ABK15 v Minister for Immigration

[2016] FCCA 1312

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABK15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1312

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the applicant was denied a hearing under s.425 of the Migration Act 1958 (Cth) by reason of a brain injury – whether the Tribunal considered all of the applicant’s evidence and claims – element of intention in meaning of “significant harm” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(c), 424A, 424AA

Cases cited:
Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126
R v Ping [2006] 2 Qd R 69
SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35
SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64

Applicant: ABK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 483 of 2015

Judgment of: Judge Smith

Hearing dates: 26 August 2015 & 2 September 2015

Date of Last Submission: 26 August 2015

Delivered at: Sydney

Delivered on: 10 June 2016

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr L Dennis, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 483 of 2015

ABK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 19 June 2012 and lodged an application for a protection visa on 13 December 2012. On 18 September 2013 a delegate of the Minister refused to grant the applicant a visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision. On 23 January 2015 the Tribunal affirmed the delegate’s decision. The applicant seeks judicial review of the Tribunal’s decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. In order to succeed in this application the applicant must establish that the Tribunal’s decision was affected by jurisdictional error. For the reasons that follow, he has failed to do so and the application must be dismissed.

Background

1. The applicant claimed that he faced harm in Sri Lanka because he was a young Tamil male from an area in the north of the country that had previously been occupied by the Liberation Tigers of Tamil Eelam (LTTE). His more specific claims may be summarised as follows:

   (i)in 2006 he was detained at a police station following the bombing of a Buddhist statue. He was detained for approximately two or three hours, beaten with sticks by the police officers and his parents went to the police station and organised to have him released;

   (ii)he said that he worked as a fisherman and that the Navy required him to maintain a permit and that he was not allowed out after 6 pm. The Navy would often take his fish, beat him and make him swim to shore;

   (iii)one of his friends was abducted by a white van;

   (iv)casually clothed men in a white van attempted to abduct him after threatening him with a gun;

   (v)after that incident the police and other people started coming to the applicant’s village and asking about him, however they never went to his house;

   (vi)after the applicant arrived in Australia the same people had visited his family and enquired as to his location.

2. The applicant claimed that if he were to return to Sri Lanka he would be killed by the authorities on suspicion of his LTTE involvement.

3. On 18 September 2013 a delegate of the Minister decided to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision and attended a hearing conducted by the Tribunal on 11 December 2014.

4. At the hearing, the Tribunal indicated to the applicant that it considered that there were many inconsistencies in his evidence. Following the hearing, the applicant’s representatives addressed those inconsistencies in a written submission dated 21 January 2015. This submission argued that the inconsistencies were due to the applicant’s brain injuries which he suffered at the age of approximately six when he was diagnosed with brain fever. The representatives also submitted that the fact that the applicant had escaped Sri Lanka illegally and sought protection in Australia was likely to create an additional risk factor characteristic for the applicant.

5. The Tribunal made its decision on 23 January 2015 affirming the decision of the delegate.

Tribunal’s decision

1. The Tribunal did not accept that the applicant was a truthful witness and found that he had fabricated the entirety of his claims regarding the reasons for leaving Sri Lanka. It based those conclusions on the many inconsistencies in the applicant’s claims. While the Tribunal took into account the fact that living in a country affected by civil war would have resulted in the applicant being anxious and nervous when giving evidence at the interview and the hearing, it did not accept that the applicant had a brain fever at the age of six which affected his memory or ability to recall significant events. In this respect the Tribunal noted that the applicant had not previously made any claims relating to brain fever and considered that he had manufactured that explanation after the hearing in an attempt to explain the significant inconsistencies in his evidence.

2. The Tribunal did not accept that the Criminal Investigation Department (CID), the Sri Lankan army, the police or any other group had any interest in the applicant or that he had any adverse political profile prior to his departure from Sri Lanka. The Tribunal did accept that during, and in the aftermath of the conflict, Tamil fisherman often faced difficulties which included the requirement of them to have fishing passes to fish, had their fishing times limited and experienced problems created by the Sinhalese authorities. However the Tribunal did not accept that the applicant was beaten, thrown into the water and shot at by the Sri Lankan authorities.

3. The Tribunal next turned to consider the circumstances that might affect the applicant upon his return to Sri Lanka. First, while it accepted that at least until the end of the civil war in 2009 Sri Lankan citizens of Tamil ethnicity suffered disproportionately at the hands of the Sri Lankan authorities and that there was some evidence of continuing atrocities against some Tamils even since the end of the war, the Tribunal found that there had been considerable change in the security situation since the end of that war. It accepted evidence that there was “no longer a need for group-based protection mechanisms or for a presumption of eligibility for Sri Lankans of Tamil ethnicity originating from the north of the country”.

4. The Tribunal found that the applicant did not have any profile as being suspected of an LTTE connection. At [34] the Tribunal did not accept that “Tamils are at risk of serious harm on the basis of their ethnicity alone, because they are young and unmarried or because they are from a particular part of Sri Lanka which was an LTTE occupied area”. Further, the Tribunal did not accept that the applicant would be viewed as someone who had something to hide or considered to be associated with the LTTE because he left Sri Lanka illegally by boat and sought asylum overseas.

5. The Tribunal was not satisfied that the applicant would be unable to continue to earn a livelihood upon his return to Sri Lanka or that he would be able to subsist there.

6. The Tribunal accepted that the applicant had left Sri Lanka illegally and that it would be known upon his return that he had unsuccessfully sought asylum in a Western country. It accepted on the information before it that the applicant would be questioned at the airport and that there was a possibility that he would be held for a limited period in remand while awaiting bail, which may be several days if it was on a weekend or a public holiday. The Tribunal also accepted that conditions in remand were overcrowded and unsanitary with a lack of access to adequate food, water and lack of access to assistance and limited reform regarding violence and maltreatment. However, the Tribunal was not satisfied that returnees held in remand had been subjected to torture or other forms of deliberate mistreatment and that the applicant would most likely incur a penalty and that the possibility of a custodial sentence for illegal departure was remote.

