December 2014. On 2 January 2015 the Tribunal made the decision in question. On 25 February 2015 the Applicant sought review in this court. I granted an extension of time pursuant to s.477(2) of the Migration Act 1958 (Cth) (the Act) (see [39]-[40] below).
The Applicant’s claims for protection were initially set out in a statement of claims and a statutory declaration. He also provided submissions through an adviser and a further statutory declaration. He elaborated on his claims in the departmental interview and at the Tribunal hearing and provided some supporting documentation.
The main aspect of the Applicant’s claims related to his brother’s disappearance and death. The Applicant claimed that his brother was abducted in 2007. He initially claimed to the Department that he did not believe his brother was involved in anything and did not know who abducted him, but that his parents had been told it was in a white van. He claimed that thereafter his parents were concerned about the Applicant and his brothers. They went to India for about three months and returned to Sri Lanka because they thought it was safe.
The Applicant claimed that on return to Sri Lanka in 2007 he was arrested by the Sri Lankan army following a round‑up in his area, that he was held overnight, interrogated as to the whereabouts of his brother and repeatedly beaten.
He claimed he was released the following morning but that he was required to attend the army camp near his home every evening at 6pm to sign a register and that this continued until the time of his departure from Sri Lanka (in June 2012). He claimed that he was also regularly caught in round‑ups which occurred about twice a month, and that he was often interrogated and beaten and asked about his links to the LTTE.
He claimed to fear that if he returned he would be harmed because he left Sri Lanka and because he was a young unmarried Tamil male from the Eastern Province and may be suspected of involvement with organisations such as the LTTE despite the fact that he did not have such links.
In its reasons for decision the Tribunal set out these claims. It then accepted that the Applicant was a Tamil from the Eastern Province. While it had doubts in relation to the entirety of his claims in relation to his brother, it was prepared to accept that the Applicant’s brother was abducted in 2007 and had since died.
However, the Tribunal did not accept the additional claims made by the Applicant at the Tribunal hearing that his brother was involved in and a member of the LTTE or that the Applicant was suspected of involvement with the LTTE as a result of his brother’s involvement.
The Tribunal was prepared to accept that the Applicant was questioned by the authorities in 2007 based on independent evidence in relation to the situation for Tamils during and in the period after the war in Sri Lanka, but did not accept that he had had the ongoing problems he claimed or that he left Sri Lanka in 2012 because he was sought by the authorities. It considered the Applicant had manufactured those claims in an attempt to provide a basis for protection.
The Tribunal gave reasons for these findings. In relation to the claims about the Applicant’s brother, it had regard to inconsistencies in the documentary evidence provided about the date of death of the brother and in the Applicant’s evidence as to whether his brother had been involved with the LTTE.
According to the Tribunal’s account of what occurred in the hearing (the only evidence before the court in that respect), it raised with the Applicant its concerns that a photograph said to be of the Applicant’s brother wearing an LTTE uniform had been manufactured, as had the claims about the brother’s association with the LTTE. It also observed that the photograph indicated that the brother died in 2006 which was before he was said to have disappeared.
The Tribunal recorded that it had raised concerns as to why, if his brother’s body was handed over to the uncle in 2008 as the Applicant now claimed, the family would only learn in 2014 that the brother was with the LTTE and had died. It considered his explanation that he had only found out about this some eight months earlier (in 2014) when his uncle had told the family about the brother’s involvement and death and that the body had been handed over to him in 2008. It was of the view that the Applicant was unable to explain the different dates on documents and photographs submitted in relation to the date of the death of his brother. The Tribunal did not accept that the Applicant had given truthful evidence in relation to his brother’s disappearance.
It also had regard to the inconsistencies in the Applicant’s evidence about whether his brother had any involvement with the LTTE. It did not accept that it would take six years for the Applicant’s uncle to convey a message to family members about abduction of the brother by the LTTE or that he had been involved with the LTTE and his body handed to the uncle in 2008.
The Tribunal did not accept that the photograph/memorial document was genuine, considering it had been fabricated in an attempt to establish that the Applicant’s brother was a member of the LTTE thus creating a profile for the Applicant as someone who had significant LTTE connections. This raised serious concerns for the Tribunal about the Applicant’s overall credibility.
