ANL15 v Minister for Immigration
[2019] FCCA 238
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ANL15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 238 |
| Catchwords: MIGRATION – Judicial review – decision of former Refugee Review Tribunal affirming decision to refuse Protection (Class XA) visa – citizen of Sri Lanka – whether failure to comply with Ministerial Direction – whether jurisdictional error. |
| Legislation: Code of Criminal Procedure Act 1981 (Sri Lanka) Immigrants & Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), ss.5, 36, 46A, 91R, 91S, 474, 476, 499 Migration Regulations 1994 (Cth), sch.2 |
| Cases cited: ALA15 v Minister for Immigration & Border Protection (No 2) [2015] FCCA 2048 ARS15 v Minister for Immigration & Anor [2015] FCCA 2135 AUE15 v Minister for Immigration & Border Protection& Anor [2016] FCA 331; (2016) 239 FCR 148 Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456; (1995) 89 LGERA 253; (1995) 133 ALR 353; (1995) 39 ALD 262 AYI15 v Minister for Immigration & Border Protection [2015] FCCA 2811 AZK15 v Minister for Immigration & Border Protection [2015] FCA 1444 Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 91 ALJR 936; (2017) 347 ALR 405 SZTCV v Minister for Immigration & Border Protection [2015] FCCA 1677 SZTCV v Minister for Immigration & Border Protection [2015] FCA 1309 SZTMD v Minister for Immigration & Border Protection [2015] FCA 150; (2015) 150 ALD 34 VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 |
| Applicant: | ANL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 159 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 12 July 2016 |
| Date of Last Submission: | 12 July 2016 |
| Delivered at: | Perth |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr F Robertson |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Mr A Burgess |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
That the application filed on 21 April 2015, as amended on 24 November 2015, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 159 of 2015
| ANL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an amended application the applicant seeks judicial review (“Amended Judicial Review Application”) pursuant to s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“Tribunal Decision” and “Tribunal” respectively). The Tribunal affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”) not to grant the applicant a Protection (Class XA) visa (“Protection Visa”). The Tribunal Decision is at Court Book (“CB”) 150-173.
Grounds of Amended Judicial Review Application
Only ground 2 of the Amended Judicial Review Application was pressed. Ground 2 is as follows:
2. The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of section 499(2A) of the Migration Act.
Particulars
(i) 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;
(ii) The Guidelines provide extensive guidance on prison conditions and whether they can amount to significant harm;
(iii) The Tribunal accepted that the applicant would be detained in Sri Lanka because of his illegal departure and that the conditions in Sri Lankan prisons were poor;
(iv) 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
(v) The Tribunal mentioned the Guidelines in the ‘Relevant Law’ section (CB 164 [69]), but failed to consider or make a funding (sic) about the relevance of the Guidelines when it made findings on complementary protection obligations to the Applicant in its decision record.
Background
The background to this matter is as follows:
a)the applicant is a citizen of Sri Lanka and arrived at Cocos Island on 12 August 2012 as an illegal maritime arrival: CB 95-96;
b)on 6 September 2012 an entry interview was conducted: CB 1-14, and on 20 November 2012 the Minister lifted the bar under s.46A of the Migration Act to allow the applicant to lodge a Protection Visa application: CB 96;
c)the applicant lodged the Protection Visa application on 13 December 2012, in which he claimed to fear harm on the basis of his actual or imputed political opinion and his unlawful departure from Sri Lanka: CB 15-45;
d)in the Protection Visa application the applicant specifically claimed that:
i)in 2010 he assisted his uncle putting up posters for the “Sri Lankan political party”: CB 46 at [7];
ii)in September 2011 he was approached by his cousin (a member of the “opposition party” – the UNP) to assist in advertising his cousin for a local council position. He and three other men were putting up posters for his cousin when they were approached by four men. The applicant and his party were attacked and hit with iron rods. The applicant injured his leg and was taken to the local hospital. The applicant attempted on two occasions to lodge a report with the police but the police refused to take the complaint: CB 46-47 at [7]-[10];
iii)he subsequently received a threat by telephone in relation to his attempts to report the incident to police and attempted to report the threat but was again advised that the police would not accept the complaint: CB 47 at [11];
iv)he moved to his aunt's house and was in hiding. During that time he was advised that members of the “Sri Lankan political party” would visit his family's house searching for him. The first time the men visited his father was beaten up and the second time his mother was held at gunpoint: CB 47 at [12];
v)men came to his aunt's house but he was able to evade them and stayed with his cousin after the incident: CB 47 at [13]; and
vi)in January 2012 his father died as he was “so stressed and upset”: CB 47 at [13]; and
e)on 4 March 2014, the Delegate refused to grant the Protection Visa and the applicant lodged an application for review with the Tribunal on 10 March 2014.
