ADQ15 v Minister for Immigration and Anor (No.2)

[2015] FCCA 892

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADQ15 v MINISTER FOR IMMIGRATION & ANOR (No.2) [2015] FCCA 892

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.5, 476, 488 (2A)

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: ADQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 612 of 2015

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

Counsel for the Applicant: Mr D. Godwin

Solicitor for the Respondent:

Mr K. Eskerie

Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 612 of 2015

ADQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 6 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA visa). 

2. The application identifies the following grounds:

   1. The RRT failed to comply with Ministerial Direction Number 56 in contravention of s499(2A)of the Migration Act 1958.

   Particulars
   The RRT failed to take into account the PAM 3 Protection Visas complementary protection guidelines when it made a finding on whether the treatment that applicant would face on return to Sri Lanka might constitute significant harm within the meaning of the Migration Act.

   2. The RRT failed to take into account a relevant consideration.
   Particulars
   The applicant repeats the particulars to ground 2

   3. The Tribunal erred in failing to apply the approach taken by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 in relation to the applicant’s claim to fear harm as a person who had left Sri Lanka illegally.

   4. The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.

   Particulars

   a. The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka: [79].
   b. The Tribunal found that prison conditions in Sri Lanka were cramped and uncomfortable and unsanitary
   c. The Tribunal found that the Sri Lankan government has “acknowledged” the poor conditions in its prisons.
   d. The Tribunal erred in asking itself the question whether it is “an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment” on the applicant.
   e. The Tribunal erred in failing to hold that:
   i. the deliberate act of imprisoning the applicant in conditions that involve pain or suffering comes within the meaning of an act by which pain or suffering is “intentionally inflicted”: s.5; and
   ii. pain or suffering can “reasonably be regarded as cruel or inhuman treatment or punishment at international law. (Sic)

3. The application identifies on the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The Court identified to Mr Godwin, counsel for the applicant that the Court was concerned that the application failed to identify an arguable jurisdictional error and that the Court is minded to consider exercising its summary dismissal powers.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. Mr Godwin properly conceded that ground 3 could not be pressed and was not arguable.

5. In relation to ground 1 Mr Godwin sought to advance that the Tribunal had to make express findings in relation to the Ministerial Direction No. 56 in respect of the matters set out in that direction concerning the PAM3 Refugee and humanitarian - Complementary Protection Guidelines. I do not accept that there is any such obligation to set out findings in relation to the direction given under s.499(2A) of the Migration Act. It is crystal clear from para.10 that the Tribunal had regard to that direction, consistent with s.499(2A) and it was not necessary for the Tribunal to set out in its findings the guidelines in relation to the treatment that the applicant may face on return to Sri Lanka. There is no substance in relation to ground 1 and it discloses no arguable jurisdictional error. In reality ground is an impermissible challenge to findings of fact.

6. In relation to ground 2 Mr Godwin frankly conceded it was dependent in substance on ground 1.  It is clear that the Tribunal took into account PAM 3, as identified in para.10 and is again in reality an impermissible challenge to the findings of fact Accordingly ground 2 is doomed to failure, had no substance and discloses no arguable jurisdictional error. 

7. In relation to ground 4 Mr Godwin sought to argue that it was related to ground 1, but then sought to advance that the Tribunal had misconstrued the law in relation to complementary protection. The Tribunal carefully identified in para.9 the requirements in relation to complementary protection and it is clear from finding of the Tribunal in para.60 to 69 that it took into account s.5 of the Act in relation to the issue of complementary protection.

8. Ground 4 is in substance an impermissible challenge to a finding of fact.  It is clear that the Tribunal took into account the potential impact on the applicant of being jailed and the overcrowding and problems in the Sri Lankan prisons, and the Tribunal made an adverse finding that was open to it that those conditions were not intentionally inflicted, at para.67.  It is in those circumstances that ground 4 is clearly doomed to failure and fails on its face and as expanded above by Mr Godwin to identify any arguable jurisdictional error.

