AQO16 v Minister for Immigration
[2018] FCCA 2245
•19 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQO16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2245 |
| Catchwords: MIGRATION – Protection visa – application for judicial review of Tribunal decision – whether Tribunal failed to consider a relevant consideration, or an integer of a claim, or a material question of fact – whether Tribunal misunderstood the law or applied the wrong legal test – whether the Tribunal acted unreasonably – Tribunal failed to deal with a claim that had been clearly articulated and accepted by a delegate of the Minister – claim to injury from beatings and interrogation with resultant scarring could easily have been explored by Tribunal at hearing without any attendant delay or other inquiry – scarring was an important integer in claim – jurisdictional error established – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 65, 476 Migration Regulations 1994 |
| Cases cited: Applicant WAEE v Minister for Immigration and Indigenous and Multicultural Affairs (2003) 236 FCR 593 |
| Applicant: | AQO16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 589 of 2016 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 29 May 2017 |
| Date of Last Submission: | 6 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 19 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Krohn |
| Solicitors for the Applicant: | Ambi Associates |
| Counsel for the Respondents: | Mr Yuile |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue to remove into this Court, for the purposes of its being quashed, the decision by the Administrative Appeals Tribunal made on 26 February 2016 affirming a decision of a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa.
The First Respondent pay the Applicant’s costs fixed at $7,328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 589 of 2016
| AQO16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By amended application filed on 1 May 2017, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 26 February 2016 affirming a decision of a delegate of the first respondent (Minister) to refuse the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
For the reasons that follow I have concluded that the application should be allowed. In substance, I have concluded that the Tribunal failed to deal with a claim that had been clearly articulated and indeed which had been accepted by a delegate of the Minister. I have further concluded that the failure to deal with the claim constituted jurisdictional error such as to warrant the grant of relief quashing the Tribunal’s decision and remitting the application for further consideration.
Background
The applicant, a Sri Lankan national aged 28 years who is of Tamil ethnicity and of the Hindu faith, first arrived in Australia on 1 August 2012 as an irregular maritime arrival.
On 27 November 2012, the applicant, with the assistance of his migration lawyers, applied for a Protection (Class XA) visa (visa).
Part C of the applicant’s visa application set out the circumstances in which his parents had made arrangements for him to leave Sri Lanka.
The applicant’s original claims to protection were more fully set out in a statutory declaration made on 23 November 2012 in which he claimed to fear harm from the Sri Lankan authorities including the Central Investigations Department (CID) and the Sri Lankan Army. The basis of his claims were grounded upon his Tamil ethnicity and that he would be imputed with the profile of a person who was supportive of the Liberation Tigers of Tamil Eelam (LTTE).
By his declaration, the applicant stated that during the war his family had moved from their home in the Northern Province of Sri Lanka to the village of Maathalan. Following the cessation of hostilities, his family had attempted to return to their home by sea but were intercepted and then detained. The applicant claimed that he was separated from his family in a military camp with ~250 other young men and women until his release in June 2010. He declared that following his release officers of the CID had come to his home, taken his documents and created a file in relation to him. The applicant stated that until he left Sri Lanka he was required to attend the CID each month and would be interrogated for periods of five to six hours. The applicant claimed that in early 2012 he had made a complaint to UNICEF in relation to the requirement to attend the CID and was told by UNICEF that he did not need to do so. When the applicant failed to attend upon the CID in March 2012, officers from the CID had come to his home to inquire of his reason for not attending upon them and required him to so attend the following morning. The applicant claimed that when he did so attend, he was beaten with a cable across the back of his legs as a result of which he suffered scarring. The question of that scarring is of central importance in the present application.
The applicant further claimed that he had continued to attend upon the CID at monthly intervals until he left Sri Lanka and that thereafter the CID had continued to make inquiries of his whereabouts.
On 23 July 2013, the applicant was invited to attend an interview before a delegate of the Minister to discuss his visa application and claims for protection. On 7 August 2018, the applicant attended that interview and to that end was assisted by a Tamil-speaking interpreter.
