AQP15 v Minister for Immigration
[2016] FCCA 599
•18 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AQP15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 599 |
| Catchwords: MIGRATION – Review of decision of former Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in Sri Lanka – applicant disbelieved in part and his remaining fears found not to be well-founded – whether the Tribunal erred in its consideration of the complementary protection criterion considered – whether the Tribunal overlooked relevant guidelines. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) |
| SZSPE v Minister for Immigration [2014] FCA 267 SZTAL v Minister for Immigration & Anor [2015] FCCA 54 SZTGM v Minister for Immigration & Anor [2015] FCCA 87 |
| Applicant: | AQP15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1206 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2016 |
REPRESENTATION
The Applicant appeared in person
| Solicitors for the Respondents: | Mr A Markus of Australian Government Solicitor |
ORDERS
A preliminary hearing pursuant to rule 44.12 of the Federal Circuit Court Rules 2001 (Cth) be dispensed with.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1206 of 2015
| AQP15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The decision was made on 1 April 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Sri Lanka and had made claims for protection on the basis of an imputed political opinion, his ethnicity and as a failed asylum seeker.
Background facts relating to the applicant’s claims and the Tribunal decision on them are set out in the Minister’s written submissions.
The applicant is a Tamil Sri Lankan who arrived in Australia as an irregular maritime arrival in July 2012[1]. He was interviewed for the purposes of an “entry interview” on 1 September 2012[2]. He applied for a protection visa on 20 November 2012, claiming to fear harm on the basis that he has been accused of putting up a Liberation Tigers of Tamil Eelam (LTTE) poster near his shop in Trincomalee[3]. On 2 August 2013, a delegate of the Minister refused to grant the visa[4].
[1] Court Book (CB) 37
[2] CB 1-18
[3] CB 19-89
[4] CB 99-116
The applicant applied to the Tribunal for review of the delegate’s decision on 23 August 2013[5]. By a written submission prepared by his migration agent and provided in support of that application, he further claimed to face harm on the basis of his ethnicity, his imputed political opinion as an LTTE supporter, and his membership of a particular social group, being “Failed asylum seeker from a western country”[6].
[5] CB 117-122
[6] CB 126-186
The applicant appeared before the Tribunal with the assistance of a registered migration agent on 8 December 2014[7]. Following the hearing, the Tribunal sent the applicant an invitation to comment on or respond to information pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act)[8]. The applicant’s migration agent responded by submission dated 19 January 2015[9]. The applicant attended a second hearing on 19 February 2015 to discuss, among other things, a new report from the Department of Foreign Affairs and Trade (DFAT) dated 16 February 2015[10]. On 27 February 2015, the Tribunal received a further submission from the applicant’s migration agent, which addressed the DFAT report[11].
[7] CB 195-198
[8] CB 202
[9] CB 214-226
[10] CB 227-231, 239-242
[11] CB 246-260
Tribunal decision
On 1 April 2015, the Tribunal affirmed the delegate’s decision[12].
[12] CB 266-290
The Tribunal had significant concerns about the truthfulness of the applicant’s claims regarding the incident involving the LTTE poster[13]. The Tribunal referred to various inconsistencies between the evidence he provided at his entry interview and Department interview, and to the Tribunal[14]. The Tribunal also considered various aspects of the applicant’s account of events to be implausible or otherwise unconvincing[15]. It therefore was not satisfied that the applicant was accused of putting up an LTTE poster shortly before he left Sri Lanka or that the authorities came to his shop and threatened to arrest him[16]. Nor was it satisfied that the authorities had been to the applicant’s home to look for him since his departure from Sri Lanka or that they tried to, or threatened to, arrest his brother[17]. Nor did it accept that the applicant had an adverse profile with the authorities in Sri Lanka[18].
[13] CB 268 [12]
[14] CB 268-271 [13]-[16]
[15] CB 271 [17], [19]
[16] CB 271 [18]
[17] CB 273 [20]
[18] CB 274 [23]
In reaching those findings, the Tribunal took into account the submission made by the applicant’s migration agent that some of the inconsistencies in the applicant’s evidence were minor, that the applicant was stressed and afraid, and that there were “misunderstandings”. It was also conscious of the Tribunal’s guidelines for credibility assessment and the stressful nature of the protection visa application and review process. However, given that in this case there was no medical (or other) evidence to suggest that the applicant was suffering from a psychological condition affecting his capacity to give evidence, it was not satisfied that these factors adequately explained its concerns[19].