The Tribunal was prepared to accept that the Applicant’s brother had disappeared at a time when thousands of young Tamil males disappeared without trace or explanation, but did not accept the Applicant’s subsequent claims in relation to the brother’s involvement with the LTTE or the handing over of the body to the uncle, considering these claims had been fabricated to embellish the Applicant’s profile as someone with significant LTTE connections.
The Tribunal was also of the view that the Applicant’s claims about harm he had suffered after his brother’s disappearance had been significantly embellished and recent events manufactured in an attempt to provide him with a profile as someone with actual LTTE connections through his brother. In that respect, it had regard to the fact that in his initial entry interview the Applicant had indicated that he was questioned and rounded up after his return to Sri Lanka from India, but that he had not indicated that he had any ongoing problems. However he later claimed that after his brother’s disappearance he had to report to the army camp every day and that he was constantly harassed and beaten until he left Sri Lanka in 2012. In a statutory declaration he provided to the Tribunal he had stated that he did not know why he was detained and required to report regularly, but suspected that he was suspected of being an LTTE member or it may have been to deter him from joining the LTTE. The Tribunal did not accept the Applicant’s explanations for not mentioning ongoing problems with the authorities in his entry interview.
The Tribunal found that the claims about ongoing questioning and interrogation were inconsistent with country information and that the Applicant’s initial failure to mention these claims raised serious doubts. It was of the view he would have mentioned such ongoing problems with the authorities, even briefly, rather than indicating that he had not experienced ongoing harassment or questioning by the authorities.
The Tribunal concluded that the Applicant’s evidence that he was required, over a five‑year period, to report to the authorities because of their suspicions was not credible, was not consistent with the independent information and that such claims were fabricated. It did not accept that the Applicant was subject to ongoing reporting requirements as claimed, or that he was frequently interrogated or beaten or constantly harassed or detained on numerous occasions, including two or three weeks before he left for Australia. The Tribunal was also of the view that the Applicant had fabricated the claim that the authorities had visited his home two or three times since he left Sri Lanka to determine whether he had returned.
It did not accept that when the Applicant left Sri Lanka in mid‑2012 he had any adverse political profile such that he was suspected of being an LTTE supporter or member or of having any involvement with any other Tamil nationalistic movements. The Tribunal did not accept that he had any well‑founded fear of persecution on that basis.
The Tribunal accepted that the Applicant was a young unmarried Tamil from the Eastern Province and considered his claim to fear harm for such reason. In light of its finding that he did not have any actual or suspected links with the LTTE, and having regard to country information cited, the Tribunal did not accept that the Applicant faced harm because of his membership of any such particular social group. The Tribunal was of the view that the Applicant would not be at risk simply as a young single male from the Eastern Province or because he had a brother who had disappeared and, as indicated, did not accept his claims that he had or would be perceived as having LTTE links. It stated:
37. The Tribunal has not accepted at the time he left Sri Lanka, the applicant had any suspected or actual links with the LTTE. The Tribunal also does not accept that the evidence establishes that Tamils are at risk of serious harm on the basis of their ethnicity alone or because they are from a particular part of Sri Lanka which was an LTTE occupied area, such as the Northern and Eastern parts of Sri Lanka. The Tribunal accepts the applicant’s clams to the Department that he believes his educational and employment opportunities were not of the same level as those available to Sinhalese. The applicant has, however, been able to obtain employment throughout his working life whilst he was in Sri Lanka. The Tribunal has also had regard to information from DFAT which indicates that official laws or policies in Sri Lanka do not discriminate against Tamils and the government does not discriminate against Tamils in the way it in the way it (sic) applies the laws. The Tribunal is also not satisfied that the evidence establishes that he will be unable to continue to earn a livelihood upon his return to Sri Lanka.
38. The Tribunal is not satisfied, having regard to all of the evidence, that that there is a real chance that the applicant will be sought upon his return because he is perceived to have LTTE links, or that he has actual LTTE links, or that there is a real chance he will suffer serious harm because he is a young, single Tamil male from the Eastern province of Sri Lanka or because he has a brother who has disappeared. As indicated above, the evidence indicates that many thousands of young Tamil males disappeared during and in the aftermath of the civil war. The Tribunal is not satisfied that the applicant’s brother’s disappearance in 2007, is such that it will give rise to a real chance that the applicant will suffer serious harm upon his return to Sri Lanka. (footnote omitted)
The Tribunal considered the Applicant’s illegal departure from Sri Lanka and his status as a failed asylum seeker. It accepted that he left Sri Lanka illegally and that it would be known on his return that he had unsuccessfully sought asylum in a Western country. It referred to his claim that he may not be persecuted immediately, but would be targeted on his return and feared he would be harmed at a later time. It also referred to country information submitted by his advisers.
