ANG15 v Minister for Immigration

[2016] FCCA 1590

FEDERAL CIRCUIT COURT OF AUSTRALIA

ANG15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1590

Catchwords:
MIGRATION – Protection visa – review of decision of Refugee Review Tribunal – risk of arrest and remand in Sri Lankan prison – meaning of “intentionally inflicted” in definitions of “torture” and “cruel or inhuman treatment or punishment”, in s.5(1) of Migration Act 1958 (Cth) – whether Tribunal failed to comply with Ministerial Direction No.56 – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36, 499

Ministerial Direction No. 56

Cases cited:

ADS15 v Minister for Immigration & Border Protection [2016] FCCA 1591
AJJ15 v Minister for Immigration & Border Protection [2016] FCCA 482
SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69
SZTMD v Minister for Immigration &Border Protection (2015) 150 ALD 34; [2015] FCA 150

Applicant: ANG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1081 of 2015

Judgment of: Judge Smith

Hearing date: 27 June 2016

Date of Last Submission: 27 June 2016

Delivered at: Sydney

Delivered on: 20 July 2016

REPRESENTATION

Counsel for the Applicant: Mr B Mostafa

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Mr M Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG1081 of 2015

ANG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 1 July 2012 and applied for a protection visa on 9 November 2012. One of the criteria for the grant of a protection visa which the applicant sought to satisfy was sub-s.36(2)(aa). In order to satisfy that criterion, the applicant had to demonstrate “substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm”.

2. Amongst other things, the applicant claimed that upon return to Sri Lanka he would be detained and imprisoned as a consequence of his illegal departure from that country. In particular, he claimed that he would suffer significant harm as a result of the poor conditions prevalent in the prisons in Sri Lanka.

Background

1. On 20 December 2013 a delegate of the Minister made a decision not to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] for review of that decision.

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

2. The Tribunal affirmed the delegate’s decision on 23 March 2015. In arriving at this decision, the Tribunal rejected the applicant’s claim that he would suffer significant harm within the meaning of that term in the Migration Act1958 (Cth) as a result of the poor prison conditions in Sri Lanka. While the Tribunal accepted that there was a real risk that the applicant would be detained for some period and that the conditions in Sri Lankan prisons were poor, it did not accept that any of the harm that the applicant would suffer would be intentionally inflicted as required by the Act.

3. The applicant now seeks judicial review of the Tribunal’s decision. The applicant relies on two grounds[2] to argue that the decision was affected by jurisdictional error: first, that the Tribunal was wrong to proceed on the basis that “significant harm” relevantly required an element of subjective intention; and secondly, that the Tribunal failed to comply with a direction made by the Minister under s.499 of the Act, namely Ministerial Direction No.56.

   [2] He did not press the first ground in the application.

4. The applicant conceded that the first of these grounds was bound to fail in light of the recent decision of the Full Court of the Federal Court of Australia in SZTAL v Minister for Immigration & Border Protection [2016] FCAFC 69 (“SZTAL”). However, the applicant formally submitted that that decision was wrong, and asked that the Court reserve its decision until the determination of an application for special leave to appeal to the High Court was filed and, if such special leave were granted, the determination of the appeal in that Court. I have not acceded to that request. While I accept that it may be convenient to the applicant not to have to appeal in circumstances where there is a possibility that the Full Court’s decision will be overturned, I consider that the need for a quick determination of matters before the Court outweighs that convenience. That is particularly so in circumstances where the matter has already been delayed pending the Full Court’s decision.  

5. These proceedings were heard at the same time as another matter in which identical arguments were raised by the applicant and in which judgment was handed down at the same time as judgment in this matter: ADS15 v Minister for Immigration & Border Protection [2016] FCCA 1591. The relevant facts here are essentially identical to that matter and the reasons for this decision are very similar to my reasons in that matter.

