ADD15 v Minister For Immigration and Anor (No.2)

[2017] FCCA 1230

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADD15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2017] FCCA 1230

Catchwords:
MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka – applicant not believed in critical respects and other fears found not to be well-founded – whether the Tribunal erred in its assessment of the applicant’s claims as a returnee considered – no jurisdictional error.

Legislation:

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

Cases cited:

SZTAL v Minister for Immigration [2016] FCAFC 69

WZAPN v Minister for Immigration [2014] FCA 947. In light of the High Court’s decision in Minister for Immigration v WZAPN; WZARV v Minister for Immigration [2015] HCA 22
ADD15 v Minister for Immigration & Anor [2015] FCCA 822
SZSPE v Minister for Immigration [2013] FCCA 1989, upheld on appeal in SZSPE v Minister for Immigration [2014] FCA 267

Applicant: ADD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 578 of 2015

Judgment of: Judge Driver

Hearing date: 8 June 2017

Delivered at: Sydney

Delivered on: 8 June 2017

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Mr A Keevers of Sparke Helmore

ORDERS

1. The name of the second respondent is amended to the Administrative Appeals Tribunal.

2. The application filed on 9 March 2015 is dismissed.

3. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 578 of 2015

ADD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The applicant seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal).  The decision was made on 2 February 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka and had made claims of political persecution.  Background facts relating to the applicant’s claims, and the decision of the tribunal on them, are set out in the Minister’s outline of legal submissions, filed on 2 June 2017. 

2. The applicant is a citizen of Sri Lanka and of Tamil ethnicity[1]. He arrived on Christmas Island on 2 July 2012, having departed Sri Lanka by boat[2]. On 5 November 2012, the applicant lodged an application for a protection visa[3]. That application was refused by the delegate on 2 July 2013[4].

   [1] Court Book (CB) 45

   [2] CB 36

   [3] CB 17

   [4] CB 97

3. On 8 July 2013, the applicant lodged with the Tribunal an application for review of the delegate’s decision[5]. On 9 October 2014, the Tribunal wrote to the applicant, inviting him to appear at a hearing before the Tribunal on 27 October 2014[6]. The applicant attended the hearing with the assistance of a Tamil interpreter and accompanied by his migration agent[7]. On 2 February 2015, the Tribunal affirmed the decision under review[8].

   [5] CB 125

   [6] CB 204

   [7] CB 250

   [8] CB 255

Applicant’s claims for protection

1. In a statement annexed to his protection visa application, the applicant made the following claims[9]:

   a)on 25 May 2012, on his way back from Colombo to Udappu, the applicant was approached by officials from the Criminal Investigation Department (CID) and taken to a police station, where he was questioned about people smugglers. He was kept at the station for three days in a small dark room, insulted and threatened. The applicant was released when upon his father’s request, an official intervened. The applicant was asked to report on 8 June 2012, to ensure that he had not left the village;

   b)at 8.00pm on 8 June 2012, whilst the applicant was on his way to a grocery store, two Sinhalese men tried to kidnap him. He screamed, which attracted the neighbourhood’s attention and caused the kidnappers to flee. The applicant did not know why this happened but he was certain that the two men were CID officials who wanted to kidnap him because he had been released from detention and he was a Tamil;

   c)since leaving Sri Lanka, the applicant’s aunt had received three visits from the authorities wanting to know the applicant’s whereabouts;

   d)the applicant feared that upon return as a failed asylum seeker, he would be arbitrarily detained at the Colombo Airport, tortured, killed and otherwise seriously harmed by the CID. He also feared that he could be kidnapped.

   [9] CB 54-56

2. In a submission to the Tribunal, the applicant’s migration agent advanced the following claims[10]:

   a)as a failed asylum seeker, and being of Tamil ethnicity, the applicant would be imputed with an opinion favourable to the Liberation Tigers of Tamil Eelam (LTTE);

   b)the applicant was also a member of a particular social group of “young Tamil males who originate from the North or East”;

   c)because of his ethnicity, the applicant would be unable to access services and would be denied the opportunity to make a living, threatening his capacity to subsist.

   [10] CB 143-146

Tribunal decision

1. The Tribunal did not accept that the applicant was telling the truth about the events that he claimed prompted him to leave Sri Lanka. It did not accept, in particular, that either of the events on 25 May 2012 and 8 June 2012 took place[11]. In respect of the claimed detention in May, the Tribunal did not accept that the CID was randomly detaining Tamils from Udappu to question them about their possible involvement in people smuggling[12]. Nor did it accept as plausible that the applicant might have appeared suspicious to the authorities because he was travelling alone[13].

