AHQ17 v Minister for Immigration

[2017] FCCA 2034

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHQ17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2034

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka due to then pending criminal charges carrying the death penalty – Tribunal found that the applicant would not be harmed for a Convention reason and that he was not entitled to complementary protection – whether the Tribunal overlooked material indicating that the President of Sri Lanka was disposed to enforce the death penalty – jurisdictional error established – observations on the consequence of the acquittal of the applicant on the criminal charges following the Tribunal decision.

Legislation:

Migration Act 1958 (Cth), ss.36, 109, 351, 476, 477

Cases cited:

Applicant NABD of 2002 v Minister for Immigration [2005] HCA 29

ApplicantWAEE v Minister for Immigration (2003) 236 FCR 593

Minister for Immigration v Guo [1997] HCA 22; (1997) 191 CLR 559
SZTAL v Minister for Immigration [2017] HCA 34

W360/01A v Minister for Immigration [2002] FCAFC 211

Applicant: AHQ17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 55 of 2017

Judgment of: Judge Driver

Hearing date: 28 August 2017

Delivered at: Sydney, via videolink to Perth

Delivered on: 20 September 2017

REPRESENTATION

Counsel for the Applicant: Mr M G S Crowley

Solicitors for the Applicant: AUM Legal

Counsel for the Respondents: Mr R G F French

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 9 December 2016 into this Court for the purpose of quashing it.

2. A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to reconsider the review application before it according to law.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 55 of 2017

AHQ17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 9 December 2016.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The following statement of background facts is derived from the submissions filed on behalf of the Minister on 23 August 2017. 

2. The applicant is a citizen of Sri Lanka who arrived in Australia on 2 May 2007 as the holder of a temporary work skilled (subclass UC 457) visa.

3. On 1 March 2012, the applicant was granted a permanent residency visa (subclass 856) under the Employer Nomination Scheme. The applicant requested a police clearance certificate from Sri Lanka as part of the visa application process.

4. On 27 April 2012, the Deputy Inspector General of Police at Police Headquarters Colombo advised the Australian High Commission that the applicant was charged with murder and two counts of causing grievous hurt and that there was an outstanding warrant for his arrest. In Sri Lanka, the penalty for murder is death and the maximum penalty for causing grievous hurt is ten years imprisonment and may also involve a fine.

5. On 11 July 2014, a delegate of the Minister cancelled the applicant’s subclass 856 visa under s.109 of the Migration Act 1958 (Cth) (Migration Act). The applicant sought review of the cancellation decision by the former Migration Review Tribunal, which affirmed the decision to cancel the visa on 9 January 2015.

6. On 4 September 2015, the applicant lodged an application for a protection visa.

7. On 13 July 2016, the delegate made a decision refusing the application for a protection visa.

8. On 21 July 2016, the applicant applied to the Tribunal for a review of the delegate’s decision.

9. On 9 December 2016, the Tribunal affirmed the delegate’s decision.[1] The applicant was notified of the Tribunal decision on 12 December 2016.

   [1] Court Book (CB) 224

Tribunal decision

1. The Tribunal noted that the applicant claimed protection on the basis that he had been charged in Sri Lanka with serious criminal offences and that there is a warrant for his arrest. The Tribunal also noted that the applicant claimed harm from the victim’s relatives.[2]  The Tribunal noted that the applicant no longer claimed to fear harm from his wife’s family for travelling to Australia with his then de facto partner.[3]

   [2] at [18]

   [3] at [41]

2. The Tribunal accepted that:

   a)the applicant was charged in May 2004 with offences (including murder) alleged to have been committed on 30 March 1997 and an arrest warrant was issued in May 2007 after the High Court at Negombo was advised that the applicant had left Sri Lanka and absconded from the hearing;[4]

   b)the applicant would be questioned at the airport upon his return to Sri Lanka;[5]

   c)the applicant would be arrested and detained pending the outcome of the trial;[6] and

   d)if the applicant were found guilty of murder, he would receive the death penalty.[7]

   [4] at [12]-[14], [30], [48]

   [5] at  [30], [50]-[51]

   [6] at [30], [51]-[52], [68]

   [7] at [31], [69]

3. In relation to the criteria in s.36(2)(a) of the Migration Act, the Tribunal was not satisfied that:

   a)the applicant would be imputed with a political opinion because he was a member of the United National Party or would be singled out or treated differently when arrested and detained in Sri Lanka;[8] and

   b)there was a real chance that the applicant would suffer serious harm amounting to persecution on arrival in Sri Lanka, having regard to the applicant’s profile as a Sinhalese economic migrant who departed Sri Lanka legally.[9]