The Tribunal considered the situation both in terms of the Applicant’s immediate arrival and thereafter, when the Applicant returned to his village. It had regard to evidence in relation to the treatment of returnees, which it accepted indicated that they were routinely interviewed at the airport and that there may be additional questioning for those of security interest. It accepted that, under tightened procedures, returnees who were believed to have left Sri Lanka in breach of immigration laws were arrested at the airport and brought before a court to apply for bail, which was “routinely given on the person’s recognisance, although a family member is also required to provide surety”.
The Tribunal acknowledged that if the arrival occurred over a weekend or a public holiday the returnee would be placed in the remand section of Negombo Prison until a bail hearing was available. It accepted that conditions in remand had been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and access to assistance, and limited reform regarding violence and maltreatment, but considered the weight of the evidence indicated that returnees would most likely be held for only a short period in remand and would then be granted bail. It was not satisfied that the weight of the evidence established that returnees held in remand awaiting bail hearings had been subjected to torture or other forms of deliberate mistreatment.
Further, the Tribunal was not satisfied that the evidence indicated there was a real chance the Applicant would receive a custodial sentence. It had regard to independent evidence in that respect and as to likely fines. It noted that the Applicant had not claimed he would be unable to pay the likely fine or even a higher amount. It was not satisfied the scale of the likely fine was such that it amounted to serious harm.
In the alternative, the Tribunal considered that the evidence indicated that anyone who left Sri Lanka illegally may be subject to a fine for so doing and that there was no evidence of differential treatment in the application of the fine.
The Tribunal considered the Applicant’s claims about potential harm after he returned to his village, but noted there was very little evidence of returnees suffering mistreatment, either on arrival or following return to their villages.
The Tribunal was not satisfied that the Applicant had any particular profile such that there was a real chance of serious harm on his arrival, even having regard to his illegal departure and the authorities’ awareness he had applied for asylum. It accepted he would be questioned at the airport, but did not accept that his brother’s disappearance or the fact he was questioned and interrogated in 2007 and was required to report for some time would result in him being subjected to interrogation or mistreatment at the airport. It accepted there was a possibility he would be held for a limited period in remand in conditions that can be poor due to overcrowding and unsanitary “conditions” (sic), but found that the evidence did not establish that he would be singled out or treated any differently because he left illegally. It considered these consequences would not occur because the Applicant was a Tamil, but rather because he left Sri Lanka illegally. It was not satisfied he would be treated differently or imputed with a political opinion because he did so. It was not satisfied that any problems the Applicant may face as a result of questioning or charges or prison conditions in remand were aimed at the Applicant for any Convention reason. It found that they applied to the general population. It was not satisfied that questioning, arrest, and poor conditions in remand amounted to systematic and discriminatory conduct within s.91R of the Migration Act.
The Tribunal continued:
46. Having considered the evidence set out above, the Tribunal is not satisfied that it establishes that returnees are subject to mistreatment whilst in remand, despite their being evidence of some thousand returnees. The Tribunal also considers that the independent evidence indicates that the applicant will not be subject to a custodial sentence and the prospect of him being detained for a prolonged period of time as a penalty for illegal departure is remote. Further, the Tribunal considers that despite the large numbers of reported involuntary returnees to Sri Lanka, and despite high level reporting, there is very limited evidence of returnees suffering serious harm at the airport, whilst in remand or following return to their village. Therefore, having considered the independent evidence and the applicant’s personal circumstances, the Tribunal is not satisfied that there is a real chance that he would suffer serious harm amounting to persecution on arrival in Sri Lanka or upon his return to his village because he is a Tamil, a failed asylum seeker or because he left Sri Lanka illegally without proper documentation, or for any other Convention reason.
It found that the Applicant did not meet the Refugees Convention criterion.
The Tribunal also considered the complementary protection criterion and the representative’s submissions that there was a real risk the Applicant would be subject to significant harm. It referred to the fact that it had not accepted his claims about fear of harm regarding actual or imputed LTTE connections or ongoing harassment, arrest and reporting requirements. Similarly, the Tribunal was not satisfied for the purposes of the complementary protection criterion that the Applicant would be considered to have any LTTE connections or adverse political profile such that there was a real risk he would suffer significant harm on return to Sri Lanka on that basis or on the basis that he was a young, single Tamil male from the Eastern Province.
