AJW15 v Minister for Immigration

[2015] FCCA 2579

FEDERAL CIRCUIT COURT OF AUSTRALIA

AJW15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2579

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account the latest country information – whether the Tribunal misapplied the relevant country information – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.476

ARS15 v Minister for Immigration & Anor [2015] FCCA 2135
SZUQZ v Minister for Immigration& Anor [2015] FCCA 1552

Applicant: AJW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 126 of 2015

Judgment of: Judge Street

Hearing date: 17 September 2015

Date of Last Submission: 17 September 2015

Delivered at: Sydney

Delivered on: 17 September 2015

REPRESENTATION

Counsel for the Applicant: Mr D. Blades

Solicitors for the Applicant: AUM Legal

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 126 of 2015

AJW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS 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 (Cth) in respect of a decision of the Tribunal made on 5 March 2015 affirming a decision of the delegate not to grant the applicant’s protection visa. The amended application identifies the following grounds:

   Ground 1

   The Tribunal failed to take into account the PAM 3 Refugee and Humanitarian Complementary Protection Guidelines (“Guidelines”) when considering whether the Sri Lankan prison conditions faced by the Applicant upon return constituted significant harm, thereby breaching s 499(2A) of the Migration Act 1958 (“the Act”).

   Particulars

   1. The Tribunal was under an obligation to comply with the Guidelines under Ministerial Direction No. 56 to the extent that they were relevant to the decision under consideration;

   2. The Guidelines provide extensive guidance on prison conditions and whether they can amount to significant harm;

   3. The Tribunal accepted at [44]- [46] that the applicant would be detained in Sri Lanka because of his illegal departure and that the conditions in Sri Lankan prisons were poor (CB 133);

   4. These factual findings meant that the Guidelines were relevant to the Tribunal’s assessment of whether the conditions of imprisonment in Sri Lanka met the definition of significant harm under s 36(2A) and s 5 of the Act; and

   5. The Tribunal mentioned the Guidelines in the ‘Relevant Law’ section (CB 137), but failed to consider the relevance of the Guidelines when it made findings on complementary protection obligations to the Applicant in its decision record.

   Ground 2

   The Tribunal made a jurisdictional error by misapplying information in the two relevant DFAT Country Reports for Sri Lanka dated 3 October 2014 and 16 February 2015 (“DFAT Reports”) that the Tribunal was required to consider under s 499 of the Act.

   Particulars

   1. The Applicant submitted that he would not be protected by the Sri Lankan authorities as he had heard that people who have returned from Australia have been imprisoned for two years because they have sought asylum and to be released they have to pay two Laks (CB 35);

   2. The Tribunal put to the Applicant that upon return to Sri Lanka he would be detained under the Immigrants and Emigrants Act and later released on bail with the requirement for a family member to stand as a guarantor but with no payment required (CB 132[37]; Transcript pages 16-17);

   3. In making this statement to the Applicant the Tribunal relied upon the information in the DFAT Reports (CB 132);

   4. Both DFAT Reports state at paragraph 5.28 that “In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor”;

   5. The Tribunal misapplied the country information in paragraph 5.28 of the DFAT Reports by putting to the Applicant the information that no payment would be required for a family member to stand as guarantor;

   6. It is inherent in the concept of guarantor that a guarantor is liable for the debt of another person, therefore a requirement for a family member to stand as guarantor does require payment.

2. In relation to the first ground, counsel for the applicant sought to advance that this was a case consistent with the decisions in this Court of SZUQZ v Minister for Immigration& Anor [2015] FCCA 1552 and ARS15 v Minister for Immigration & Anor [2015] FCCA 2135, and that this was a case where, because of the findings made, the Tribunal had failed to have an intellectual engagement with the PAM 3.

3. I accept the proposition advanced by counsel for the applicant that it is clear, because of the findings in this case, that the Tribunal had to have an intellectual engagement with PAM 3.  However, it is clear from the Tribunal’s reasons in this case that the Tribunal did have regard to PAM 3, first by reference to para.21, which is as follows:

   21 . In accordance with Ministerial Direction No. 56, the Tribunal has taken into account the country information assessments prepared by DFAT expressly for protection status determination purposes, DFAT Country Information Reports Sri Lanka, 3 October 2014 and 16 February 2015.

4. Secondly, from the findings in relation to the conditions in the jail, it is clear that the Tribunal engaged with the issues concerning those conditions, consistent with PAM 3, as identified in para.46.  The reference to overcrowding and unsanitary conditions is clearly consistent with giving effect to PAM 3, consistent with para.68 of the Tribunal’s reasons that picked up the Ministerial direction and the requirement to take into account PAM 3. 

5. In these circumstances, I am satisfied there was an intellectual engagement by the Tribunal with PAM 3 and that there is no jurisdictional error of the kind advanced in relation to ground 1.

6. In relation to ground 2, counsel for the applicant focused on the finding of the Tribunal in para.36, which is as follows:

   36. In light of the recent DFAT reports3 the Tribunal finds that individuals who are returned to Sri Lanka from Australia or are identified as having departed Sri Lanka in breach of the Sri Lankan departure laws are being charged with breaches of those laws and held in prison on remand. The Tribunal accepts that the applicant departed Sri Lanka other than at a port of lawful deparh1re and without a Sri Lankan passport and therefore accepts that it is likely he will be charged with breach of the departure laws under s 45(l)(b) of the I&EA and held on remand pending a bail hearing. As put to the applicant at the hearing, the country information indicates returnees are brought before a Magistrate for a bail hearing within a few days of their return and are granted bail, based on personal recognisance, with the requirement for a family member to stand as a guarantor but with no payment required.

7. Effectively, what counsel for the applicant maintained was that the last sentence should be read as meaning that the guarantor would never have to pay.  The Tribunal’s reasons should be read without a keen eye for error.  It is clear that what the Tribunal member was identifying was that there would be, on the material that the Tribunal accepted, no requirement by the guarantor to pay at the time bail was obtained. 

8. In my opinion, on a fair reading that is precisely what the Tribunal member said.  That is consistent not just with the DFAT report to which the applicant referred and, in particular, para.5.28:

   5.28 DFAT was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee who was just a passenger on a people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but fines have been issued to act as a deterrent towards joining boat ventures in the future.  The Magistrates Court in Colombo typically levies fines of around 5,000 Sri Lankan Rupees (around AUD40) for persons attempting to depart Sri Lanka irregularly on boats.  However, in Negombo, the magistrate, who handles a large number of these cases, typically levies fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent.  In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor.  Sometimes returnees then need to wait until a family member comes to court to collect them. 

9. That paragraph does not specify that there is a form of bail bond in a particular amount that must be posted in order to obtain bail. In my opinion, there is nothing in the reference in the last sentence to suggest that the Tribunal did not take into account the most recent country information in the finding made. The adverse findings by the Tribunal in that regard were open on the material before the Tribunal.  No jurisdictional error of the kind alleged in ground 2 is made out. 

10. The amended application is dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 22 September 2015