[19] CB 274 [21]
The Tribunal accepted that the applicant is from Trincomalee, an LTTE controlled area during the civil war, and that the applicant may have been harassed and questioned during the war by Sri Lankan army officers searching for LTTE members. The Tribunal also accepted that army officers may have shot at his shop in 2009, that in 2006 he was threatened with a knife, and that in 2005 he was assaulted. However, in light of the applicant’s evidence that he was not involved with the LTTE and that before the claimed incident involving the poster he had not had any difficulties since the end of the war in 2009, it was not satisfied that the applicant had suffered any harm beyond low level harassment since the end of the civil war in 2009[20].
[20] CB 274 [22]
The Tribunal accepted the migration agent’s submission that the applicant would likely be identified by the Sri Lankan authorities as a failed asylum seeker who had left the country illegally. However, it was not satisfied that the applicant had a pro-LTTE profile in Sri Lanka, or would be imputed with such a profile simply because he had sought asylum in Australia[21]. Further, the applicant had not claimed to be involved in any political activities while in Australia[22]. Accordingly, the Tribunal was not satisfied on basis of the evidence before it that there was a real chance that the applicant would be subjected to serious harm at the airport, on remand or in his home area as a failed asylum seeker, including from a western country such as Australia[23].
[21] CB 275-277 [26], [30]
[22] CB 275 [26]
[23] CB 278 [33]
The Tribunal found that on return to Sri Lanka the applicant would be detained for questioning, subject to security and character checks, remanded, and charged with an offence for leaving the country illegally pursuant to the Immigrants and Emigrants Act (Immigrants and Emigrants Act). The Tribunal found that any period of detention would be short, and the applicant would be released on bail to appear in court at a future date[24]. Further, having regard to relevant country information, it was not satisfied that the applicant faced a real chance of being persecuted during this process[25]. It found that, if convicted, he would almost certainly be fined and the chance of a custodial sentence was remote. In addition, there was no evidence to suggest that the Immigrants and Emigrants Act was discriminatory in its terms or intention. Nor was there evidence to suggest that the applicant would be singled out or treated any differently if he is placed in remand for a short period for any Convention reason. Accordingly, the Tribunal was not satisfied that the applicant faced a real chance of serious harm in Sri Lanka, beyond the consequences of a law of general application applied in a non-discriminatory manner[26].
[24] CB 280 [35]
[25] CB 280 [36]
[26] CB 280-282 [38]-[40]
The Tribunal did not accept that the evidence established that Tamils are at risk of serious harm on the basis of their ethnicity alone. While accepting that Tamils with certain profiles continued to be persecuted, such as persons with LTTE connections, the Tribunal was not satisfied that the applicant had any particular profile such that there was a real chance that he would suffer serious harm by reason of his ethnicity, or because he is young Tamil male[27].
[27] CB 284-285 [46]
In relation to complementary protection, the Tribunal was not satisfied that any low level harassment that the applicant may suffer in Sri Lanka, the imposition of a fine on the applicant, or his detention for a brief period of time, would amount to significant harm[28]. Further, the Tribunal was not satisfied that the applicant had a profile which would make him of adverse interest to the authorities or that the country information before it supported a finding that as a group Tamils and/or failed asylum seekers, including from Australia, are subjected to significant harm[29].
[28] CB 285 [49], CB 286 [52]-[53]
[29] CB 287 [55]
The present proceedings
These proceedings began with a show-cause application filed on 1 May 2015. The applicant continues to rely upon that application. He has not taken up the opportunity afforded to him by procedural orders to file and serve an amended application or additional evidence. That said, it is appropriate to note that the grounds in the application were professionally drafted by counsel apparently on a limited direct access brief. There are five particularised grounds in the application:
