AIS15 v Minister for Immigration

[2015] FCCA 1588

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1588

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

Legislation:  

Migration Act 1958 ss.5, 36(2)(a), 36(2)(aa), 476, 499.

Applicant: AIS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 902 of 2015

Judgment of: Judge Street

Hearing date: 5 June 2015

Date of Last Submission: 5 June 2015

Delivered at: Sydney

Delivered on: 5 June 2015

REPRESENTATION

Counsel for the Applicant: Mr B. Mostafa

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr M.J. Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 902 of 2015

AIS15

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 the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 3 March 2015 affirming the decision of the delegate not to grant the applicant a protection visa. 

2. The grounds of the application that are pressed are grounds 1 and 3, which are as follows:

   1. The Tribunal’s Decision involved jurisdictional error insofar as the Tribunal failed to comply with s 499(2A) of the Act and Direction No. 56 - Consideration of Protection Visa applications, dated 21 June 2013 (Direction 56)

   Particulars

   a. Direction 56 provides that “[i]n performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department … to the extent they are relevant to the decision under consideration.

   PAM3: Refugee and humanitarian – Complementary Protection Guidelines

   PAM3: Refugee and humanitarian – Refugee Law Guidelines”

   b. Section 18 of the PAM3: Refugee and humanitarian – Complementary Protection Guidelines (Complementary Protection Guidelines), headed “Intentionally inflicted pain or suffering”, states: “In certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted.”

   c. The Tribunal said (at [55]) that it was not satisfied that “the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment”.

   d. The Tribunal did not consider whether it was “evident that such pain or suffering was or may be knowingly inflicted” and did not consider whether it was “appropriate to infer an intention to inflict severe pain or suffering”.

   e. To that extent, the Tribunal did not take account of the Complementary Protection Guidelines and failed to comply with the Direction 56 and s 499(2A).

   3. The decision of the Tribunal involved jurisdictional error insofar as the Tribunal misconstrued or misapplied the words “intentionally inflicted” and “intended to cause” in the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” in s 5(1) of the Act.

   Particulars

   a. The Tribunal found that “the new Sri Lankan government retains an intention to charge and sentence returnees and, therefore, apply the provisions of the Immigration and Emigration Act”: [45].

   b. The Tribunal found that the applicant may be “placed in a remand for a short period in what may be poor conditions”: [48], “in conditions which are cramped, uncomfortable and unsanitary”: [53], involving “severe overcrowding and poor and insanitary conditions” and that he “may spend up to a fortnight” in those conditions: [55].

   c. The Tribunal erred in failing to ask itself whether the person who forcibly detains the applicant in those conditions will do so knowing that pain or suffering or extreme humiliation might result: [55], and that failure reveals that the Tribunal misconstrued or misapplied the definitions in s 5(1).

3. In relation to ground 1, it is clear that the Tribunal identified in para.4 that it took into account the summary of the relevant law set out in the attachment to the decision. That summary included the Ministerial direction 56 and, relevantly, the obligation under s.499 to have regard to that material. It is also relevant in relation to that attachment that the Tribunal carefully identified the relevant law to be applied in relation to both the issue of s.36(2)(a) and also in relation to complementary protection including, relevantly, a reference to the definitions in s.5(1) of the Act.

4. The thrust of the argument advanced by counsel for the applicant was that there is a reference in the PAM3 under the topic Intentionally Inflicted Pain or Suffering to the following:

   In certain circumstances, it may be appropriate to infer an intention to inflict pain or suffering if it is evident that pain or suffering was or may be or may have been inflicted.

5. The reasoning advanced by the applicant made the assertion both that there was pain and suffering of a relevant kind and that it was a situation where it must be knowingly inflicted.  Those propositions lack substance and are not inferences that can or should be drawn.  Further, it was a matter for the Tribunal to determine the issues raised in respect of complementary protection, and it is clear that the Tribunal carefully addressed the applicant’s claims and evidence.

6. The Tribunal noted that the applicant appeared before the Tribunal on 16 February 2015 to give evidence and present arguments, and that the hearing was conducted with the assistance of an interpreter, and that the applicant was represented by a registered migration agent.  The Tribunal identified the supplementary submissions that were provided after the hearing on 27 February 2015. 

7. The Tribunal carefully identified the applicant’s claims and evidence in relation to which the applicant was found to be a citizen of Sri Lanka and his claims were addressed against that country, and relevantly, the Tribunal found:

   50. The Tribunal is not satisfied, when the applicant’s claims and circumstances are considered both individually and cumulatively, that there is a real chance that on return to Sri Lanka the applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil ethnicity/race; his actual or imputed political opinion as opposing the SLA/the Sri Lankan authorities; his actual or imputed political opinion because he left Sri Lanka illegally and sought asylum overseas; his actual or imputed political opinion as supporting the LTTE; his membership of a particular social group persons who are Tamils who have fled Sri Lanka illegally and applied for asylum, or any similar connotations of particular social group. Nor is the Tribunal satisfied that there is a real chance that the applicant will suffer serious harm because he is a member of a particular social group of family members who are businessmen or wealthy businessmen, or because he is of a particular social group of wealthy Tamil business people/ businessmen or any similar connotation of particular social group. Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for a Convention reason should he return to Sri Lanka now or in the reasonably foreseeable future.

8. The Tribunal turned to the issue of complementary protection and carefully identified the submissions made in relation to the alleged fears of harm in para.51, and relevantly the Tribunal found:

   52. … Although the Tribunal has accepted that the applicant may have had minor disputes with the authorities, the Tribunal has not accepted he suffered serious harm in the past and, for the same reasons, the Tribunal is not satisfied that the applicant has suffered significant harm in the past or that there is a real risk that he will suffer significant harm if he returns to Sri Lanka from Australia.

