AET15 v Minister for Immigration

[2016] FCCA 1303

FEDERAL CIRCUIT COURT OF AUSTRALIA

AET15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1303

Catchwords:
MIGRATION – Protection visa application – review of decision of Refugee Review Tribunal – whether the Tribunal breached its statutory duty imposed by s.424A of the Migration Act 1958 (Cth) – element of intention in “significant harm” – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(aa), 424A, 424AA

Cases cited:
R v Ping [2006] 2 Qd R 69
SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZQDR v Minister for Immigration & Border Protection [2016] FCA 543
SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64
SZUMS v Minister for Immigration & Border Protection [2016] FCA 542

Applicant: AET15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 700 of 2015

Judgment of: Judge Smith

Hearing date: 18 August 2015

Date of Last Submission: 18 August 2015

Delivered at: Sydney

Delivered on: 3 June 2016

REPRESENTATION

The applicant appeared in person

Counsel for the First Respondent: Mr J Kay-Hoyle

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 700 of 2015

AET15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant comes from Sri Lanka where he says that he will face persecution from the authorities for reason of his Tamil ethnicity and suspicion that he is a member of, or supports the Liberation Tigers of Tamil Eelam (LTTE). He claimed that the authorities found weapons that were hidden in his property by the LTTE. The applicant came to Australia by boat without a visa and made an application for a protection visa on arrival. That application was unsuccessful before a delegate of the Minister and was affirmed on review by the Refugee Review Tribunal[1].

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

2. The applicant now seeks judicial review of the Tribunal’s decision. The issue raised by him is whether the Tribunal erred by failing to provide the applicant with the opportunity to address adverse information.

The applicant’s claims

1. The applicant was married in 2005 and shortly afterwards returned to Qatar to work. When the applicant returned in 2009 he lived with his wife and family in Colombo. However, weapons had apparently been hidden in the house by members of the LTTE known to his brother-in-law. They were discovered in the backyard of the property by the authorities. The applicant and his brother-in-law were questioned by the police. The applicant was released but his brother-in-law was charged and detained for a period of approximately 18 months.

2. The applicant unsuccessfully tried to travel to the United States and was forcibly returned to Sri Lanka. The applicant left Sri Lanka and spent a number of years in Qatar before returning to Sri Lanka in 2009. There were no incidents until late 2011 or early 2012 when the applicant started to receive threats by telephone. The people spoke in broken Tamil and did not identify themselves. They said that the applicant had stored weapons in his home and as a result was involved in activities against the government and would be appropriately punished. In May 2012 men in civilian clothes came to the applicant’s home identifying themselves as police and asked him to go with them to the police station. The applicant did not comply with the request but went to the station the next day where he was told that the police had not called for him and had not sent anyone to his home.

3. The applicant then moved his family to Vavuniya in July 2012 and fled the country on 25 July 2012.

4. A delegate of the Minister made a decision on 20 December 2013 to refuse to grant the applicant a protection visa. The applicant then applied to the Tribunal for review of that decision. The applicant was represented by an agent for the purposes of the review. He attended a hearing conducted by the Tribunal on 3 February 2015 and produced a document apparently written in Sinhalese. As neither the applicant nor the interpreter could read it the Tribunal obtained an unofficial translation of it from a member of its staff who reads Sinhalese. According to that translation the document was addressed to the applicant’s brother-in-law at the applicant’s address and requested the brother-in-law to attend the “above court house” with documents relating to particular court proceedings identified by a particular file number. The applicant and his representative accepted that the translation was accurate although they were given the opportunity to provide their own translation if they wished to do so.

5. The Tribunal made its decision on 5 March 2015 affirming the decision of the delegate.

Tribunal’s decision

1. The Tribunal found that the applicant had not presented a credible account of the circumstances which he claimed to have led him to leave Sri Lanka. It found that the applicant had given evidence about the discovery of the weapons at his house that was inconsistent in key respects and that in any event, the claim that he was suspected of hiding LTTE weapons and yet was released shortly after questioning was highly implausible. In light of those two matters the Tribunal did not accept that weapons were discovered on the applicant’s property.

2. As a consequence of this finding the Tribunal also rejected the applicant’s claim that his brother-in-law was arrested and detained.

3. The Tribunal rejected the applicant’s claims about the attempted abduction by men posing as police, noting in particular that it was implausible that these people would have been so easily discouraged, or that he would have stayed in his home after such an event.

4. In light of the Tribunal’s rejection of the weapons claim, the Tribunal also rejected the applicant’s claim that he had received telephone threats in late 2011 and early 2012 in connection with the discovery of weapons in 2006.

5. The Tribunal then considered the document produced by the applicant at the hearing. It noted that it was clearly not an arrest warrant or summons and found that it was highly unlikely that if the applicant’s brother-in-law was wanted by the police because he had skipped bail on charges of possessing LTTE weapons, he would have been requested to go to the police station by means of a document such as that. For that reason it found that the document did not support the applicant’s claim that his brother-in-law was wanted for some serious security matter.

6. On the basis of these findings, the Tribunal did not accept that there was any real chance that the applicant would face harm of any kind from the Sri Lankan security authorities should he return to Sri Lanka now, or in the reasonable foreseeable future, for any reason connected with a claim concerning the discovery of weapons on the property in 2006 or that he would be suspected of LTTE involvement, or support of that organisation.