On 3 February 2014, the delegate refused the visa application. The delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations.
In making findings of fact in relation to the applicant’s claims respecting his detention, the requirement to report to the CID and the beating that he claimed to have received, the delegate examined each issue in detail. The delegate noted inconsistencies in the applicant’s account of his claim to having been beaten and found it more likely that the applicant had been beaten in March 2012 as claimed in his declaration and not in June 2012 as claimed during his interview. Further, the delegate noted the applicant had claimed that he had returned from Colombo to his home town of his own free will. Upon that finding the delegate concluded that the applicant did not have a subjective fear of persecution.
The delegate provided the following summary of findings of fact:
I accept as credible that the applicant:
·Was separated from his family in an IDP camp after the war and was placed into Kalithaddy Centre for 12 months, where he did not undergo a program of rehabilitation
·Was required to report to the CID either regularly or irregularly after his release from Kalithaddy Centre
·Complained to UNICEFF about the CID reporting requirements a number of times
·Was detained and beaten by the CID in March 2012 due to having complained to UNICEF and that he sustained scaring to his legs as a result of this beating
·Continued to report to the CID without further incident until he departed Sri Lanka in July 2012
I do not accept that:
·The applicant was detained and beaten by the CID in June 2012 due to having failed to report
·The applicant’s father was issued with a note from the CID after the applicant departed Sri Lanka
·The applicant is of interest to the Sri Lankan authorities
(Emphasis added)
It will be noted that the delegate accepted as credible that the applicant had been beaten by CID officers and had sustained scarring to his legs in March 2012 but not that he had been detained or beaten in June 2012.
The delegate considered and rejected claims that the applicant was owed protection obligations by reason of his Tamil race, an imputed political opinion grounded upon perceived LTTE connections, his Hindu religion and an imputed political opinion grounded upon his being a failed asylum seeker who had departed illegally (being a claim not made expressly but considered by the Tribunal for the sake of completeness).
On 7 February 2014, the applicant lodged an application for review of the delegate’s decision by the then Refugee Review Tribunal. The applicant was assisted by a registered migration agent in doing so.
On 23 October 2015, the applicant was invited to appear before the Tribunal on 19 November 2015 to give evidence and present arguments relating to the issues arising on the delegate’s decision. The applicant did not appear on that day. The Tribunal dismissed the application for non-appearance. The applicant lodged a request for reinstatement of application and on 17 December 2015 the application was reinstated.
On 18 December 2015, the applicant was again invited to appear before the Tribunal on 11 January 2016.
On 4 January 2016, the applicant made a further statutory declaration in which he expanded upon his circumstances and claims to protection. In this statement the applicant added that he had been forcefully seconded to membership of LTTE but that he managed to escape only to be recaptured and forced by LTTE to undertake basic training before being transferred to another LTTE camp from which the applicant escaped. The applicant also claimed that he had been interrogated, and upon being suspected of being a member of LTTE, was sent to a rehabilitation centre. The applicant recounted that he had been transferred to a number of camps and was eventually released with the assistance of UNICEF. The applicant restated his account of being required to report to CID each month and of the beating he received.[1] The statutory declaration articulated the applicant’s claims to protection as follows:
I possess several characteristics which I believe may make me someone of interest to the authorities; I am a young Tamil male who was from an LTTE stronghold and had displaced to other LTTE areas. I was also a LTTE member who was given rehabilitation.
I have scars from the injuries in my leg from the CID beating. It is widely known that Tamils who have lost their limb or have scars were suspected by the SLA of having served as fighters in the LTTE.
Furthermore, my escape to a Western country illegally is going to cause further problems for me, as the authorities will know that I have come here to seek protection and I have spoken out against them. My villagers have already told the CID that I am in Australia now. My return will attract further attention towards me from the CID.
I have heard of people (former LTTE member) who get deported back to Sri Lanka, being taken to the 4th floor in Colombo upon return.
Concerning the matters which the applicant asked to be taken into account, he stated that he had not told the Tribunal his ‘full story’ and that he had not done so because he had been scared to talk about his membership of LTTE, adding that he had been told not to do so.