Consideration

First issue: the element of intention in the meaning of “significant harm”

1. The confined nature of the issues in the application make it unnecessary to set out any further aspects of the factual background in the matter or to examine any of the Tribunal’s other reasons for its decision. The critical passage in the Tribunal’s reasons for decision in respect of the first issue is:

   156.In terms of the applicant’s treatment in detention, the Tribunal accepts that prison conditions are poor, particularly in terms of overcrowding, and the Tribunal noted the applicant’s adviser’s submissions in this respect. The Tribunal does not accept that spending up to a fortnight in jail amounts to ‘significant harm’ or that such treatment is intentional as is required by the law in Australia. The Tribunal does not accept that there is a real risk the applicant will be subject to ‘torture’ as defined, while he is on remand. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Migration Act requires that the pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. The Tribunal does not consider that overcrowding, and very unpleasant conditions, which are a product of the general state of the system and negligence and indifference, have the requisite intention required in the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. The Tribunal does not accept therefore 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 that he will suffer significant harm as a consequence of the poor conditions in prison due to overcrowding.

2. The words “significant harm” are relatively defined in s.36(2A) of the Act so that a non-citizen will suffer such harm if:

   …

   (c)the non-citizen will be subjected to torture; or

   (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

3. Each of these types of “significant harm” is further defined in s.5(1) of the Act as follows:

   “Cruel or inhuman treatment or punishment” means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   “Degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   “Torture” means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant [i.e. the International Covenant on Civil and Political Rights]

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

4. As the Minister submitted, a common feature of each definition is that the harm be intentionally inflicted or caused. In SZTAL at [59], Kenny and Nicholas JJ accepted the Minister’s submission 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”. The Tribunal’s approach, evident in [156] of its reasons is consistent with that decision. For that reason, the applicant was correct to concede that he must fail on the first issue.

5. The Minister argued that this ground should also fail because the Tribunal concluded that the level of harm the applicant might face did not amount to a level of harm which met the physical and mental elements of the relevant definitions of significant harm. This was the reason for which Buchanan J agreed that the appeal in SZTAL should be dismissed. This argument was based on the Tribunal’s statement in [156] that it did not accept that spending up to a fortnight in jail amounts to “significant harm” or that such treatment is intentional as is required by the law in Australia. He emphasised the word “or” in this finding.

6. I reject that argument. The sentence must be read in its context and when that is done, the balance of [156] of the Tribunal’s reasons shows that its conclusion that there was no real risk of “significant harm” was based on its consideration of two separate matters. First, the fact, in and of itself of spending up to 2 weeks in jail; and secondly, what might occur to the applicant whilst in jail. Once that approach is understood, it can readily be seen that the Tribunal’s conclusion about the first (2 weeks in jail) was not determinative of the entire issue and, in particular, was not determinative of the question of whether or not the applicant might suffer significant harm while being in prison as a consequence of the poor prison conditions.

Second issue: compliance with Ministerial Direction 56

1. I dealt with a similar issue to the one raised by the applicant in AJJ15 v Minister for Immigration & Border Protection [2016] FCCA 482 (“AJJ15”). In that decision I summarised the relevant statutory and factual context as follows:

   41.Direction 56 was made by the then Minister for Immigration on 21 June 2013 and relevantly provides:

   2.In 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 of Immigration and Citizenship to the extent that they are relevant to the decision under consideration:

   ‘PAM 3: Refugee and humanitarian - Complementary Protection Guidelines’

   ‘Pam 3: Refugee and humanitarian - Refugee Law Guidelines’

   42.The first of the guidelines referred to in the Direction is relevant to these proceedings. In that guideline there are a number of sections dealing with the intentional infliction of pain and suffering. In each of those there appears the following statement:

   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.

   43.Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) requires a personal body to comply with a direction made under sub-s.499(1). There is no dispute that the Tribunal has functions and powers under the Act and that Ministerial Direction No.56 was made in accordance with s.499(1) of the Act. Thus, if the Tribunal fails to comply with that Direction it may fall into jurisdictional error.