Although it accepted that the Applicant’s brother had disappeared, the Tribunal had not accepted that there was a real chance this would result in the Applicant suffering serious harm on return. For the same reasons, the Tribunal was not satisfied there was a real risk the Applicant would suffer significant harm for this reason.
The Tribunal considered the fact that it had accepted that the Applicant had departed Sri Lanka illegally and the likely consequences, including questioning, arrest and being placed in remand for a relatively brief period while awaiting bail and a fine if found guilty. It reiterated that it had accepted that the Applicant may be remanded in conditions which were cramped, uncomfortable and unsanitary. In considering the situation for the Applicant, the Tribunal addressed the definitions of significant harm. It had regard to the fact that the definitions required “intentional” infliction of various kinds of harm referred to therein and referred to the Applicant’s submissions in relation to the treatment of returnees and suppression of media reporting as well as to the weight of the evidence before it. The Tribunal considered that the weight of that evidence indicated that, despite large members of reported involuntary returnees, there had been no reporting of persons suffering significant harm as contemplated by the Act as involuntary returnees. It was not satisfied that during any questioning at the airport there was a real risk that the Applicant would suffer significant harm. Nor was it satisfied that the fact that he may spend up to a fortnight in gaol on remand on his return to Sri Lanka established that the pain or suffering caused by severe overcrowding and poor and unsanitary conditions was intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. It did not accept that the severe overcrowding and poor conditions were intended to cause extreme humiliation, as required by the definition of degrading treatment or punishment. It referred in that respect to SZTKF v Minister for Immigration and Border Protection & Anor [2014] FCCA 2827 and SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 in relation to intentional infliction of harm.
The Tribunal was not satisfied that the evidence before it indicated that during the period of remand there was a real risk the Applicant would suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life. It was not satisfied the Applicant met the complementary protection criterion. It affirmed the decision.
The Applicant sought review by application filed on 25 February 2015. Despite being given two opportunities to file an amended application, affidavit evidence and submissions after the matter was remitted, including during the period when he was legally represented, the Applicant did not do so. While the Applicant confirmed today that he relied on the application and affidavit filed in February 2015, he also told me that he did not know why his application had been rejected by the Tribunal.
It became apparent when I considered the extension of time application, that identification of the “grounds” of review that ought to be taken into account was complicated by the procedural background.
When the application was first before this court it was summarily dismissed on the first date (see AAV15 v Minister for Immigration and Border Protection & Anor [2015] FCCA 637). That decision was challenged in the Federal Court (see AAV15 v Minister for Immigration and Border Protection (2015) 230 FCR 465; [2015] FCA 700). When the matter was before Flick J, the then counsel for the Applicant indicated that if the matter was remitted he would seek to rely on a proposed amended application containing a ground which he submitted was clearly arguable (see AAV15 at [37]).
The matter was remitted to this court for reconsideration. The Applicant did not file an amended application. However the solicitor for the First Respondent provided the court with a copy of the Applicant’s submissions to the Federal Court, including a copy of the proposed application referred to in the judgment of Flick J, who also observed (at [38]-[39]) that the Applicant was unquestionably seeking to change course after the decision of the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22 and that this prospect was a matter that should be resolved by this court. Flick J did not determine the merits of the proposed ground of review.
While the Applicant did not file an amended application, in the particular and unusual circumstances of this case, bearing in mind that the Applicant is now self-represented and the need to accord him procedural fairness, I considered it appropriate to have regard to the proposed ground of review, initially for the purpose of determining the application for an extension of time. In that context it was my view that I should have regard to the prospects of success of that foreshadowed ground in the impressionistic manner referred to by Mortimer J in MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 in assessing the interests of the administration of justice under s.477(2) of the Act. That was complicated by the fact that the proposed ground raised an argument of the nature considered, but rejected, by Judge Driver in SZTAL v Minister for Immigration and Border Protection & Anor [2015] FCCA 64 which was the subject of an appeal to the Full Court of the Federal Court which was not decided until 20 May 2016 (after the remittal to this court) (see SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69). Further, while the arguments apparently intended to be raised by the proposed ground in relation to the construction of the concepts of intention and intentional infliction of certain kinds of harm in the definitions of significant harm in s.5 for the purposes of s.36(2A) of the Act were rejected by the Full Court, that decision is now the subject of an application for special leave to appeal to the High Court which, I was told from the bar table, would be before the High Court on 18 November 2016. I raised with the First Respondent the issue of whether an adjournment of the hearing of the application for an extension of time pending determination of the special leave application was appropriate or whether the grant of an extension of time was in the interests of the administration of justice having regard to the fact that an applicant has no right of appeal from a decision to refuse an extension of time. In those circumstances the Minister consented to the grant of an extension of time.