9. The applicant applied for a protection visa in November 2012 which was refused by the delegate on 30 July 2013.  The applicant appeared before the Tribunal on 15 December 2014 to give evidence, and the hearing was conducted with the assistance of an interpreter, together with the applicant’s migration agent.  The Tribunal carefully set out the relevant law to be applied in respect of the two issues the subject of review as identified in para.5.

10. Relevantly, the Tribunal said in relation to the PAM 3:

    10. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

11. The Tribunal made adverse findings of credit in relation to the applicant:

    14. For the reasons that follow, the Tribunal does not accept that the applicant’s claims and does not accept that the applicant will be imputed with any adverse political opinion for any reason or a combination of reasons.

    15. However, the Tribunal does not accept that such incident took place because the Tribunal has formed the view that the applicant’s evidence in relation to that incident is not credible.

12. The Tribunal carefully summarised the problems with the applicant’s evidence in para.16. I note that the adverse findings of credit were clearly open on the material before the Tribunal.  In para.21 the Tribunal said it had formed the view the applicant’s evidence has been untruthful. 

13. The Tribunal found that the applicant had fabricated his evidence in relation to boat incident and made adverse findings as follows :

    21. …The Tribunal is not satisfied that having scars will increase or change the applicant’s profile, having rejected his other claims.

    22. …The Tribunal considers that account to be utterly implausible.

    24. … In his post-hearing submission to the Tribunal the applicant offered a different explanation, stating that he did not present his claims in a consistent and chronological way and he was worried about disclosing the visit by the Karuna group. Again, the Tribunal has difficulty accepting that explanation, given that the applicant was seeking asylum precisely for the reason of his fear of persecution from that group, as well as due to other matters. The Tribunal also notes that the applicant was seeking asylum in Australia, so it makes little sense to suggest that he was too fearful to mention the very reason he was fearful of persecution.

    25. For these reasons, the Tribunal rejects the applicant’s claims that men from the Karuna group visited his home in 2006 and his sisters’ home in 2009 and 2011. The Tribunal has rejected the applicant’s claims relating to the boat incident and does not accept that the applicant has ever been visited by, or threatened by, the members of the Karuna group.

    26. …The Tribunal has formed the view that the applicant will not be imputed with any political opinion, including support for LTTE, for any of these reasons or a combination of any of the reasons to which the applicant refers.

    27. …The Tribunal therefore rejects the applicant’s claim that he would be imputed with any political opinion, or with being an LTTE supporter or sympathiser due to his connection with his cousin, or that the applicant’s own profile would be different, or his adverse profile heightened, as a result of his relationship with his cousin.

    28. The Tribunal has also considered the applicant’s claim that he would be imputed with political opinion because he is a Tamil or because of the area or the refugee camp he lived in. The applicant does not claim to have any personal LTTE connection, other than his links with his cousin who may or may not have been an LTTE supporter and with whom he had no contact for the past thirty years. The Tribunal has rejected the applicant’s claims concerning the boat incident, the Karuna visits and his earlier detention. The Tribunal has rejected the applicant’s claims that, if accepted, would have given him the profile of being an LTTE supporter. The Tribunal does not accept that the applicant will be imputed with any political opinion because he is a Tamil or a Tamil male from a particular area or because he lived in a particular refugee camp.

    36. The applicant’s claim is that he will be perceived as having the relevant profile because he is a Tamil, because of the boat incident, his previous detentions and dealings with the Karuna group, and his cousin and because he sought asylum. The applicant claims that when these matters are considered cumulatively, he has a risk profile which would come to the attention of the authorities if he were returned. The Tribunal has rejected most of the applicant’s claims, including those in relation to the boat incident and his cousin and the Karuna group. The Tribunal’s claims relating to being a failed asylum seeker are addressed elsewhere. The Tribunal finds that any claim that the applicant will be imputed with adverse political opinion and as a threat to the state, and any imputation that the applicant is an LTTE supporter or sympathiser only because he is a Tamil or a Tamil from a particular area, is not consistent with the available country information. Significantly, information in the decision of the Upper Tribunal also indicates that the Sri Lankan authorities are aware that everyone in LTTE dominated areas had some level of involvement with the LTTE during the civil war. As such, the Tribunal does not consider that any of the characteristics identified by the applicant would cause him to be perceived as being an LTTE supporter or sympathiser.