[1]Although the delegate had rejected the applicant’s claim that the beating occurred in June 2012 and the applicant’s assertion in his original statutory declaration that the reference to March 2012 was in error, the further statutory declaration maintained at pp. 6-7 that the beating had occurred in March 2012.
The applicant’s hearing was rescheduled to 28 January 2016 and he appeared on that day represented by his migration agent and with the assistance of a Tamil-speaking interpreter.
On 26 February 2016, the Tribunal affirmed the delegate’s decision not to grant the applicant a Protection visa. The Tribunal provided a statement of reasons for its decision (Reasons).
Tribunal decision
The Tribunal had before it a series of reports from diverse sources including the UNHRC, UK Home Office, US State Department, the Australian Department of Foreign Affairs and Trade and others.
The Tribunal’s Reasons were comprehensive and contained a detailed analysis of the applicant’s claims and evidence.
The Tribunal expressed its serious doubts about the applicant’s evidence with respect to where he was living and what had happened to him from May 2009 onwards, noting that a number of the applicant’s claims had been raised late: Reasons, [29]. The Tribunal identified the applicant’s delay in the advancing of his new claims and numerous inconsistencies and discrepancies in his evidence, as supporting a finding that he was not a witness of truth and his claims were not credible: Reasons, [29].
The Tribunal described those inconsistencies and discrepancies that were of concern. While the applicant’s amended grounds of review focus on the claim of being beaten by the CID and are of central relevance to the present application, I note the Tribunal expressed concern about almost all of his claims: see, e.g. Reasons, [47].
In relation to the claim of having being beaten, the Tribunal concluded that differences in the applicant’s evidence given at the hearing when compared to his statutory declaration made only days before the hearing raised serious doubts about the credibility of his claims regarding the problems he allegedly experienced from the CID: Reasons, [40]. The Tribunal reasoned as follows:
In regard to the applicant’s claims about what happened when he allegedly stopped reporting to the CID, on the advice of UNHCR, the applicant claimed in the hearing that the CID came to his home in the morning and asked him why he has not come to sign. He claimed the CID asked him to come and sign and he went the same day, immediately, to their camp, where he was taken to a room and questioned and he was hit on his leg with a wire. The applicant’s evidence was that he was kept at the camp until night, when his mother came looking for him, and the next day he caught a bus and went to Colombo and never returned to Mamunai. However, as the Tribunal noted in the hearing, according to the applicant’s recent statutory declaration, he claimed that four CID officials came to his house at night, and told him to report the next morning at 8am. Further, he claimed that he did not go the next morning, as the CID allegedly requested, but instead went to Colombo by bus where he stayed for two weeks before returning to his home because his father was taken to the CID camp and interrogated about his whereabouts and threatened. The Tribunal also notes that the applicant claimed in his recent statutory declaration that on his return from Colombo he was detained for a day at the camp and beaten with a cable across his legs, before being released that night when his parents came looking for him. The Tribunal finds the substantial differences in the applicant’s evidence in the hearing, as compared to his recent statutory declaration, raises serious doubts about the credibility of his claims regarding the problems he allegedly experienced from the CID.
The Tribunal set out its findings on credibility and its conclusions on the applicant’s claims for protection at [47]-[50]. Based on the Tribunal’s concerns, it did not accept the applicant was a reliable witness or that his claims regarding his past experiences in Sri Lanka were credible.
More specifically, in relation to the claim that the applicant was beaten by the CID, the Tribunal did not accept that:
. . . when the applicant stopped reporting, after allegedly being advised by UNICEF, that he received any visit from the CID and was asked to report to their camp. The Tribunal does not accept that the applicant ever went to the CID office and was interrogated and beaten either with a cable or a wire: Reasons, [49].
The Tribunal concluded that it did not accept that the applicant would be seriously harmed or killed by the Sri Lankan government or its affiliated agencies, including the CID or the SLA because he was forcibly recruited by the LTTE. Nor did it accept that the applicant would be punished, tortured, killed, intimidated or harassed for complaining about the alleged brutal treatment and CID abuses against him to UNICEF or any other international agency: Reasons, [50].
