ABZ15 v Minister for Immigration
[2018] FCCA 116
•5 February 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABZ15 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 116 |
| Catchwords: MIGRATION – Application to review decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal – whether the Tribunal erred in its consideration of the complementary protection criterion or failed to assess a particular social group claim – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.5 |
| Cases cited: ABZ15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 817 |
| Applicant: | ABZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 499 of 2015 |
| Judgment of: | Judge Barnes |
| Hearing date: | 3 March 2017 |
| Date for last submission: | 18 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 5 February 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kumar |
| Counsel for the Respondents: | Mr Galvin |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 499 of 2015
| ABZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal, (the Tribunal) dated 13 February 2015. The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant sought judicial review by application filed on 2 March 2015. His application was summarily dismissed on 2 April 2015 (see ABZ15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 817). The Applicant successfully sought leave to appeal and on 21 July 2015 Griffiths J made orders by consent allowing the appeal and remitting the application to this court (differently constituted) to be determined according to law.
After the matter was remitted to this court I gave the Applicant the opportunity to file and serve an amended application and any evidence (including any transcript of the Tribunal hearing) and written submissions. The matter was listed for hearing.
The Applicant did not file an amended application or any affidavit evidence as provided for in directions. The Applicant’s written submissions were filed (late) the same day as written submissions for the First Respondent.
It emerged from the oral submissions for the Applicant at the hearing that there was something of a disconnect between the grounds as pleaded and the grounds on which the Applicant sought to rely. In addition, Mr Kumar, counsel for the Applicant, formally submitted that the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69 was wrongly decided. At that stage the applicant in SZTAL had been granted special leave to appeal to the High Court. Mr Kumar did not seek an adjournment pending determination of that appeal.
I gave the Applicant the opportunity to file an amended application and adjourned the hearing part-heard. The Applicant filed an amended application which contained two grounds (grounds 2 and 4).
The Applicant submitted that ground 2 as pleaded in the Amended Application was on “all fours” with what had been argued for the appellant before the High Court in SZTAL and suggested that judgment might be reserved pending the outcome of the appeal in SZTAL. The parties addressed ground 4.
Rather than reserving judgment, I considered it appropriate to adjourn until after the High Court delivered judgment in SZTAL on the basis that the parties would then have the opportunity to make further submissions in relation to ground 2.
In SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34, the High Court dismissed the appeal from the Full Court of the Federal Court. Counsel for the Applicant has confirmed that he does not wish to have the opportunity to make any further submissions in relation to the “SZTAL” ground. The First Respondent did not seek to make further submissions.
Background
The Applicant, a citizen of Sri Lanka, arrived in Australia in August 2012. He applied for a protection visa in November 2012. In a statutory declaration of 24 October 2012 he claimed to fear harm in Sri Lanka. He claimed he was a Tamil from Batticaloa in the Eastern Province and that in April 2002, after a local police station was bombed by the LTTE, special task force officers had beaten him and other Tamils and his wrist was fractured.
He also claimed he had worked as a clerk in the local police department for some years, but that in March 2012 he received a telephone call from an unidentified caller who told him that he should work “for him” or “for us” against the police. The man spoke to him in Tamil. The Applicant claimed the man said that if he agreed to work for them he would reveal his identity, but the Applicant hung up the phone.
The Applicant claimed that the next day his neighbour told him that two men on a motorbike had been looking at his home and that a few days later he received another telephone call, which he thought was from the same person, asking him whether he wanted to join them or to die. He claimed he told the man he would not join them and would never work against the police and that the man then said he should be ready to die.
The Applicant claimed he then stopped working and went into hiding. He claimed that an agent who was to assist him to get an Italian visa had taken his money and passport and provided a fake Italian visa. The Applicant then made preparations to leave Sri Lanka for Australia.
The Applicant claimed that in September 2012 (after he came to Australia) a man called his wife looking for him and threatened her, stating that the Applicant would not be coming back to her.
The Applicant claimed to fear that “these people” would kill him or that the police would interrogate and torture him. He claimed to fear both Tamils and Sinhalese. He claimed that splinter groups of the LTTE and underground groups of Sinhalese would want to harm him because he was rude to the Tamil person on the phone and did not comply with his requests. He also claimed that because he was a Tamil he feared the police.
He claimed the authorities would not protect him and that while he had worked for the police, he did not have any contacts in the main headquarters of the police department who could help him.
He also claimed that there was a lot of mercenary activity in Sri Lanka and that Tamils were abducted, killed and harmed. He made a general reference to a “Grease Man” who abducted Tamil people.