    37. The Tribunal is not satisfied on the evidence before it that the applicant will be perceived as being such a risk.  

    …

    The Tribunal is not satisfied on the evidence before it that the applicant will be perceived as being such a risk.

    38. …The Tribunal does not consider that the applicant has any such characteristics that would bring him to the adverse attention of the army, the authorities or any other group including the Karuna group.

    40. … The Tribunal is not satisfied that it is, given its discrepancies with the applicant’s own evidence. 

    41. … Having considered the applicant’s claims relating to his political opinion singularly and cumulatively, the Tribunal finds that the applicant will not be imputed with any political opinion, including links with LTTE. The Tribunal finds that irrespective of any characteristic, or any combination of such, the applicant will not be imputed with being an LTTE supporter or sympathiser or of otherwise having an opinion adverse to the authorities. The Tribunal does not accept that he will be of any adverse interest to anyone in Sri Lanka. The Tribunal finds that there is no real chance that the applicant will be persecuted for the reason of his political opinion, actual or imputed, if he were to return to Sri Lanka.

14. In relation to the 1992 incident the Tribunal made the following finding:

    41. … The Tribunal also does not accept that such incident would create any particular profile, including any imputed political opinion, for the applicant.

15. The Tribunal addressed the applicant’s ethnicity and relevantly found:

    45. In considering whether the applicant himself faces a real chance of suffering serious harm, his own particular circumstances need to be considered.  The Tribunal has rejected the applicant’s claims relating to LTTE support or any perception of such links. The applicant does not claim to have advocated for a separatist state or to have otherwise been politically active. The chance therefore of the applicant being arbitrarily killed, kidnapped/detained or physically harmed by authorities or paramilitary groups based on the applicant’s ethnicity or any political association the Tribunal assesses as remote.

    47. The Tribunal does not consider that if the applicant returns to Sri Lanka that he faces a real chance of suffering discrimination, including any denial of social and economic rights, access to education and healthcare, etc as a result of the applicant’s ethnicity (being a Tamil, a male Tamil from a particular area or any other reason) and / or political association or any other reason or reasons, in the reasonably foreseeable future.

16. The Tribunal carefully turned to the issue of being a failed asylum seeker and the illegal departure from Sri Lanka which was the country in respect of which the applicant was found to be a citizen and against which the claims were assessed.  In this regard, the Tribunal relevantly found:

    49. … Firstly, the applicant has not been living in a refugee camp in India since June 2012, for the past two and a half years, and the Tribunal does not accept that the applicant will be perceived as returning from a refugee camp in India. Secondly, if true, such incidents occurred in 2009, during or shortly after the end of the civil war. Five years have now passed and on the basis of the country information cited elsewhere, the Tribunal does not consider that the events that occurred in 2009 would be repeated in 2014.

    50. … The Tribunal does not accept that such links would necessarily be implied merely by virtue of the applicant’s residence overseas, particularly in Australia where there does not appear to be an active Tamil diaspora advocating against the state.

    52. The Tribunal finds that the applicant has no LTTE connections (actual or perceived), that he will not be imputed with any political opinion and that he has not been involved with people smuggling.

    55. The Tribunal accepts that the applicant will be questioned at the airport, but does not accept that any of the characteristics to which the applicant referred in his application will result in the applicant being questioned more thoroughly. As noted elsewhere, the law in relation to illegal departure, which will result in questioning at the airport and a subsequent fine, is a law of general application that applies equally to every person. The Tribunal finds that it does not involve systematic and discriminatory conduct. The Tribunal finds that the processes to which the applicant will be subjected upon return, as a result of illegal departure, will not be applied due to any Convention reason. The Tribunal is not satisfied that the applicant would be subjected to any other form of mistreatment there. The Tribunal also does not consider that being fined, for a relatively small amount (and the applicant does not claim he will be unable to pay such an amount) constitutes serious harm.