Tribunal Decision
In the Tribunal Decision the Tribunal affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 150 and 173 at [116]. The Tribunal:
a)set out in detail the applicant’s claims made prior to being interviewed by the Delegate: CB 151-152 at [3]-[12], and a summary of the Delegate’s Decision: CB 152 at [13];
b)set out at length and in detail the evidence given by the applicant at the hearing before the Tribunal (“Tribunal Hearing”): CB 152-157 at [14]-[41];
c)extensively referred to independent country information including the UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka (December 2012) (“UNHCR Eligibility Guidelines”), Department of Foreign Affairs and Trade (“DFAT”) reports from 2013, 2014 and 2015, and the terms of the Code of Criminal Procedure Act 1981 (Sri Lanka) (“CP Act”): CB 157-162 at [42]-[54];
d)set out the relevant law, and the criteria for the grant of a Protection Visa, as set out in s.36 of the Migration Act and sch.2 to the Migration Regulations 1994 (Cth) (“Migration Regulations”) including:
i)the criterion for a Protection Visa on refugee grounds as set out in the Refugees’ Convention as qualified by ss.91R and 91S of the Migration Act (as they then were): CB 162-163 at [56]-[65];
ii)the complementary protection criterion for the grant of a Protection Visa, including the exhaustive definition of “significant harm” arising by reason of ss.5(1) and 36(2A) of the Migration Act: CB 163-164 at [66]-[68]; and
iii)the Ministerial Direction No. 56 (“Ministerial Direction”): CB 164 at [69], where the Tribunal observed as follows:
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM 3 Refugee and humanitarian – Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent they are relevant to the decision under consideration.
e)found that parts of the applicant's evidence were plausible and credible, but considered that the applicant had overstated and exaggerated other aspects of his claims: CB 165 at [76];
f)accepted that in 2010 the applicant assisted in putting up posters for his uncle who was a candidate for the “Sri Lanka Freedom Party” (“SLFP”) and that in 2011 he assisted in putting up posters for his distant cousin who was a member of the UNP: CB 165-166 at [79];
g)considered that it was plausible and credible that the applicant's poster team was approached and assaulted by unknown persons who may have been aligned with other political parties, however, it was not satisfied that the applicant had been completely candid about the extent of the assault or the injuries: CB 166 at [79];
h)accepted that the applicant reported the assault to the police and that there was inaction in response to the complaint: CB 166 at [80];
i)did not accept that the applicant received a threatening phone call in relation to the assault and in that regard accepted country information that those who may face a real chance of serious harm for their political opinion are those who are opposition politicians or political activists: CB 166-167 at [81];
j)given the applicant's low political profile and engagement in little political activity considered that it was implausible that the applicant would have been singled out and telephoned and threatened after having simply put up some posters and reporting the assault to the police, and was further not convinced as to how the caller would have obtained the applicant’s telephone number: CB 166-167 at [81];
k)was not satisfied that the claimed subsequent inquiries into the applicant’s whereabouts actually occurred, or that his father was beaten up or had a gun pointed at him, or that his mother was held at gunpoint: CB 167 at [84];
l)placed no weight on a letter said to be from the applicant’s employer: CB 153 at [21], on the basis of the form and contents of the document: CB 167-168 at [85];
m)placed little weight on a letter from a person said to be an attorney at law and commissioner for oaths as it did not explain the writer's personal knowledge of the events which it asserted had happened: CB 168 at [86];
n)found that the applicant did not face a real chance of serious harm from either the SLFP or the UNP and that he would not be regarded as having betrayed the party he previously supported (that is, the SLFP): CB 168 at [87];
o)found there was only a remote chance that the applicant would continue putting up posters or performing other activities that might be regarded as political and that there was no reason for any change in his behaviour: CB 168 at [89];
p)referred to country information indicating that attacks against specific individuals focus on targeting opposition politicians and political activists, and having found that the applicant was not an opposition politician or political activist, found that there was only a remote chance of serious harm befalling the applicant: CB 168-169 at [90];
q)considered the applicant’s claims individually and cumulatively and found that it was not satisfied that the applicant faced a real chance of serious harm by reason of his actual or imputed political opinion, and given the evidence of his very limited political interest and activity, and in the context of country information cited by the Tribunal, was not satisfied that the applicant was a person of interest to the SLFP or anyone else by reason of his political opinion, actual or imputed, such that he faced a real chance of serious harm if returned to Sri Lanka: CB 169 at [92]-[93];
