ACC15 v Minister for Immigration

[2015] FCCA 2366

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACC15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2366

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether applicant would face “significant harm” – whether the Tribunal’s decision was affected by bias by way of prejudgment – no jurisdictional error – application dismissed.

Legislation:

Constitution (Cth), s.75(v)

Migration Act 1958 (Cth), ss.5, 36

Minister for Immigration & Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507

Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51

Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639

SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749
SZSPE v Minister for Immigration & Border Protection [2014] FCA 267
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64
WZAPN v Minister for Immigration & Border Protection [2014] FCA 947

Applicant: ACC15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 504 of 2015

Judgment of: Judge Smith

Hearing date: 20 August 2015

Date of Last Submission: 20 August 2015

Delivered at: Sydney

Delivered on: 4 September 2015

REPRESENTATION

The Applicant appeared in person.

Counsel for the First Respondent: Mr D. Hume

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 504 of 2015

ACC15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant arrived in Australia by boat in August 2012. In March 2013 he lodged a protection visa application claiming that he feared harm in Sri Lanka because, although he was a Sri Lankan Burgher, he was perceived to be a Tamil and so suspected of having LTTE connections. That application was rejected by a delegate of the Minister on 2 October 2013 and the applicant applied to the Refugee Review Tribunal for review of that decision. On 11 February 2015 the Tribunal affirmed the decision of the delegate. The applicant now seeks judicial review of the Tribunal’s decision.

2. The jurisdiction of this Court in respect of migration decisions is the same as that of the High Court under s.75(v) of the Constitution. That means that, in order to grant relief to the applicant, the Court must be satisfied that there is a jurisdictional error that affects the Tribunal’s decision. The issue in the proceedings is whether there is such an error.

Claims raised at hearing

1. The applicant appeared unrepresented before the Court. He argued that the Tribunal rejected his claims even though he put forward evidence in support of them. He then said that the Tribunal would have rejected any claims. The first of these arguments goes only to the merits of the Tribunal’s decision and is beyond the proper scope of judicial review. The second appears to raise an allegation of actual bias by way of prejudgment.

2. The state of mind, described as bias in the form of prejudgment, is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented: Minister for Immigration & Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507 at 532 [72] per Gleeson CJ and Gummow J.

3. An allegation of actual bias must be distinctly made and clearly proved: Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127]. Ordinarily, in order to do so, a party would need to show some conduct on the part of the Tribunal, apart from the Tribunal’s expression of its reasons, which would indicate that the Tribunal has been guilty of prejudgment or was in any way biased: SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at [44] per Tamberlin, Mansfield and Jacobson JJ; Minister for Immigration & Citizenship v SZNPG [2010] FCAFC 51; (2010) 115 ALD 303 at [18] per North and Lander JJ.

4. There is no evidence in this case that might suggest that the Tribunal had prejudged this matter in the sense required in order to establish actual bias. That is not say that the Tribunal had not formed any view about the applicant’s case before it finally made its decision. The fact that it invited the applicant to attend a hearing is evidence that it formed the view on reading the papers that it could not come to a favourable decision on that basis alone. However, that is a different thing from being, or even appearing to be, unable or unwilling to change that view regardless of the evidence given by the applicant at the hearing.

5. For those reasons, neither of the grounds raised by the applicant at the hearing has any merit and both are rejected.

Grounds of application

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

   a)When deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The RRT has not considered whether the fact possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.

   b)In WZAPN v MIBP the Federal Court held that even a short period of detention that threatens an applicant’s liberty will fall within the scope of s.91R(2)(a). therefore (sic), this case law interprets that s.91R(2)(a) was not correctly applied by the RRT in my case.

Ground 2

1. The second ground can be dealt with briefly. It relies on the decision of North J in WZAPN v Minister for Immigration & Border Protection [2014] FCA 947. However, that decision was overturned by the High Court in Minister for Immigration & Border Protection v WZAPN (2015) 89 ALJR 639 at [71] and so is no longer good law (see also the decision of the Full Court of the Federal Court in SZTEQ v Minister for Immigration & Border Protection (2015) 229 FCR 497 at [154]). For that reason, even if the Tribunal had failed to follow that decision, it did not amount to jurisdictional error. The ground is rejected.

Ground 1

1. The first ground requires a brief outline of the relevant facts.

2. The applicant claimed that in 2005 a group of Tamil speaking males came to his home to make enquiries about him and then took him away and kept him in a dark room for five days. He said that they came to his family home on five occasions after his release. The applicant then went to work in Qatar. When he returned from Qatar, members of the Karuna group came to him because he had not been living in the area for almost 4 years. They detained him for two days and released him. They then returned to his home on a number of occasions and watched him from the street. At this point the applicant decided to leave Sri Lanka for Australia.

3. The applicant then claimed that people came to his family home seeking his whereabouts every two or three months after he departed Sri Lanka and that his brother had been assaulted by some of these people.

4. In written submissions prepared by his agent, the applicant claimed that he also feared harm in Sri Lanka as a minority Christian and because of the militarisation in the North and East of Sri Lanka. He also claimed that he would be harmed upon return as an illegal departee and a failed asylum seeker.

5. The Tribunal made the following findings of fact:

   a)the applicant is a national of Sri Lanka;

   b)he is a Roman Catholic Burgher (from Portuguese origins);

   c)he was detained and questioned for five days in 2005 and released unharmed but was not of any ongoing adverse interest to anyone in Sri Lanka from the time of his release;

   d)he was detained and questioned for two days in August 2010 but was unharmed and was not of any ongoing adverse interest to anyone in Sri Lanka prior to his departure in July 2012;

   e)the applicant’s home was not visited by men from the Karuna (or other group) after he was released in August 2010;

   f)his family home was not visited by persons seeking his whereabouts every two or three months after he departed Sri Lanka in July 2012; and

   g)his wife was not threatened by men seeking his whereabouts and his brother was not assaulted by such men after the applicant left Sri Lanka.