1. The [Tribunal] failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958.
Particulars
The [Tribunal] failed to take into account the PAM 3 Protection Visas [complementary] protection guidelines when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment
2. The [Tribunal] failed to take into account a relevant consideration
Particulars
The applicant repeats the particulars to ground 2
3. The [Tribunal] erred in its understanding of the definition of degrading treatment or punishment and thereby failed to lawfully answer the question of whether the applicant was owed [complementary] protection obligations
Particulars
[D]egrading treatment or punishment is defined to mean an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal found that the conditions which the applicant faced were a result of neglect and under-resourcing. That neglect and under resourcing was a result of the action or omission of the Sri Lankan Government, s was the impending action of placing the applicant in those conditions. The [Tribunal] should have considered whether the Sri Lankan Government’s neglect and under resourcing of its prisons was deliberate so as to cause extreme humiliation of those incarcerated there
4. The [Tribunal] applied an incorrect test of whether the applicant was owed [complementary] protection obligations as it did not address the question of whether the action of placing the applicant in detention would be with knowledge of conditions there which could cause extreme humiliation or pain and suffering.
Particulars
The [Tribunal] failed to address the question of whether or not intention to inflict extreme humiliation or pain and suffering could be inferred from the knowledge of the Sri Lankan Government of the conditions in its prisons when it took action in detaining him in those prisons on remand.
5. The [Tribunal] erred in its understanding of the definition of cruel or inhuman treatment or punishment and thereby applied an incorrect test of whether the applicant was owed [complementary] protection obligations
Particulars
[C]ruel or inhuman treatment is defined as severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature. The Tribunal found that the conditions which the applicant faced were a result of neglect and under-resourcing. That neglect and under resourcing was a result of the action or omission of the Sri Lankan Government, as was the impending action of placing the applicant in those conditions. The [Tribunal] should have considered whether the Sri Lankan Government’s neglect and under resourcing of its prisons was deliberate so as to cause all those incarcerated, including the applicant, pain or suffering.
This matter was listed for a show cause hearing on 4 March 2015. The applicant appeared at that time for the hearing, but an interpreter had not been booked, noting that the applicant had, at an earlier stage, been legally represented. It was obvious that the applicant needed the assistance of a Tamil interpreter. I adjourned the hearing to today so that that assistance could be obtained. The applicant was assisted by an interpreter in the Tamil and English languages today.
The applicant sought an adjournment of today’s hearing for the purposes of exploring legal assistance. I refused that application on the basis that the applicant had already had ample time to make those inquiries. However, after hearing from the parties, I ordered that today’s hearing proceed on a final basis rather than as a show cause hearing. That reflected my view concerning the current state of the law and ongoing proceedings in the Federal Court.
For the purposes of today’s hearing, I have before me as evidence the applicant’s affidavit made on 1 May 2015 and filed with his application. I also received the book of relevant documents filed on 10 June 2015.
Exhibit R1 is a letter dated 26 February 2016 from the Minister’s solicitors to the applicant at his nominated address for service. Included with that letter was the Minister’s outline of legal submissions. The applicant conceded receipt of the letter and indicated that he had also received the submissions. However, he does not read English and had not had the opportunity to have the submissions read to him. I adjourned temporarily while the submissions were read to the applicant.
It was apparent that the applicant was not in a position to put legal arguments. He is obviously at a disadvantage without legal assistance. However, it is plain to me that the Minister’s submissions deal accurately with the issues raised in the application. Further, neither the Minister’s solicitor nor I could see any other argument of jurisdictional error arising from the material.
As is apparent from the Minister’s submissions, although there are five grounds advanced, there are, in essence, two arguments. The first argument cannot succeed in the face of [54] of the Tribunal’s reasons. The second argument cannot succeed on the basis of the existing state of the law. In those respects, I agree with the Minister’s submissions.
Grounds 1 and 2
In support of these grounds, the applicant contends that the Tribunal failed to take into account the PAM 3 guidelines when it made a finding on whether the treatment that the applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment.
These grounds relate to the Tribunal’s finding at [54] which states:
The Tribunal has accepted that the applicant may be remanded in conditions which are cramped and uncomfortable, but is not satisfied that the evidence before it supports a finding that there is mistreatment of such persons such that it amounts to torture, arbitrary deprivation of life or infliction of the death penalty. The Tribunal is not satisfied that the conditions are a result of anything other than neglect and under-resourcing. It is not satisfied that it is the government’s intention to cause severe pain or suffering or extreme humiliation, which is required for an act or omission to be cruel or inhuman treatment or punishment or degrading treatment or punishment amounting to significant harm as contemplated by s 36(2A). … (emphasis added)
It is clear from the Tribunal’s reasons that it was aware it was required to take into account the policy guidelines to which the applicant refers in accordance with Ministerial Direction No. 56, made under s.499 of the Migration Act[30].
