ARS15 v Minister for Immigration & Anor
[2015] FCCA 2135
•7 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ARS15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2135 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – consideration of prison conditions – whether the Tribunal engaged with the requirements of the PAM3 Guidelines – whether referral to prison conditions and duration of imprisonment constituted proper engagement – jurisdictional error found – application allowed. |
| Legislation: Immigration and Emigration Act 1949 (Sri Lanka) Migration Act 1958 (Cth), s.476 |
| Portorreal v Dominican Republic, Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987) |
| Applicant: | ARS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1265 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 7 August 2015 |
| Date of Last Submission: | 7 August 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the First Respondent: | Mr B O'Donnell |
| Solicitor for the First Respondent: | DLA Piper |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further documents in this regard is dispensed with.
A writ of certiorari shall issue removing the record of the Administrative Appeals Tribunal decision made on 10 April 2015 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to re-determine the review application before it according to law.
The first respondent pay the applicant’s costs fixed in the sum of $6000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1265 of 2015
| ARS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision the Tribunal made on 10 April 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and was assessed against that country. The application identifies the following grounds.
1. The RRT failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act I 958.
Particulars
The RRT failed to take into account the PAM 3 Protection Visas complimentary 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 RRT failed to take into account a relevant consideration
Particulars
The applicant repeats the particulars to ground 2
In this case, the first respondent conceded that the nature of the reasoning and findings of the Tribunal were such as to require, as a mandatory matter, an engagement with the principles the subject of the PAM3 Refugee and Humanitarian Complementary Protection Guidelines. The relevant reasoning of the Tribunal is in the following paragraphs:
83. The Tribunal summarised to the applicant the assessment made by the Department of Foreign Affairs and Trade in the Sri Lanka Country Report dated 16 February 2015. The Tribunal accepts that assessment. It accepts that the consequences are as assessed in the DFAT Country report at [5.22] to [5.33] and prefers that assessment to other information before it.
84. It finds that the applicant will return as a Tamil failed asylum seeker from the Northern Province of Sri Lanka who has left Sri Lanka illegally.
85. It accepts that there is no discrimination because of ethnicity in the treatment of returnees at the airport. The Tribunal does not accept that the processing of involuntary returnees to Sri Lanka as described by DFAT is persecution. The Tribunal accepts that he has breached the Immigrants and Emigrants Act, will be questioned, arrested and charged by police and detained at the airport for up to 24 hours, or if the Magistrate at [X] is not available, transported to the [X] prison and held there for a maximum of a few days until a Magistrate is available.
86. The Tribunal finds that the Immigrants and Emigrants Act is a law of general application. It is not discriminatory in its terms or intention, including its impact. It is not enforced in a discriminatory manner. The conduct under that Act, including detention is not discriminatory conduct and therefore does not satisfy s 91R(1)(c). It is not persecution.
87. The Tribunal does not consider that the procedures followed on the applicant’s return, including detention at the airport or in the prison, would constitute a real risk of significant harm to the applicant. In making that finding, the Tribunal has taken into account the country information provided about conditions in places of police or military detention and prison conditions, including claims of torture and cruel, inhuman or degrading treatment. However, in the applicant’s circumstances, the Tribunal does not accept that there is a real risk of significant harm because of detention or imprisonment for a short period.
88. The Tribunal does not accept that the conditions while detained at the airport or at the prison for a maximum of three days are serious harm or significant harm. In making those findings, the Tribunal has considered the definitions in s.36(2A), s.91R(2) and s.5.
This was a case where there was a reference to the PAM3 in para.9:
9. 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 – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
This is not a case, as was pointed out by counsel for the applicant, where there is any actual acknowledgement of the engagement and application of the PAM3 beyond the reciting of the force of the direction as identified in para.9. It was in those circumstances that the applicant submitted that when one had regard to the analysis of the reasoning by the Tribunal, notwithstanding the reference to prison conditions, the duration and degrading treatment, this was a case where the Court should be satisfied that there was a failure by the Tribunal to engage in the application of those guidelines. I take into account that the decision must be read as a whole and without a keen eye for error.
In my opinion, the applicant’s submission is correct and is supported by para.91 of the reasons, which is as follows:
91. In making the above findings, the Tribunal has taken into account the representative’s submissions and supporting country information, especially the most up-to-date information which the Tribunal finds the most relevant. …
In my opinion, the first sentence in para.91 is consistent with the Tribunal having confined itself to the country information and the representative’s submissions in relation to the critical findings about the prison conditions and the duration of imprisonment, required engagement with the guidelines. That engagement was required both as to the principles impacting upon what might be seen to be reasonably regarded as cruel or inhumane in nature, degrading treatment or punishment, and then the application of those principles to the fact-finding as to the applicant in respect of imprisonment and prison conditions. In that regard, in relation to imprisonment and prison conditions the guidelines provides:
Detention is not of itself a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.