   [8] at [55]-[56]

   [9] at [55], [59]

4. The Tribunal found that the harm feared by the applicant was not because of the applicant’s race, religion, nationality or membership of a particular social or political group[10] and concluded that he was not owed protection obligations under s.36(2)(a) of the Migration Act.[11]

   [10] at [60]

   [11] at [61]

5. The Tribunal also considered the complementary protection provisions in s.36(2)(aa).

6. The Tribunal was not satisfied that there is a real risk that the death penalty would be carried out on the applicant,[12] on the basis of its findings that:

   a)the applicant would be entitled to legal representation, is presumed innocent and would be tried by a jury in proceedings that are open to the public;[13]

   b)the applicant would be able to obtain a fair trial;[14] and

   c)Sri Lanka has maintained a de facto moratorium on the death penalty since 1976.[15]

   [12] at [83]

   [13] at [81]

   [14] at [81]

   [15] at [72], [74], [82]

7. Noting the applicant’s profile and the nature of the criminal charges, the Tribunal was not satisfied that there was a real risk he would be tortured by Sri Lankan authorities while in prison.[16]

   [16] at [101]

8. The Tribunal assessed whether there was a real risk that the applicant would be arbitrarily deprived of his life by the victim’s relatives if he is found not guilty of the offences.[17]

   [17] at [105]

9. The Tribunal did not accept that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would be arbitrarily deprived of his life by the victim’s relatives or that the Sri Lankan authorities would not be able to provide a reasonable level of protection if he returns to his home area.[18]

   [18] at [117]

The present proceedings

1. These proceedings began with a show cause application lodged on 17 January 2017 and filed on 2 February 2017. Under s.477(1) of the Migration Act the last day for the applicant to seek judicial review under s.476 was 13 January 2017. By an amended application filed on 23 August 2017 the applicant sought an extension of time. That application was not opposed by the Minister. It appears that the applicant may have attempted to file his original application as early as 12 January 2017. There is apparent in the application as amended a serious question to be tried and I decided to grant an extension of time under s.477(2) of the Migration Act up to and including 2 February 2017 in the interests of the administration of justice.

2. The applicant now relies upon a further amended application filed on 23 August 2017.  The grounds in that application are:

   The Administrative Appeals Tribunal's (AAT) decision was vitiated by a constructive failure to exercise jurisdiction, or a denial of procedural fairness, in:

   1. Finding that there was not a real risk that the Applicant could be executed upon the death penalty being imposed, but not addressing the public commitment by the President of Sri Lanka to implement the death penalty subject to parliament’s approval, in circumstances where the material suggested that the President has the legal authority to permit the death penalty to be carried out.

   2. Not addressing the claim raised by the material before the AAT that indefinite imprisonment under a sentence of death, where there is the possibility that the death penalty may be implemented at any time, may be cruel or inhuman treatment or punishment or other serious harm

   3. Misconstruing and misapplying paragraph 36(2)(aa) of the Migration Act to construe ‘intention’ as requiring an actual subjective intention.  

3. In relation to Grounds 2 and 3, these grounds were only formally put to preserve the applicant’s rights on any appeal.  The applicant recognised that the Court was bound to refuse those grounds on the basis of the decision of the Full Federal Court in SZTAL v Minister for Immigration[19].  The Full Federal Court’s decision has now been affirmed on appeal by the High Court.[20]

   [19] [2016] FCAFC 69

   [20] SZTAL v Minister for Immigration [2017] HCA 34

4. In addition to the court book filed on 2 May 2017, I have before me as evidence two affidavits made by Ganasan Arujunan made on 22 August 2017 and on 25 August 2017.  Annexed to the latter affidavit is the judgment of the Sri Lankan High Court at Negombo given on 12 May 2017, together with an English translation.

5. Both the applicant and the Minister filed written submissions and made oral submissions at the trial of this matter on 28 August 2017. 

Consideration

1. The operative ground in the application as amended asserts jurisdictional error by the Tribunal by overlooking relevant material, namely a public commitment by the President of Sri Lanka to implement the death penalty subject to Parliament’s approval, in circumstances where the material suggested that the President has the legal authority to permit the death penalty to be carried out.  The Tribunal proceeded on the basis of country information that the death penalty had not been carried out since 1976 and that, for practical purposes, the death penalty no longer applies in Sri Lanka.  The gist of the Tribunal’s reasoning was as follows.