r)in relation to the applicant’s claims made at the Tribunal Hearing and in his migration agent’s submission that he feared harm by reason of his unlawful departure from Sri Lanka, found that because the applicant departed Sri Lanka on a vessel facilitated by a people smuggler he was likely to be charged with an offence under the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act”), but that the I & E Act is a law of general application and does not give rise to persecution under the Refugees Convention: CB 170 at [96], and that there was nothing in the applicant's circumstances that indicated he would not be granted bail if he returned to Sri Lanka: CB 170 at [97];
s)considered country information in relation to prison conditions in Sri Lanka that the applicant was likely to experience while waiting for the grant of bail, and observed that these were “likely to be overcrowded and unpleasant”: CB 170 at [98], but found that any treatment in relation to the prison conditions did not amount to persecution under s.91R(1)(c) of the Migration Act as it would not be directed at the applicant in a discriminatory way, and nor was it motivated by one or more of the Refugee Convention grounds: CB 170 at [98];
t)in relation to the complementary protection criteria did not accept that the applicant faced a real risk of significant harm by SLFP supporters and did not accept that the applicant would suffer death or any other kind of significant harm for his political opinion (actual or imputed): CB 171 at [103];
u)accepted that the applicant was likely to be charged with an offence under the I & E Act because he had left Sri Lanka on a boat facilitated by a people smuggler, and that there was therefore a real risk that he would face arrest, detention and prosecution under the I & E Act on his return to Sri Lanka: CB 171 at [104], but that country information indicates that the applicant would be likely to be fined, and that the applicant could either pay the fine or enter into arrangements to pay it if necessary, and that the imposition of the fine was not in an amount such as to amount to significant harm: CB 171 at [105];
v)in relation to a claim that the applicant faced a real risk of significant harm because conditions in prisons and in police custody “are very poor”: CB 171 at [106], found at CB 171-172 at [107]-[109] as follows:
107. The Tribunal accepts country information indicates that prison conditions in Sri Lanka may not meet international standards. It accepts there are concerns about overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits “inhuman or degrading treatment or punishment”. The US Department of State (USDOS), citing an assessment by a former UN Special Rapporteur on Torture, also reported that “the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment”. However, having regard to all of the evidence before it, the Tribunal is not satisfied that the prison conditions in Sri Lanka are as they are because of an intent by the Sri Lankan government, or anyone else, to cause pain or suffering or significant harm, or an intent to cause degrading treatment or punishment.
108. The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison. However, the Tribunal finds that based on credible country information, for example from DFAT, that the applicant will be remanded for a short period of time, between one night to several nights. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable. Further, the Tribunal considered whether the mere act of imprisonment itself amounts to ‘significant harm'. However, having regard to all of the country information, the Tribunal is satisfied in this case that the mere act of imprisonment in the applicant's circumstances does not have a requisite intention to cause cruel or inhuman treatment or punishment, nor an intention to cause degrading treatment or punishment. The Tribunal therefore concludes that the applicant's imprisonment does not amount to significant harm.
109. The Tribunal considered the country information relevant to all the aspects of the treatment of a person in association with the offence under the Immigrants and Emigrants Act, including the questioning upon arrival at the airport in Sri Lanka, the laying of the charge, the application and grant of bail, through to the conviction and penalty, and finds it is not satisfied that there is an intention on the part of the Sri Lankan government or authorities to inflict cruel or inhuman treatment or punishment, nor an intention to cause degrading treatment or punishment in this process. Further, it is not satisfied that the applicant faces a real risk of significant harm in any part of this process, or in the process overall.
w)found that under Australian law cruel or inhuman treatment or punishment must be intentionally inflicted and that degrading treatment or punishment must be intended to cause extreme humiliation, and that mere negligence or lack of resources did not give rise to cruel, inhuman, or degrading treatment or punishment under Australian law: CB 172 at [111], and that having regard to all of the claims in respect of complementary protection, and having regard to the relevant country information, found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, that there was a real risk that he would suffer significant harm: CB 172-173 at [112]; and
x)found that it was not satisfied that the applicant was a person who met either the refugee or complementary protection criteria in s.36(2)(a) and (aa) of the Migration Act, and was therefore not satisfied that the applicant satisfied the criteria for a Protection Visa in s.36(2) of the Migration Act, and therefore affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 173 at [113]-[116].