The Applicant attended an interview with a delegate of the First Respondent. He provided a further statutory declaration in May 2013 in which he also claimed to fear harm due to his religion as a practising Catholic in Sri Lanka. He claimed he had been deprived of his rights to pray freely and to attend church. He also claimed that he feared the Sri Lankan authorities, including the police, due to his perceived association with the LTTE. At the same time, he claimed to fear the Tamil community associated with the LTTE due to his perceived association with the police as an employee for over 5 years. He claimed that splinter groups of the LTTE, as well as the Sinhalese, would wish to harm him.
In support of his claims based on religion, the Applicant referred to visits to and monitoring of the church by local police and attempts by local Buddhist priests to convert him and others to Buddhism.
The application was refused.
The Applicant sought review by the Tribunal. The Applicant’s solicitor/migration agent made pre-hearing written submissions in which it was claimed that the Applicant feared harm because of his race (Tamil); his imputed political opinions; and his membership of particular social groups of “employees of the police” and “failed asylum seekers returning to Sri Lanka”.
The Applicant’s representative contended that the Applicant would be perceived to support the government of Sri Lanka because he had worked in a particular department of the police and because he had refused to assist an anonymous caller who asked for his assistance against the police. It was also submitted that the Applicant would be perceived to be opposed to the government of Sri Lanka and to support the LTTE because he was a Tamil and had applied for protection in Australia.
The submission cited country information in relation to persecution of Tamils and failed asylum seekers in Sri Lanka. The representative stated that the Applicant had instructed them “to withdraw his claims for protection based upon his Catholicism” (CB259 at [17]).
The Applicant attended a Tribunal hearing. The only evidence before the court of what occurred in that hearing is the Tribunal’s account in its reasons for decision.
The Tribunal Decision
In its reasons the Tribunal described in some detail the Applicant’s claims, including his elaboration on those claims in his interview with the delegate, his further written claims and submissions and the discussion of the Applicant’s claims at the Tribunal hearing.
Under the heading “Conclusions” the Tribunal observed that in April 2002 (the time at which the Applicant said he was beaten by officers of the Special Task Force after a bombing at a police station) there was a ceasefire between the LTTE and the government and that the Tribunal was not able to find any reports of a bombing of the particular police station, as it would have expected in relation to a significant violation of the ceasefire. The Tribunal did not accept that the Applicant injured his wrist when beaten by officers of the Special Task Force in April 2002 after the LTTE threw a grenade or bomb into a police station. The Tribunal also considered the fact that this claim was not supported by independent evidence was relevant in relation to whether the Applicant could be believed about other matters, particularly the threatening telephone calls he claimed he had received.
The Tribunal also considered it relevant that in his statutory declaration of 8 May 2013 the Applicant had made claims regarding his freedom to practise his religion in Sri Lanka which the Tribunal did not consider were supported by independent evidence. It acknowledged that the submission of 12 November 2014 stated that the Applicant had instructed his representative to withdraw his claims for protection based on his Catholicism. It had regard to the fact that at the Tribunal hearing the Applicant said he had explained to his lawyer what he had confronted as a Catholic, but had also stated that he had never said that this had been the reason he had left Sri Lanka. In addition, the Tribunal had regard to the fact that it had not been able to find any reference to an incident at a church feast in which churchgoers had been badly beaten by police, as the Applicant claimed. It did not accept that the church would not have reported such an incident if it had happened.
The Tribunal acknowledged that while the Applicant had initially claimed that his church had been destroyed by unidentified people in the middle of 1987, at the hearing he had told it that this was incorrect and that the church had only been damaged, and that there had been some break-ins and dead dogs had been thrown into the well.
It recorded that while the Applicant had initially confirmed his claim (in his statutory declaration of 8 March 2013) that he feared that he would not be able to pray or undertake religious beliefs if he returned to Sri Lanka, he had subsequently denied to the Tribunal that he claimed he feared for his life because he was a Catholic.
The Tribunal accepted that the Applicant was not claiming that incidents which had happened to him as a Catholic were the reason he left Sri Lanka. However it considered the fact that the Applicant made claims which were not supported by independent evidence was relevant to whether he was telling the truth about other matters.
The Tribunal did not accept on the evidence before it that the Applicant’s church was destroyed or damaged in 1987 or that there was an incident in 1999 when churchgoers at a church feast were beaten by the police and suffered horrific wounds. It accepted that during the civil war permission from the local police to decorate the church for special festivals may have been required and that church activities may have been monitored on occasion by the security forces. However it found nothing in independent evidence to suggest that there were any current restrictions on the religious freedoms of Catholics in Batticaloa.