7. The Tribunal found that mistreatment would be suffered by the applicant not because he is a young unmarried Tamil male from the East of Sri Lanka, but because he left Sri Lanka illegally. The Tribunal also found that the questioning, arrest, and poor conditions in remand did not amount to systematic and discriminatory conduct as required by sub-s.91R(1)(c) of the Migration Act 1958 (Cth) and therefore did not amount to persecution for a Convention reason.

8. For those reasons, the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future.

9. The Tribunal then considered whether there was a real risk that the applicant would be subject to significant harm on return to Sri Lanka in the terms required by the criterion in sub-s.36(2)(aa) of the Act.

10. In this respect, the Tribunal again considered the consequences of the applicant having departed Sri Lanka illegally and found that there was some possibility that the applicant may be remanded for a short period in conditions which are cramped, uncomfortable and unsanitary. However, the Tribunal noted that there were five limbs of the definition of “significant harm” and that two of them, “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” required that the pain or suffering be intentionally inflicted. With that in mind, the Tribunal was not satisfied that during any questioning at the airport that there was a real risk that the applicant would suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor was it is satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes 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”. Further, the Tribunal was not satisfied that the severe overcrowding and poor conditions were intended to cause extreme humiliation as required by the definition of “degrading treatment or punishment”.

11. For those reasons, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there was a real risk he would suffer significant harm when questioned at the airport or during any period which the applicant may spend in jail or on remand or generally.

12. For those reasons the Tribunal found that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.

Consideration

1. The application filed by the applicant contained two grounds:

   1)RRT decision is unsupported by any evidence

   2)RRT did not fully deal with my problems

2. The applicant did not file any written submissions and appeared unrepresented at the hearing. Subject to what follows, neither of the grounds in the application is sufficiently meaningful to require any detailed consideration. The first ground is misguided because the Tribunal’s reasons disclose that it made findings based upon the applicant’s evidence as well as independent country information. The second ground is also misguided because the Tribunal did deal with each of the allegations raised by the applicant. That said, the second ground, in light of what transpired at the hearing before me, could be taken to be a reference to the way in which the Tribunal dealt with the applicant’s claim that his ability to give evidence was affected by a mental condition.

3. At the hearing the applicant tendered a document entitled “diagnosis ticket” which he said he had given to his agent and was not sure whether it had been given to the Tribunal. This document went to two potential points: first, that the Tribunal was wrong to find that the applicant’s ability to give evidence was not affected by any mental condition; and secondly, that the applicant’s representatives had been negligent by failing to give the document to the Tribunal.

4. The document indicated, in English, that a person six years of age with the same first name as the applicant had been investigated for fever, that there were no signs of meningitis and that the person had been discharged a week after admission.

5. The Minister adduced evidence that no medical evidence had been provided to the Tribunal in respect of the applicant.

6. Accepting for present purposes that the “diagnosis ticket” related to the applicant, which could be the only basis of its relevance, it does not establish that he had any medical condition which meant that he was unable to participate meaningfully in the hearing conducted by the Tribunal: cf Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (2003) 128 FCR 553; [2003] FCAFC 126; Minister for Immigration & Citizenship v SZNVW (2010) 183 FCR 575; [2010] FCAFC 41. While there is a reference to fever and vomiting, there is nothing, as far as I can tell, to show any long-term effects from those symptoms. Importantly, it appears that although tests were undertaken, there was no sign of meningitis and, in any event, the applicant was discharged after a week of being admitted to hospital.

7. Insofar as the applicant relies upon any negligence by his representatives in not sending this document to the Tribunal, it does not support any conclusion that there was any jurisdictional error affecting the Tribunal’s decision. In SZFDE v Minister for Immigration & Citizenship (2007) 232 CLR 189; [2007] HCA 35 the High Court said, at [53]:

   … In the Full Court French J correctly emphasised that there are sound reasons of policy why a person whose conduct before an administrative tribunal has been affected, to the detriment of that person, by bad or negligent advice or some other mishap should not be heard to complain that the detriment vitiates the decision made.  The outcome in the present appeal stands apart from and above such considerations.

   …

   (Citation omitted)

8. For those reasons, the arguments based upon the “diagnosis ticket” are rejected.

9. One further issue must be mentioned. As noted above, the Tribunal proceeded on the basis that several of the elements of the words “significant harm” required there to be an element of deliberate intention. In SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64 Judge Driver found that that approach was correct. At the time of the hearing of this matter, the Full Court of the Federal Court of Australia had reserved its decision on an appeal from that decision. In light of that, I was asked to reserve my decision until determination of that appeal. On 20 May 2016 the Full Court handed down its decision: SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69.

10. The Full Court unanimously dismissed the appeal. In a joint judgment Kenny and Nicholas JJ held, at [53], that the preponderance of the authorities established that “intention with respect to result means to have it in mind to achieve the result”. Particular emphasis was placed upon the decision of the Queensland Court of Appeal in R v Ping [2006] 2 Qd R 69 which their Honours found persuasive because it concerned the interpretation, relevantly, of the same concept as the relevant definitions in s.5(1) of the Act, albeit in a different context. Their Honours found, at [59] that “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”. His Honour Buchanan J found, at [98] that the appellants’ argument could not succeed on the factual findings made by the Tribunal, whatever construction was adopted.

11. In light of that decision, the Tribunal made no error in the way in which it dealt with the claims relating to the possible treatment of the applicant on return to Sri Lanka for having left that country illegally.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  10 June 2016