   [11] CB 267 at [38]

   [12] CB 265-266 at [35]

   [13] CB 266 at [36]

2. The Tribunal also had difficulty accepting the applicant’s claim of attempted abduction, noting that on the applicant’s account, this could only have been a chance encounter. Whilst the Tribunal accepted that there had been abductions and disappearances in Sri Lanka, it did not accept a submission that the CID released people from custody and then arranged for these same people to be abducted so that the disappearance could not be traced to the CID[14]. Nor did the Tribunal accept that since the applicant’s departure, the authorities had come to his home in Udappu looking for him[15].

   [14] CB 266 at [37]

   [15] CB 267 at [38]

3. The Tribunal accepted that the applicant was from Udappu, in the North Western Province of Sri Lanka (as opposed to the North or the East). It therefore did not accept a submission that the applicant was a member of the particular social group of “young Tamil males who originate from the North or the East”, nor that he would be persecuted for these reasons. On the basis of DFAT country information as well as the applicant’s own evidence, the Tribunal also rejected the submission that there was a real chance that the applicant would be denied access to food, shelter, employment or medical treatment, or that he would be unable to access protection because of his ethnicity[16].

   [16] CB 267 at [39]

4. Moreover, the Tribunal was not satisfied that the applicant would be imputed with a political opinion in support of the LTTE or Tamil nationalism or against the government because he was a Tamil or a failed asylum seeker[17]. It did not accept that the applicant would be of significant adverse interest to the authorities or that he had ever come to their attention[18].

   [17] CB 267 at [40]-[41]

   [18] CB 268-269 at [43]-[45]

5. The Tribunal accepted that upon return, the applicant would be questioned at the airport about how he managed to leave the country but did not accept that there was a real chance he would be mistreated or otherwise persecuted as a Tamil failed asylum seeker[19].  It accepted that the applicant would be charged under the Immigrants and Emigrants Act (Immigrants and Emigrants Act) for illegal departure, but referred to DFAT country information indicating that:

   a)those arrested were taken to the Magistrates Court in Negombo at the first available opportunity, at which point they were immediately granted bail in most cases;

   b)as of March 2014, no returnee who had just been a passenger on a people smuggling venture had been given a prison sentence and that fines had instead been imposed; and

   c)returnees were treated in the same way regardless of race or religion, allegations of mistreatment of returnees had not been substantiated and DFAT was not aware of allegations of mistreatment of returnees in remand[20].

   [19] CB 268 at [43]

   [20] CB 269 at [45]

6. The Tribunal therefore did not accept that there was a real chance the applicant would be singled out or treated differently for a Convention reason. Further, it did not accept that one or more of the Convention reasons would be the essential and significant reason for his spending a brief period in goal on remand or being fined.  The Tribunal found that these consequences would be the result of the non-discriminatory enforcement of a law of general application[21]. Furthermore, whilst accepting that the applicant’s arrival would be verified by the CID upon his return to Udappu, the Tribunal did not accept that there was a real chance of his being persecuted for reasons of his race or imputed political opinion[22].

   [21] CB 269 at [45]

   [22] CB 269 at [46]

7. In considering the applicant’s claims against the complementary protection criterion, the Tribunal reiterated its anterior findings of fact in relation to the applicant’s claims of past harm and found that there was no real chance of the applicant facing significant harm on those bases[23]. Further, it rejected the submission that there was a real chance of the applicant being denied access to education, healthcare and employment such that his dignity, autonomy or survival would be threatened[24]. 

   [23]CB 270 at [48]

   [24] CB 270 at [49]

8. As to the “illegal departure” claims, the Tribunal considered that the chance of the applicant spending longer than a fortnight in gaol on remand was remote. Based on DFAT information, it did not accept that there was a real risk of the applicant facing torture, cruel or inhuman treatment or punishment or degrading treatment or punishment during any period in remand[25]. It accepted that prison conditions in Sri Lanka were poor. However, it did not accept that spending up to a fortnight in prison amounted to significant harm as defined or that such treatment was intentional, as required under the Migration Act 1958 (Cth). The Tribunal considered it clear from the statutory provisions that mere negligence or indifference was not sufficient and that what was requirement was an intention to inflict pain or suffering or to cause extreme humiliation. In support of this proposition, the Tribunal cited SZSPE v Minister for Immigration[26], upheld on appeal in SZSPE v Minister for Immigration[27]. The Tribunal did not accept that the pain or suffering caused by overcrowding and other problems in Sri Lankan prisons was “intentionally inflicted” or that those problems were “intended to cause” extreme humiliation[28].

   [25] CB 271 at [51]

   [26] [2013] FCCA 1989

   [27] [2014] FCA 267

   [28] CB 271-72 at [52]-[53]

9. These proceedings began with a show cause application filed on 9 March 2015. 

10. The applicant continues to rely upon that application.  There are four particularised grounds in the application:

    1. The Tribunal considered the wrong issue by considering duration in remand in its assessment of whether the applicant would suffer serious or significant harm while being persecuted under the Sri Lankan Immigrants and Emigrants Act for illegal departure [51].