The Tribunal proceeded to consider whether the applicant would be at risk of harm as a Tamil generally, or as a person who was a returning failed asylum seeker finding that there would not be a risk of harm to the applicant for either reason, especially given the Tribunal’s finding that the applicant did not have a profile that would lead the Sri Lankan government to perceive him as a risk: Reasons, [52]-[59].
The Tribunal considered and rejected that the applicant would be at risk of serious harm as a result of being returned to the community or being questioned by police or monitored: Reasons, [60].
The Tribunal also found that the applicant may be detained in custody for a short time by reason of his being a person who had left Sri Lanka illegally. However, it also found that the likely result of a hearing before a Magistrate would be for the applicant to be fined and/or release on bail: Reasons, [61]-[63].
The Tribunal found, upon country information, that the laws respecting persons who had departed Sri Lanka illegally were laws of general application that were not applied selectively: Reasons, [64].
The Tribunal concluded that the applicant was not a person in respect of whom Australia owed protection obligations under the Refugees Convention. The Tribunal concluded that any harm which the applicant might suffer in prison would not constitute intentional harm such as torture, cruel or inhuman or degrading treatment or punishment so as to be significant harm within the meaning of, or to give rise to a right to complementary protection under, the Act: Reasons, [68]-[79].
Procedural History
On 23 March 2016, the applicant filed an application for judicial review of the decision made by the Tribunal on 26 February 2016 together with an affidavit to which he exhibited a copy of the Tribunal’s decision but which adduced no further evidence in support of his application.
By a Response filed on 21 April 2016, the Minister opposed the making of the orders sought in the application on the grounds that the Tribunal’s decision was not affected by jurisdictional error.
On 16 August 2016, orders were made, by consent, regulating the filing by the applicant of any amended application including any additional grounds of review with complete particulars of each ground, any affidavits, written submissions and a list of authorities.
On 1 May 2017, the applicant filed an amended application.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476. Absent jurisdictional error, the Court has no jurisdiction to grant relief in respect of the Tribunal’s decision: sub-s 476(2).[2]
[2]Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [75]-[76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
Ministerial satisfaction that a visa applicant has fulfilled the criteria prescribed for that visa is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB[3]; see also Minister for Immigration and Citizenship v SZMDS.[4]
[3] (2004) 78 ALJR 992, [37]-[38] (Gummow and Hayne JJ).
[4] (2010) 240 CLR 611, [40] (Gummow A-CJ, Kiefel J), [102] (Crennan and Bell J).
Thus, s 65 requires the decision-maker to refuse to issue a visa absent a positive finding that the criteria applicable to the particular visa application are satisfied: Minister for Immigration and Multicultural Affairs v Lay Lat.[5]
[5](2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275 (Brennan CJ, Toohey, McHugh and Gummow JJ).
Criteria for a Protection visa are set out in s 36 of the Act and Subclass 866 of Sch 2 to the Migration Regulations 1994. Subclass 866 prescribes the primary and secondary criteria that must be satisfied in relation to a Protection visa application, at the time of the application and at the time of decision respectively.
The amended application advanced three grounds of review. In substance, the applicant complained that the Tribunal had failed to consider the applicant’s claim that he had scarring on the back of his legs from the beating which, as he claimed, he had received from the CID.
The parties provided comprehensive written and oral submissions.
Ground 1 – failure to consider relevant consideration
Ground 1 reads:
The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.
As was common ground, the Tribunal was obliged to consider each relevant consideration and each integer of the claim.
The amended application provided six particulars to this ground:
The Tribunal noted the advice of Foster J. in Minister for Immigration and Ethnic Affairs and McIlhatton v. Guo Wei Rong and Pan Ran Juan (1996) 40 ALD 445 at 482 that:
. . . . care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted. (CB 259, [25])
The Tribunal then referred to inconsistencies and discrepancies in the applicant’s evidence and concluded from them that he “is not a witness of truth and his claims are not credible”, but did so without considering whether some portion of his claims about his history from 2009 onwards could reasonably have been accepted, in particular having at some time suffered harm from, or been a person of interest to, the CID.