The Tribunal had regard to the absence of country information suggesting the Sri Lankan authorities stopped Catholics, or Tamil Catholics, from praying or from practising their beliefs. It did not accept that the Applicant would not be able to practise his religious beliefs without fear for his life or that Buddhists would try to force him to convert if he returned to Batticaloa now or in the reasonably foreseeable future. It did not accept that the Applicant had a well-founded fear of being persecuted for reasons of his religion as a Catholic or his membership of the particular social group of Catholics (considered as a minority group) if he returned to Sri Lanka now or in the reasonably foreseeable future.
The Tribunal addressed the Applicant’s claims that he received threatening telephone calls in March 2012 and that his neighbour told him that two men on a motorbike had been looking at or watching his home. However it also had regard to his evidence that he continued living in the same area, that his wife and children continued living at his home and visited him at his parents’ place and that he continued to work in the police department (although less regularly) until he left Sri Lanka three months later. As it had put to the Applicant, the Tribunal was of the view that if anyone had wanted to kill him they would have had ample opportunity to do so. It did not consider that he could have been said to have been in hiding at this time, given that he continued living in the same area, his wife and children were visiting and he was still going to work.
The Tribunal also considered it relevant that the Applicant had said that he did not report these threatening telephone calls to the police, despite having worked as a clerk at the police department in Batticaloa for some 6 years. Insofar as he explained this on the basis that the police would not support him because he was a Tamil, the Tribunal had regard to the fact that on his own account the Applicant was not threatened because he was a Tamil, but because he worked for the police department. It did not accept that if he had gone to the police they would have suspected him and started harassing him. It considered that by not reporting these calls the Applicant would have placed himself in a significantly worse position in the eyes of the police than if he had done so.
For these reasons, the Tribunal did not accept that the Applicant had received two threatening telephone calls in March 2012 from a caller who could have been from a splinter group of the LTTE, the TMVP, underworld groups, people who had left the LTTE and were involved in smuggling and robberies or army personnel, as the Applicant variously claimed. Nor did it accept that a neighbour told the Applicant that two men on a motorbike had been looking at and watching his home or that the Applicant went into hiding as a result. The Tribunal did not accept that after the Applicant left Sri Lanka his wife received further threatening telephone calls in September 2012 and October 2013.
As the Tribunal did not accept that the Applicant was telling the truth about these threatening telephone calls, it did not accept that if he returned to Sri Lanka he would be placed in the position of having to explain to the police why he had not reported these telephone calls at the time. It did not accept that he would be viewed with suspicion or asked if he had any connection with the LTTE or with any other group as a result. Nor did it accept that there was a real chance that the Applicant would be persecuted for reason of an imputed political opinion of support for the government because he had refused to assist an unidentified caller who asked him to work with them against the police.
The Tribunal accepted that the Applicant’s employment with the police department had been terminated and that he would not be able to get another government job if he returned to Sri Lanka. However it had regard to his previous employment history in Sri Lanka and Australia and to country information about the absence of official laws or policies in Sri Lanka discriminating on the basis of race or language, including in relation to education, employment or access to housing, and to the DFAT assessment that there was only a low level of discrimination in the implementation of laws and policies. It also had regard to the DFAT assessment that there was no Sri Lankan law or government policy hindering access to state protection on the basis of religion or race and the fact that DFAT was not aware of any recent cases where people in Sri Lanka had been denied access to legal remedies based on race or religion.
Having rejected the Applicant’s evidence about threatening phone calls and having regard to his evidence about events in which people who were Tamils were killed, the Tribunal did not accept on the evidence before it that there was a real chance that the Applicant would be killed by unidentified persons because he was a Tamil if he returned to his home now or in the reasonably foreseeable future. It did not accept that there was a real chance the Applicant would be denied access to state protection or legal remedies for reasons of race or religion or a real chance that he would face discrimination for reasons of his race (Tamil) in relation to matters such as employment or access to services that was so serious or detrimental in its impact as to amount to persecution.
The Tribunal accepted that the Applicant would be returning to Sri Lanka as a failed asylum seeker. On the basis of independent information, the Tribunal did not accept that there was a real chance the Applicant would be persecuted because he would be returning as a failed asylum seeker in the context of processing at the airport or because he would be perceived to hold a political opinion in support of the LTTE and opposed to the government, because he was a Tamil or because he had sought asylum in Australia.