I granted an extension of time on the basis that having regard to all the circumstances of this particular case it was in the interests of the administration of justice to do so.
However it is accordingly now necessary to consider whether, as the law presently stands, the proposed ground of review is made out. The “ground” is in fact expressed as a contention that the Tribunal “erred by failing to deal with a claim raised by the evidence”. The particulars take issue with the fact that the Tribunal found “that severe overcrowding and poor conditions are not intended to cause extreme humiliation as required by the definition of degrading treatment or punishment”; that the Tribunal only considered “whether the act of Sri Lankan authorities in placing a person in gaol was intended to bring about a particular state of affairs, namely overcrowding and poor gaol conditions”; that it had “accepted the Applicant was in breach of a Sri Lankan law by departing illegally and further that the Applicant would be subject to the punitive regime the law provides”; and that the Tribunal had “failed to consider whether the act of the Sri Lankan Parliament in passing a law that creates a punitive regime for unlawful emigrants was an act that was intended to cause extreme humiliation” (emphasis in original).
This ground may be seen as raising both the issue of the construction of the definitions of harm amounting to significant harm, in particular the meaning of intention and intentional infliction of harm and also contending that there was a failure by the Tribunal to consider a claim raised by the evidence before it.
Insofar as this ground raises the issue of the construction of elements of the definitions of significant harm in the Migration Act, in particular the meaning of intention or intentional infliction of harm, as indicated, this issue was addressed in SZTAL v Minister for Immigration and Border Protection & Anor [2015] FCCA 64 in which Judge Driver rejected the contention that the Tribunal had misapplied ss.5 and 36(2A) of the Act in asking whether the Sri Lankan government had an intention to inflict cruel, inhuman or degrading treatment or punishment on the Applicant, finding (at [49]) that:
The Tribunal did not err in concluding that “intentionally inflicted” connoted the existence of an actual, subjective, intention on the part of a person to bring about the suffering by his or her conduct.
On appeal, the Full Court of the Federal Court (see SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69) agreed with Judge Driver’s reasoning. The Full Court stated at [68]:
Further, we are not persuaded that if the expressions “intentionally inflicted” or “intended to cause” are construed to require actual subjective intention, as opposed to the lesser standard for which the appellants advocate, then the outcomes will include irrational outcomes of a kind not intended by the Parliament. Nor are we persuaded by any other consideration urged on the Court by the appellants that the primary judge relevantly erred in construing these expressions.
In taking this view the Full Court did not accept the submission that to prove an intention to inflict or cause a particular outcome or consequence, it was sufficient to prove knowledge on the part of the actor of the probable consequences of his or her acts (see Kenny and Nicholas JJ at [53] and Buchanan J at [97] and AIS15 v Minister for Immigration and Border Protection [2016] FCA 978 at [43]).
As pointed out in AIS15 at [43] the Full Court in SZTAL also rejected the contention that in order to prove an intention to cause a particular consequence, it was sufficient to prove that the consequence was the result of particular acts and that the acts were deliberate (see Kenny and Nicholas JJ at [54]-[59] and Buchanan J at [103]-[105]). As Kenny and Nicholas JJ stated SZTAL at [59]:
It seems to us that R v Ping is persuasive because it concerned the interpretation of relevantly the same concept as the relevant definitions in s 5(1) of the Migration Act (the intentional infliction of severe pain and suffering), albeit in a different context (the prosecution of an accused under a State criminal statute). The Court’s reasons were not only consistent with the authorities but, more particularly, as the Court itself said, reflected the natural and ordinary meaning of the words of the legislation, which are the same in this case. The natural and ordinary meaning of intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct. Cf. Tillman v Attorney-General (NSW) [2007] NSWCA 327 ; 70 NSWLR 448 at [106] and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; 233 CLR 259 at [31].