(CB 260, [29], [42], [48]-[50])
The Tribunal failed to consider and to determine the applicant’s claims to have scars on his legs, which scars he said were the result of a savage beating with a steel cable by the CID, a beating which caused injuries which took a month to heal. (CB 69, 210)
The Tribunal failed to consider and to determine whether, if the applicant had scars on his legs, those scars were consistent with being the result of intentional injury, and consistent with a savage beating with a steel cable by the CID, a beating which caused injuries which took a month to heal. (CB 69, 210)
The Tribunal failed to consider and to determine whether, if the applicant had scars on his legs, those scars may put him at risk of being perceived as a former LTTE member or combatant, or otherwise being of interest to the authorities on his return to Sri Lanka. (CB 212)
The Tribunal failed to consider and to determine whether, if the applicant had scars on his legs, those scars may put him at risk of suffering persecution or significant harm, whether in the course of initial screening and questioning at the airport, or on remand or in later monitoring and questioning, and thereby at risk of spending a longer period or periods in detention or prison while being investigated, and thus in turn of having a real chance or a real risk of suffering persecution or significant harm. (CB 69, 210, 212)
The Tribunal determined that the applicant had not previously been suspected of association with the LTTE, nor perceived as having such an association, but failed to consider whether he may have such an association on his return, being a young Tamil man with significant scarring. (CB 212)
As is apparent, the burden of the applicant’s particulars focussed upon the alleged scarring of his legs as a result of alleged interrogation and beating at the hands of CID officers.
The applicant correctly submitted that the Tribunal had noted at [25], the advice of Foster J in Minister for Immigration and Ethnic Affairs and McIlhatton v Guo Wei Rong and Pan Ran Juan (McIlhatton) that:[6]
. . . care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
The Tribunal proceeded to consider the statement by Kirby J in Minister for Immigration and Ethic Affairs v Wu Shan Liang (Wu Shan Liang)[7] which qualified the statement above in McIlhatton. In Wu Shan Liang, Kirby J stated:
First, it is not erroneous for a decision-maker, presented with a large amount of material, to reach conclusions as to which of the facts (if any) had been established and which had not. An over-nice approach to the standard of proof to be applied here is undesirable. It betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court of law conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the Minister and even if conducting a secondary determination. It is not an error of law for such a decision-maker to test the material provided by the criterion of what is considered to be objectively shown, so long as, in the end, he or she performs the function of speculation about the "real chance" of persecution required by Chan. (Emphasis added)
[6] (1996) 40 ALD 445 at 482.
[7] (1996) 185 CLR 259 at 293.
In the development of the applicant’s submission on Ground 1, I understood it to be contended that the Tribunal had correctly identified but failed properly to apply the principle stated in McIlhatton.
Following the references to McIlhatton, the Tribunal had then referred to inconsistencies and discrepancies in the applicant’s evidence and concluded that he was “not a witness of truth and his claims are not credible.” The applicant complained that the Tribunal had done so without considering whether some portion of his claims about his history from 2009 onwards could reasonably have been accepted; in particular, whether he had at some time suffered harm from, or been a person of interest to, the CID: Reasons, [29], [42], [48]-[50].
The applicant submitted that the Tribunal failed to consider or determine the applicant’s claims to have scars on his legs, which scars he said were the result of having been beaten with a steel cable by the CID.
The respondent submitted that the claim that the Tribunal had referred to inconsistencies in the evidence and drawn its conclusion “without considering whether some portion of his claims could reasonably have been accepted” was nothing more than a call for merits review. I disagree.
Consideration of whether there is substantive merit in an application for judicial review requires that the reasons of the Tribunal be examined. The close analysis of the factual evaluation and approach taken by the Tribunal is not merits review; it is part of the process of assessing whether serious findings made about an applicant have been made lawfully: SZSSG v Minister for Immigration and Border Protection.[8] To that end, I have undertaken that analysis of the Reasons.