2. The Tribunal rejected the applicant’s presently relevant claims to complementary protection under s.36(2)(aa) by finding, in substance, that:

   a)the prospect of the death penalty being carried out was far-fetched because the “present Sri Lankan government is committed to maintaining the moratorium on the death penalty and is reported to be moving to abolish the death penalty”;[21] and

   b)the prospect of arbitrary deprivation of life through inadequate state protection was far-fetched because the Tribunal did not believe the applicant’s claims that: the applicant’s home was twice damaged in retribution by his “victim’s” relatives;[22] the applicant received threats from the “victim’s” family;[23] the applicant’s brother was threatened and had to relocate; [24] and the applicant was victimised by police.[25]

   [21] CB 234 at [82]

   [22] CB 239 at [110]

   [23] CB 239 at [111]

   [24] CB 239 at [112]

   [25] CB 239 at [114]

3. The applicant makes the following submissions in relation to the Tribunal’s reasoning:

   Past events are not a certain guide to the future.[26]  A conclusion that the possibility that an event will occur in the future is farfetched because the event has not occurred for a number of years previously may often be sound, but that process of reasoning will be vulnerable to distortion in a particular case if material pointing to a competing inference is overlooked or improperly analysed or their factual assumptions are unsound.[27]  And where the question involves the implementation of the death penalty, heightened scrutiny is necessary: ‘Where there is any risk of death …, assumption is not good enough. Express findings must be made.’[28]

   [26] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, and Gummow JJ, at [56].

   [27] Ibid.

   [28] Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, per Kirby J at [134].

   In reaching its finding death penalty finding, the Tribunal expressly took into account (without reference) DFAT country information ‘confirm[ing] that although the Sri Lanka maintains the death penalty for murder it has not carried out any executions since 1976’. The Tribunal then noted “Presidential ratification is required for a death penalty to be implemented.”[29] But the Tribunal was satisfied with a statement by Sri Lanka’s Department of Prisons that ‘during 2001-2011 [5 years earlier] … presidential ratification has not been issued’,[30] and the conclusion of a June 2016 Amnesty International report that Sri Lanka was ‘abolitionist in practice’.[31]

   [29] Emphasis in original.

   [30] CB., p.233[72].

   [31] CB, p.233 [74].

   There was material before the Tribunal which appears to have been supplied by the Applicant that:

   DFAT Country Information Report Sri Lanka – 18  December  2015

   4.14 Sri Lanka maintains the death penalty for murder and drug trafficking, although it has not carried out any executions since 1976.  The method of execution in Sri Lanka is hanging.  Under the Criminal Procedure Code, all death penalty sentences have to be appealed and a court appointed legal aid lawyer engaged to defend the accused.  Presidential ratification is required for a death penalty to be implemented.  According to Sri Lanka’s Department of Prisons, 1,199 persons were sentenced to death during 2001-2011 but presidential ratification has not been issued.

   4.15 in recent years, media coverage of serious sexual assaults  and  murders has  sparked  public  calls  to  implement  the  death  penalty.  On 18 September 2015, President Sirisena pledged to implement the death penalty from 2016 should he obtain parliamentary approval to do so.[32]

   And the UK Foreign and Commonwealth Office Corporate Report Sri Lanka – in- year update December 2015 (published 21 April 2016) also before the Tribunal stated:

   Sri Lanka has maintained a de facto moratorium on the death penalty since 1976, but again abstained on the UN General Assembly Third Committee ‘Moratorium on the use of the Death Penalty’ resolution in December [2015].[33]

   The omission by the Tribunal of any reference at all to President Sirisena’s public commitment to implement the death penalty from 2016 is inexplicable in context. In substance, the Tribunal reasoned that the historical status quo would continue for the foreseeable future. But to do so without addressing at all the public commitment to the contrary by an elected officeholder with the sole legal authority to withhold a veto exposed a constructive failure to exercise jurisdiction or denial of procedural fairness.

   The Presidential commitment was material too important to attract a beneficial inference that the Tribunal did take it into account but did not reference it. Moreover, the death penalty was too important a consequence. In any event, because the Amnesty report was dated June 2016, it offered no logical basis upon which the Tribunal could dismiss the concrete possibility raised by the stated intention of the Sri Lankan President to implement the death penalty ‘from 2016’

   (emphasis added)

   [32] CB, p.185. Emphasis [in original].