The Tribunal accepted that the Applicant would be arrested and charged with offences under the Immigration and Emigration Act (the I&E Act) of Sri Lanka relating to his illegal departure. It had regard to independent information in relation to the treatment of those suspected of having departed Sri Lanka illegally and the likely imposition of fines rather than imprisonment. On the evidence before it, the Tribunal did not accept that there was a real chance the Applicant would be singled out or treated differently for a Convention reason from any other returnee who breached the laws of Sri Lanka relating to illegal departure. It did not accept that his illegal departure was politically motivated or that the Sri Lankan government viewed illegal departure as an implied statement of disloyalty or defiance or defection from a police state. It did not accept that any of the Convention reasons would be the essential and significant reason for the Applicant spending a brief period in jail on remand awaiting a hearing before the Magistrates Court or for his being fined for his illegal departure if he returned to Sri Lanka. It considered that such consequences would be the result of the non-discriminatory enforcement of a law of general application.
The Tribunal accepted that after the Applicant returned to his home area, his arrival would be verified by the police or the CID within a few days. It had regard to country information in relation to the treatment of Tamils on return to Sri Lanka, the fact that the Applicant was not involved in any activities which would have attracted the attention of the Sri Lankan government and the fact that it had rejected his evidence about threatening telephone calls. The Tribunal did not accept on the evidence before it that there was a real chance the Applicant would be interrogated or tortured by the police if he returned to Sri Lanka as claimed. It did not accept that he would be viewed with suspicion or specifically suspected of association with the LTTE because of his departure. It did not accept that there was a real chance the Applicant would be persecuted by the Sri Lankan authorities or allied paramilitary groups if he returned to his home in Batticaloa now or in the reasonably foreseeable future.
The Tribunal continued, at paragraphs [82]-[84]:
[The Applicant’s] representatives also suggested that he might face a threat from the LTTE because he worked as a clerk in the Police Department for six years and as a result he would be regarded as supporting the Sri Lankan Government. However, as I put to him, the Australian Department of Foreign Affairs and Trade assesses that, as of October 2014, the LTTE does not exist as an organised force in Sri Lanka and any former LTTE members within Sri Lanka will have only minimal capacity to exert influence on civilians or those returning from abroad. [The Applicant] said that the Sri Lankan Government had not stated that it had completely wiped out the LTTE or that there were no LTTE activities and he suggested that if the LTTE regrouped this might affect his well-being or it might even threaten his life. However, as I put to him, I do not accept on the evidence before me that there is a real chance that the LTTE will regroup now or in the reasonably foreseeable future. I do not accept that there is a reasonable chance that [the Applicant] will be accused of being a spy due to his period of employment with the police. As I put to him, having regard to the advice of the Australian Department of Foreign Affairs and Trade I do not accept that there is a real chance that he will be persecuted by the LTTE, former members of the LTTE, sympathisers with the LTTE or indeed members of the Tamil community associated with the LTTE if he returns to Sri Lanka now or in the reasonably foreseeable future.
[The Applicant’s] representatives also referred to the problem of people disappearing or being abducted and killed in Sri Lanka. However, as I put to him, he does not come within the categories of persons identified by UNHCR as being in need of protection nor does he come within the categories of people identified by the UK Upper Tribunal as being at real risk of persecution or serious harm on return to Sri Lanka. As I put to him, I do not accept on the evidence before me that there is a real chance that he will be abducted and killed or that he will disappear if he returns to Sri Lanka. As I noted, in the statutory declaration accompanying his original application [the Applicant] mentioned the problem of the so-called ‘Grease Men’ but, as I put to him, the Australian Department of Foreign Affairs and Trade have advised that there have been no reports of ‘Grease Devil’ sightings since about September 2011. As I put to him, I do not accept on the evidence before me that there is a real chance that he will be persecuted by ‘Grease Men’ or ‘Grease Devils’ if he returns to Sri Lanka now. I do not accept on the evidence before me that there is a real chance that, as submitted by his representatives, he will be persecuted by groups opposed to the police or even at the hands of those (such as the Karuna Group) who are neutral towards or even support the Sri Lankan Government but who wish to gain cover for their illegal acts, because he was formerly employed by the Police Department in Batticaloa or because of any political opinion imputed to him in support of the Sri Lankan Government because he worked for the Police Department.