[8] [2018] FCA 670 at [6]-[7] (Allsop CJ).
As counsel for the Minister frankly conceded, the Tribunal did not expressly consider the applicant’s claim that he had sustained scarring to his legs as a result of an alleged beating. To meet that shortcoming, it was submitted that the Reasons at [21] recited the applicant’s claims which included the applicant’s claims to have been detained at a camp, to having been released, and to the CID’s visits to his home. It was said that those matters formed a linkage of which the alleged beating and resultant scarring were a part, such that the Tribunal’s rejection of the alleged detention meant that the claims collapsed as a house of cards. The Minister submitted that the express recognition of the claims at [21] gave context to the findings at [29], including adverse findings of credibility and which together with a finding of delay in the making of claims, combined to support the Tribunal’s conclusion that the applicant was not a witness of truth and that his claims were not credible. It was then said that this also supported the further findings at [30]-[58]. For those reasons, it was said that the claims based upon the involvement of the CID, and the separate question whether the applicant would be imputed with a particular profile, had been considered and in each case encompassed a consideration of the applicant’s alleged scarring.
I disagree. In my opinion, the failure to consider the alleged scarring constituted a failure to consider a material integer of the applicant’s claim. It was a failure which could easily have been addressed in the course of the hearing. No more was required than for the Tribunal to have asked the applicant to show that scarring to the Tribunal and for it to assess the existence and extent of the alleged injury. It was not a case of the Tribunal being asked to delay the hearing or to have conducted further inquiry. Such an inquiry was obvious and could easily have been undertaken. The inquiry related to a fact critical to the applicant’s claims and may, if established, have provided a sufficient link to the outcome of the visa application. The failure to explore the issue was erroneous.
I accept that caution is required such that the Court should not too readily conclude that there has been a failure to deal with an integer of a claim in circumstances where, as here, the reasons of the Tribunal are otherwise comprehensive: Applicant WAEE v Minister for Immigration and Indigenous and Multicultural Affairs.[9] However, the Tribunal’s failure by its Reasons to so address an issue which was of central significance to the applicant’s claims supports a conclusion that it did not do so.[10] Further, to adapt the reasoning in Wu Shan Liang,[11] the process of factual finding adopted by the Tribunal upon the particular element of the material which had been provided by the applicant – namely, the question of scarring – foreclosed reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material.
[9] (2003) 236 FCR 593, [45] (French, Sackville and Hely JJ).
[10] Ibid, [47].
[11] (1996) 185 CLR 259 at 293 (Kirby J).
Acceptance of such scarring may have supported a conclusion, as accepted by the delegate, that the applicant had been detained and beaten by the CID in March 2012, that such detention and beating was due to his having complained to UNICEF and that he sustained scaring to his legs as a result. The failure to so consider the question of scarring thus infected the Tribunal’s consideration of the applicant’s claims. The erroneous failure to consider the issue entailed a constructive failure to exercise jurisdiction. The decision was affected by jurisdictional error.
Ground 1 is accepted.
Ground 2 – misunderstanding of law
Ground 2 reads:
The Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.
Particulars
a) The Tribunal considered the question of complementary protection, including the issue of “intention”, but it erred in not considering that the requirements as to intent (the Intent Requirements) contained in the definitions of:
i) “cruel or inhuman treatment or punishment” in section 5(1) of the Migration Act 1958 (Cth) (“the Act”), that pain or suffering be “intentionally inflicted”; and
ii) “degrading treatment or punishment” in section 5(1) of the Act, that an act or omission be “intended to cause” extreme humiliation;
were satisfied if a person performs an act knowing that the act will, in the ordinary course of events, inflict pain or suffering, or cause extreme humiliation. The Tribunal accepted that the applicant “may be detained briefly…prior to being released on bail” (CB 270, [72]) and it noted reports of poor conditions in Sri Lankan prisons caused by inadequate resources, but found that:
“Although sources suggest that prison conditions in Sri Lanka are poor, the Tribunal does not accept that there is the necessary intention on the part of the Sri Lankan authorities to inflict pain suffering or extreme humiliation.”