2. In addition to the statement set out at [42] of AJJ15, the Complementary Protection Guidelines (Guidelines) also contains the following statement:

   In certain circumstances it may be appropriate to infer an intention to inflict extreme humiliation where it is evident that humiliation was or may be knowingly inflicted.

3. The question is whether the Tribunal failed to comply with the Direction.

4. The applicant relied on two matters to support his contention that the Tribunal failed to “take account” of the Guidelines: first, the Tribunal did not say that it had done so; and secondly, even though the lack of the requisite intention was dispositive of the relevant claim made by the applicant, and it appears to have implicitly accepted that the government of Sri Lanka was aware of the prison conditions, the Tribunal failed to give any consideration to the question of whether the intent required to satisfy the intention requirement could be inferred from this knowledge. In support of this point, the applicant relied on the Tribunal’s finding in [156] that the prison conditions were a product of the “general state of the system and negligence and indifference”.

5. In response, the Minister made three points: first, the Tribunal was clearly aware of the Direction because it not only referred to it at [9] but also referred to certain country information in accordance with the Direction.

6. Secondly, as Perram J noted in SZTMD v Minister for Immigration & Border Protection (2015) 150 ALD 34; [2015] FCA 150 at [20], cll.2 and 3 of Direction No.56, in terms, contemplate that the Tribunal is only obliged to consider the Guidelines or country information to the extent that they are relevant and it is the Tribunal’s views on relevance which matter, not those of the Court. As a consequence, the failure by the Tribunal to refer to the relevant portion of the Guidelines leads to the inference that the Tribunal did not consider that portion to be relevant.

7. Thirdly, the relevant parts of the Guidelines upon which reliance is placed are extremely limited in their scope. Rather than being prescriptive, they merely state that “in certain circumstances” it “may be appropriate” to infer the requisite intention. The relevant parts of the Guidelines give no guidance as to the circumstances in which it may be appropriate to draw a requisite inference.

8. I agree with the Minister’s submissions. The real difficulty for the applicant is the lack of prescription in the relevant part of the Guidelines. They contain nothing more than a suggestion that it may be appropriate in certain circumstances to draw certain inferences. I made a similar point in AJJ15 at [49]:

   … The real difficulty is that the relevant part of the Guideline is so vague as to be almost meaningless. In its terms it only applies in “certain circumstances” and, even then, only suggests that a particular inference “may be appropriate”. The fact that the relevant inference was not drawn could be the result of any number of things: for example, that the Tribunal did not think that the circumstances applied or that it thought that, even though the circumstances arose, that it was not appropriate to draw the inference. In light of that vagueness, I find that the lack of any analysis of the Guidelines does not indicate that the Tribunal considered that they were relevant and yet failed to have regard to them.

9. Further, the applicant’s second point lacks an important factual element. The Guidelines relevantly say that where humiliation, pain or suffering has been knowingly inflicted, an intention to inflict those matters may be inferred. That is a fairly obvious statement. However, the difficulty here is that the Tribunal did not accept that there was any knowing infliction of humiliation or pain or suffering. Rather, the Tribunal found that the prison conditions were a result of a number of things including indifference, that is, indifference to the prison conditions. Indifference to a state of affairs may or may not include knowledge about that state of affairs. More importantly, even if the Tribunal implicitly found that the authorities were aware of the conditions, it does not follow that they were aware of all the pain and suffering that might be caused by those conditions and, even if they were, there is a difference between that awareness and knowingly inflicting that harm as opposed, for example, to simply exposing the detainee to the risk of such harm.

10. In light of that, the Tribunal’s finding that the prison conditions were, in part, brought about by indifference does not carry the force suggested by the applicant.

11. For those reasons, the fact that the Tribunal did not state that it had regard to the Guidelines, or state whether or not it had considered whether the indifference of the authorities of the prison conditions in Sri Lanka could give rise to the inference of subjective intention does not satisfy me that the Tribunal failed to “take into account” those guidelines. Accordingly, this ground fails.

Conclusion

1. There is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Smith

Date: 20 July 2016