ADZ15 v Minister for Immigration

[2015] FCCA 3449

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADZ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3449

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to take into account documents provided by the applicant – whether the Tribunal’s decision was affected by bias by way of prejudgment – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2), 430, 499

Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64

Applicant: ADZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 93 of 2015

Judgment of: Judge Smith

Hearing date: 2 November 2015

Date of Last Submission: 2 November 2015

Delivered at: Perth

Delivered on: 2 November 2015

REPRESENTATION

The Applicant appeared in person.

Solicitor for the Respondents: Mr M. Hawker, Sparke Helmore

ORDERS

1. The application be dismissed.

2. The applicant is to pay the first respondent’s costs fixed in the amount of $5,800.

3. The name of the second respondent be amended to Administrative Appeals Tribunal.

4. Any transcript of today’s hearing produced is to have the name of the applicant redacted.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 93 of 2015

ADZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Ex Tempore & Revised)

1. The applicant is a citizen of Sri Lanka, who arrived in Australia in August 2012 without a visa. On 17 June 2013 he applied for a protection visa. That application was rejected by a delegate of the first respondent on 17 February 2014, and the applicant applied to the Tribunal for review of that decision. The Tribunal affirmed the decision of the delegate on 6 February 2015.

Background

1. The applicant now seeks judicial review of the Tribunal’s decision. He raises two grounds: the first is that he submitted material to support his claim that his father was shot by the Sri Lankan Army, but they were not assessed by the Tribunal. The second ground is that the Tribunal was biased because he had only relied upon information from the Department of Foreign Affairs and Trade (DFAT) and not on other information concerning the circumstances in Sri Lanka.

2. In order to understand those grounds and their resolution, it is necessary to have regard to the factual claims made by the applicant, as well as the course of the review by the Tribunal and its findings. The applicant’s claims were essentially set out in his statutory declaration of 3 May 2013. In essence, he claims that he fears harm at the hands of the authority because of his ethnicity, being Tamil, and the perception that he is connected with the Liberation Tigers of Tamil Eelam (LTTE). 

3. The first part of the applicant’s factual claims involve his father, who he said was shot and killed by the Sri Lankan Army in 1988. The applicant submitted a number of documents to the Department of Immigration in support of that claim, and it will be necessary to return to those documents. The next aspect of the applicant’s claims was that in 2005 he was forced to undergo physical training by the LTTE. After he had done that, and fearing recruitment by the LTTE, he fled his hometown and went to a neighbouring village. 

4. On his way there he was captured by the Sri Lankan Navy and questioned. He them that he had undertaken training with the LTTE. He then claimed that he was questioned by the CID through the night and beaten by them, although he did not sustain serious injury. Subsequently, he claimed that he was questioned bi-weekly by the CID and in the last session of that questioning, in around October 2009, he was beaten. 

5. The applicant then moved to another district, where he was also questioned by the CID. The applicant moved again and there he was questioned twice by the CID. On subsequent occasions he was blindfolded and moved to a different area for questioning. The last person to question him pointed a gun at him. He was finally released when his brother-in-law paid money to the CID. He claims that he fears that if he were returned to Sri Lanka, he would be taken to an infamous torture place in Colombo by the CID. 

6. As I have said, the delegate of the first respondent refused to grant the applicant a visa on 17 February 2014, and the applicant applied to the Tribunal for review of that decision. The applicant was invited to and attended a hearing before the Tribunal on 23 January 2015. Prior to the hearing, submissions were lodged on his behalf by a migration agent. 

The Tribunal’s decision

1. The Tribunal accepted that the applicant’s father had been shot as claimed by the applicant, but not that he was shot by the Sri Lankan Army on suspicion of being a supporter of the LTTE. It accepted the applicant’s claims that he had been questioned on a number of occasions in connection with his training with the LTTE, and that he had in fact undertaken physical training in 2005/2006, and that the LTTE had come to his home wanting to recruit him. However, it did not accept that while being questioned he was actually accused of being LTTE because of this physical training, or that he had been physically mistreated.