(See CB 270; Decision Record [72].)
The Tribunal further explicitly noted the issue of intention, when it said that it:
. . . does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters.
(See CB 270, Decision Record [73].)
The applicant submitted that the Tribunal addressed the issue of intention when it said that it:
“... does not accept that the process of questioning the applicant may be subjected to, the imposition of a fine as punishment and the applicant’s charge and conviction under the Immigration and Emigration act amounts to significant harm because there is no intention on the part of the Sri Lankan authorities to inflict pain, suffering or extreme humiliation in relation to these matters.” (See CB 270, Decision Record [73].)
The applicant accepted that the Court was bound to reject this ground of the application as it was contrary to the Full Court’s decision in SZTAL v Minister for Immigration and Border Protection (SZTAL),[12] but formally made the submission, so as to preserve his right, if necessary, to argue the point on appeal. This Court is bound to apply that decision. The applicant pressed Ground 2, relying upon the pending outcome of an application for special leave to appeal to the High Court and any appeal in SZTAL.
[12] [2016] FCAFC 69.
SZTAL concerned consideration of complementary protection obligations under para 36(2)(aa) of the Act. Relevant to this application was whether, by imposing a term of imprisonment, Sri Lankan officials could be said to intend to inflict severe pain or suffering or to intend to cause extreme humiliation.
In the Full Court, Kenny and Nicholas JJ held that to establish that the treatment of a person constituted cruel or inhuman treatment or punishment required an actual subjective intention on the part of the perpetrator before it could fall within the statutory definition of the relevant expressions in sub-s 5(1).
On 6 September 2017, judgment was delivered in SZTAL v Minister for Immigration and Border Protection.[13] The High Court dismissed the appeal, affirming the Full Court’s decision.
[13] [2017] 91 ALJR 936.
On 6 October 2017, the parties advised that they would make no further submissions respecting Ground 2.
In the High Court, the plurality endorsed[14] the view that:
. . . that “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” connotes the existence of an actual, subjective, intention on the part of a person to bring about suffering by his or her conduct. His Honour considered the same to be true with respect to the words “intended to cause” in the definition of “degrading treatment or punishment”. (Emphasis added)
[14] [2017] 91 ALJR 936, [8] (Kiefel CJ, Nettle and Gordon JJ, Edelman J agreeing).
Ground 2 is rejected.
Ground 3 – unreasonableness
Ground 3 reads:
The Tribunal fell into jurisdictional error in that it acted so unreasonably that no reasonable Tribunal would so have acted.
Particulars
(a) The Tribunal was unreasonable in concluding that the applicant would not have a real chance of suffering persecution because of imputed political opinion of support for the LTTE. (CB 266-267, [55]-[60])
(b) The applicant refers to and repeats the particulars to Ground 1 of this application.
In the course of the hearing, the applicant sought to raise, for the first time, a further claim in relation to Ground 3 based upon an alleged failure to consider the involvement of the applicant’s cousin with the LTTE. The issue so raised was not referred to anywhere in the applicant’s amended application filed shortly before the hearing. The Minister was quite properly entitled, and did, object to reliance on this issue of which no notice had been given. I uphold that objection.
Ground 3 was advanced in the alternative to Ground 1 which I have accepted. However, it was advanced upon the premise that if the Tribunal had considered the matters spelled out in the particulars to Ground 1, its unstated rejection of those matters was unreasonable. As I have concluded that the Tribunal did not consider the matters spelled out in the particulars to Ground 1 – relevantly, upon the issue of scarring – the premise upon which Ground 3 rests is without foundation.
Ground 3 is rejected.
Conclusion
As I have held that Ground 1 is made out, the applicant is entitled to relief quashing the decision of the Tribunal and for his application to be remitted to the Tribunal for reconsideration. The Tribunal made many adverse credit findings upon its merits review of the delegate’s decision. Whether the applicant is entitled to a Protection visa will depend upon satisfaction of the criteria applicable to such a visa application.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 19 October 2018
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
-
Jurisdiction
0
9
3