[30] see [15] of the attachment to the Tribunal’s decision titled “Attachment 1 – Relevant Law”
The Tribunal was only obliged to consider the guidelines to the extent that it was of the opinion that they were relevant to its decision making[31]. If the Tribunal has not referred to parts of the guidelines in its decision making, it can be inferred that it did not consider those parts to be relevant[32].
[31] Ministerial Direction No. 56, clause 2; SZTMD v Minister for Immigration [2015] FCA 150 at [20] (SZTMD)
[32] SZTMD at [19]
Further, no failure to take into account the guidelines is apparent from the Tribunal’s reasons, and no specific failure is identified by the applicant. The guidelines make it clear that detention is not in and of itself a breach of Article 7 of the International Covenant on Civil and Political Rights. The duration of the detention is a critical factor[33]. In this case, the Tribunal proceeded on the basis that any detention was likely to be brief[34]. Accordingly, although s.29 of the guidelines refers to “extremely cramped or unsanitary conditions” as conduct which may constitute a breach of Article 7, the Minister contends, and I accept, that the Tribunal should be taken to have formed the view that the case law regarding such conditions was not relevant to its decision in light of the brevity of the detention. In any event, the Tribunal’s reasons, read liberally, show that it in fact considered the relevant parts of the guidelines. This is supported by the Tribunal’s reference to “cramped and uncomfortable”.
[33] see s.29 of the guidelines reproduced at pages 46 to 47 of the applicant’s affidavit
[34] see [35] of the Tribunal’s decision
Grounds 3, 4 and 5
These grounds contend that the Tribunal misconstrued the definitions of degrading treatment or punishment and cruel and inhuman treatment by reference to the Tribunal’s finding that the conditions which the applicant would face on remand were the result of neglect and resourcing.
The applicant asserts that the Tribunal “should have considered whether the Sri Lankan government’s neglect and under resourcing of its prisons was deliberate so as to cause extreme humiliation of those incarcerated there” or, alternatively, “all those incarcerated, including the applicant, pain and suffering”. This assertion is misconceived. As is clear from the above passage, the Tribunal did consider whether prison conditions were the result of a deliberate attempt by the government to cause severe pain or suffering or extreme humiliation. It found that they were not.
The applicant also asserts that the Tribunal failed to consider “whether or not intention to inflict extreme humiliation or pain and suffering could be inferred from the knowledge of the Sri Lankan Government of the conditions in its prisons when it took action in detaining him in those prisons on remand”. This assertion is similarly misconceived. It is clear from the terms of the above passage at [19] that the Tribunal did not accept that such an intention could be inferred.
The Minister notes that whether actual, subjective intent to cause harm is an element of degrading treatment or punishment and cruel and inhuman treatment or punishment, as those concepts are defined by s.5(1) of the Migration Act, has been the subject of recent judicial consideration. In SZTAL v Minister for Immigration & Anor[35], SZTCY v Minister for Immigration & Anor[36] and SZTGM v Minister for Immigration & Anor[37], I concluded that “there is no reason to suggest that something less than actual, subjective, intent is required”[38]. In this regard, I considered myself bound by SZSPE v Minister for Immigration[39].
[35] [2015] FCCA 54
[36] [2014] FCCA 85
[37] [2015] FCCA 87. Appeals in these matters were heard by the Full Federal Court (Kenny, Buchanan and Nicholas JJ) on 20 August 2015
[38] SZTAL at [49]
[39] [2014] FCA 267
As I pointed out during the course of argument to the applicant, he cannot succeed in this Court on the basis of the law as presently understood. I indicated to him that he would be wise to seek legal advice concerning the merits of an appeal to the Federal Court. That is a matter for him.
I conclude that the applicant is not able to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. The decision is therefore a privative clause decision, and the application must be dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs. Although today’s hearing was listed as a show cause hearing, the matter was heard on a final basis. In the circumstances, scale costs would be $6,825. The Minister’s solicitor informed the Court that the Minister’s costs exceed that amount. However, taking all the circumstances into consideration, the Minister’s seeks costs fixed in the sum of $5,500. The applicant indicated he may need to pay by instalments but did not oppose a costs order. I will not require payment by any particular time.
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,500.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 23 March 2016
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