AUE15 v Minister for Immigration

[2015] FCCA 2452

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUE15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2452

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) Visa – whether the Tribunal failed to consider an integer of the applicant’s claim – whether the Tribunal addressed the claims and evidence of the applicant – no jurisdictional error – application dismissed.

Legislation:

Immigrants and Emigrants Act 1949 (Sri Lanka)

Migration Act 1958 (Cth), ss.36(2A)(e), 476

AGH15 v Minister for Immigration & Anor [2015] FCCA 1797
ARS15 v Minister for Immigration & Anor [2015] FCCA 2135

Applicant: AUE15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1370 of 2015

Judgment of: Judge Street

Hearing date: 7 September 2015

Date of Last Submission: 7 September 2015

Delivered at: Sydney

Delivered on: 7 September 2015

REPRESENTATION

Counsel for the Applicant: Mr J Mack

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: Clayton Utz

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The further amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1370 of 2015

AUE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) for a Constitutional writ in respect of a decision of the Tribunal made on 15 April 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The further amended application advances two grounds as follows:

   Ground 1

   1. The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958

   Particulars

   a. The Tribunal failed to take into account the PAM 3 Protection Visas complimentary protection 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

   Ground 2

   2. In the alternative to Ground 1, the Tribunal failed to take into account a relevant consideration namely, whether the enactment of the Immigrants and Emigrants Act (“IEA”) was an act within the meaning of degrading treatment and punishment and for the purposes of s 36(2A)( e) of the Migration Act

   Particulars

   a. The Tribunal accepted that the Applicant departed the country illegally and would be subject to the operation of the IEA Act [ 111]

   b. The Tribunal accepted that the operation of the IEA was relevant for the purposes of the Applicant's claims under s 3 6(2A)(e) of the Migration Act [111]

   c. The Tribunal accepted that as a result of the operation of the IEA the Applicant may be remanded in conditions which are cramped and uncomfortable for up to a fortnight [119]

   d. The Tribunal accepted that the harm at (c) above was relevant to the consideration of the Applicant's claim under s 36(2A)(e) of the Migration Act

   e. The Tribunal did not consider whether the enactment and/or the continued operation of the IEA was an act for the purposes of s 36(2A)(e) of the Migration Act

   f. As a result of (e) the Applicant has been deprived the possibility of a successful outcome

3. In relation to the first ground, Mr Mack, counsel for the applicant sought to argue that the Tribunal’s decision in this case fell squarely within the same principles as identified in ARS15 v Minister for Immigration & Anor [2015] FCCA 2135. In that case, the Court was not satisfied that there had been an intellectual engagement by the Tribunal with the requirements of the guidelines in circumstances where there were findings made in relation to imprisonment and a general reference to prison conditions, duration and degrading treatment.

4. In that case, there was no reference or finding by the Tribunal, as occurs in this case, to the conditions, which in this case in para.119 were found to be cramped and uncomfortable.  In further distinction from ARS15 there was an express admission in that case by the Tribunal “In making the above findings” which it was of considerable materiality to the finding made in that case that there had not been an intellectual engagement by the Tribunal with the requirements of the guidelines.

5. Mr Mack endeavoured to argue that the commencement of paras.132 to 134 which used language “Based on its findings of fact and country information” could be likened to para.91.  I reject that submission.  Paragraph 91 in the decision of the Tribunal identified in ARS15 was an express reference to the actual fact-finding by that Tribunal and a confinement by that Tribunal in the making of that fact-finding in circumstances where the inference of no intellectual engagement was drawn because of the absence of addressing the conditions beyond the generalised reference to prison conditions, duration and degrading treatment.  The decision in ARS15 is clearly distinguishable from the present case.

6. Whilst I appreciate that Mr Mack’s argument was addressed in relation to the complementary protection findings made by the Tribunal, the Tribunal decision has to be read as a whole without a keen eye for error.  In this case, given the reference to the Ministerial direction in para.31, together with the Tribunal descending into the nature of the prison conditions, I am satisfied that this is not a case where the inference should be drawn that the Tribunal did not have regard to the guidelines and/or did not intellectually engage with the application of those guidelines.  Ground 1 is not made out.