7. The Tribunal then considered the more general claims made by the applicant on the basis of his Tamil ethnicity and the fact that he would be returning to Sri Lanka as a failed asylum seeker who had left illegally. On the basis of country information available to it, the Tribunal did not accept that the applicant had any well-founded fear of persecution for these reasons. In particular, it noted that while he would face brief detention for reasons of his illegal departure that would be by virtue of the operation of the law of general application that was applied in a non-discretionary basis and therefore would not amount to Convention[2] based persecution.

   [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.

8. For those reasons, the Tribunal found that the applicant did not satisfy the criterion set out in sub-s.36(2)(a) of the Migration Act1958 (Cth).

9. The Tribunal then turned to consider the alternative criterion in sub-s.36(2)(aa), often referred to as the complementary protection criterion. This criterion required the Tribunal to consider, amongst other things, whether there was a real risk that the applicant would suffer significant harm. It found that there was not. Importantly, for present purposes, the Tribunal considered that, while the applicant may be detained for a short period upon return to Sri Lanka for having left that country illegally, and that the conditions in prison or detention may be poor, any harm that might be suffered by the applicant was not significant harm within the meaning of the Act. This was principally because the definition of “significant harm” required relevantly that there be an act or omission that causes and is intended to cause, amongst other things, extreme humiliation and the Tribunal did not accept that severe overcrowding and poor conditions were intended to cause such harm.

10. For those reasons, the Tribunal affirmed the decision of the delegate to refuse to grant the applicant a protection visa.

Consideration

1. The ground in the application is as follows:

   The RRT did not give me an opportunity, by way of natural justice, after the hearing, to respond to negative information which it intended to use to refuse my application.

   Particulars

   The RRT did not accept my main claim in regard to discovery of weapons on my property and subsequent related events which happened. Consequently, the RRT failed to send me a s424A letter with the adverse information for my comments or to invite me for a second hearing for my oral submission in regard to the adverse information. Therefore the RRT has breached sections 424A and 424AA of the Migration Act.

   …

2. The operation of ss.424A and 424AA has recently been explained in some detail by Griffiths J in SZUMS v Minister for Immigration & Border Protection [2016] FCA 542 at [20]–[24] and SZQDR v Minister for Immigration & Border Protection [2016] FCA 543 at [29]–[36]. It is unnecessary to repeat that analysis here.

3. In essence, the Tribunal is required to give an applicant particulars of “information” that it considers would be the reason or part of the reason for an adverse decision and to invite him or her to comment on or respond to that information. Importantly, “information” does not include the thought processes of the Tribunal, information given by the applicant for the purposes of the review and information that does not specifically relate to the applicant. Further, the Tribunal has an option to fulfil any obligation to give those particulars orally at a hearing in accordance with the provisions of s.424AA.

4. The applicant did not specify what “information” the Tribunal was obliged to give him particulars of. I can discern no information within the meaning of s.424A(1) which the Tribunal considered would be the reason or part of the reason for its decision. First, although it did refer to evidence given by the applicant at an interview with the delegate, one might have thought that evidence would have been a relevant step towards rejecting, not affirming, the decision under review: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17]. Secondly, the Tribunal also referred to certain information concerning the circumstances pertaining to Sri Lanka; however, that information was not specifically about the applicant and so, by operation of sub-s.424A(3)(a), did not fall within s.424A(1). Thirdly, as the Minister submitted, the applicant’s written submissions to the Tribunal expressly adopted all of his previous written and oral testimony. In doing so, he “gave” the information in those submissions and oral testimony to the Tribunal and so it fell within the exception to s.424A(1) found in sub-s.424A(3)(b) of the Act.

5. For those reasons the ground in the application is rejected.

6. As noted above, part of the Tribunal’s reasons for its decision turned upon its view that, in order to constitute “significant harm” particular types of harm had to be intentionally inflicted. That view was supported by a decision of Judge Driver in SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64. At the time of the hearing in this matter, the Full Court of the Federal Court of Australia had recently heard an appeal from that decision. In light of that, the parties both submitted that it would be appropriate for me to reserve my decision until the Full Court handed down its decision and I did so.

7. On 20 May 2016 the appeal to the Full Court of the Federal Court was unanimously dismissed: SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69. In a joint judgment, Kenny and Nicholas JJ held, at [53], that intention with respect to result means to have it in mind to achieve the result. Particular emphasis was placed upon the decision of the Queensland Court of Appeal in R v Ping [2006] 2 Qd R 69 which their Honours found persuasive because it concerned the interpretation of, relevantly, the same concept as the relevant definitions in s.5(1) of the Act, albeit in a different context. Their Honours found, at [59] that “the natural and ordinary meaning of intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”. His Honour Buchanan J found, at [98] that the appellants’ argument could not succeed on the factual findings made by the Tribunal, whatever construction was adopted.

8. In light of that decision, the Tribunal was correct to proceed on the basis that deliberate infliction of harm was a necessary component of certain types of “significant harm” in the Act.

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

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

Associate: 

Date:  3 June 2016