    Particulars

    a. At [52] the Tribunal accepted that DFAT and various other groups have reported that conditions in remand have been described in media reports as poor, with a lack of access to adequate food, water and a lack of access to assistance and limited reform regarding violence and maltreatment.

    b. The Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for up to 14 days in remand and will then be bailed.

    c. It is not appropriate to consider the period of time in question when considering whether something constitutes a threat to liberty (WZAPN)

    d. The Tribunal erred by applying a qualitative assessment to whether time in remand posed a threat to liberty [52]

    2. The Tribunal failed to consider the lack of standardised procedures for the application and administration of the Sri Lankan Immigrants and Emigrants Act

    Particulars

    a. A discretionary decision has to be made as to when a returnee is taken before a Magistrate for a bail hearing which will be carried out in the Sinhala language;

    b. Whether there is a family members who can attend the bail hearing in either Colombo or Negombo;

    c. Whether an assurance can be provided;

    d. A discretionary decision as to the amount of the assurance required and whether a family member can provide the assurance;

    e. If there are any problems for non-Sinhala speaking returnees and family members in participation in the bail and final hearing and how they are treated;

    f. The Magistrate in Negombo is reported to hand down the amount of fines ten times more than the Magistrate in Colombo indicating further there are no standardised procedures (DFAT Country Report, Sri Lanka (3 October 2014), paras 5.22-5.99)

    g. The applicant will return to his home village with a conviction; and

    h. As there are no standardised procedures there is a real chance that the applicant would be treated in a systematic and discriminatory manner in the administration of the Sri Lankan Immigrants and Emigrants Act.

    3. The Tribunal considered the wrong test when applying the complementary protection provisions. (Did not consistently apply the facts throughout both decisions. The Tribunal accepted information in making the decision under s.36(2)(a) Migration Act but then failed to take into account that same information when ruling on the application under s.36(2)(aa) Migration Act

    Particulars

    a. When considering the application under s.36(2)(a) Migration Act, the Tribunal accepted that some Tamils returning to Sri Lanka after failing to seek asylum had been tortured by authorities [44];

    b. The Tribunal did not accept that this torture was due to being a member of particular social group [44];

    c. When considering whether s.36(2)(aa) Migration Act should be applied, it is not appropriate to ask whether the reason for the torture is due to being a member of a particular group.

    d. If the Tribunal accepts that members of the social group to which the applicant belongs have been previously subject to torture, it is submitted that the Tribunal erred by not ruling there to be a real risk of torture to the applicant if he is returned to Sri Lanka.

    4. At [52] the Tribunal incorrectly applied the test of whether the conditions in remand constitutes degrading treatment or punishment because it held there was no ‘intention’ to ‘inflict cruel or inhuman treatment or punishment’, or ‘degrading treatment or punishment’

    Particulars

    a. The poor, unhygienic and overcrowded conditions in remand in Negombo Prison were well known and documented at the time the [Immigrants and Emigrants] Act was passed in Sri Lanka.

    b. As no facilities exist at Sri Lankan airports to hold failed asylum seekers in reman, it was known and intended by legislators that failed asylum seekers returning to Sri Lanka would likely be held in Negombo Prison

    c. As there was the intention to subject failed asylum seekers to unhygienic, poor and overcrowded conditions upon return, the applicant satisfies the requirements outlined in s.5(1) Migration Act

    (errors in original)

11. The application was summarily dismissed by another judge of this court on 2 April 2015[29].  That decision was overturned on appeal by the Federal Court on 10 November 2015.  The Federal Court ordered that the matter be remitted to this Court, differently constituted, for determination of the claims for relief in the application as filed. 

    [29] See ADD15 v Minister for Immigration & Anor [2015] FCCA 822

12. A registrar of this Court made further orders to prepare the matter for hearing today.  Pursuant to those orders, the applicant was given a second opportunity to file and serve an amended application and additional evidence.  He has not taken up that opportunity. 

13. The only evidence I have before me is the short affidavit filed with the judicial review application and the court book filed on 7 December 2015. 

14. Only the Minister had prepared written submissions in accordance with the registrar’s procedural orders. 

15. I invited oral submissions from the applicant today.  He told me that if he returned to Sri Lanka he would face problems.  In response to a question from me, he confirmed that these were the problems which he put before the Tribunal.  I explained to the applicant the limits of this Court’s jurisdiction.  However, he did not wish to say anything further. 

16. It is apparent that the grounds of review in the application were framed with some legal assistance.  Grounds 1 and 4 would have been at least arguable at an earlier time.  However, in the light of current authority, those grounds cannot succeed. 

17. Grounds 2 and 3 cannot be substantiated on the basis of the available material.  The Minister’s submissions otherwise deal comprehensively with the grounds of review.  I agree with those submissions. 