7. In relation to ground 2, the argument advanced was that the exercise of a legislative power enacting the Immigrants and Emigrants Act 1949 (Sri Lanka) was itself something that satisfied the requirements of s.36(2A)(e) in respect of complementary protection and that this was an integer of claim that the Tribunal should have addressed. Mr Mack of Counsel took the Court to one of the sets of submissions advanced on behalf of the applicant dated 20 December 2013 and a reference in paras.107 to 108 to the proposition that violation of particular legislative provisions being articles 34 and 35 “runs a mandatory fine and imprisonment”, details of which are set out in Article 45(1)(b) and, in particular, the language (CB176):

   (1) Any person who…

   (b) leaves Sri Lanka in contravention of any provision of this Act…

   shall be guilty of an offence under this Act and shall on conviction be liable in the case of an offence under… paragraph (b)… to imprisonment of either description for a term not less than one year and not more than five years and to a fine not less than fifty thousand rupees and not more than two hundred thousand rupee.

8. In those submissions, the applicant conceded that he had departed Sri Lanka illegally and para.110 addressed the process of prosecution of the applicant and said (CB176):

   It is put to the Tribunal that in the process of prosecution the Applicant will be detained by security forces which will lead to significant harm.

9. In my opinion, nothing said in paras.107 to 110 gave rise to an argument being sufficiently raised that it was the exercise of the legislative power by the Parliament in passing the statute that was an integer or claim in itself that was to be addressed referrable to complementary protection and/or the work done by s.36(2A)(e). The paragraphs to which I was taken clearly identify the enforcement of the legislation and its violation has given rise to the alleged claim which was clearly the subject of findings by the Tribunal and, relevantly:

   115. Having considered the relevant country information the Tribunal is satisfied that Sri Lanka’s Immigrants and Emigrants Act is a law of general application which is appropriate and adapted to meet a legitimate national interest in regulating the movement of persons across the country’s borders. On the basis of that information I am satisfied that the sections of the Act which provides penalties including fines and imprisonment for the offence of leaving Sri Lanka other than through an official port, and which involve suspects being arrested and possibly held in remand awaiting a bail hearing, are not enforced selectively or in an arbitrary or discriminatory way on the basis of a Convention reason or any other reason, but are instead applied to all Sri Lankans, regardless of their race or other personal circumstances.

   116. Further, on the basis of the available information concerning the enforcement of this law I am not satisfied there is a real chance that on return to Sri Lanka the applicant would face more than questioning at the airport on arrival, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum if convicted. I am not satisfied that he would face a term of imprisonment on conviction. I find that this treatment, including such a period of detention on remand, would reflect no more than the non-discriminatory enforcement of a law of general application. I do not accept that it would constitute systematic and discriminatory conduct.

10. Mr Mack of counsel sought to argue that the reference to the mandatory one year meant that the exercise of the legislative power itself could constitute an act whereby a non-citizen will suffer harm where the non-citizen will be subjected to degrading treatment or punishment. The legislative provisions identified recognise the requirement for a process giving rise to a conviction and the exercise of power relating to that conviction.  The legislation is not on itself on its face legislation that convicts and punishes without any other process.  There is a clear hiatus between the alleged act of the exercise of legislative power in the passing of the legislation in this case and any act by which the applicant would be subjected to degrading, or might be subjected to degrading treatment or punishment. Accordingly the alleged act being the exercise of legislative power is not capable of supporting the alleged claim or integer.

11. The subjecting of the applicant to alleged degrading treatment or punishment could only flow from enforcement given the nature of the legislation in the present case.  In the present case it is clear that the Tribunal did address the issue of enforcement and made and adverse finding of fact in respect of the applicant’s claim in that regard by holding that the legislation is not enforced selectively or in an arbitrary or discriminatory way, or on the basis of a convention reason, or any other reason, but are instead applied to all Sri Lankans regardless of their race or other personal circumstances.