6. In addition to those matters the Tribunal was not satisfied that the applicant had a real chance of persecution for reason of his religion, or for any possibility that he might be perceived to be a Tamil from the North of Sri Lanka.

7. The Tribunal then dealt with the claims specifically concerned with the applicant’s return to Sri Lanka as an illegal departee and returned asylum seeker. First, it found that the essential and significant reason for any prosecution for the applicant having breached Sri Lanka’s departure laws was not for a Convention [1] reason. It then referred to information to the effect that prison conditions in Sri Lanka did not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions, and accepted that the conditions in the prisons there were poor. However, it found that there was no real chance that the applicant would be subject to a custodial sentence and that even if he was subject to a brief period in detention, that would not be beyond a few hours and that he would be granted bail on personal recognisance immediately by the magistrate: [51] of the Tribunal’s reasons. In light of that, the Tribunal found that the applicant did not have a real chance of being subject to serious or significant harm for reason of his illegal departure should he return to Sri Lanka: [52] of the Tribunal’s reasons.

   [1] Convention relating to the Status of Refugees done at Geneva in 1951 as amended by the Protocol relating to the Status of Refugees done at New York in 1967

8. The Tribunal returned to the issue of punishment later in its reasons. It referred to further information concerning overcrowding and uncertain sanitary conditions in Sri Lanka and prisons as well as the fact that some criminal suspects had died while in custody. It then stated its conclusions as follows:

   [71]The evidence in the sources cited herein, indicate the Sri Lankan prison population is broadly representative of the country’s overall ethnic and religious composition. Be that as it may, and for the reasons set out above, the Tribunal is not satisfied there is a real chance (real risk), the applicant would be subject to a custodial sentence in Sri Lanka (including to having exited unlawfully). Given his lack of any material profile, I am not satisfied the present applicant would be detained (for questioning) beyond a few hours (while his identity was being established). If he was taken before a magistrate, I am satisfied he would be immediately given bail.

   [72]Therefore, and based on the accepted facts and the country information in the sources cited herein, the Tribunal is not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, should he return to Sri Lanka.

   [73]For the same reasons, the Tribunal is not satisfied the applicant has a real risk of suffering harm that is intentionally inflicted on him (cruel or inhuman treatment or punishment). If he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment-and none of the country information in the sources cited herein, has satisfied me the ‘possible harassment’ that a person with the applicant’s lack of profile may suffer, would constitute significant harm. Next, I am not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him (torture). Again, if he is subject to harm on return, I am not satisfied there is a real risk it would be more than some possible harassment.

   (Emphasis in original)

9. For all of those reasons the Tribunal concluded that the applicant did not satisfy the criteria for the grant of the protection visa and so affirmed the decision of the delegate.

Consideration

1. The issue arises from the following statutory provisions. One of the criteria for the grant of a protection visa was in s.36(2)(aa) which provided:

   a non-citizen in Australia… in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country there is a real risk that the non-citizen will suffer significant harm;

   (Emphasis added)

2. Section 36(2A) provides that a non-citizen will suffer significant harm if:

   a)the non-citizen will be arbitrarily deprived of his or her life; or

   b)the death penalty will be carried out on the non-citizen; or

   c)the non-citizen will be subjected to torture; or

   d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   e)the non-citizen will be subjected to degrading treatment or punishment.

   (Emphasis added)

3. Both of the phrases emphasised in the previous paragraph are defined in s.5 of the Act. Cruel or inhuman treatment or punishment is defined to mean an act or omission by which:

   a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;…

   (Emphasis added)

4. The application of these provisions to findings made by the Tribunal in connection with a Sri Lankan visa applicant who faced punishment for his illegal departure upon return to Sri Lanka was dealt with by Judge Driver in SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64. His Honour rejected the submission based upon analogies drawn from the meaning of intent in criminal law and found at [46] of his reasons that “the structure of the relevant definition provisions, and in particular the use of the emphatic phrase “intentionally inflicts”, strongly indicates that there must be an actual, subjective, intention to cause harm.”

5. His Honour also found that he was bound by the decision in SZSPE v Minister for Immigration & Border Protection [2014] FCA 267 and so rejected the applicant’s argument.

6. As the decision of Judge Driver is one of this Court, unless it is distinguishable, I am bound as a matter of comity, to apply it unless I consider that it is clearly wrong. Even though Judge Driver was not, in my opinion, bound by the decision in SZSPE (because that case dealt with a question of negligence), I do not think it is clearly wrong. However, I was informed by Mr Hume, who appeared for the Minister, that the decision in SZTAL was currently on appeal before the Full Court of the Federal Court along with a number of similar matters. He submitted that, in the event that I found that the facts of this case were not distinguishable from those before Judge Driver, I ought to reserve my decision until the judgment of the Full Court. I do not need to reserve my judgment because this matter is distinguishable on the facts.

7. The relevant findings in SZTAL were, set out at [13], referring to the Tribunal’s decision at [79]:

   The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer anxiety and discomfort whilst in prison. The applicant will be remanded for a short period of time, between one night to several nights or possibly up to 2 weeks. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.

8. Here, by contrast, the Tribunal found that the applicant would be detained for a few hours at the most and the worst treatment he stood a real chance of suffering was “some possible harassment”. For that reason, its conclusion was that there was no real chance or real risk that the applicant would face “significant harm” regardless of whether or not that harm would be intentionally inflicted. In light of that, the issue addressed by Judge Driver and which is the subject of appeal before the Full Court in SZTAL does not arise on the facts of this case.

9. The first ground in the application is rejected.

Conclusion

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

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 4 September 2015