   [33] CB, p.186.

4. The Minister relies on the decision of the Full Federal Court in ApplicantWAEE v Minister for Immigration.[34]  This authority is advanced in support of the proposition that the Court should not draw an inference that an “issue” was overlooked.  As I pointed out in argument to the Minister’s counsel, however, the question here is not so much whether an issue was overlooked (it was not), but whether material bearing upon the relevant issue (the imposition of the death penalty) was overlooked.  The Minister’s further contention that the applicant did not make any contentions relying on the President’s statement can be put to one side.  The applicant based his claim very substantially on his fear of the death penalty and the President’s statement had a direct bearing on the question of whether the death penalty would be carried out if the applicant were put under a sentence of death.

   [34] (2003) 236 FCR 593

5. In my view, the Tribunal did fall into error by relying on country information which pre dated the election of President Sirisena and which failed to pay any regard to his publicly expressed support for the imposition of the death penalty.  The Tribunal, in its reasons, referred at several points to a DFAT country report on Sri Lanka dated 18 December 2015 in relation to prison conditions and the death penalty.  The use of material drawn from that report appears to me to be unduly selective, given the failure to mention President Sirisena’s pledged commitment to implement the death penalty and the abstention of Sri Lanka in the UN General Assembly on a vote in favour of a moratorium on the use of the death penalty in December 2015.  Given the significance of that evidence, the failure by the Tribunal to mention it supports an inference that the Tribunal overlooked the material and the weight of it is such that the omission constitutes jurisdictional error. 

Discretionary considerations

1. The Minister contends that the Court should refuse relief in the exercise of discretion on the basis of futility.  Relevantly, the Minister submits as follows:

   The Tribunal proceeded on the basis that the applicant may be convicted of the offences with which he had been charged: CB at 234. 

   However as noted in the applicant’s submissions the applicant was acquitted on 5 May 2017. 

   The first respondent submits that this development weighs against the granting of the relief sought even if it is found that the Tribunal failed to exercise jurisdiction or failed to afford procedural fairness as alleged.  The risk of the death penalty no longer exists so it would be futile to remit the matter to the Tribunal to consider.

   The applicant submits that the acquittal does not lead to the consequence that the application would be or would have been otherwise refused.  The applicant points to various claims made by the Applicant that were not believed by the Tribunal.  It is not clear how these unrelated findings are relevant at all to the applicant’s submission with regard to the acquittal.  

   The applicant’s submissions quotes a passage from Lee and Finkelstein JJ in W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 about the process the Tribunal undergoes to determine whether past asserted facts are true. Again the applicant’s submissions do not, in any discernible way, indicate how this passage relates at all the exercise of the discretion in the present case. The first respondent submits that, on the face of the submissions, such matters to have no explicable bearing on the exercise of the discretion to grant relief by this Court.

2. I do not accept the Minister’s submissions for three reasons.  First, it appears from s.337(1) of the Criminal Procedure Act of Sri Lanka that a prosecution appeal against an acquittal is at least a theoretical possibility.  Secondly, it appears strongly arguable from the decision of the Sri Lankan High Court on 12 May 2017 that the case brought against the applicant was a false one.  In its decision, the High Court said the following:

   Therefore considering all of the above factors, the decision of the Court of Appeal case quoted above, and the evidence presented by the prosecution in this case, the only inference that could be drawn is that the overall evidence presented by the prosecution shall be discredited wholly as it is inadmissible and unreliable.

1. If the case brought against the applicant was a false one, that may carry implications for the applicant’s safety on return to Sri Lanka, including from the victim’s family.  The consequences of the acquittal for that fear would need to be considered.

2. Thirdly, as was pointed out by counsel for the applicant in closing submissions, the applicant had always maintained that the case against him was a false one, which explained why he was able to leave Sri Lanka on his own passport without difficulty.  The decision of the High Court helps to support the applicant’s credibility on that question, which might cause the Tribunal on review to take a different attitude to the applicant’s claims generally, which included a fear of harm not just from the Sri Lankan State but also from the people responsible for bringing the false case against him. 

3. Further, I accept the following submissions by the applicant which develop these issues.

4. Discretionary relief ordinarily follows from demonstrating jurisdictional error unless there would be no utility in granting such relief.  The acquittal of the applicant by the High Court at Negombo on 12 May 2017 does not ineluctably lead to the consequence that the application would be or would have been otherwise   refused.

