ASJ15 v Minister for Immigration

[2016] FCCA 1971

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASJ15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1971

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal misapplied the relevant law – whether the Tribunal failed to have adequate regard to the relevant guidelines – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2), 56(2), 476, 499

Applicant: ASJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1296 of 2015

Judgment of: Judge Street

Hearing date: 1 August 2016

Date of Last Submission: 1 August 2016

Delivered at: Sydney

Delivered on: 1 August 2016

REPRESENTATION

Counsel for the Applicant: Mr D Hume

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Mr J Kay Hoyle

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The amended application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1296 of 2015

ASJ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. 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 of the Tribunal made on 7 April 2015 affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant is found to be a citizen of Sri Lanka. The applicant arrived in Australia on 11 August 2012. In summary, the applicant feared persecution because of his political opinion as being opposed to the UPFA and his membership of a particular social group of failed asylum seekers.

2. The applicant also feared harm because of his criminal activities in Australia. The applicant explained particular incidents he alleged occurred in Sri Lanka prior to his departure. The delegate made adverse credibility findings in relation to part of the applicant’s claims and was not satisfied there was a real chance of the applicant being persecuted for a Refugees Convention reason and was not satisfied the applicant’s fear was well founded. The delegate was also not satisfied that as a necessary and foreseeable consequence of a non-citizen being removed from Australia to return to Sri Lanka there is a real risk that the non-citizen will be subject to significant harm. The delegate found that the applicant did not meet the criteria under s.56(2) of the Migration Act 1958 and in late January 2014 declined to grant the applicant a protection visa.

3. The applicant applied for a review on 12 February 2014. By letter dated 2 February 2015, the applicant was invited to attend a hearing on 9 March 2015. The applicant appeared on that date to give evidence and present arguments and was assisted by his migration representative.

4. Prior to the hearing, detailed submissions were sent to the Tribunal on behalf of the applicant in relation to his claims, which relevantly included a section as to whether the applicant was entitled to complementary protection and under that heading was a subheading that relevantly said, “What is the risk of torture and cruel or inhuman treatment or punishment in interrogation and detention”, in which it was asserted that the material showed there is a real risk the applicant will be subjected to torture or cruel or inhumane treatment or punishment within his first few days of interrogation and detention. 

5. There was a further subheading: “What is the risk of degrading treatment or punishment in interrogation and detention?” In that section there was reference to materials referring to the inhumane prison conditions which it was alleged demonstrate a gross pattern of human rights violations in prisons which would amount to significant harm. There was also a reference to a particular Human Rights Watch report, confirming the intentional use of extreme humiliation as an intentional or broader effect to break down and degrade individuals in detention. 

6. It was alleged that the information provided demonstrated that the degrading treatment or punishment during imprisonment and interrogation processes in Sri Lanka is part of a systemic effort to break down, humiliate and degrade individuals in detention. The submissions continued:

   Given the prevalence of torture, cruel or inhuman and degrading treatment or punishment in Sri Lankan prisons, the Tribunal should accept that there is a real risk the applicant will face significant harm. 

7. The submissions then had a section headed, “Does the significant harm feared include an act or omission arising only from inherent in, or incidental to, lawful sanctions that are not inconsistent with the articles of the Covenant?” The submissions in that regard referred to s.5(1) definitions in the Migration Act 1958. 

8. Section 5 includes a definition of cruel or inhuman treatment or punishment as follows:

   “cruel or inhuman treatment or punishment” means an act or omission by which:

   (a)  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 so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)  that is not inconsistent with Article 7 of the Covenant; or

   (d)  arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

9. Section 5 includes a definition of degrading treatment or punishment as follows:

   “degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)  that is not inconsistent with Article 7 of the Covenant; or

   (b)  that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

10. Section 5 includes a definition of torture as follows:

    “torture” means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)  for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)  for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)  for the purpose of intimidating or coercing the person or a third person; or

    (d)  for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)  for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

11. The submissions continued that once a type of harm is then found to meet the significant harm threshold it cannot be considered a legal sanction not inconsistent with the articles of the Convention. The submission made reference to the Tribunal’s guide to refugee law in Australia, advocating this approach and arguing that the legal sanction qualifications may not require detailed consideration.  The submissions in that section concluded:

    The harm feared by the applicant reaches the significant harm threshold, therefore cannot be considered a legal sanction.

