AOG15 v Minister for Immigration

[2017] FCCA 2409

FEDERAL CIRCUIT COURT OF AUSTRALIA

AOG15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 2409

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – Tribunal not accepting veracity of applicant’s claims due to inconsistencies – whether Tribunal correctly understood notion of intentional harm as discussed in SZTAL.

Legislation:
Migration Act 1958

Cases cited:

SZTAL v Minster for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: AOG15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 861 of 2015

Judgment of: Judge Riley

Hearing date: 23 February 2017

Date of last submission: 23 February 2017

Delivered at: Melbourne

Delivered on: 4 October 2017

REPRESENTATION

Counsel for the applicant: In person

Solicitors for the applicant: None

Counsel for the first respondent: Ashlee Briffa

Solicitors for the first respondent: Australian Government Solicitor

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Australian Government Solicitor

ORDERS

1. The application filed on 23 April 2015 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $6,300.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 861 of 2015

AOG15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. Orders were made by consent on 4 October 2016 remitting this matter to the Tribunal.  However, on 5 December 2016, further orders were made by consent reinstating the proceeding.

The applicant’s claims

1. The applicant is a citizen of Sri Lanka and is a Tamil Hindu.  He arrived in Australia on 16 July 2012 as an unauthorised maritime arrival.  He applied for a protection visa on 4 December 2012.

2. The applicant claimed that:

   a)in April 2006, he travelled away from home for work and met a man named Ganapathy;

   b)later, Ganapathy and his family stayed with the applicant at his home;

   c)after Ganapathy and his family left, unidentified Sinhalese men in motorbike helmets forced their way into the applicant’s house and slapped and kicked him;

   d)in 2010, a Sinhalese man rang the applicant on the telephone and yelled at him;

   e)the applicant could not understand what the Sinhalese man was saying but it seemed to be connected with Ganapathy and his family staying with the applicant and it seemed to be threatening;

   f)in 2011, the applicant received a similar telephone call;

   g)in May 2012, the applicant received another similar telephone call;

   h)he decided to leave Sri Lanka as he feared for his life;

   i)he went into hiding for about one month;

   j)his mother helped him arrange a people smuggler; and

   k)the applicant also feared harm as a Tamil and failed asylum seeker.

3. In addition, during the hearing before the Tribunal, the applicant claimed that:

   a)he had given fish to the Liberation Tigers of Tamil Eelam (“LTTE”) so that he would be allowed to continue fishing;

   b)other people knew he had given fish to the LTTE and could tell the authorities; and

   c)the applicant had to go to a navy checkpoint to get a pass at 3am and the navy would assault him and demand free fish.

The Tribunal’s reasons

1. The Tribunal identified a number of inconsistencies in the applicant’s accounts of his experiences including:

   a)the year that he met Ganapathy;

   b)the circumstances in which he met Ganapathy;

   c)which members of Ganapathy’s family stayed with him; and

   d)whether he was beaten at home or at the police station.

2. In addition, the Tribunal noted that the applicant did not mention providing fish to members of the LTTE at any time prior to the Tribunal hearing.

3. The Tribunal considered that the inconsistencies in the applicant’s account were not adequately explained.  The Tribunal did not accept that the applicant had any links to the LTTE, either through giving its members fish or through having Ganapathy and his family stay at his house.  The Tribunal did not accept that the applicant was assaulted or was of any interest to the authorities because of suspected links to the LTTE.  The Tribunal did not accept that the applicant received any threatening telephone calls.

4. The Tribunal considered country information in relation to the applicant’s claim that he had been required to obtain a pass from the navy to be allowed to fish.  The Tribunal concluded that the applicant may have been required to obtain a pass in the past, but it was no longer a requirement.  As such, the Tribunal considered that the requirement to obtain a pass would not present problems for the applicant in the future.

5. Based on country information, the Tribunal did not accept that the applicant faced a real risk of persecution as a Tamil, as a failed asylum seeker, as a returnee or as a person who had departed Sri Lanka illegally.

6. The Tribunal considered the complementary protection criteria.  The Tribunal accepted that the applicant may face a short period in remand as a result of being a person who had departed Sri Lanka illegally.  The Tribunal did not accept that the applicant would face any particular difficulties in remand because his profile did not include people smuggling or LTTE sympathies.

7. The Tribunal did not consider that any physical or mental pain or suffering that the applicant might endure during a short period in remand would be intentionally inflicted so as to amount to torture, or cruel or inhuman or degrading treatment or punishment within the meaning of the Migration Act 1958.

Grounds of application

1. The grounds of review in the application filed on 23 April 2015 are:

   1.The decision of the Tribunal:

   (a)is affected by an error of law; and

   (b)denied the applicant procedural fairness.

   2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

2. In relation to the second ground, the applicant advised the court at the hearing of this matter that Victoria Legal Aid had decided not to assist him.  In any event, the second ground is not a ground of review as such.

3. In relation to the first ground, the applicant was unable to advise the court of any problems with the Tribunal’s decision or decision-making process that could amount to a jurisdictional error.  He said that he had forgotten to tell the Tribunal about a particular incident.  Otherwise, the applicant had nothing to say about any error that the Tribunal might have made.

4. The first respondent submitted that the Tribunal had made credibility findings that were open to it in view of the inconsistencies in the applicant’s accounts.  The first respondent also submitted that there was no denial of procedural fairness in this case.  The applicant was invited to a hearing, which he attended with the benefit of a migration agent and an interpreter.  The applicant was on notice of the determinative issues because the delegate of the Minister had also decided the case on credibility grounds and because the Tribunal alerted the applicant to the relevant country information during the hearing.  I accept the first respondent’s submissions on these issues.

5. In addition, the first respondent raised a potential issue relating to the matters considered by the Full Court of the Federal Court in SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. Since the hearing of this matter, the High Court has handed down its decision on the appeal from that decision. The citation of the High Court’s decision is SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. The High Court upheld the decision of the Full Court of the Federal Court.

6. The Tribunal accepted in paragraph 104 of its reasons for decision that:

   prison conditions in Sri Lanka are poor and do not meet international standards due to gross overcrowding and lack of sanitary facilities. (footnote omitted)

7. The Tribunal then said, in relation to whether any harm the applicant might suffer in remand would be intentional:

   105.In considering whether the consequences of being held on remand whilst waiting for a magistrate constitute significant harm as defined in the Act, the evidence before the Tribunal does not indicate that returnees with no other profile who have been charged with illegal departure and remanded in prison have been subjected to pain or suffering by an intentionally inflicted act or omission intended to obtain information, a confession, to intimidate or coerce or for any other reason whilst on remand. There are no substantial grounds for believing there is a real risk that the applicant would suffer torture in such circumstances.

   106.Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment.

   …

   108.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. (footnotes omitted)

8. That approach to the question of intentional harm has been upheld by the Full Court of the Federal Court and the High Court.  Consequently, I do not consider that the Tribunal erred in relation to its assessment of whether the harm the applicant might suffer on remand would be intentional, as that term is to be understood.

9. I have been unable to discern any other basis on which it could be said that the Tribunal has made a jurisdictional error in this case. 

Conclusion

1. As it has not been possible to identify any jurisdictional error in this case, the application must be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:         4 October 2017