As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.
Examples of conditions which have been held to constitute breaches of Article 7 include:
• extremely cramped or unsanitary conditions, exposure to cold or inadequate ventilation or lighting
• lack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate exercise
• prolonged solitary confinement or total isolation
• denial of medical treatment
• harsh rules of conduct restricting fundamental rights of prisoners; the use of harsh punitive measures such as frequent resort to solitary confinement or being forced to maintain a certain position for prolonged periods of time; unfair procedures for deciding on disciplinary measures; inadequate protection against reprisals by warders; tack of a credible complaints mechanism and frequent use of protective measures such as leather handcuffs: and
• violent treatment in detention (force may be used to enforce discipline, but must be proportionate in light of circumstances), including acts such as beatings or assaults by prison warders, repeated death threats, mock executions, theft or destruction of personal possessions or displaying prisoners in a cage to the press.
The existence of one relatively minor condition (for example, a small cell) may not be sufficient to breach Article 7. However, the accumulation of a combination of poor or unreasonably restrictive conditions (for example, a small cell, overcrowding, prolonged detention and lack of opportunities for exercise) may raise the severity of the treatment above the necessary threshold.
The assessment of whether particular conduct or conditions amounts to torture, cruel, inhuman or degrading treatment or punishment is subjective, in that it depends on the characteristics of the victim (such as sex, age, state of health). For example, the exploitation of phobias or particular cultural taboos could conceivably amount to cruel, inhuman or degrading treatment or punishment for one person whereas it may not for another person.
If an applicant claims that they face a disproportionately long period of time in prison, this should be considered as a cumulative factor that may render other conditions cruel inhuman or degrading. For example, overcrowding in a cell for a person detained overnight may not breach Article 7, although it may do so if a person faces a lengthy prison sentence. There are limited circumstances where prolonged detention itself may amount to a breach of Article 7.
These are where prisoners on death row suffer mental anguish while waiting for the determination of their fate. It is also arguable that sentencing a juvenile to life imprisonment without the possibility of release may constitute a breach of Article 7.
Counsel for the applicant pointed out that Portorreal v Dominican Republic, Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987) was a decision in which there was close analysis of the conditions to which the person was exposed for no more than 50 hours, but nonetheless there was a finding of a violation of Article 7. Relevantly, in that case the Committee found:
2.2 Later the same day, the author was allegedly separated from the other political opposition leaders and transferred to another cell (known as the “Viet Nam cell"”),measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held. Conditions were allegedly inhuman in this overcrowded cell, the heat was unbearable, the cell extremely dirty and owing to lack of space some detainees had to sit on excrement. The author further states that he received no food or water until the following day.
…
9.2 Mr. Ramon B. Martinez Portorreal is a national of the Dominican Republic, a lawyer and Executive Secretary of the Comite Dominicano de los Derechos Humanos. On 14 June 1984 at 6 a.m., he was arrested at his home, according to the author, because of his activities as a leader of a human rights association, and taken to a cell at the secret service police headquarters, from where he was transferred to another cell measuring 20 by 5 metres, where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released. At no time during his detention was he informed of the reasons for his arrest.
Counsel for the first respondent submitted that it should be inferred that there had been a proper engagement by the Tribunal in this case, not just by reason of the reference to the referral to conditions in prisons but also by reference to the duration. Counsel for the applicant pointed out that the submissions filed on behalf of the applicant made reference to the detention that may flow and also drew the Court’s attention to the article in footnote 27 of the delegate’s decision that referred to [X] Prison and to the conditions to which persons were exposed for a period of four days. Accordingly, the reference to conditions in prisons is not determinative of this case.
The delegate’s decision also referred to the DFAT reports concerning the impact of the Immigrants and Emigrants Act 1949, and to the processing taking a few to 48 hours. I am not satisfied that in this case, the reference to duration is one from which the inference should be drawn that there was intellectual engagement by the Tribunal with the requirements of the guidelines.
In my opinion, the reasoning of the Tribunal in para.91, in which the Tribunal identified it had taken into account the representative’s submissions and the supporting country information, is decisive in this case. That reasoning in para.91 is consistent with the Tribunal, in this case, having failed to have regard to and engage with the guidance in the PAM3 in relation to the imprisonment and prison conditions, which it was necessary for the Tribunal to do in light of the findings made as to the risk of imprisonment in this case.
I am satisfied that the failure to engage with the application of the PAM3 in this case amounts to a jurisdictional error. I reject the submissions on behalf the first respondent that it is an error that could not have made any difference in this case. Accordingly, there will be issued a writ of certiorari quashing the decision of the Tribunal dated 10 April 2015, and then a writ of mandamus requiring the Tribunal to determine the matter according to law.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 11 August 2015
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