2. The Tribunal said that it did not regard it as credible that he would be perceived by the Sri Lankan Army as being LTTE simply because he had undertaken some physical fitness training under the direction of the LTTE. The only basis for that finding appears to be the Tribunal’s statement that all the working men and women in the applicant’s village were ordered to undergo such training. That, with respect, appears to be a slender basis for the Tribunal’s conclusion. Nevertheless, there is some logical connection between the two and I do not find that there is any relevant error in it. 

3. More importantly, the Tribunal found that the applicant’s evidence in connection with being mistreated was internally contradictory, and, further, had country information available to it that the camp at which he said he was mistreated was a welfare camp set up for families where the UNHCR was present. There appears to be other more substantial grounds for the Tribunal’s rejection of the applicant’s particular claim. The Tribunal then considered the interactions between the applicant and the CID between 2009 and 2012. In this respect, the Tribunal accepted that the applicant may have been visited by the CID following his arrival in certain places, but did not accept that he was visited on the second occasion in the circumstances that he claimed. 

4. The Tribunal explained that the applicant did not have the profile of a person who was of interest to the CID. This was because his only involvement was to undertake physical training and that was along with all other working men and women in his village. For those reasons, the Tribunal found that the visit by the CID was nothing more than a visit to determine that the applicant’s whereabouts were accounted for.

5. The Tribunal then considered the applicant’s claims raised at the hearing about what had occurred in Sri Lanka after he had left the country. The Tribunal found that the visits by the CID were once again routine inquiries as to the applicant’s whereabouts. In respect to the applicant’s brother-in-law who had been jailed, the Tribunal found that it was in connection with the assistance given by him to the applicant to depart Sri Lanka illegally.

6. The Tribunal then turned to consider the question of what would occur to the applicant if he were to return to Sri Lanka in the reasonably foreseeable future. First it considered the applicant’s religion, but found that he had not claimed any fear of harm on the basis of religion. I know that this consideration probably arises from an anonymous reference in the applicant’s adviser’s submissions that refer to religion without any detailed facts set out.

7. The Tribunal then considered the possibility of harm arising for the applicant on the basis of his race and connection with the LTTE. While it accepted that Tamils in Sri Lanka had historically faced and continue to face a degree of harassment and discrimination on account of their ethnicity, it found that any such discrimination that he would face on return did not amount to serious harm. 

8. Next, on the basis of information obtained by the Tribunal from the UNFCR, the Tribunal found that those Sri Lankans who are ethnically Tamil do not face a real chance of serious harm simply because of their ethnicity or other associated factors such as being young, male or geographical origins in the north or east of the country. For that reason, and in addition to the fact that the Tribunal was not convinced that there was anything to exacerbate the applicant’s profile and the fact that he was able to get a passport meant that he would not face serious harm on the basis of his ethnicity.

9. At the same time, the Tribunal rejected the claim that he might face harm on the basis of an association with the LTTE. The Tribunal then turned to consider what might occur to the applicant as a failed asylum seeker on return to Sri Lanka and as somebody who had departed from that country illegally. As to the failed asylum seeker claim, the Tribunal found on the basis of country information that there was no real chance that any failed Tamil asylum seeker would have a political opinion imputed to them or would otherwise be harmed for reason of being a failed Tamil asylum seeker.

10. The Tribunal did find that the applicant would likely to be charged with a breach of the departure laws under sub-s.45(1)(b) of the Sri Lankan Immigrants and Emigrants Act and that he would be held in remand pending a bail hearing. The Tribunal found that he would most likely be remanded in custody when he returned to Sri Lanka and may spend up to a fortnight in jail. However, it accepted advice from DFAT that there were no reports of mistreatment of returnees and found that the brief period of jail that the applicant would spend on remand would be the result of non-discriminatory enforcement of a law of general application rather than for a convention reason. It found that there was no real chance that the applicant would be persecuted for any reason during his period of imprisonment.

