ADG15 v Minister for Immigration

[2015] FCCA 3340

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADG15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3340

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal applied the correct test – whether the Tribunal considered the applicant’s detention upon return to Sri Lanka – whether the Tribunal considered the applicant’s claim of membership of a particular social group – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2), 91R

Minister for Immigration & Border Protection v WZAPN [2015] HCA 22; 89 ALJR 639
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; 144 FCR
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZSPE v Minister for Immigration & Border Protection [2014] FCA 267
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64

Applicant: ADG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 585 of 2015

Judgment of: Judge Smith

Hearing date: 13 October 2015

Date of Last Submission: 13 October 2015

Delivered at: Sydney

Delivered on: 21 December 2015

REPRESENTATION

Counsel for the Applicant: Mr A. Kumar

Solicitor for the Respondents: Mr K. Eskerie, Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 585 of 2015

ADG15

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 13 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), s.3 sch.2.

2. In order to succeed in this application the applicant must establish that the Tribunal’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. For the reasons that follow he has failed to do so and the application must be dismissed.

Background and claims

1. The applicant is a citizen of Sri Lanka who arrived in Australia by boat on 13 August 2012 and lodged an application for a protection visa on 3 May 2013.

2. The applicant claimed to fear harm in Sri Lanka for a number of reasons. These reasons were essentially based upon his ethnicity as a Tamil and his previous involvement with the separatist organisation Liberation Tigers of Tamil Eelam (LTTE). He claimed that during the last months of the civil war, in March and April 2009, he was forced to work digging trenches and bunkers for the LTTE. He claimed that after the war ended he was taken with his family to a camp. When he was released from the camp in August 2009, he claims he was harassed by the authorities because he came from an area which had been a stronghold of the LTTE.

3. The applicant said that he decided to go to Malaysia but that when he went there he was refused entry and was sent back to Sri Lanka. On return he was questioned as to why he had left Sri Lanka but was released and went back to live in the North of Sri Lanka until his departure to Australia.

4. The applicant claimed that were he to return to Sri Lanka he would face harm on account of his previous involvement with the LTTE, his ethnicity, the fact that he had sought asylum in Australia and because he had left Sri Lanka illegally.

5. On 31 December 2013, a delegate of the first respondent made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision. The applicant attended a hearing conducted by the Tribunal on 10 February 2015 and the Tribunal made its decision affirming the decision of the delegate on 13 February 2015.

The Tribunal’s decision

1. The Tribunal accepted most of the applicant’s factual claims. It accepted that he had been forced to work digging trenches and bunkers for the LTTE and that he had told the authorities about this. However, given that the authorities were very aware of the extent of the applicant’s involvement with the LTTE and had yet allowed him to return to his village, the Tribunal found that he was of no concern to them despite his involvement with that organisation.

2. The Tribunal also accepted that the applicant had been hit during questioning by the authorities in the aftermath of the civil war. However, the Tribunal found that this did not reflect any real chance that he would be subject to similar harm in the future.

3. The Tribunal accepted that the applicant was deported from Malaysia in July 2011 and was questioned at the airport by the Criminal Investigation Department (CID) about his reasons for travel and his involvement with the LTTE. However, the Tribunal found that the applicant was not of any ongoing interest to the authorities for reasons of his political opinion arising from any real or suspected links to the LTTE. It concluded that the applicant was not currently of concern to the authorities, in that he would not be so in the reasonable foreseeable future.

4. The Tribunal briefly dealt with a claim made, and then abandoned, by the applicant concerning his fishing activities. It found that there was no credible suggestion that he faced any difficulties earning a living as a fisherman due to anything other than the uncertain and precarious nature of that industry.

5. The Tribunal then turned to consider the possibility of any harm that might accrue to the applicant on the basis of his ethnicity, involuntary returnee as a failed asylum seeker and his illegal departure from Sri Lanka.

6. As to the first of these, the Tribunal found that none of the conditions to which the applicant might be exposed to on account of his ethnicity amounted to persecution within the meaning of the Migration Act 1958 (Cth).

7. The Tribunal next found that the fact that the applicant had claimed asylum in Australia would not have any impact on the way that he would now be viewed by the Sri Lankan authorities particularly in light of the fact that he had clearly not been viewed adversely before. The basis for this finding was not only that the applicant had been questioned but not harmed upon his return from Malaysia, but also country information concerning the fate of asylum seekers returning to Sri Lanka from abroad.

8. The Tribunal rejected the submission made by the applicant’s representative that he would be treated differently on return from Australia because he had previously travelled to Malaysia. Rather, it found that upon return to Sri Lanka he would probably be detained for questioning, and that security and character checks would be undertaken. It found that he may be remanded and charged with an offence under sub-s.45(1)(b) of the Sri Lankan Immigrants and Emigrants Act because he had departed Sri Lanka illegally. However, it found on the basis of the information before it that any investigation would be brief and he would not be subject to any more severe penalty, that any period of detention would be short (not more than four days at most) and that he would be released on bail. If he were convicted, the Tribunal found that he would be fined but that none of this treatment amounted to convention persecution because it would be the result of non-discriminatory application of a law of general application.

9. For those reasons the Tribunal found that the applicant did not have a well-founded fear of persecution for a Convention[2] reason and so did not satisfy the criterion set out in sub-s.36(2)(a). It then turned to consider the complementary protection criterion in sub- s.36(2)(aa).