The argument in the proposed ground that the enactment of the relevant provisions of the Immigrants and Emigrants Act in itself constituted an intention to cause extreme humiliation as required in the definition of degrading treatment or punishment cannot succeed as the law presently stands. In determining this issue I am bound to follow the view of the Full Court of the Federal Court in SZTAL and, indeed, the decision of Wigney J in AIS15.
Further, insofar as this ground involves a contention that the Tribunal failed to deal with a claim raised by the evidence, it is not apparent on the evidence before the court that the Applicant raised or that the material before the Tribunal raised the claim posited in the proposed application (that is, that the enactment of the relevant parts of the Sri Lankan legislation in relation to illegal departees in itself constituted significant harm).
In AGH15 v Minister for Immigration and Border Protection [2015] FCA 1181 Perry J considered a similar ground, but had regard to the fact that no argument to the effect that the enactment of the Immigrants and Emigrants Act was itself degrading treatment or punishment had been clearly articulated before the delegate or the Tribunal. Similarly, there is nothing in the material before the court in this case to indicate that there was any clear articulation of such a claim before the delegate or the Tribunal.
Further, as in AGH15, I am not satisfied that such a claim arose squarely on the material before the Tribunal (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263). Rather, the Applicant’s claim to the Tribunal was based on how the Immigrants and Emigrants Act would be applied to him.
I am not satisfied that the claims made by or for the Applicant or the evidence before the Tribunal raised as an integer of the Applicant’s claim or as a separate distinct claim a proposition that the enactment of the Immigrants and Emigrants Act was intended by the Sri Lankan Parliament to cause any of the kinds of harm that are within the definition of significant harm in the Migration Act. Hence, the Tribunal did not err in failing to consider such a claim.
The “proposed” ground is not made out.
As indicated, in his application, the Applicant relies on one ground. It is asserted that the Tribunal applied the incorrect test pursuant to s.91R(2) of the Migration Act. The particulars are that the Tribunal accepted that the Applicant would be identified as a failed asylum seeker who departed illegally and that it had engaged in a “qualitative assessment” of the circumstances of his detention on remand, rather than assessing whether the process of being questioned and investigated at the airport and remanded into custody (however brief), would amount to a deprivation of the Applicant’s liberty. The particulars also state that the Tribunal accepted that the Applicant had committed offences under the Immigrants and Emigrants Act and that the conditions of detention he would face would be overcrowded, cramped and unpleasant. It was contended that by proceeding to a qualitative assessment of the nature and degree of harm experienced by the Applicant when asking whether the threat to his liberty was sufficiently significant, the reviewer had applied the wrong test and fallen into jurisdictional error in the manner considered by North J in WZAPN v Ministerfor Immigration and Border Protection [2014] FCA 947.
The difficulty that faces the Applicant in now relying on this ground is that the approach of North J was found to be incorrect by the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22. The High Court rejected the proposition that the likelihood of temporary detention for a Refugees Convention reason was in itself a threat to liberty within s.91R(2)(a) of the Act such that likely detention amounted to serious harm for the purposes of s.91R(2)(b) regardless of the frequency, length or conditions of the detention or its consequences. Hence, it was open to the Tribunal to undertake a qualitative assessment in the manner that it did. This ground of review cannot now succeed. It is not made out.
In oral submissions the Applicant took issue with the conclusion of the Tribunal. He told the court that he could not return to Sri Lanka as he would be at risk of harm. In so claiming he sought impermissible merits review. The Tribunal findings were reasonably open to it on the material before it for the reasons which it gave. It is apparent on the material before the court that the Tribunal considered the integers of the Applicant’s claims and did not fail to consider the evidence before it in a manner constituting jurisdictional error.
In these circumstances, as none of the matters raised on the material before the court establish jurisdictional error, the application must be dismissed.
The Applicant has been unsuccessful. The Minister seeks costs in the sum of $5,800. The Applicant claims to be unable to pay such costs because he is impecunious and unemployed. While these circumstances may be matters to be taken into account by the Minister in determining when and how to seek to recover costs, I am not satisfied that they warrant a departure from the normal principle that an unsuccessful applicant should pay the costs of the First Respondent. Nor am I satisfied that they warrant a reduction in the amount of costs in circumstances where the amount sought is reasonable and appropriate, having regard to the nature of this and other similar matters.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 14 November 2016
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