    56. The Tribunal accepts that there is a possibility the applicant will be held for a limited period in remand whilst awaiting bail, in conditions that can be poor due to overcrowding and in unsanitary conditions. The evidence does not establish that the applicant will be singled out or treated any differently because he left Sri Lanka illegally and considers that questioning at the airport, being placed in a remand for a short period and charged is not because he is a Tamil, but because he left Sri Lanka illegally. The Tribunal is not satisfied that the applicant will be imputed with a political opinion because he has left illegally or singled out or treated differently because he is a member of a particular social group, however defined, including a particular social group of failed asylum seekers or any other particular social group. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason. The Tribunal is also not satisfied, that questioning, arrest, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c).

    57. Neither is the Tribunal satisfied that he would be subsequently targeted or subjected to serious harm because he sought asylum in Australia. The Tribunal accepts that Sri Lanka’s Immigrants and Emigrants Act provides for penalties of both imprisonment and fines on conviction for illegal departure. However, on the information the Tribunal is not satisfied that in practice, imprisonment is imposed in such cases, or that courts do not have discretion in sentencing. The Tribunal is not satisfied there is a real chance that the applicant would suffer imprisonment or that he would be subjected to penalties other than a fine. As noted above, while the Tribunal accepts that the applicant may be fined, the Tribunal considers that the fine, as all other steps arising from his illegal departure, reflect the law of general  application and are not applied in a systematic and discriminatory manner or for any Convention reason.

    58. Taking together the independent evidence and the applicant's personal circumstances, and noting in particular the Upper Tribunal report which indicates that the Sri Lankan authorities are aware that many Sri Lankan Tamils travelled abroad as economic migrants (and would therefore not impute the applicant with any adverse political opinion as a result of seeking asylum overseas or being failed asylum seekers), the Tribunal is not satisfied that the evidence establishes that there is a real chance that he would suffer serious harm on arrival in Sri Lanka or at any subsequent point, because he is a failed asylum seeker or because he is a returnee from a western country or because he departed the country unlawfully.

    59. The submissions from the applicant’s representative refer to a variety of other claims or bases for persecutory harm. The applicant has not pursued these claims in oral evidence. The Tribunal considers that the reasoning above with respect to the specific issues also addresses remaining claims made by the applicant and his representative. Essentially, for the reasons stated above, and having regard to the available country information, the Tribunal finds that there is no real chance that the applicant will be persecuted for any Convention reason, including his race, religion, political opinion or membership of any particular social group, however defined, or combination of these reasons, if he were to return to Sri Lanka, now or in the reasonably foreseeable future. The Tribunal finds that the applicant does not have a well-founded fear of persecution.

1. It is in those circumstances that the Tribunal turned to the issue of complementary protection and relevantly found:

   61. The Tribunal has found above that there is no real chance, nor a real risk, that the applicant will suffer harm of any kind, and no discrimination, on return to Sri Lanka for the reasons he has claimed such as his race or ethnicity, actual or imputed political opinion, being a failed asylum seeker, any personal characteristic or other matters identified above.

   64. … Having regard to the DFAT advice, the Tribunal does not accept 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 or specifically that he will be arbitrarily deprived of his life, that a death penalty will be carried out on him, that the applicant will experience torture, cruel or inhuman treatment or punishment or degrading treatment or punishment during any period which he may spend in gaol on remand.

   65. The Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable. However, the Tribunal does not accept that that such treatment is intentional, as is required by the law in Australia. 

   66. The Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that 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.

   67. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

   68. The Tribunal finds that there are no 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 prisons due to overcrowding during any period which he may spend in gaol on remand. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.

   69. Having considered the applicant’s circumstances, singularly and cumulatively, the Tribunal is not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer harm which would amount to significant harm.

   70. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

   71. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

2. It is clear that the applicant had a genuine hearing.  There is no substance in any of the grounds or the requirements of the Migration Act 1958.  The proceedings are clearly doomed to failure and the application fails to identify an arguable jurisdictional error. Nothing put by Mr Godwin identified any arguable jurisdictional error. In these circumstances there is no utility in any adjournment as the proceedings are clearly doomed to failure and an adjournment will only add to the costs of the parties and utilise limited court time.   The proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015