Avu15 v Minister for Immigration

[2016] FCCA 3065

FEDERAL CIRCUIT COURT OF AUSTRALIA

AVU15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 3065

Catchwords:
MIGRATION – Refugee Review Tribunal – protection (Class XA) visa – whether Tribunal brought dispositive issue to applicant’s attention – whether Tribunal properly considered prison conditions in Sri Lanka.

Cases cited:
BEV15 v Minister for Immigration and Border Protection [2016] FCA 507
Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069

Applicant: AVU15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 1436 of 2015

Judgment of: Judge Riley

Hearing date: 18 October 2016

Date of last submission: 18 October 2016

Delivered at: Melbourne

Delivered on: 29 November 2016

REPRESENTATION

Counsel for the applicant: Angel Aleksov

Solicitors for the applicant: WLW Migration Lawyers

Counsel for the first respondent: Liam Brown

Solicitors for the first respondent: Spark Helmore Lawyers

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore Lawyers

ORDERS

1. The title of the proceeding be amended so that the name of the second respondent is ‘Administrative Appeals Tribunal’.

2. The application filed on 26 May 2015 and amended on 4 October 2016 be dismissed.

3. The applicant pay the first respondent’s costs of the proceeding, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

SYG 1436 of 2015

AVU15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection (Class XA) visa. 

2. The applicant left Sri Lanka illegally by boat on 10 June 2012 and arrived in Australia on 1 July 2012.

3. The applicant attended a hearing before the Tribunal on 27 April 2015.  He was assisted at the hearing by an interpreter and his migration agent, Refugee and Immigration Legal Centre Inc.

4. The applicant claimed to be a Tamil Christian from the Northern Province of Sri Lanka.  The applicant made various claims about being forcibly recruited by the Liberation Tigers of Tamil Eelam (“LTTE”) and other related claims.  However, the Tribunal considered that all of the applicant’s LTTE related claims were fabricated.

5. The Tribunal accepted that the applicant was a Tamil from the north who had left Sri Lanka illegally.  The Tribunal accepted that the CID might interview the applicant if he returned to Sri Lanka.  However the Tribunal did not accept that the applicant faced a real risk of serious or significant harm. 

6. The Tribunal said at paragraph 106 of its reasons for decision:

   In making those findings, the Tribunal has accepted that the applicant will go through the process at the airport as summarised in the DFAT country report, which will involve questioning and checking.  It accepts that he will be charged under the Immigrants and Emigrant Act and may be detained or gaoled for up to a few days before being taken before a magistrate who will impose a fine of between 5,000 and 50,000 Sri Lankan Rupees and be granted bail on his personal recognisance with a family member acting as guarantor.  He may have to wait until a family member comes to court to collect him. The Tribunal has also considered the conditions of detention or imprisonment for a brief period.

Ground 1

1. The first ground of review in the application filed on 26 May 2015 and amended on 4 October 2016 is:

   The Tribunal erred in that it failed to bring to the applicant’s attention, a dispositive issue in the review that was not obvious, being whether the applicant would have a family member available to act as guarantor or come to court to collect him.

2. In this ground, the applicant relied on the decision of the Federal Court in Minister for Immigration and Border Protection v SZTQS (2015) 148 ALD 507; [2015] FCA 1069. The first respondent said that decision was distinguishable.

3. Griffiths J said in SZTQS at [43]:

   …

   (d) it was essential to the Tribunal’s reasoning that  SZTQS  would be granted bail and, therefore, not held for a prolonged period and, moreover, that bail would only be granted if a member of his family provided surety; and

   (e)neither the delegate nor the Tribunal raised the issue whether  SZTQS  had a family member who could and would provide surety.

4. Griffiths J then said at [44] and [45]:

   These matters provide an adequate basis for the primary judge’s finding at [50] of her reasons for judgment to the effect that the Tribunal’s reasons “clearly show that the conclusion that the applicant would be granted bail was based on the RRT’s acceptance that a member of the applicant’s family would be needed to provide surety for the applicant”. Thus, applying SZBEL, her Honour found that the Tribunal had fallen into jurisdictional error by failing to identify this issue and inviteSZTQS ’s comments.

   It is necessarily implicit in the primary judge’s conclusion in [45] of her Honour’s reasons for judgment that a “crucial plank” in the Tribunal’s reasoning was its earlier finding that a member of SZTQS ’s family would provide surety for him and that he would be bailed and, accordingly, not be detained for long. I am not satisfied that the Minister has established appellable error. …

5. The applicant argued that the present case was relevantly identical.  The applicant argued that, if he did not have a family member who could act as guarantor, he would be exposed to extended detention and significant harm.  The applicant argued that the issue of the availability of a guarantor was a crucial plank of the Tribunal’s reasoning that was not obvious to the applicant.

6. The applicant acknowledged in his written submissions that the Tribunal did refer during the hearing to a family member being guarantor.  The applicant provided a transcript of the Tribunal hearing as an annexure to the affidavit of Andrew Black affirmed on 4 October 2016.  That transcript shows that the Tribunal told the applicant and his migration agent that:

   In most cases, returnees have been granted bail by personal [recognisance] immediately by the magistrate. With the requirement for a family member to act as guarantor.Sometimes returnees need to wait for a family member to come to court to collect them. DFAT has been advised that no returnees from Australia to Sri Lanka have been charged under the prevention of terrorism act. The Department is unable to verify such a claim. There’s no suggestion in your case that you were involved with people smuggling. (emphasis added)

7. The applicant argued that the Tribunal’s reference to a family member acting as guarantor or being available to collect the applicant did not adequately raise the issue for the applicant’s attention. In particular, the applicant noted that the Tribunal did not specifically ask the applicant whether he had a family member available to act as guarantor or collect him.  The applicant also argued that the passage cited above from the transcript of the Tribunal’s hearing was part of a lengthy recitation of country information by the Tribunal, which was insufficient to put the applicant on notice.

