ACL15 v Minister for Immigration

[2016] FCCA 1301

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACL15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1301

Catchwords:
MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal considered the conditions of jail in Sri Lanka in which the applicant may be kept upon return – whether the Tribunal breached its statutory duty imposed by s.424A of the Migration Act 1958 (Cth) – element of intention in “significant harm” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2)(aa), 424A, 424AA

Cases cited:
R v Ping [2006] 2 Qd R 69
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZQDR v Minister for Immigration & Border Protection [2016] FCA 543
SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69
SZTAL vMinister for Immigration & Border Protection [2015] FCCA 64
SZUMS v Minister for Immigration & Border Protection [2016] FCA 542

Applicant: ACL15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 522 of 2015

Judgment of: Judge Smith

Hearing date: 30 September 2015

Date of Last Submission: 30 September 2015

Delivered at: Sydney

Delivered on: 3 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 522 of 2015

ACL15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of a decision of the Refugee Review Tribunal[1] made on 19 February 2015. The Tribunal affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.

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

2. One of the issues raised in the application is whether the Tribunal misunderstood the words “significant harm” in sub-s.36(2)(aa) of the Migration Act 1958 (Cth). At the time of the hearing of this matter the Full Court of the Federal Court of Australia had reserved its decision in a matter considering a similar issue. In light of that, the parties asked the Court to reserve its decision until the Full Court had made its decision in that case. On 20 May 2016 the Full Court handed down its decision in that matter: SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69 (“SZTAL”).

3. For the reasons that follow this application must be dismissed.

Background

1. The applicant is a citizen of Sri Lanka and is of Tamil ethnicity and a Christian. He arrived in Australia on 12 August 2012 as an Irregular Maritime Arrival and lodged an application for a protection visa on 1 October 2013. He claimed that he left Sri Lanka because he was falsely accused of involvement in the bombing of an army truck and that the army was searching for him.

2. The applicant claimed that in 1998 his uncle was killed by the army because he was suspected of involvement with the Liberation Tigers of Tamil Eelam (LTTE). After his uncle died the army came to the applicant’s house and the applicant was accused of being involved with the LTTE and beaten by the soldiers. Following that, the applicant claimed that he continued to be suspected of supporting the LTTE.

3. In 1998 some people who had observed the applicant depositing his wages in a bank suspected that he was sending money to the LTTE and reported the applicant to the Criminal Investigations Department (CID). As a consequence, the CID questioned him about his actions and he was told that there would be further investigations about his links to the LTTE. The applicant then went into hiding in the jungle until 2004 when he went to Dubai. In about October 2008 after returning from Dubai the applicant was arrested while he was doing some painting work for Tamil people in Jaffna who, he was told, were members of the LTTE. The applicant was detained for a month before being released.

4. After this the applicant rented a shop and started to sell jewellery. On 21 August 2011 an army truck was parked in the street in front of the applicant’s shop and, after it had been there for about an hour, the army truck was blown up by a bomb. The applicant’s shop was badly damaged as were other shops nearby. Four soldiers then entered the applicant’s shop and accused him of being involved in the bombing and started to beat him and his employee. The applicant managed to escape and went again to hide in the jungle. He stayed there until he left Sri Lanka for Australia.

5. The applicant’s migration agent made written submissions to the Department of Immigration in support of the visa application. The agent addressed the general situation of Tamils in Sri Lanka and in particular, those in the north-west province of that country. In addition, they argued that the applicant faced a risk of serious harm on account of having sought asylum in a Western country. They also argued that the applicant would suffer significant harm within the meaning of sub-s.36(2)(aa) of the Act because he had departed Sri Lanka illegally and so would be charged with an offence under the Immigrants and Emigrants Act. In this context, the migration agent referred to information relating to the treatment of prisoners and individuals held in police custody or prisons in Sri Lanka as well as to the general poor condition of those prisons including overcrowding, lack of hygiene, inadequate medical care and the non-separation of convicted and remand prisoners.

6. On 6 February 2014 a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The applicant applied to the Tribunal for review of that decision.

7. The applicant attended a hearing conducted by the Tribunal on 10 February 2015 and gave evidence and made submissions in support of his application for review. During the hearing the applicant made the additional claim that the CID started threatening him in 2005.

8. After the hearing the applicant’s agent sent written submissions to the Tribunal outlining the applicant’s claims and reiterating the submission, amongst others, that the applicant faced significant harm as a consequence of his illegal departure from Sri Lanka by virtue of the prison conditions in that country.