11. For those reasons, the Tribunal found that the applicant did not have a well-founded fear of being persecuted for one or more of the convention reasons. It then turned to consider the complementary protection criterion. In this respect, it repeated its finding that the applicant would be charged with offences under the Immigration and Emigration Act in light of his illegal departure and would be imprisoned and most likely fined. However, it found that that period of imprisonment or the fine would not amount to significant harm under sub-s.36(2)(a) of the Act. 

12. The Tribunal then considered the prison conditions in Sri Lanka. It found that those conditions were poor, but was not satisfied that any period in custody would involve treatment of the kind mentioned in sub-s.36(2)(a) of the Act. It gave the following reasons for that at [53]:

    The Tribunal accepts that prison conditions in Sri Lanka are poor but it is not satisfied on the evidence before it that any period in custody on remand would involve treatment of the kind mentioned in s36(2A) of the Migration Act. It makes this finding based on reports regarding the conditions in Negombo prison which have been described as overcrowded and unsanitary, although there is no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Immigrants and Emigrants Act have been subjected to torture or other forms of deliberate mistreatment.

    (Footnotes omitted)

13. It made this finding based on reports regarding the conditions in Negombo Prison which had been described as overcrowded and unsanitary, although there was no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Immigrants and Emigrants Act had been subjected to torture or other forms of deliberate mistreatment. The Tribunal concluded that there was not a real risk that the applicant would suffer significant harm upon return to Sri Lanka as a Tamil, who left Sri Lanka illegally and who has applied for asylum in Australia. It found also that for the reasons previously given, the criteria in sub-s.36(2)(aa) of the Act, the complementary protection criterion were not met. For those reasons, the Tribunal affirmed the decision of the delegate.

Consideration

Grounds of application

1. The grounds in the application filed by the applicant are: first jurisdictional error; secondly, bias; and third, denial of natural justice. Those grounds have been focused in a written document handed up to the Court dated 2 November 2015.

Ground one

1. The first ground is stated as follows:

   I have already submitted two documents to show that my father was shot by the Sri Lankan army. However the significance of this was not assessed in a proper manner by the Tribunal as seen in paragraph 13 of the Tribunal’s Report.

2. As I have said earlier, there were a number of documents submitted by the applicant in support of his claim that his father had been shot by the Sri Lankan Army. The first is a document from the Register of Deaths, which refers to the death on 21 December 1988, due to gunshot. The second is a letter signed by the parish priest of Saint Fatima’s Church dated 27 April 2013 in which the author writes: “He lost his father in a gunshot in 1988 …”.

3. Another document from the divisional secretariat of an area in Sri Lanka makes a report apparently from the applicant’s wife saying, “Father was missed due to the gunshot in 1988.” At [13] of the Tribunal’s reasons, the Tribunal says:

   Mr Lawrence claims that in 1988 his father was suspected of helping the LTTE and that he was shot dead by the Sri Lankan army. He was ambushed by the SLA as he was driving past a cemetery on his way home to Jaffna. A copy of his father’s death certificate has been provided and this confirms that his father died by gunshot at the Ponnalai cemetery and this is accepted by the Tribunal. When asked by the Tribunal how he knew that his father was suspected of being an LTTE supporter he indicated that he had been young at the time and that he was told these things by his mother. He did not know whether the authorities had shown any adverse interest in his father prior to his father being fatally shot. On the basis of the evidence before it the Tribunal is not satisfied that Mr Lawrence’s father was shot by the SLA on suspicion of his being an LTTE supporter.