12. The submissions then proceeded to address the subheading “Are there circumstances in which there is taken not to be a real risk?”  The submissions then addressed the Legacy Caseload Bill. 

13. The Tribunal in its reasons referred to the relevant law. The Tribunal referred to the ministerial direction number 56 made under s.499 of the Act and referred to the position that the Tribunal was required to take into account the policy guidelines prepared by the Department, and expressly referred to the PAM3 guidelines, as well as having to take into account the country information assessment prepared by the Department of Foreign Affairs and Trade. The Tribunal referred to the fact that, in particular, the Tribunal had had regard to the DFAT report on Sri Lanka dated 16 February 2015.

14. The Tribunal summarised the applicant’s claims and evidence. The Tribunal formed an adverse view in relation to the applicant’s evidence and did not accept that the applicant had been truthful in his claims. The Tribunal found that the applicant had fabricated claims. The Tribunal formed the view that the applicant had fabricated the entirety of his claims and they were rejected by the Tribunal. 

15. The Tribunal gave reasons in support of the adverse credibility findings.  Those reasons cannot be to lack an evident and intelligible justification.  The Tribunal found that there is no chance the applicant would be persecuted for any Convention reason, including his political opinion or membership of a particular social group, or a combination of these reasons if he were to return to Sri Lanka now or in the reasonably foreseeable future.  The Tribunal found that the applicant did not have a well-founded fear of persecution. 

16. The Tribunal made reference to the applicant’s illegal departure and relevantly found that it was not satisfied there was a real chance the applicant would suffer imprisonment or that he would be subjected to penalties other than a fine. As noted above, the Tribunal accepted that the applicant may be fined. The Tribunal considered that the fine, as well as all other steps arising from his illegal departure, reflect a law of general application and are not applied in a systematic and discriminatory manner, or for any Convention reason.

17. The Tribunal did not accept, on the evidence before it, that the pain and suffering caused by the overcrowding and other problems in prisons in Sri Lanka is intentionally inflicted on prisoners, as required by the definition of cruel and inhumane treatment or punishment in s.5 of the Migration Act 1958.  The Tribunal did not accept that the overcrowding and other problems were intended to cause extreme humiliation, as required by the definition of degrading treatment or punishment.

18. The Tribunal found there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk he would suffer significant harm as a consequence of the poor conditions in prisons, given overcrowding, during any period which he may spend in jail or remand.  The Tribunal found that there was no real risk the applicant would suffer significant harm for any other reason or reasons.  The Tribunal was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there would be a real risk that he would suffer significant harm.

19. It was in these circumstances the Tribunal found that the applicant did not meet the criteria under s.36(2) of the Migration Act 1958, and affirmed the decision of the delegate. The grounds in the application are as follows:

    1. The Tribunal’s Decision involved jurisdictional error insofar as the Tribunal failed to comply with s 499(2A) of the Act and Direction No. 56 - Consideration of Protection Visa applications, dated 21 June 2013 (Direction 56)

    Particulars

    a. Direction 56 provides that “[i]n performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department … to the extent they are relevant to the decision under consideration.

    PAM3: Refugee and humanitarian – Complementary Protection Guidelines

    PAM3: Refugee and humanitarian – Refugee Law Guidelines”

    b. Section 23 and 25 of the PAM3: Refugee and humanitarian – Complementary Protection Guidelines (Complementary Protection Guidelines) relevantly respectively state:

    i “Intentionally inflicted pain or suffering…In certain circumstances, it may be appropriate to infer an intention to inflict pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted.”

    ii. “Intended to cause…in certain circumstances it may be appropriate to infer an intention to inflict extreme humiliation where it is evident that humiliation was or may be knowingly inflicted.”

    c. The Tribunal said that:

    i. “The definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Migration Act requires that the pain and suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause” extreme humiliation’ (at [53]); and

    ii. “The Tribunal does not accept on the evidence before it that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment” (at [54]).

    d. The Tribunal did not consider whether it was “evident that such pain or suffering was or may be knowingly inflicted” by the person who imprisons the applicant and did not consider whether it was “appropriate to infer an intention to inflict severe pain or suffering”. Further, the Tribunal did consider that the conditions in prison were due, at least in part, to “negligence and indifference” of authorities.

    e. Therefore, the Tribunal failed to failed to comply with the Direction 56 and s 499(2A).