[The Applicant] said that he had disclosed all the events which had happened in the past and he had only mentioned what had really happened. He said that the only reason he had come here had been to protect his life and to give a good life to his children. For the reasons given above I do not accept that there is a real chance that he will be persecuted for reasons of his race as a Tamil, his religion as a Catholic, his imputed political opinion – either in support of the Sri Lankan Government because he worked for the Police Department or opposed to the Sri Lankan Government because he is a Tamil and because he has applied for protection in Australia – or his membership of the two particular social groups suggested by his representatives, ‘employees of the police’ or ‘failed asylum seekers returning to Sri Lanka’. I have considered the totality of [the Applicant’s] circumstances as a Tamil and a Catholic who I accept was employed by the Police Department in Batticaloa for six years, who departed Sri Lanka illegally in 2012 and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future. (footnotes omitted)
The Tribunal went on to consider whether the Applicant met the complementary protection criterion. It reiterated its findings in various respects. As it did not accept that the Applicant had received two threatening telephone calls, that a neighbour had told him two men on a motorbike were looking at or watching his home, that he went into hiding or that his wife later received threatening calls, the Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant’s return to Sri Lanka there was a real risk he would suffer significant harm, either at the hands of the people responsible for making the claimed calls or at the hands of police (who he had claimed would interrogate and torture him) as a result of such calls.
On the information before it, the Tribunal did not accept the Applicant met the complementary protection criterion on the basis of a real risk that he would suffer significant harm at the hands of “Grease Men” or “Grease Devils”.
Having regard to its earlier findings of fact, the Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant’s removal to Sri Lanka there was a real risk he would be abducted or killed or otherwise suffer significant harm at the hands of the Sri Lankan authorities or allied paramilitary groups, the LTTE, former members of the LTTE, sympathisers with the LTTE, members of the Tamil community associated with the LTTE, splinter groups, the TMVP, the Karuna Group, underworld groups involved in smuggling or robberies, or army personnel, because the Applicant was a Tamil or because he had worked for the police department in Batticaloa.
Nor, on the evidence before it, did the Tribunal accept that the Applicant met the complementary protection criterion based on his claims to fear discrimination as a Tamil in relation to matters such as employment, access to services or to legal remedies or that he would be denied state protection because of his race or religion. It did not accept that he met the complementary protection criterion as a result of his religion as a Catholic.
In addition, having regard to its findings of fact, the Tribunal did not accept that the Applicant met this criterion on the basis that he would be returning to Sri Lanka as a failed asylum seeker or, specifically, as a Tamil failed asylum seeker. It referred again to country information in relation to the treatment of illegal departees and to information suggesting the Applicant would be charged and, if held on remand, would be held at Negombo Prison for only a brief period, for example because a magistrate was not available on a weekend or public holiday. It had regard to the fact that DFAT had advised that allegations of mistreatment of returnees had not been substantiated and was not aware of allegations of mistreatment of returnees while on remand.
The Tribunal considered that there was only a remote chance that the Applicant would have to spend any longer than a fortnight in jail on remand. Having regard to information from DFAT it did not accept there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Sri Lanka there was a real risk he would suffer significant harm (or specifically would experience torture, cruel or inhuman treatment or punishment or degrading treatment or punishment) during any period which he may spend in jail on remand.
The Tribunal accepted that prison conditions in Sri Lanka were poor, but did not accept that spending up to a fortnight in such a jail amounted to “significant harm” as defined in the Migration Act 1958 (Cth) (the Act) or that such treatment was “intentional” as required by the Australian law. It did not accept that there was a real risk the Applicant would be subjected to torture while on remand for a period of up to a fortnight. It also noted that the definition of “cruel or inhuman treatment or punishment” in the Act required that pain and suffering be “intentionally inflicted” on a person and that the definition of “degrading treatment or punishment” required that the relevant act or omission be “intended to cause” extreme humiliation. The Tribunal considered that it was clear from these provisions that mere negligence or indifference was not sufficient and that “what is required is an intention to inflict pain or suffering or to cause extreme humiliation”. The Tribunal did not accept that the pain and suffering caused by overcrowding and other problems in prisons in Sri Lanka was “intentionally inflicted” on prisoners as required by the definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act or that the overcrowding and other problems were “intended to cause” extreme humiliation as required by the definition of “degrading treatment or punishment”. It did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed to Sri Lanka there was a real risk he would suffer significant harm as a consequence of the poor conditions in prisons due to overcrowding during any period which he may spend in jail on remand.