5. First, the Tribunal disbelieved the applicant’s claims in respect of a risk of arbitrary deprivation of life in circumstances of inadequate state protection.  The Tribunal disbelieved the applicant that his home had been damaged by the “victim’s” relatives.[35]  It disbelieved the applicant’s claims that he was threatened by the victim’s family.[36]  The Tribunal also disbelieved the applicant’s claim that his brother was threatened and had to relocate.[37]  As was said by Lee & Finkelstein JJ in W360/01A v Minister for Immigration:[38]

   In the process of deciding whether asserted past facts were true, or might possibly be true, the tribunal was entitled to rely upon any opinion about the creditworthiness of the appellant. If it formed the view that the appellant was not a witness of truth, in all probability it would not accept the asserted facts.

   In order to decide whether it was satisfied of the truth, or possible truth, of  the asserted facts one would ordinarily expect the Tribunal to look at each claim made by the appellant because, in arriving at a conclusion as to the truthfulness of certain asserted facts, the Tribunal might be assisted by knowing that other facts were true. That is to say, if the appellant was telling the truth about asserted fact A that might suggest that he was also telling the truth about asserted facts B and C.

   [35] CB 239 at [110]

   [36] CB 239 at [111]

   [37] CB 239 at [112]

   [38] [2002] FCAFC 211 at [3]

An additional matter

1. The applicant arrived in Australia in May 2007 as the holder of a subclass 457 visa and a Sri Lankan passport.  On 1 March 2012, the applicant was granted a permanent residency visa (subclass 856) under the Employer Nomination Scheme.  In that connection, the applicant supplied to the Minister’s Department a Sri Lankan police clearance which indicated no criminal history and no pending matters.

2. As noted above, by letter dated 27 April 2012 the Inspector General of Police in Colombo wrote to the Australian High Commissioner in Colombo to inform the High Commission that the applicant had been charged, among other things, with murder on 25 May 2004 in respect of events alleged to have occurred on 30 March 1997, and that the applicant had “absconded” and a warrant had been issued.[39] The Minister then cancelled the applicant’s permanent residency visa in July 2014 for providing incorrect information pursuant to s.109 of the Migration Act.[40]

   [39] CB 1

   [40] CB 226 at [15]

3. The applicant explained that when he left Sri Lanka his lawyer had advised him that the case against him was weak “and that the charges against him would be dismissed and he did not need to worry.”[41]  The applicant denied that he had “perpetrated”[42] the murder.  The applicant was challenged by the Tribunal on his explanation by querying why he would leave Sri Lanka if he was confident of his acquittal: the applicant said he “did not think it was a big issue because his lawyer told him the charges would be discontinued.”[43]  The applicant further explained that he had applied for a certificate of police clearance before he left Sri Lanka in 2007.  Because the police clearance recorded no pending matters, he thought it meant that the charges had been dismissed.

   [41] CB 227 at [26]

   [42] CB 227 at [27]

   [43] CB 227 at [28]

4. The applicant was in fact tried in absentia as a co-defendant and acquitted by the High Court at Negombo on 12 May 2017.  As noted above, the judgment described the prosecution evidence as “wholly discredited” and inadmissible.[44]

   [44] Pre-penultimate paragraph of judgment: “Due to the overall evidence of the prosecution being wholly discredited, no sufficient evidence has been presented before the court to call upon the 2^nd defendant for his defence.”

5. Upon the cancellation of his visa, the applicant became an unlawful non-citizen. The applicant unsuccessfully sought review of the cancellation decision.[45]  On 16 January 2015 the applicant was taken into immigration detention where he has remained since.

   [45] CB 226 at [16]

6. I was told that the applicant had sought Ministerial intervention pursuant to s.351 of the Migration Act prior to the decision of the Sri Lankan High Court. That request was unsuccessful. In my view, the decision of the Sri Lankan High Court fundamentally changes the position and calls into question the appropriateness of the cancellation of the applicant’s permanent residence visa. This is a matter which the applicant might properly raise with the Minister in a second request under s.351.

Conclusion

1. The applicant has succeeded in establishing that the decision of the Tribunal is affected by jurisdictional error.  In consequence, the applicant is entitled to relief of the constitutional writs of mandamus and certiorari.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 20 September 2017