Submissions
For the applicant
The applicant submitted as follows:
a)the ground of review could also be described as a failure to take into account a relevant consideration, namely the PAM 3 Refugee and Humanitarian Complementary Protection Guidelines (“Guidelines”);
b)the Tribunal was obliged under s.499(2A) of the Migration Act to comply with any Ministerial direction made pursuant to s.499(1) of the Migration Act. In this instance, the Ministerial Direction as set out at [4(d)(iii)] above had been made, which required the Tribunal to take into account the Guidelines to the extent they are relevant;
c)the Tribunal dealt with the Ministerial Direction in the Tribunal Decision at CB 164 at [69];
d)the Tribunal Decision at CB 171-172 at [107]-[109] rendered the Guidelines relevant, and by reason of s.499(2A) of the Migration Act, the Guidelines were a mandatory consideration;
e)the Guidelines provide examples of poor prison conditions which can amount to cruel or inhuman or degrading treatment or punishment: CB 171-172 at [107], including, amongst other things, overcrowding, unsanitary conditions, exposure to cold, inadequate ventilation or lighting, inadequate bedding, inadequate clothing, inadequate nutrition and clean drinking water, lack of opportunity for adequate exercise, and denial of medical treatment: Guidelines, pp.27-29;
f)despite that finding at CB 171-172 at [107], the Tribunal does not then consider whether the overcrowding, poor sanitary facilities, limited access to food, absence of basic assistance mechanisms, lack of reform initiatives and instances of torture, maltreatment and violence would, when regard is had to the Guidelines and the international jurisprudence referred to therein, mean there is a risk of significant harm to the applicant;
g)the Ministerial Direction requires the Tribunal to take into account the Guidelines to the extent they are relevant to the decision under review;
h)when a decision-maker is required to consider material, the process of consideration must involve “‘an active intellectual process’ directed at the nominated subject-matter”: Telstra Corporation Ltd v Australian Competition & Consumer Commission & Anor [2008] FCA 1758; (2008) 176 FCR 153; (2008) 107 ALD 474; (2008) ATPR 42-259 at [106] per Rares J, and give weight to that material as a “fundamental element in making his determination”: Sino Iron Pty Ltd v Secretary for the Department of Infrastructure & Transport [2014] FCAFC 103; (2014) 225 FCR 22; (2014) 312 ALR 648 at [124] per Perry J;
i)consideration of the Guidelines is mandatory once the Tribunal determines that they are relevant to a particular case: SZUQZ v Minister for Immigration & Border Protection [2015] FCCA 1552 (“SZUQZ”) at [53] per Judge Driver; Lafu v Minister for Immigration [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”). Whether the Guidelines are relevant to any matter before it is a matter for the Tribunal to determine: SZTMD v Minister for Immigration & Border Protection [2015] FCA 150; (2015) 150 ALD 34 (“SZTMD”) at [20] per Perram J; SZUQZ at [53] per Judge Driver, and whilst the determination of the relevance of the Guidelines is not a jurisdictional fact: SZTMD at [20] per Perram J, it is not for the Court to substitute its own view as to relevance of the Guidelines: Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456; (1995) 89 LGERA 253; (1995) 133 ALR 353; (1995) 39 ALD 262, FCR at 466-468 per Black CJ;
j)the Tribunal cannot avoid that determination by silence: SZUQZ at [54] per Judge Driver;
k)the claims made by the applicant rendered the Guidelines potentially relevant, and in those circumstances, the Tribunal had to determine whether the Guidelines were relevant or not. The Tribunal was required to make that determination to discharge the statutory obligation imposed upon it to take into account the Ministerial Direction, pursuant to s.499(2A) of the Migration Act;
l)other than the generic reference at CB 164 at [69], the Tribunal made no other express reference to the Guidelines, nor did it make any determination as to the relevance or otherwise of the Guidelines, and such a reference cannot be inferred;
m)the failure to make any other express reference to the Guidelines place this case on all fours with SZUQZ, which decision has found favour with the Federal Court: AZK15 v Minister for Immigration & Border Protection [2015] FCA 1444 at [42]-[43] per Jagot J, and also with this Court in ARS15 v Minister for Immigration & Anor [2015] FCCA 2135 (“ARS15”);
n)in SZUQZ, Judge Driver referred to SZTCV v Minister for Immigration & Border Protection [2015] FCCA 1677 (“SZTCV”), where a similar ground was advanced to the one advanced in SZUQZ and ultimately failed. The Tribunal’s decision record in SZTCV contained a statement in the following terms: see SZTCV at [69] per Judge Lloyd-Jones:
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3: Refugee and humanitarian – Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration. I have done so. (emphasis added)
o)the emphasised portion is the distinguishing feature between SZTCV and SZUQZ, as found in SZUQZ at [52] per Judge Driver. That reasoning is equally apt to the present case, where the underlined portion does not appear in the Tribunal Decision;
p)AJW15 v Minister for Immigration & Border Protection [2016] FCA 197 (“AJW15-Federal Court”) can be distinguished on a similar basis, namely that the Tribunal in that case demonstrated an intellectual engagement with the Guidelines on the basis of findings made (which were not expressly set out), but also because of the following passage from the Tribunal Decision set out in AJW15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 2579 (“AJW15-FCCA”) at [3] per Judge Street:
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.