The Tribunal stated that it had considered the totality of the Applicant’s circumstances, as a Tamil and a Catholic who was employed by the police department in Batticaloa for 6 years and who departed Sri Lanka illegally in 2012 and would be returning as a failed asylum seeker. However, taking into account the cumulative effect of these circumstances, the Tribunal did not accept that the Applicant met the complementary protection criterion.
The Tribunal affirmed the decision not to grant the Applicant a protection visa.
These Proceedings
As indicated, two grounds are maintained in the Amended Application.
Ground 2 in the Amended Application is as follows (errors in original):
The Authority erred on question of intention in respect of the Applicant’s detention regarding Applicant’s illegal departure and thereby committed jurisdictional error. The Tribunal in consideration of the intentional aspects of the detention and impliedly/expressly referred intentions of the players carrying out detention (and has misconstrued the provisions) and erred in construction of the expression “intentionally inflicted” in the definitions of “torture and “cruel or inhuman treatment or punishment” in s5(1) of the Migration Act 1958 (Cth) (Migration Act).
Particulars
(a) The Applicant would be detained for leaving country illegally.
(b) The Tribunal accepted that the Applicant may be detained (IAA at [87] – [90]) in poor conditions (IAA at [90]).
(c) The Tribunal erred considering the issue of intention and whether in carrying out the duties there intention to inflict serious or significant harm on the question of the Applicant’s detention.
(d) The Authority erroneously limited it consideration/erred [91] in the construction that the detention for illegal departure:
(1) the expression “intended to cause” in the definition of “degrading treatment or punishment” in s5(1) of the Migration Act:
(2) require an actor to have “an actual, subjective, intention” to inflict pain or suffering, or to cause extreme humiliation, by the actor’s acts or omissions, being an intention that cannot be proved by the actor’s knowledge of the consequences of the actor’s acts or omissions, no matter how certain that knowledge may be (at [91]).
(e) (Erred in not addressing that there was intention or not asking the correct question regarding detention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment on the applicant.
(f) The Authority applied the wrong test or asked itself wrong questions when it found that the Applicant would not suffer significant harm.
(g) The Authority committed jurisdictional error.
It is apparent that the references to the “Authority” or to the “IAA” are intended to be references to the Tribunal.
In this ground the Applicant sought to develop and rely on the argument that was considered and rejected by Judge Driver in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 at first instance, on the basis said to have been argued by the appellant in SZTAL before the High Court.
At first instance in SZTAL it had been contended that the Tribunal had erred in its construction of the phrase “intentionally inflicted” and the concept of “intention” in the statutory definitions of conduct which amounts to significant harm for the purposes of the complementary protection criterion (see s.5 of the Act) on the basis that harm may be intentional “in circumstances where “the person has knowledge of the probability of the occurrence of suffering, and probably also if the person merely foresees the possibility of its occurrence” (see SZTAL at [45]). Judge Driver found (at [49]), referring to SZSPE v Minister for Immigration and Border Protection [2014] FCA 267, that the Tribunal did not err in concluding that the notion of “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”.
The Full Court of the Federal Court dismissed an appeal (see SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69).
On appeal to the High Court the appellant submitted that the term “intention” included objective intention, such that the “conditions of intentional infliction of pain and suffering” or “intentionally causing extreme humiliation” were satisfied if a person “does an act knowing that the act will, in the ordinary course of events, inflict pain or suffering, or cause extreme humiliation”. The majority of the High Court rejected this submission and dismissed the appeal. Kiefel CJ, Nettle and Gordon JJ found (at [26]) that the references to intention in the s.5(1) definitions of categories of conduct constituting significant harm were to “actual, subjective, intent.” Edelman J agreed (at [114]) while Gageler J dissented.
Counsel for the Applicant stated that ground 2 was “on all fours” with the ground considered by the High Court in SZTAL and conceded at the hearing that if the High Court dismissed the appeal in SZTAL this ground could not succeed. The appeal in SZTAL was dismissed by the High Court.
Having regard to the approach taken by the High Court I am satisfied that ground 2 in the Amended Application cannot succeed.
That leaves for consideration ground 4 in the Amended Application, which is as follows:
The Tribunal committed jurisdictional error in that it failed to assess the particular social group that applied to the Applicant based on the material before the Tribunal and thereby committed jurisdictional error.
Particulars
(i) The Applicant is a Tamil, Catholic from Batticaloa who was employed in the Police force in Sri Lanka.
(ii) The question of a particular social group arose with the following attributes:
(a) persons employed in the Police force:
(b) were Tamils (as the persecutors were Tamils and spoke Tamil (CB355 at [5])
(iii) The Tribunal failed to address any particular social group and thereby fell into error.