12. Mr Mack of counsel sought to argue that it was the mandatory impact of the one year imprisonment that took his argument outside that finding and was a reason why it should have been addressed by the Tribunal.  I do not accept that any integer of claim of the kind advanced by counsel on behalf of the applicant was sufficiently raised before the Tribunal.  Further, I find that the adverse finding of the Tribunal in respect of the legislation being a law of general application which is appropriate and adapted to meet a legitimate national interest in regulating the movement of persons across the country’s border is dispositive of the applicant’s claim sought now to be raised and is an adverse finding of fact as to the exercise of legislative power not giving rise to any potential claim or integer.

13. Further, insofar as Mr Mack sought to argue that from a causal viewpoint it was the legislation that in essence was the act from which the mandatory term would flow as fallacious. The exercise of the legislative power was not itself an exercise of enforcement or an exercise of judicial power. Further I regard the adverse finding in relation to the legislation not being enforced selectively or arbitrarily or in a discriminatory way on the basis of a convention reason or any other reason as an adverse finding of fact that is dispositive of that claim. 

14. In light of those findings, neither the enactment or continued operation of the Act was a matter that could give rise to any basis for finding a risk of harm under s.36(2A)(e) in relation to complementary protection.

15. In relation to the applicant’s submissions before the Tribunal I also accept the first respondent’s submission that the claim or integer being advanced was properly summarised as set out in para.70 and did not articulate any claim or integer of the kind advanced in ground 2.

16. The submissions of the applicant critically on the issue were as follows:

    38. It is difficult to conceive of a more blatant and unyielding act for the purposes of non-refoulement than the exercise of political power to bring about the mandatory one year incarceration of a citizen who is returning to their home country on the sole basis they departed their home country without their passport.

    39. The Applicant squarely raised the act (that is the IE Act) with the Tribunal. The Applicant then submitted as a result of the IE Act a process of prosecution, interrogation and an exposure to the Sri Lankan prison system would ensue. This in turn would lead to significant harm, in particular degrading treatment or punishment. At the heart of this submission was the operation of the IE Act.

    40. The Tribunal found that the claim in relations 36(2A)(e) failed as it did not accept: "that the overcrowding and other problems are 'intended to cause' extreme humiliation as required by the definition of degrading treatment or punishment" [121]. The Tribunal did not consider whether the enactment of the IE Act caused or intended to cause extreme humiliation in circumstances where it was required to consider this.

    41. Had the Tribunal considered that the enactment of the IE Act was the relevant act for the purposes of s 36(2A)( e) of the Migration Act it is possible that the Tribunal would have found that the IE Act caused and intended to cause extreme humiliation.

    42. It follows that there has been a jurisdictional error and writs should issue.

17. The first respondent also put that the applicant’s concession in para.62, p.106 that in fact if so convicted a returnee generally receives fines, was inconsistent with the premise of the argument advanced by the applicant in support of the alleged integer in this case.  I accept that submission.  The applicant’s argument is in substance an impermissible challenge to the adverse finding of fact made by the Tribunal.

18. I note that counsel for the applicant did identify that there was an appeal on foot from the decision of Judge Smith that was currently reserved before a justice of the Federal Court of Australia.  The applicant sought to have the matter stood over pending the outcome of that decision.  That course was opposed by the first respondent.  The grounds before Judge Smith in the case of AGH15 v Minister for Immigration & Anor [2015] FCCA 1797 were different, even though I accept that part of the argument attributed to counsel for the applicant in that case seeks to reflect the substance of the argument raised in relation to ground 2.

19. The grounds were not, however, identical.  In my opinion, the findings of the fact in the Tribunal in the present case are ones that are dispositive of the argument advanced by the applicant in this case for the above reasons  Further, it is not apparent that the decision in AGH15 descended into the nature of the argument he developed relating to s.36(2A)(e) as advanced by the applicant in ground 2. It was in those circumstances that the Court declined to adjourn the matter.

20. Ground 2 fails to identify any jurisdictional error.  The further amended application is dismissed. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 September 2015