ADP15 v Minister for Immigration

[2016] FCCA 44

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADP15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 44

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

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2), 91R(1)

Minister for Immigration & Border Protection v WZAPN [2015] HCA 22; 89 ALJR 639
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64
WZAPN v Minister for Immigration & Border Protection [2014] FCA 947; 229 FCR 477

Applicant: ADP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 611 of 2015

Judgment of: Judge Smith

Hearing date: 21 October 2015

Date of Last Submission: 21 October 2015

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

The Applicant appeared in person

Counsel for the First Respondent: Mr J. Mitchell

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 611 of 2015

ADP15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant arrived in Australia on 12 August 2012 and lodged an application for a protection visa on 12 December 2012 claiming that he would be persecuted if he returned to Sri Lanka.

2. The applicant claimed that in 2009 the applicant and his family were living in an area in the North of Sri Lanka where they had moved to as a result of the civil war. In March of that year the applicant was taken from his home by the Liberation Tigers of Tamil Eelam (LTTE) to a camp where he was kept for three days. He managed to escape and then moved with his family to a camp due to the dangerous fighting in and around his home town.

3. The applicant claimed that his father, a fisherman, was forcibly trained by the LTTE during the civil conflict and had provided fish to the LTTE.

4. The applicant also claimed that he came under suspicion of the Sri Lankan authorities as a possible LTTE member or supporter and was stopped five times in May 2012 by soldiers at checkpoints on his way to work. These soldiers shouted abuse at him and pushed him around and stabbed him with a small needle. In June 2012 he fled to seek refuge at a Catholic church in a different town. From there, the applicant left for Australia.

5. On 14 October 2013 a delegate of the Minister made a decision to refuse to grant the applicant a visa. The applicant applied to the Refugee Review Tribunal[1] for review of that decision. He attended a hearing conducted by the Tribunal on 30 January 2015 and indicated for the first time at that hearing that his mother’s uncle was a member of the LTTE and that he had also suffered scarring as a result of the injuries inflicted upon him by the authorities in Sri Lanka.

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

The Tribunal’s decision

1. The Tribunal made its decision on 16 February 2015 affirming the decision of the delegate.

2. The Tribunal accepted that the applicant’s father had been forcibly trained by the LTTE and had provided fish to them. It also accepted that the applicant had been taken to an LTTE camp but that he had managed to escape. In addition, the Tribunal accepted that the applicant’s maternal uncle was an LTTE cadre who had been detained for that reason but then later released.

3. However, the Tribunal rejected the balance of the applicant’s claims about what had happened to him in Sri Lanka on the basis that it considered that his evidence about those events was unsatisfactory. In particular, the Tribunal rejected the applicant’s claim to have been harassed and questioned by the Army or that he had been threatened, stabbed with a needle or slashed with a razor blade. It found that the applicant had never suffered serious or significant harm from the authorities and was not satisfied that pro-Government personnel had come looking for him at his home or that his father had been questioned about his LTTE involvement since he had left for Australia.

4. The Tribunal then considered the risk of harm that the applicant might face upon return to Sri Lanka. The Tribunal considered the risk to the applicant based upon the applicant’s claims relating to his race, political opinion and membership of particular social groups, namely of failed asylum seekers and those who have departed Sri Lanka illegally.

5. First, the Tribunal found that, given the sophisticated Sri Lankan intelligence system, the authorities would be aware of the links between the applicant, his maternal uncle and his father. However, it rejected the possibility that there would be any risk on the basis of these connections since the applicant had not been questioned about his LTTE support or involvement since the end of the civil conflict. Further, it found that the fact that the applicant was a Tamil from the North and/or a former LTTE-controlled area did not provide any basis upon which the applicant might face a real chance of serious harm should he returned to Sri Lanka.

6. It then considered the applicant’s scars. It considered that as they were only of visible on close inspection, the scars would not come to the attention of the authorities. In light of this and its previous findings, the Tribunal was not satisfied that the applicant had, or would have, any actual or imputed political opinions or profile which would give rise to a real chance of serious harm in Sri Lanka in the reasonably foreseeable future.

7. The Tribunal next considered the way in which the applicant might be treated upon return to Sri Lanka as a failed asylum seeker. After referring to extensive country information concerning this question, and taking into account all of it its findings in respect of the applicant’s history and other attributes, it was not satisfied that there was a real chance of him suffering serious harm based cumulatively on his circumstances or as part of the process of convincing the authorities that he was not an advocate of post-conflict separatism. For that reason, the Tribunal was not satisfied that the applicant would face differential treatment for a Convention[2] reason involving serious harm in connection with his unsuccessful application of asylum upon return to Sri Lanka.