Ground 1

1. By Ground 1, the applicant contends that the Tribunal committed jurisdictional error by taking into account the duration of his possible detention while being held on remand, and that it erred in undertaking a qualitative assessment of that detention. The ground relies on the reasoning of his Honour North J in WZAPN v Minister for Immigration[30]. In light of the High Court’s decision in Minister for Immigration v WZAPN; WZARV v Minister for Immigration[31], Ground 1 must fail.

   [30] [2014] FCA 947

   [31] [2015] HCA 22

Ground 2

1. By Ground 2, the applicant contends that the Tribunal failed to consider the lack of standardised procedures for the application and administration of the Immigrants & Emigrants Act. The particulars to this ground assert that the Tribunal had to make a “discretionary decision” as to when a returnee would be taken before a magistrate for a bail hearing, whether a family member could attend the bail hearing, whether an assurance could be provided, the amount of the assurance required and any problems for non-Sinhala speaking returnees and family members participating in the bail and final hearings. The particulars further assert that there are no standardised procedures, that the applicant will return to his home village with a conviction and that the applicant would be treated in a systematic and discriminatory manner in the administration of the Immigrants & Emigrants Act.

2. The ground essentially cavils with the merits of the Tribunal’s findings of fact in relation to the existence of standardised procedures. The Tribunal’s finding that all returnees were treated in the same way regardless of their ethnicity or religion was open to it on the basis of the country information before it. So was the Tribunal’s finding that there was only a remote chance that the applicant would spend any longer than a fortnight in gaol on remand[32]. I infer from the Tribunal’s decision that the relevant country information was put to the applicant, and no claims appear to have been made that the applicant would not be granted bail for any reason[33]. Indeed, he accepted in oral evidence that “they might release him” but that he would be harmed after he went back to his village[34]. The Tribunal made no finding, nor did it refer to any country information suggesting, that a surety would be required for bail to be granted.

   [32] CB 271 at [51]

   [33] [32]-[33], [45] & [50]-[52]

   [34] [51]

1. In any event, the Tribunal found that the applicant’s experiences under the Immigrants & Emigrants Act would be:

   a)the result of the non-discriminatory enforcement of a law of general application (for the purpose of the Convention criterion); and

   b)not intentionally inflicted (for the purpose of the complementary protection criterion). 

2. These findings, which were open on the evidence, would not have been altered by any consideration of whether the applicant would face difficulties in arranging for his bail because of his personal and financial circumstances.

Ground 3

1. Ground 3 asserts that the Tribunal found[35] that some Tamil returnees had been tortured, albeit not because of their membership of a particular social group, and that the Tribunal should have considered this finding against the complementary protection criterion and found that the applicant faced a real risk of torture.

   [35] at [44] of its decision record

2. The applicant’s contention mischaracterises the Tribunal’s findings, and in particular [44] of its reasons. The Tribunal made no finding that returnees had been tortured. It merely noted that the applicant had referred to reports of Tamils being tortured and added that the reports did not claim that the returnees were tortured because they were failed asylum seekers. It is clear from the Tribunal’s decision that it was not satisfied that someone in the applicant’s position faced a real risk of torture for a Convention reason or otherwise. Ground 3 does not establish any jurisdictional error on the part of the Tribunal.

Ground 4

1. The applicant contends by Ground 4 that the Tribunal erred by applying the incorrect test in finding that the conditions in remand did not constitute degrading treatment or punishment because there was no “intention” to inflict such treatment or punishment. By the particulars, the applicant contends that failed asylum seekers are intentionally subjected to poor prison conditions because these conditions were well known when the Immigrants & Emigrants Act was enacted and no facilities exist at airports to hold detainees in remand.

2. On current authority, Ground 4 cannot be made out[36]. The judgment of the Full Court of the Federal Court in SZTAL is the subject of appeals in the High Court of Australia[37]. The appeals were heard together on 5 April 2017, and the Court’s judgment is presently reserved.  In the meantime, the Full Court’s decision in SZTAL must be followed.

   [36] SZTAL v Minister for Immigration [2016] FCAFC 69 at [67]-[68]

   [37] SZTAL v Minister for immigration & Anor (S272/2016) and SZTGM v Minister for Immigration & Anor (S273/2016)

3. In any event, the Tribunal found[38] that the applicant would not suffer harm that was of sufficient severity to rise to the level of significant harm, before going on to consider whether the poor prison conditions to which the applicant would be subjected would be intentionally inflicted.

   [38] CB 271 at [51]

4. I conclude that the applicant is unable to demonstrate that the decision of the tribunal is affected by any jurisdictional error. 

5. I will order that the application filed on 9 March 2015 be dismissed.

6. In consequence of the dismissal of the application, the Minister seeks an order for costs, fixed in the sum of $5,800.  The applicant claims impecuniosity, but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order.

7. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 13 June 2017