q)in SZUQZ at [42] per Judge Driver the Court observed:
The Tribunal made express reference to the Guidelines in the attachment section of its decision record. However, outside of this reference, the Tribunal does not expressly mention the Guidelines. The Tribunal is not required in all cases to make reference to the contents of the Guidelines. It would only be in circumstances where the Tribunal considered that the Guidelines were relevant that it would be directed by the Ministerial Direction to take the Guidelines into account.
r)this is a case which is identical to SZUQZ where the factual findings of the Tribunal had relevantly engaged the operation of the Ministerial Direction and required the Tribunal to make a positive finding about whether the Guidelines were relevant to the decision under review. If the Guidelines were relevant, then the Tribunal was obliged to consider them and treat them as a fundamental element when reviewing the Delegate’s Decision; and
s)the Tribunal was simply silent on the issue of whether the Guidelines were relevant. This is not a case where the Tribunal Decision included words such as “I have done so”: SZTCV at [69] per Judge Lloyd-Jones, or expressly referred to the Guidelines in the body of the Tribunal Decision: AJW15-FCCA at [3] per Judge Street, and in not doing so the Tribunal fell into jurisdictional error for the reasons advanced in SZUQZ.
For the Minister
The Minister submitted as follows:
a)the ground of review turns on the proposition that the Tribunal failed to comply with the Ministerial Direction and s.499(2A) of the Migration Act, by way of a failure to consider the Guidelines;
b)no such inference can be drawn from the Tribunal Decision: in AJX15 v Minister for Immigration & Border Protection [2016] FCA 109 at [16] per Rares J it was held that the applicant's application for an extension of time in which to file a notice of appeal from a decision of the Federal Circuit Court, relying solely on a ground in similar terms to the present matter, had no prospect of success;
c)in the Tribunal Decision at CB 164 at [69] the Tribunal expressly recorded its obligations with respect to the Guidelines, and it should, therefore, not lightly be inferred that the Tribunal failed to discharge its obligations: SZTCU v Minister for Immigration & Border Protection [2014] FCCA 1600 at [39] per Judge Cameron, and the statement should, of itself, be sufficient to conclude that the Tribunal took the Guidelines into account: AJW15-Federal Court at [46] per Barker J;
d)given that it is at least clear that the Tribunal was cognisant of its obligation under s.499 of the Migration Act the applicant, in order to succeed, must show that, in spite of such cognizance, the Tribunal failed to have any regard to the Guidelines: ADO15 v Minister for Immigration & Border Protection [2016] FCCA 88 (“ADO15”) at [52] per Judge Smith;
e)clause 2 of the Ministerial Direction only requires the Tribunal to “take account of” the Guidelines “to the extent that they are relevant to the decision under consideration”. This has the effect that the Tribunal is only required to consider the Guidelines where it is of the opinion that the Guidelines are relevant, and the opinion as to relevance is not an objective matter to be determined as a jurisdictional fact by a Court on review: SZTMD at [20] per Perram J;
f)in this case, the Tribunal gave relevant consideration to the applicant's complementary protection claims in relation to his illegal departure, and expressly engaged with the relevant statutory definition of significant harm: CB 163-164 at [66][68], and had regard to relevant country information: CB 171-172 at [107];
g)the content of the Tribunal Decision demonstrates that the Tribunal had read, understood and taken into account the Guidelines. This is particularly evident through the Tribunal's consideration of the conditions in prison: CB 171-172 at [107], the duration of any period spent in custody, and whether the claimed harm was intended to cause cruel or inhuman treatment or punishment or was intended to cause degrading treatment or punishment: AAH15 v Minister for Immigration & Border Protection [2016] FCA 104 (“AAH15”) at [80]-[83] per Katzmann J: CB 172 at [108];
h)the reasons of the Tribunal are not to be read with a view keen to perceive error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang& Ors (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1, CLR at 271-272, 277, 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 294-295 per Kirby J;
i)the absence of some kind of formulaic statement of obedience to the Guidelines cannot be invoked in an attempt to counteract the evidence of the practical influence of the Guidelines upon the Tribunal's reasoning, and similarly, excessive weight is not to be given to slight and inconsequential variations in the expression of reasoning, in materially similar cases: AUE15 v Minister for Immigration & Border Protection [2015] FCCA 2452 at [3]-[6] per Judge Street (from which there was an unsuccessful appeal by the applicant: AUE15 v Minister for Immigration & Border Protection& Anor [2016] FCA 331; (2016) 239 FCR 148), and ALA15 v Minister for Immigration & Border Protection (No 2) [2015] FCCA 2048 at [23]-[24] per Judge Street;
j)the inference should be properly drawn that, as the Tribunal specifically identified the conditions in prison in Sri Lanka and that the applicant would be detained in those conditions for only a brief period, it did consider the Guidelines: AJW15 at [48] per Barker J; AYI15 v Minister for Immigration & Border Protection [2015] FCCA 2811 at [13] per Judge Street;
k)this matter is distinguishable from SZUQZ, particularly at [33] per Judge Driver. By contrast, this matter is relatively indistinguishable from SZTCV at [71]-[72] per Judge Lloyd-Jones, upheld on appeal in SZTCV v Minister for Immigration & Border Protection [2015] FCA 1309 at [14] per Nicholas J; and
l)in any event, even if there was an error with respect to the Guidelines, the finding in relation to the requisite intention renders any error irrelevant. The Tribunal was correct to hold that there is a need for actual, subjective intention to inflict harm under the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment”: SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64 (“SZTAL”); SZTCY v Minister for Immigration & Border Protection [2015] FCCA 85 (“SZTCY); SZTGM v Minister for Immigration & Border Protection [2015] FCCA 87 (“SZTGM”).