9. The Tribunal made its decision on 19 February 2015 affirming the decision of the delegate.

Tribunal’s decision

1. The Tribunal found that the applicant was a comprehensively unreliable witness and that he had been untruthful about the circumstances that caused him to depart Sri Lanka and seek asylum in Australia. The Tribunal dismissed all of his claims about imputed links to the LTTE. Although none of the issues in the proceedings turns upon this conclusion, it is worthwhile noting the following bases for it given by the Tribunal:

   a)the Tribunal found that it was far-fetched that anyone seeing the applicant banking his labourer’s wages in the bank would seriously think that he was helping to fund the LTTE, let alone that the CID after a few checks on his banking habits would have any suspicions in that regard at all;

   b)it was odd that the applicant was able to re-enter Sri Lanka legally from Dubai at a time where the security authorities in Sri Lanka were highly attuned to the movements of suspected LTTE operators when, on the applicant’s claim, he had been under scrutiny from the CID because of an imputed LTTE connection;

   c)the applicant gave no reliable explanation for not having raised earlier than the Tribunal hearing the claim that the CID had started threatening him in 2005;

   d)the applicant’s evidence about the reason for his arrest in 2008 was different at the Tribunal hearing than in his original claims;

   e)when questioned by the Tribunal about his escape from the soldiers after the bombing of the army truck, the applicant gave an answer that appeared to the Tribunal to be the recitation of a prepared statement;

   f)the applicant’s inability to obtain reported material about the suspicion of him following the bombing of the army truck was odd in light of the fact that the applicant was on notice that the Tribunal might not believe that the bombing had ever occurred;

   g)it was surprising that the applicant’s brother was able to travel to Dubai after the applicant became a suspect in the army truck bombing; and

   h)the applicant was unable to provide any satisfactory explanation as to why the CID had not approached the applicant or his family in connection with the army truck bombing.

2. The Tribunal also rejected the applicant’s claim that he might face harm as a failed asylum seeker in light of the country information referring to people in similar situations.

3. The Tribunal then turned to consider the possibility that the applicant might face harm as a result of his illegal departure from Sri Lanka. In this respect it accepted that the applicant would likely come to the attention of the authorities as soon as he reached the airport and that he would likely be questioned by police on return and possibly charged under the Immigrants and Emigrants Act. It accepted that he may have fingerprints taken, be photographed, then transported by police to the Magistrates Court in Negombo at the first available opportunity after investigations were completed and come under the responsibility of the courts or prison services. The Tribunal found that he could remain in police custody at the airport for up to 24 hours or for three or four days if there was an intervening weekend, and then be bailed on his own recognisance but that he would not be suspected of association with people smugglers or with the LTTE.

4. However, the Tribunal found that the process of interviewing, detaining and prosecuting Sri Lankans who previously departed the country illegally was implemented under laws of general application and noted that the characteristics claimed by the applicant which would single him out had been rejected by it in its earlier findings. The Tribunal further found that the laws were not enforced in a discriminatory way, that the processes relating to returnees who had left Sri Lanka illegally would not be applied, exploited or manipulated in any way as to discriminate against the applicant notwithstanding that he is a Tamil. For that reason, any treatment that he might suffer as a result of his illegal departure would not involve discriminatory conduct.

5. The Tribunal next considered the conditions in which the applicant might be remanded and, while it accepted that they could be very basic, uncomfortable, unsanitary and crowded, given the shortness of any remand or detention, it was not satisfied that they would constitute serious harm.

6. The Tribunal also rejected the applicant’s claim that he might face harm in Sri Lanka for reasons of being a Tamil, Tamil male or young adult Tamil male or for any similar permutation of characteristics. It found that there would be no obstacle to the applicant returning to his home town or region after the arrival process it had earlier described, in that there was no real chance of persecution in Sri Lanka in the reasonably foreseeable future for any Convention-related reason. For that reason, the Tribunal was not satisfied that the applicant was a refugee and so did not satisfy the criterion in sub-s.36(2)(a) of the Act.

7. Next, the Tribunal considered the criterion in sub-s.36(2)(aa). After noting that the applicant’s claims in this respect were essentially the same as the claims in respect of sub-s.36(2)(a), the Tribunal found that the applicant would not be imputed with any links to the LTTE upon return to Sri Lanka. The Tribunal found that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm for that reason.

8. The Tribunal also found that the process of investigating the applicant’s illegal departure or other aspects of his background on return to Sri Lanka, or the period of time he may face in custody for questioning or remand or the fine he might have to pay for illegal departure or any ensuing sanctions would not involve or amount to significant harm. The reason for this was that an act or omission will not constitute torture, cruel or inhuman treatment or punishment or degrading treatment or punishment if it only arises from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights (“Covenant”) and that the sanctions the applicant might face were lawful under the Immigrants and Emigrants Act and were not inconsistent with the Covenant.

9. The Tribunal also found that any sanctions, including possible detention that the applicant might face, fell within sub-s.36(2B)(c) of the Act in that it was a law to which everyone was subject and so the risk was one faced by the population of the country generally and was not faced by the applicant personally.