   (Footnotes omitted)

4. The applicant’s complaint is that the Tribunal did not assess the documents he relied upon in support of his claim concerning his father’s death.  There are two difficulties with his argument. The first is that on their face the documents do no more than corroborate the claim that the applicant’s father was killed by gunshot in 1988. They do not contain any reference to the critical element of the applicant’s claim that the gunshot was, first by the Sri Lankan Army, and second, because of its suspicion of the father’s involvement in the LTTE. Thus, the documents themselves were of such significance that the failure to analyse them might indicate jurisdictional error.

5. Secondly, the Tribunal’s reason for not accepting the applicant’s claim was the applicant’s own evidence given by him at the hearing. In particular, firstly, that the applicant had been young at the time of his father’s death and, secondly, that he did not know whether the authorities had shown any adverse interest in his father prior to his father being fatally shot. Given that the Tribunal had a specific basis for its conclusion and the nature of the material relied upon by the applicant, it was under no obligation under s.430 of the Act to do any more in respect of those documents. For those reasons, the first argument is rejected.

Ground two

1. The second argument is as follows: 

   I submit that here was bias in assessing the true situation of the Sri Lankan Tamils as the Tribunal acted in accordance with Ministerial Direction number 56, and the Tribunal taking into account only the assessment of the Department of Foreign Affairs and Trade in relation to the situation in Sri Lanka.

   The reports on Sri Lanka by other international organisation like the UNHCR has been ignored and to this extent there had been bias in the procedure taken by the Tribunal.

2. I take the allegation of bias to be one of prejudgment by the Tribunal.  The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to being incapable of alteration whatever the evidence or arguments may be presented: see Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507. If it is not intended that actual bias be relied upon then the question is whether a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the resolution of the question it is required to decide.

3. It is important in every case of actual or apprehended bias to understand the context in which a decision is made. In this case, it was made by an administrative body constituted under Act. As such it has, and exercises, functions or powers under that Act. The Minister has power under s.499 of the Act to give written directions to a person, like the Tribunal, who exercises functions and powers under the Act. If the Minister does so, then that person or body must comply with such a direction. The Minister has, in accordance with s.499, given Ministerial Direction No.56.

4. That direction requires the Tribunal to take into account policy guidelines prepared by the Department of Immigration, as well as any country information prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent they are relevant.  Because the Tribunal is required by the Act to follow the direction made by the Minister, and thus to have regard to the reports of DFAT, it cannot be that the fact that it actually complies with the direction, and has regard to reports by DFAT, has any bearing on whether it has prejudged the matter.

5. The applicant’s argument goes a step further to say that the Tribunal only had regard to reports by DFAT. The problem with that submission is that it is factually incorrect. For example, in addition to referring to reports by DFAT in relation to the circumstances in Sri Lanka, the Tribunal had regard to articles from the Sydney Morning Herald (see footnotes 17 and 19 of the Tribunal’s decision), to guidelines prepared by the UNHCR (see [35]), as well as a report from the United Kingdom upper chamber and the Home Office country information and guidance report (see [37]). 

6. For that additional reason, I would reject the applicant’s claim that there was any basis, either actual or apprehended, apparent on the material before the Court. For those reasons, neither of the grounds raised by the applicant has established jurisdictional error. 

7. There is one further relevant matter. I have above set out parts of [53] of the Tribunal’s reasons. That raises the question of the extent of the meaning of the word “deliberate” in s.5 and sub-s.36(2)(a) of the Act.

8. The current state of the law is that in order to come within the definition of s.5 of significant harm, there must be actual subjective intention to cause harm (see SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64 at [46]). As SZTAL is the decision of another judge of this Court, I am bound to apply it unless I think it is clearly wrong. That decision has been appealed to a Full Court of the Federal Court, and the appeal was heard in August of this year, although judgment has not yet been handed down. I do not think Judge Driver was clearly wrong, and for that reason I do not think that there is any error in [53] of the Tribunal’s reasons.

Conclusion

1. If I am wrong to apply SZTAL, or if SZTAL proves to be wrong, then my conclusion might also be incorrect. Nevertheless, for the reasons that I have given, I conclude that there is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:

Date:  23 December 2015