Consideration
The Tribunal Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error will constitute a jurisdictional error where the Tribunal:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that the Tribunal’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
It is for the applicant to make out his case and establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration & Citizenship [2009] FCA 1284; (2009) 112 ALD 424 at [15] per Jagot J.
The issue before the Court is, in the context of the Tribunal Decision read as a whole, what inference should be drawn from the reference by the Tribunal to the Guidelines at CB 164 at [69]. What must be asked is whether the Tribunal actively engaged and considered the Guidelines as far as they were relevant. Put differently, the issue is whether the reference to the Guidelines at CB 164 at [69] of the Tribunal Decision is merely “reciting the requirement that that factor be taken into account”: Lafu at [54] per Lindgren, Rares and Foster JJ.
What is required to be undertaken is a consideration of the reasoning in the Tribunal Decision as a whole, and an evaluation as to whether the omission of any further specific reference to the Guidelines can be understood, or rationalised, as being because the Tribunal did deal with the matters the subject of the Guidelines, albeit without specifically referring to the Guidelines, or because the matters or evidence which were required to be considered were not material to the Tribunal’s reasons: Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 (“SZSRS”) at [33]-[34] per Katzmann, Griffiths and Wigney JJ; Minister for Immigration & Citizenship v MZYZA [2013] FCA 572 at [48] per Tracey J.
In relation to harm for reasons of returning to Sri Lanka as a failed asylum seeker or by reason of illegal departure from Sri Lanka the Tribunal Decision dealt with these matters at CB 171-172 at [107]-[109] as set out at [4(v)] above.
The Tribunal set out independent country information relating to the treatment of returnees and penalties for illegal departure from Sri Lanka at CB 157-162 at [42]-[54]. In that regard it is relevant to note that the Tribunal:
a)referred to the UNHCR Eligibility Guidelines relating to the need for refugee protection: CB 157 at [42];
b)set out the DFAT country information report for 2013 relating to Sri Lanka’s political landscape, laws with respect to discrimination on the basis of political opinion and minority participation in politics, constitutional guarantees of freedom of speech, assembly and association: CB 157-158 at [43]-[44];
c)set out the findings of the UK Upper Tribunal (Immigration and Asylum Chamber) made in GJ & Ors, Sri Lanka CG [2013] UKUT 00319 (IAC) relating to categories of persons at real risk of persecution or harm and the Sri Lankan authorities intelligence capabilities with respect to assessing persons’ involvement with the LTTE and watch lists in relation to persons returning to Sri Lanka: CB 158-159 at [45];
d)observed that it was an offence under the I & E Act to depart Sri Lanka from any place other than an approved port of departure: CB 159 at [46];
e)set out the screening process engaged in relation to returnees and observed that those charged under the I & E Act are transported by police from the airport to the Magistrates Court in Negombo where they are held until a magistrate is available: CB 159 at [47];
f)noted that illegal returnees (other than people smugglers or persons involved in the facilitation of people smuggling) were ordinarily fined for illegal departure: CB 159-160 at [48];
g)observed that a person arrested on return because of their previous illegal departure from Sri Lanka might remain in police custody at the CID Airport Office for up to 24 hours, and if a magistrate were not available before that time, for example because of a weekend or a public holiday, the person would then be held at the nearby Negombo Prison: CB 159 at [47];
h)notes that pursuant to the CP Act there were procedures for fines to be paid by way of instalment, and that failure to pay fines might result in a warrant for the levy of the amount not paid by distress and sale of any moveable property belonging to the offender, and in default of payment of the fine, imprisonment: CB 160-161 at [50]-[52]; and
i)made observations concerning the conduct and effectiveness of the Sri Lankan police by reference to a 2015 DFAT country report: CB 161 at [54].