The Applicant submitted that he had claimed that he was threatened in Sri Lanka because of his occupation as a police clerk of Tamil ethnicity. It was pointed out that he had not claimed to be a member of the police force, but rather to be someone involved in an administrative or civilian capacity. This was said to be a key aspect of his claims.
Counsel for the Applicant initially appeared to submit that the Tribunal had not identified the Applicant’s relevant characteristics or attributes and had ignored a Convention basis for his claimed fear of harm, in that it had failed to identify, assess and address the risk of harm to him as a member of a particular social group of Tamil Catholics from Batticaloa who were employed by the police force in Sri Lanka. This was said to be a jurisdictional error of the nature considered in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321; [2003] HCA 26. However, as formulated in the Amended Application, the asserted particular social group was described as “persons employed in the Police force” who “were Tamils”.
It was contended that the Tribunal had to deal with all the relevant particular social groups the Applicant was advancing in order to be procedurally fair. In particular, the Applicant submitted that where a particular social group was identified, the risk of persecution ought to be assessed as against that group (see Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; [2000] HCA 19; and Huang v Minister for Immigration and Multicultural Affairs [2000] FCA 820). It was claimed that the Tribunal had failed to properly identify the particular social groups to which the Applicant belonged and to assess the application in light of information relevant to the Applicant.
It was, somewhat confusingly, initially submitted that the Tribunal had also “denied the applicant procedural fairness by identifying and addressing the applicant’s social group with the integer as a returnee from western country with all the integers/attributes of a particular social group that applied to the Applicant” (sic). The Applicant submitted that he had highlighted his fear that he was returning from a Western country as a failed asylum seeker who had previously worked for the police, but that the Tribunal’s consideration of his claims regarding the LTTE did not address or engage with all of his claims individually as well as cumulatively, including claims that persons returning from Western countries would be persecuted by elements of former LTTE cadres. It was pointed out that the Tribunal was obliged to deal with all the discrete bases for protection put forward by the Applicant (see Dranichnikov at [24] and [95] and Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42]). However, such a suggested particular social group is not reflected in the particulars to ground 4 in the Amended Application.
While it was initially submitted that the Tribunal’s view that Catholics were not persecuted overlooked the fact that the Applicant was a particular type of Catholic, Mr Kumar subsequently stated that the Applicant did not press any suggestion that Catholicism had any bearing on the asserted particular social group referred to in this ground.
I note that in the course of its reasons the Tribunal in fact considered whether the Applicant had a well-founded fear of persecution for reason of his membership of the particular social group of Catholics (considered as a minority group).
Counsel for the Applicant acknowledged that in written submissions to the Tribunal the Applicant’s representative had identified two particular social groups: “employees of the police” and “failed asylum seekers returning to Sri Lanka”. It was conceded that the Tribunal had considered the particular social group of failed asylum seekers. However it was contended that the other group of which the Applicant claimed to be a member was the particular social group of “Tamil(s)… employed in the Police force”. It was submitted that the Applicant had always claimed to have a fear of harm and to be targeted because he was a Tamil and that the inference from the material before the Tribunal was that the Applicant’s claim was that he was being targeted because he was a Tamil who was employed in the police force. The Applicant contended that while the Tribunal had considered some aspects of his particular social group claims, it did not consider the particular social group of persons with the attributes of being employed in the police force and being Tamils.
The First Respondent pointed out that the Applicant had claimed through his representative to fear harm on the basis of his membership of the two particular social groups of “employees of the police” and “failed asylum seekers returning to Sri Lanka” and that the Tribunal had expressly considered both such claims. It was submitted that the Applicant never made a claim to the Department or the Tribunal to fear harm on the basis of a combination of his ethnicity, religion, home region and employment insofar as this was suggested in ground 4 and contended that the particular social group pleaded did not obviously arise on the material before the Tribunal (cf NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [56]-[61]).
The First Respondent also submitted that the Tribunal had properly considered each of the integers of the Applicant’s claims and that it was not necessary for it to construct further particular social groups involving a combination of such factors. It was contended that the mere fact that an applicant possessed a number of attributes did not of itself give rise to a need to consider a claim on the basis of membership of a particular social group of persons with such attributes, as long as the underlying factual claims were considered by the Tribunal. This was said to have occurred in the present case (see MZXDQ v Minister for Immigration and Multicultural Affairs [2006] FCA 1632 at [18], [25] and [29]; SZJRU v Minister for Immigration and Citizenship (2009) 108 ALD 515; [2009] FCA 315 at [49]-[50]; BRGAE of 2008 v Minister for Immigration and Citizenship [2009] FCA 543 at [21]-[25]; SZQIL v Minister for Immigration and Citizenship [2012] FMCA 109 at [64] (upheld on appeal in SZQIL v Minister for Immigration and Citizenship (2012) 128 ALD 107; [2012] FCA 452); SZOYL v Minister for Immigration and Citizenship [2011] FCA 914 at [21] and BZAEX v Minister for Immigration [2014] FCCA 1532 at [40]).