   [2] 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

10. In this respect, the Tribunal found that that the period of detention that the applicant was likely to undergo as result of his breach of the Immigrants and Emigrants Act and the other processes already considered by the Tribunal did not amount to any form of significant harm as defined in the Migration Act. In particular, it found that, although the conditions in the prison and otherwise in detention may be poor, none of the harm that might come to the applicant would be intentionally inflicted upon him or amount to the death penalty or arbitrary deprivation of his life.

11. For those reasons the Tribunal concluded that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that there was a real risk he would suffer significant harm. Accordingly, the Tribunal was not satisfied that the applicant met the requirements of sub-s.36(2)(aa) of the Act and so affirmed the decision of the delegate.

Consideration

1. The applicant relied on an amended application which, while it was filed without leave, contained essentially the same grounds contained in the original application. For that reason, and because the Minister was able to respond to those grounds, I will deal with the grounds raised in the amended application.

First ground: failure to apply the correct test

1. The gist of this ground is the argument that the Tribunal failed to consider whether the applicant might face harm in Sri Lanka. This was on the basis of the combination of his previous return to Sri Lanka from Malaysia and his prospective return to Sri Lanka from Australia.

2. The claim that was actually made by the applicant to the Tribunal was that he would be treated differently upon return from Australia than he had previously been treated because, on this occasion, in contrast to his trip to Malaysia, he had actually applied for asylum: see [26] of the Tribunal’s reasons. Indeed, the applicant said at the hearing that he had no particular concerns about what might happen to him on return to Sri Lanka including at the airport: [45]. In any event, the Tribunal rejected the submission made by the applicant at the hearing, saying that it did not accept that he would be subjected to any more rigorous investigation that might involve serious harm because of the circumstances in which he would now be returning: [47].

3. There was no claim made by the applicant, and none arose on the material before the Tribunal, to the effect that the mere fact that the applicant had been deported from Malaysia in the past might somehow increase the risk of harm that might be faced by the applicant. For that reason, it was not incumbent upon the Tribunal to consider whether that fact, in combination with other facts, might support the applicant’s claim to satisfy the criteria for the grant of the protection visa. The Tribunal is only obliged to consider a claim that is either expressly made by an applicant or one which is raised squarely on the material before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263; 144 FCR 1. This ground is rejected.

Second ground: error in dealing with the possible detention of the applicant

1. There is considerable confusion in the way in which this ground is expressed. However, it appears that there are three complaints, all of which concern the way in which the Tribunal dealt with its finding that the applicant was likely to be detained for a short period upon return to Sri Lanka because of his illegal departure from that country. The first complaint is that the Tribunal failed to assess whether the detention of the applicant constituted significant harm or serious harm within the meaning of the Act.

2. The reference to “serious harm” in this argument arises from the terms of s.91R(1) of the Act (as it was in May 2013) which provided:

   (1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b)the persecution involves serious harm to the person; and

   (c)the persecution involves systematic and discriminatory conduct.

   (Emphasis added)

3. Thus, the question of whether there was a risk of serious harm was a matter that arose in connection with the criterion in sub-s.36(2)(a) of the Act. In addressing that criterion, the Tribunal found that any harm would not amount to Convention persecution because it would be simply the non-discriminatory application of a law of general application: [45]. In other words, any harm that might be suffered by the applicant would not be "for reasons of race, religion, nationality, membership of a particular social group or political opinion". If the harm feared is not for one or more of these reasons, no matter how severe that harm is, it does not bring a person within the definition of a refugee for the purposes of the criterion in sub-s.36(2)(a). For that reason, the Tribunal’s finding about the application of the law was determinative of the question raised by that provision and it was unnecessary for it to further consider whether the harm was sufficient to amount to “serious harm” within the meaning of s.91R of the Act.

4. The term “significant harm” arises from the criterion in sub-s.36(2)(aa) which provided:

   (2)A criteria for a protection visa is that the applicant for the visa is:

   …

   (aa)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; or

   …

   (Emphasis added)

5. The Tribunal expressly considered whether the treatment that might be faced by the applicant would amount to “significant harm” within the meaning of the Act: see Tribunal’s reasons at [53] – [58]. For that reason alone this argument must be rejected.

6. The second part of the ground is that the Tribunal erred by failing to consider whether the detention faced by the applicant was reasonable and proportionate. This argument must be rejected. The question whether the impact of a law is reasonable and proportionate only arises once it has been determined that the law is, in a relevant sense, discriminatory: Minister for Immigration & Border Protection v WZAPN [2015] HCA 22; 89 ALJR 639 at [77] (French CJ, Kiefel, Bell and Keane JJ).

7. The third element of this ground is that the Tribunal misconstrued or misapplied the words “intentionally inflicted” and “intended to cause” in the definition of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s.5(1) of the Act. To the extent that the applicant argues that the poor prison conditions could give rise to significant harm to the applicant, either because the authorities were negligent in respect of those conditions or simply because they were aware of them, his argument is inconsistent with recent decisions of this Court and of the Federal Court: SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64 and (in respect of negligence) SZSPE v Minister for Immigration & Border Protection [2014] FCA 267. While an appeal from the first of these decisions has been heard by the Full Court of the Federal Court, a decision in that appeal has not been handed down. Unless and until the decision is set aside on appeal, I am bound to apply it unless I consider that it is clearly wrong. I do not consider that it is clearly wrong. Clearly enough, as the second decision is a decision of the Federal Court, I am bound by it regardless of whether I consider it is wrong or not.

8. The second ground is rejected.

Third ground: failure to consider claim of particular social group

1. This ground must fail. The Tribunal clearly dealt with all of the applicant’s claims both on an individual and intuitive basis: see [25] and [42] – [58] of the Tribunal’s reasons.

Conclusion

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

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  21 December 2015