The Tribunal accepted that if returned to Sri Lanka the applicant would likely be questioned, detained, held in Negombo Prison and fined: CB 169 at [95], and on the basis of the applicant’s evidence that he had no criminal record.
The Tribunal specifically dealt with whether the applicant would experience significant harm for reasons of returning as a failed asylum seeker or an illegal departee: CB 169-171 at [94]-[101], and in particular observed that the applicant would be detained for a short period if charged with an offence under the I & E Act, would be fined, and bailed, and that if he could not afford to pay the fine could make arrangements to pay the fine by instalments: CB 169-170 at [94]-[97]. The Tribunal then dealt specifically with prison conditions, observing at CB 170 at [98] as follows:
98. The Tribunal considered the country information indicates that the prison conditions which the applicant is likely to experience in Sri Lanka while waiting to appear before a magistrate for the grant of bail are likely to be overcrowded and unpleasant. The Tribunal also considered the RRT decisions which the applicant's representative referred to in post hearing submissions. However, it is the view of the Tribunal that such treatment in the circumstances of this case does not amount to Convention based persecution because the Tribunal finds that this treatment is not directed at the applicant in a discriminatory way since the treatment and conditions is the same for everyone in Sri Lanka who is held in prison. The Tribunal finds the treatment does not meet the requirement in s.91R(l)(c) of the Act. Further, the Tribunal does not find that such treatment, even if it amounts to 'serious harm' is not motivated for one or more of the Convention grounds as all returnees are treated in the same manner.
The Tribunal also dealt with whether the applicant had come to Australia for economic reasons (essentially related to employment opportunities), as was found in the Delegate’s Decision, but was not satisfied that the applicant’s circumstances were such that he would not be able to find employment if returned to Sri Lanka: CB 170 at [100].
The Tribunal further dealt with:
a)the question of prison conditions in assessing the complementary protection claims of the applicant at CB 171-172 at [107]-[109] set out at [4(v)] above;
b)the process by which the applicant was likely to be charged with an offence under the I & E Act, bailed and fined in its complementary protection assessment: CB 171 at [104]-[105]; and
c)the question of the applicant’s employment upon his return to Sri Lanka in its complementary protection assessment: CB 172 at [110].
It is evident from the foregoing that the Tribunal engaged at an appropriate intellectual level with the claims made by the applicant, both in the context of the refugee and complementary protection assessments: Lafu at [47]-[54] per Lindgren, Rares and Foster JJ.
It is possible to infer that the Tribunal has failed to consider particular evidence or information where it does not mention it in its reasons: Yusuf at [69] per McHugh, Gummow and Hayne JJ. The fact that evidence or information is not expressly referred to in the Tribunal Decision does not, however, mean the Tribunal did not consider the evidence or information at all, or failed to actively engage in a consideration of the evidence or information: Yusuf at [69] per McHugh, Gummow and Hayne JJ; SZSRS at [34] per Katzmann, Griffiths and Wigney JJ. Where a Tribunal makes findings on a particular matter, the omission of other matters can be reasonably understood or inferred to be on the basis of irrelevance or immateriality to the Tribunal’s reasoning, however, “[i]n some cases, having regard to the nature of the applicant’s claims and the findings and reasons set out in the [Tribunal’s] reasons, it may be readily inferred that if the matter or evidence had been considered at all, it would have been referred to in the [Tribunal’s] reasons, even if it were then rejected or given little or no weight”: SZSRS at [34] per Katzmann, Griffiths and Wigney JJ.
In AAH15 the Guidelines were referred to in an attachment to the decision of the Tribunal, and the Federal Court stated there was “great difficulty” in accepting that there was any sound basis to argue that the Tribunal failed to give consideration to certain matters arising from the Guidelines: AAH15 at [83] per Katzmann J.
In SZTMD, as in SZUQZ, the circumstances in relation to the consideration of the Guidelines were identical to this case. In SZTMD at [19] per Perram J the Federal Court observed that:
19 The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.
Earlier in SZTMD at [15] per Perram J the Federal Court had said that:
Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
In AJW15-Federal Court at [46] per Barker J the Federal Court said that:
46. The Court agrees that the Tribunal's statement that it was required to take account of the guidelines should in itself, on a fair reading of the Tribunal's reasons in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259at 271-272; [1996] HCA 6, be sufficient to conclude the Tribunal has done so. See SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 at [14].