10. The Tribunal found that the applicant would not be arbitrarily deprived of his life or subject to the death penalty being carried out. At [51] of its reasons, the Tribunal found;

    … Those conditions do not constitute torture or cruel or inhuman treatment of punishment because the independent information before does not indicate that it is severe physical or mental pain and suffering or pain and suffering cruel or degrading in nature. Nor is it degrading treatment or punishment as it does not involve extreme humiliation.

11. Finally, the Tribunal did not accept the applicant faced any real risk of significant harm from the state, authorities, agents or supporters of the state or any other party on his return to his home or home region.

12. For those reasons the Tribunal was not satisfied that the applicant met the criterion in sub-s.36(2)(aa) of the Act and so affirmed the decision under review.

Consideration

1. There were three grounds in the application. The first ground in the application was as follows:

   I will provide further details of these grounds and any other ground after I have received and listened my (sic) RRT hearing CDs and after a lawyer has been given by this court.

2. Nothing in this ground constitutes any basis upon which constitutional writs might issue in respect of the Tribunal’s decision.

3. The second ground in the application was that:

   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 of 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.

4. This ground attempts to raise the same issues that were considered in SZTAL.

5. The ground arises in the following statutory context. Section 36 of the Act makes provisions in respect of protection visas. One of the criteria for the grant of such a visa is found in sub-s.36(2)(aa) which provides:

   a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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)

6. Subsection 36(2A) defines the term “significant harm” for the purposes of the Act as follows:

   (2A)  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 in original)

7. The last three of these are given further substance by s.5 of the Act which provides:

   cruel or inhuman treatment or punishment means 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;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   (Emphasis added)

8. The appellants in SZTAL argued before the primary judge that the Tribunal erred because it only considered whether there was an actual, subjective, intent to cause harm and failed to consider whether the authorities had the necessary intent because they foresaw the consequences of their actions. His Honour Judge Driver rejected that argument, saying that the structure of the relevant definition provisions and in particular the use of the emphatic phrase “intentionally inflicted”, strongly indicates that there must be an actual, subjective intention to cause harm: SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 at [46].

9. The appeal to the Full Court of the Federal Court was unanimously dismissed. In a joint judgment, Kenny and Nicholas JJ held, at [53], 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.

1. The difficulty to the applicant in this case is that the Tribunal did not confine itself to determining whether or not the applicant might suffer significant harm upon return to Sri Lanka only by reference to whether or not such harm might be intentionally inflicted. Rather, at [49] and [51] of its reasons the Tribunal rejected the possibility of significant harm because:

   a)any treatment of him in connection with his illegal departure would arise only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Covenant; and

   b)that any such treatment did not amount to severe physical or mental pain and suffering or pain and suffering cruel or inhuman in nature and did not amount to extreme humiliation.

2. I note that in the second last line of [51] the Tribunal used the phrase “pain and suffering cruel or degrading in nature” whereas the relevant definition refers to “cruel or inhuman in nature”. In my view, the use of the word degrading was no more than a slip and does not indicate that the Tribunal failed to understand the meaning of significant harm in any way.

3. In summary, the point raised by the applicant does not arise on the Tribunal’s findings and the ground must be rejected. I would add that even if the point did arise on the Tribunal’s reasons, the decision of the Full Court in SZTAL would mean that it must be rejected.

4. The third ground is that the Tribunal did not comply with s.424AA and it breached its statutory duty imposed by s.424A of the Act. The operation of those provisions have recently been explained in some detail by Griffiths J in SZUMS v Minister for Immigration & Border Protection [2016] FCA 542 at [20]–[24] and SZQDR v Minister for Immigration & Border Protection [2016] FCA 543 at [29]–[36]. It is unnecessary to repeat that analysis here.

5. In essence, the Tribunal is required to give an applicant particulars of “information” that it considers would be the reason or part of a reason for an adverse decision and to invite him or her to comment on or respond to that information. Importantly, “information” does not include the thought processes of the Tribunal, information given by the applicant for the purposes of the review and information that does not specifically relate to the applicant. Further, the Tribunal has an option to fulfil any obligation to give those particulars orally at a hearing in accordance with the provisions of s.424AA.

6. The applicant did not specify what “information” the Tribunal was obliged to give him particulars of. I can discern no information within the meaning of s.424A(1) which the Tribunal considered would be the reason or part of the reason for its decision. First, although it did refer to evidence given by the applicant at an interview with the delegate, one might have thought that evidence would have been a relevant step towards rejecting, not affirming, the decision under review: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17]. Secondly, it also referred to certain information concerning the circumstances pertaining to Sri Lanka; however, that information was not specifically about the applicant and so, by operation of sub-s.424A(3)(a), did not fall within s.424A(1).

7. The third ground is rejected.

Conclusion

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

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  3 June 2016