This ground is not made out. First, as the First Respondent pointed out, the Applicant’s representative claimed to the Tribunal that the Applicant feared persecution as a member of two particular social groups: “employees of the police” and “failed asylum seekers returning to Sri Lanka”. The Tribunal considered these claims. The Tribunal plainly understood that the Applicant claimed membership of these two particular social groups. It considered that he did not have a well-founded fear of persecution from any of the groups which he claimed to fear as a result.
It has not been established that an additional particular social group as now posited arose clearly or squarely on the material before the Tribunal. In any event, in considering the “employees of the police” claim, the Tribunal rejected the underlying factual basis for the claimed fear (that is, that threatening phone calls were received). The Tribunal also had regard to the fact that, on the Applicant’s account, he was not being threatened because he was a Tamil, but rather because he worked for the police department. In this way it considered his individual circumstances.
The Tribunal made broad findings that dealt with the underlying factual claims, including the Applicant’s claims to fear Tamils because he was an employee of the police force. It found there was no real chance the Applicant would be persecuted by the LTTE because he would be perceived as supporting the government because he worked as a clerk in the police department or by former members of the LTTE, LTTE sympathisers or members of the Tamil community associated with the LTTE if he returned to Sri Lanka now or in the reasonably foreseeable future. It did not accept he would be accused of being a spy due to his employment with the police.
As indicated, in considering whether the Applicant would be harmed by others as a result of his membership of the particular social group of employees of the police (as he had claimed), the Tribunal had regard to his evidence that he was not threatened because he was a Tamil. It did not accept on the evidence before it that there was a real chance the Applicant would be persecuted by groups opposed to the police, or even at the hands of those such as the Karuna group, who were neutral towards or even supported the government, but may have wished to gain cover for their illegal acts. In this context the Tribunal had regard to whether any political opinion would be imputed to the Applicant in support of the government because he worked for the police department, such as to expose him to a risk of harm from members of the Tamil community.
While the Tribunal clearly understood that the Applicant was a Tamil and considered his claim on that basis, the particular social group now proposed by counsel for the Applicant (including Tamil ethnicity as well as “employment… with the Police”) was never expressly articulated by the Applicant and did not arise squarely on the material before the Tribunal. The Tribunal was not under an obligation to construct other particular social groups of which the Applicant might be a member. Rather, it had to address his claims as made to the Department and to it and as arose clearly on the material before it. In the absence of any evidence as to what occurred in the Tribunal hearing (other than the Tribunal reasons for decision) there is no evidence that at the hearing a connection was drawn between the Applicant’s ethnicity and work for the police department such that a further particular social group arose for consideration on the material before the Tribunal.
Further, in considering whether the Applicant faced harm as a failed asylum seeker returning to Sri Lanka, the Tribunal considered his individual circumstances as a Tamil, as well as the fact that he was a failed asylum seeker.
Finally, and contrary to the Applicant’s contention, in its conclusion in relation to the Refugees Convention criterion, the Tribunal did consider the Applicant’s attributes cumulatively. It had regard to his Tamil ethnicity, his Catholicism, the fact he was from Batticaloa, his employment by the police, as well as whether he had any imputed political opinion either in support of the Sri Lankan government because he worked for the police department or in opposition of the Sri Lankan government because he was a Tamil, because he had applied for protection in Australia or because of his membership of the two particular social groups suggested by his representatives. It then stated (at paragraph 84):
… I have considered the totality of [the Applicant’s] circumstances as a Tamil and a Catholic who I accept was employed by the Police Department in Batticaloa for six years, who departed Sri Lanka illegally in 2012 and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.
In this way the Tribunal considered the Applicant’s attributes and the claimed bases for his fears, both individually and cumulatively. It has not been established that it erred in failing to consider, as a particular social group, the particular social group now posited.
This ground is not made out.
As no jurisdictional error has been established on any basis contended for by the Applicant, the application must be dismissed.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Barnes
Date: 5 February 2018
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