AAH15, SZTMD and AJW15-Federal Court stand in contra-distinction to SZUQZ in a factual context which is on all fours insofar as there is a failure to mention the Guidelines, other than to indicate that they are to be taken into account by the Tribunal. In the circumstances, the Court as presently constituted is of the view that the rationale adopted by the Federal Court in SZTMD and AAH15, is preferable, and ought to be followed, and in any event must be followed as binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 at [29] per Spender, Buchanan and Perram JJ.
In ADO15 this Court observed as follows at [52]-[54] per Judge Smith:
52. The first point to note is that cl.2 of the Direction only requires the Tribunal to “take account of” the relevant guideline. It does not require the Tribunal to follow the guideline slavishly as though it were a statement of law. In this case, the Tribunal stated, at [6] that it was required to take the guideline into account. In light of that, it is clear that the Tribunal was at least cognisant of its obligation under s.499 of the Act. Thus, in my view, in order to succeed the applicant must show from the balance of the Tribunal’s reasons that, in spite of this cognizance, the Tribunal failed to have any regard to the guidelines.
53. The second point to note is that the particular paragraph in the guidelines relied upon by the applicant (the second paragraph quoted at [51] above) is very general in nature and application. The Direction does not say when it would be appropriate to make certain inferences, or when certain inferences must be drawn. Indeed, if it did it would probably be beyond the power in s.499(1) of the Act.
54. There is nothing in the Tribunal’s reasons to suggest that it did not “take account” of any part of PAM3. The ground is hopeless and I refuse leave to rely on it.
As in ADO15 the reference to the Guidelines at CB 164 at [69] indicates that the Tribunal was well aware of the requirement to take the Guidelines into account. That is reinforced in this case by the placement of the reference to the requirement to take the Guidelines into account in the paragraph immediately preceding the Tribunal’s consideration of the applicant’s claims and the evidence: CB 164 at [69]. For the reasons which follow immediately hereunder it cannot be said in this case that in spite of its cognisance of the Guidelines the Tribunal failed to have regard to them.
In the Court’s view it can plainly be inferred from the Tribunal Decision that the Tribunal read, understood and took into account the Guidelines, particularly insofar as it focussed upon the likely short period of detention: CB 172 at [108]. The Tribunal expressly set out and engaged with the definition of “significant harm” as it related to the applicant’s circumstances in this case, and in particular the applicant’s return to Sri Lanka as a failed asylum seeker or an illegal departee: CB 163-164 at [66]-[68], 171 at [102] and [104], and 171-172 at [107]-[109]. The focus on the short period of detention allows an inference that the Tribunal was applying duration-based reasoning as a centrally important factor in assessing prison conditions against Article 7 of the ICCPR as indicated in the Guidelines. The necessary implication to be drawn from this inference is that having found the applicant would be detained for only a short period, the Tribunal did not consider the other parts of the Guidelines relevant, as opposed to failing to consider them: SZTMD at [15] per Perram J. Moreover, the Tribunal otherwise specifically considered country information concerning prison conditions, in the context of a short period of confinement, as it was required to do by the Guidelines: AJW15-FCCA at [3] per Judge Street. SZUQZ and ARS15 are therefore distinguishable in these circumstances, the Court being of the view that in this case the Tribunal’s reasons indicate that it read, understood and took into account the Guidelines.
For all of the above reasons, the Court is bound to follow the Federal Court’s judgment in SZTMD, AAH15 and AWJ15-Federal Court, and applying those judgments, and the rationale in ADO15, the Court is of the view that the Tribunal was aware of the requirement to, and, as a matter of substance and not mere form, did take into account, the Guidelines.
Finally, it is pertinent to observe that even if there was an error with respect to the treatment of the Guidelines by the Tribunal in the Tribunal Decision, the finding by the Tribunal at CB 172 at [108] that the mere act of imprisonment in the applicant’s circumstances does not have a requisite intention to cause significant harm means that any error with respect to the Guidelines would be irrelevant: see SZTAL (and now see SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 91 ALJR 936; (2017) 347 ALR 405 at [4] per Kiefel CJ, Nettle and Gordon JJ, and [74] per Edelman J).
With respect to the applicant’s sole ground of review the Court does not find any jurisdictional error in the Tribunal’s consideration of the Guidelines in the applicant’s case and, in particular, finds that there was no failure to relevantly take account of the Guidelines.
Conclusion and orders
No jurisdictional error having been found in the Tribunal Decision it follows that the Amended Judicial Review Application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 February 2019
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