20. Counsel on behalf of the applicant contended that this was a case where there had been no intellectual engagement with the requirements of the PAM3.  Counsel for the applicant focused on the absence of an express reference to the guidelines in the reasoning of the Tribunal after the initial introduction identifying the requirement of the Tribunal to have regard to the PAM3.  Counsel referred to the fact that there is no reference in the footnotes to the PAM3.  Counsel on behalf of the applicant made reference to the concluding sentence in relation to the law, where the Tribunal said in particular it had had regard to the DFAT report on Sri Lanka dated 16 February 2015.

21. There is no need for the Tribunal to refer to the whole of the arguments and material, or to footnote each document to which it has regard. This is not a case in which any inference should be drawn that the Tribunal failed to have an intellectual engagement with the criteria of the PAM3 in accordance with the statutory requirements of s.499, and the ministerial direction number 56. It is apparent from the Tribunal’s reasons that it expressly referred to overcrowding, and other problems in prisons. Those reasons included reference to the poor conditions in prisons.

22. Counsel on behalf of the applicant argued that it could be inferred that the Tribunal had failed to have regard to the requirements of the PAM3 because there was no express reasoning referring to whether or not there should be inferred an intention in relation to the pain and suffering that it was contended was due at least in part to the negligence and indifference of authorities.

23. The Tribunal expressly referred to the pain and suffering caused by overcrowding and other problems in its finding that it did not accept that the overcrowding and other problems causing pain or suffering were intentionally inflicted on prisoners. It was not necessary for the Tribunal to expressly refer to the possibility of inferring an intention in circumstances where the Tribunal has expressly referred to the pain and suffering and made a finding as to the want of an intention. The Tribunal’s reasons are to be read as a whole, and without a keen eye for error.

24. Where the Tribunal has referred to the relevant guidelines, the Court should not be quick to find a failure by the Tribunal to have regard to material which the Tribunal identifies it has taken into account.  Mr Hume of counsel, on behalf of the applicant, contended that the inference could be drawn that the Tribunal had not had regard to the guidelines because of the want of express reference to the guidelines, the want of express reference to the guidelines in the reasoning relating to the overcrowding and other problems, and because of the want of any footnote referring to the guidelines in relation to those findings.

25. Mr Hume of counsel also relied on the absence of any reasoning referring to whether an inference should be drawn.  It was not necessary for the Tribunal to make repeated reference to the guidelines, nor was it necessary for the Tribunal to footnote each of the documents to which it has regard in its reasons for review.  I do not accept that an inference should be drawn from the reasoning of the Tribunal that it failed to have regard to the PAM3 guidelines.  Ground 1 fails to make out any jurisdictional error.

26. In relation to ground 2, Mr Hume of counsel contended that the Tribunal had failed to address in its reasoning the inference that intention might be deduced from knowing subjection to pain and suffering, and therefore the Tribunal had misconstrued the relevant provision.  I accept the submission of Mr Hume that it was not necessary, for this argument, for there to be any finding that there had been a knowing subjection to pain and suffering.  No criticism was made of the law as identified by the Tribunal.

27. It is apparent from the Tribunal’s reasons that it referred to s.5(1) of the Migration Act 1958. I do not accept that the Tribunal has misconstrued s.5(1) of the Migration Act 1958. The assumption underlying the alleged error in ground 2 is inconsistent with the express reference to pain and suffering by the Tribunal in the finding of fact that it made that the overcrowding and other problems were not intentionally inflicted.  Ground 2 is, in substance, an impermissible challenge to the adverse findings of fact made by the Tribunal. Ground 2 fails to make out any jurisdictional error.

28. The amended application is dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 2 August 2016