   53. … The Tribunal has not accepted that the weight of the evidence indicates that Tamil returnees are being harmed if remanded for a brief period and has not accepted that the weight of the evidence indicates that the applicant will be remanded for a lengthy period whilst waiting to be brought before a magistrate.

   54. In considering the situation for the applicant upon his return, having regard to the fact that the applicant is likely to be questioned at the airport, possibly detained for a brief period in a remand centre and fined, the Tribunal has had regard to the five ‘limbs’ of the definition of ‘significant harm’ in s.36(2A). These require that there is a real risk the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Act requires that the pain or suffering be ‘intentionally inflicted’ on a person. Similarly, ‘degrading treatment or punishment’ is defined to mean an act or omission that causes and is intended to cause extreme humiliation. The definition of ‘torture’ also requires that there is an act or omission by which severe pain or suffering is intentionally inflicted on the person.

   55. The Tribunal considers that the weight of that evidence indicates that despite large numbers of reported involuntary returnees to Sri Lanka, including Tamil males from Australia and those who departed Sri Lanka illegally by boat, and high level media interest in such persons, there has been no reporting of persons suffering significant harm as contemplated by s.36(2A). The Tribunal is not satisfied that during any questioning at the airport there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of ‘degrading treatment or punishment’. The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.

   56. Accordingly, the Tribunal is not satisfied 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 he will suffer significant harm when he is questioned at the airport or during any period which he may spend in jail on remand. Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will be subject to an abduction, death or any other form of significant harm following his return to Sri Lanka or a real risk that he will be subject to significant harm upon his return to his village, or indeed, elsewhere in Sri Lanka.

   57. The applicant has not claimed that he will be unable to pay the fine and the Tribunal is also not satisfied that the scale of the fine, which is the most likely penalty, amounts to significant harm. The Tribunal has found above that the maximum amount payable is 50,000 rupees and is not satisfied that the submission indicating that this is the lower amount payable is correct. Nor is the Tribunal satisfied that the applicant would be exposed to significant harm for any other reason.

   58. The Tribunal finds, therefore, that there are not 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 would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.

9. It was in those circumstances the Tribunal concluded that the applicant did not satisfy the criteria under ss.36(2)(a) or 36(2)(aa) and that the applicant is not a person with respect of whom Australia owed protection obligations. Relevantly, in relation to ground 1, it is clear that the Tribunal made adverse findings of fact in respect of whether there would be any intentionally inflicted pain or suffering. Those adverse findings of fact were open to the Tribunal, and there is no basis to infer that the Tribunal failed to have regard consistent with s.499 to PAM3, or that it failed to have regard to the passage identified above under Intentionally Inflected Pain or Suffering.

10. It was open to the Tribunal to make findings of fact adverse to the applicant.  It is not the case that the Tribunal had to conclude that pain and suffering was knowingly inflicted, nor was it the case that the Tribunal had to infer that there was an intention to inflict pain and suffering, nor was there any requirement for the Tribunal to identify beyond the reasons set out the circumstances in support of the findings made.

11. This is not a case where there were findings of circumstances made by the Tribunal from which it can be said that there must have been a failure by the Tribunal to have regard to the content of PAM3.  It was for the Tribunal to determine what was or was not relevant within the PAM3 and this is a case it can be inferred that the Tribunal concluded it was not relevant to identify the matters set out under Intentionally Inflicted Pain and Suffering in light of the Tribunal’s reasoning.  There is no substance in relation to ground 1, and it fails to identify a jurisdictional error.

12. In relation to ground 3, again it is clear that the Tribunal identified in the attachment to the reasons, which was incorporated through paragraph 4, including the definition in s.5. It is clear that the Tribunal made findings in respect of whether there would be any intentionally inflicted pain or suffering. The proposition that the Tribunal misconstrued or misapplied the words is, in my opinion, without substance.

13. The reasoning of the applicant’s counsel appeared to be based on the proposition that there would be an intentional imprisonment pursuant to a general law that is not enforced on a discriminatory basis and is not applied for a Convention reason.  The applicant’s argument in this regard, if correct, would mean that every enforcement of a custodial law as a result of an illegal departure would give rise to intentional inflicted pain and suffering whereby there would be a real risk of suffering significant harm. That proposition cannot be correct.

14. The applicant sought to advance that that generalised consequence would not apply because it was the particular prison the subject of the particular findings in this case.  To the extent that the argument of the applicant is confined to the particular case, it is clear that the Tribunal made findings adverse to the applicant that were open on the material before the Tribunal.  I note in that regard that the third ground appears to be of a similar kind that has been unsuccessfully advanced in several other cases.

15. The applicant’s counsel identified that one of the cases in which a ground similar to the third ground had been raised was to be determined in August of this year, and for this reason either that ground or the matter should be adjourned.  That was not consented to by the respondent.  It is inappropriate to grant an adjournment in circumstances where there is no utility.  There is no utility if the proceedings are doomed to failure.  I am clearly satisfied that ground 3 is not made out for the reasons identified, quite apart from the support that might be found in the decisions referred to by the respondent. 

16. The applicant’s counsel referred to decisions in the High Court of Australia dealing with the mental element of intention in criminal cases. Those cases appear to be of limited assistance given the legislative provisions in this case and the findings of fact made by the Tribunal, seeking to advance an argument that a similar analysis is required for the purpose of the application of the Convention. I do not accept that there were any facts found by the Tribunal that required it to address in any greater detail or analysis whether there should be inferred an intention. Further, I accept that the Tribunal carefully considered the issue of intentionally inflicted pain or suffering as is apparently from the findings referred to above. There is no basis to infer any misconstruction or any misapplication of s.5 in the present case. The application is dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  10 June 2015