   [2] Convention relating to the status of Refugees (1951) as amended by the Protocol relating to the status of Refugees (1967)

8. In respect of the possible consequences of the applicant’s illegal departure from Sri Lanka, the Tribunal accepted that the applicant may be held for several days, possibly up to a fortnight in jail on remand before being given bail. While it accepted that the conditions in Sri Lankan prisons were substandard, crowded and very uncomfortable, it did not accept that there was any deliberate mistreatment of returnees in detention charged under the Sri Lankan Immigrants and Emigrants Act. Further, it found that any consequence of the applicant’s unlawful departure would be the result of the non-discriminatory enforcement of a law of general application and thus would not satisfy the requirements of serious harm under s.91R(1) of the Migration Act1958 (Cth)[3].

   [3] NB: Section 91R was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) but continued to apply to the applicant as his protection visa application was made prior to 17 April 2015.

9. For those reasons the Tribunal found that the applicant did not satisfy the criteria in sub-s.36(2)(a) of the Act.

10. In respect of the criterion in sub-s.36(2)(aa) of the Act, the Tribunal found that the level of discrimination that might be faced by the applicant as a Tamil did not reach the level that would constitute significant harm and that, for the reasons given in respect of the earlier criterion, none of the other personal matters relied upon by the applicant would give rise to a real risk of significant harm. Further, it found that the applicant did not face a real risk of suffering significant harm as part of the process of being temporarily detained and questioned at the airport as a result of being an asylum seeker. It then turned to consider the impact of the applicant’s unlawful departure from Sri Lanka.

11. In this respect its critical findings were made in the following paragraph:

    [134]In terms of the applicant’s treatment in detention, the Tribunal accepts that prison conditions are poor, particularly in terms of overcrowding. The Tribunal does not accept that spending up to a fortnight in jail amounts to ‘significant harm’ or that such treatment is intentional as is required by the law in Australia. The Tribunal does not accept that there is a real risk that the applicant will be subject to ‘torture’ as defined while he is on remand. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Migration Act requires that the pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. The Tribunal does not consider that overcrowding, and very unpleasant conditions, which are a product of the general state of the system and negligence and indifference, have the requisite intention required in the definitions of ‘cruel inhuman treatment or punishment’ and ‘degrading treatment or punishment’. The Tribunal does not accept therefore that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prison.

12. The Tribunal concluded that the applicant did not satisfy the criteria in sub-s.36(2)(aa) and so affirmed the decision of the delegate to refuse to grant the applicant a visa.

13. The applicant now seeks judicial review of the Tribunal’s decision. In order to succeed he must establish that the Tribunal’s decision is affected by jurisdictional error.

Consideration

Ground one

1. The first ground in the application is, in essence, that because the Sri Lankan authorities knew that the prison conditions in Sri Lanka were unhygienic and overcrowded then any degrading and inhuman treatment befalling the applicant in prison in Sri Lanka satisfied the intention requirements stated in s.5(1) of the Act.

2. This argument was expressly rejected by Judge Driver in SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64. In particular, his Honour found that actual, subjective intention is required in order for the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment to be satisfied: SZTAL at [46] – [49]. As SZTAL is a judgment of this Court, I must apply it unless I am satisfied that it is clearly wrong. In my view, Judge Driver’s conclusion derives from a construction of the Migration Act which was open to his Honour and was not clearly wrong.

3. For that reason, it was not sufficient for the applicant that the authorities knew of the conditions of the prisons in Sri Lanka and the Tribunal did not err in proceeding on the basis that the applicant did not satisfy the criterion in sub-s.36(2)(aa) of the Act even though it implicitly accepted that the authorities were aware of those conditions.

4. The first ground is rejected.

Ground two

1. The second ground is that the Tribunal erred by undertaking a qualitative assessment of the detention to which the applicant might be subjected upon return to Sri Lanka. The ground relies upon the judgment of North J in WZAPN v Minister for Immigration & Border Protection [2014] FCA 947; 229 FCR 477. However, that decision has been overturned by the High Court: Minister for Immigration & Border Protection v WZAPN [2015] HCA 22; 89 ALJR 639. In that decision, the High Court affirmed what had, with the exception of the decision of North J, always been the case, namely, that the determination of whether particular conduct amounts to persecution requires a decision-maker to consider the effects of that conduct upon the person in terms of harm to them. In other words, there must always be a qualitative analysis of the impact of particular conduct.

2. The second ground must be rejected.

Grounds raised at hearing

1. The applicant appeared unrepresented before me at the hearing. He did not address either of the grounds in his application but rather said that, when he returned to Sri Lanka, he would be in trouble with the Criminal Investigation Department (CID) and the Army and that the Tribunal was wrong to find that he would not be harmed. The applicant may well be right about what he says; however, it is beyond the scope of this Court’s role and duty to determine or even to consider what might occur to the applicant upon return to his home country. Those were matters for the Tribunal on the material before it. In light of that, the argument does not establish any error, let alone jurisdictional error in the Tribunal’s decision.

Conclusion

1. The application must be dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date:  4 February 2016