8. In my view, the present case is distinguishable from SZTQS.  There is no indication in the judgments in that matter that the Tribunal there raised the issue of family members being guarantors and collecting the applicant as clearly as that issue was raised in the present case.

9. Moreover, the Tribunal gave the applicant an opportunity to respond, and he was represented by a migration agent, who can be taken to have understood the issue and to have been assertive enough to deal with the issue as required.

10. In addition, the very statement that the Tribunal made to the applicant about being collected by family members was taken almost verbatim from a submission to the Tribunal written on behalf of the applicant.  That submission is at CB215 and quoted from a DFAT report of July 2013 which said:

    The returnees have been granted bail on personal surety immediately by the magistrate.  Sometimes returnees then need to wait until a family member comes to court to collect them.

11. The Tribunal referred in paragraph 106 of its reasons for decision to that DFAT report.  The applicant must be taken to have been aware of what his own migration agent submitted on his behalf, and must be taken to have known that family members could be required to collect those released on bail.

12. In a pre-hearing written submission, the applicant’s migration agent reserved the right to make post-hearing submissions, depending on the issues arising during the hearing: CB183.  The agent heard what the Tribunal said during the hearing about family members and guarantors, but did not seek to make any post-hearing submissions.

13. The applicant himself, during the hearing, and following the Tribunal’s statement about guarantors and being collected by family members said:

    Whatever you’ve told me so far that’s ok for a normal civil person.  But a person like me who was with the LTTE, it’s completely different.

14. In effect, the applicant did not dispute what the Tribunal had said about guarantors and family members in relation to normal people, but said it did not apply to him because of his LTTE connections.  There is no suggestion in the transcript of the Tribunal hearing that the applicant did not understand what the Tribunal said.  Certainly, the applicant has not filed an affidavit in this court saying that he did not understand what the Tribunal said about guarantors and being collected by a family member.

15. Shortly after the passage set out above from the transcript of the Tribunal hearing, the Tribunal asked the applicant if he wished to say anything else before the migration agent spoke.  The applicant said he had spoken the truth.  The agent asked for a five to 10 minute break to speak to his client.  The Tribunal gave that break.  When the hearing resumed, the applicant spoke about why he had been reluctant to talk about his involvement with the LTTE and acknowledged that he had had a representative for two years.

16. The Tribunal gave the applicant a couple more opportunities to say anything else he wished, but the applicant did not say anything else about family members collecting him or guarantors.

17. In my view, the applicant was adequately informed of the issues concerning family members and guarantors, particularly as he had the assistance of a migration agent.  Moreover, the applicant was given sufficient opportunity to respond as he wished regarding those issues.  Consequently, this case is more like BEV15 v Minister for Immigration and Border Protection [2016] FCA 507 than SZTQS.

18. The applicant tried to make something of the fact that the Tribunal said at paragraph 106 of its reasons for decision that family members might be required to “come to court”. The applicant said this requirement might not have been associated with the granting of bail but with the conclusion of the eventual trial.  However, this is exactly the wording used in the applicant’s own submission at CB215, in a context that clearly concerned bail.  There is nothing in this argument.

19. All in all, I am not persuaded that there is any substance to ground 1.

Ground 2

1. The second ground of review in the application filed on 26 May 2015 and amended on 4 October 2016 is:

   The Tribunal failed to consider, in the sense of have genuine and active intellectual engagement with, the applicant’s claim, or submission, or argument, or evidence, that being detained for any period of time in a Sri Lankan prison may amount to serious or significant harm.

2. The Tribunal addressed the question of detention at the end of paragraph 106 of its reasons for decision, saying:

   The Tribunal has also considered the conditions of detention or imprisonment for a brief period.

3. The applicant argued that:

   … the applicant made detailed written submissions to the effect that conditions in prison in Sri Lanka were such that imprisonment for any period of time may amount to serious or significant harm …

4. In fact, the applicant’s written submission to the Tribunal at CB219 said:

   While we concede that under Australian law, prison conditions alone may not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment without an intention element, we emphasise that the fact of imprisonment may lead to a real risk of further significant harm, as it gives rise to a risk of that person being tortured.  The fact that the remand period may be short does not mitigate against this risk.

5. That is, the applicant acknowledged that prison conditions alone did not amount to significant harm.  The point in the written submission was that being held on remand may then expose a person to the risk of torture. 

6. However, as counsel for the applicant acknowledged at the hearing, there was nothing in the material that suggested that simply being a Tamil in remand in Sri Lanka led to a risk of torture.  The information about torture related to people with particular profiles, such as LTTE support, which the Tribunal found the applicant did not have.

7. The ground that the applicant is attempting to argue now is actually contrary to his own concession before the Tribunal, namely, that prison conditions alone would not amount to significant harm, because there is no intention element.  The applicant did not expressly seek to resile from that concession.  Even if the applicant had sought to resile from that concession, it would not have assisted him.  That is because the concession was correct in law. 

8. In all the circumstances, including the applicant’s concession, I consider that the Tribunal’s brief reference to prison conditions was sufficient.  There is no reason to doubt the Tribunal’s statement that it had considered prison conditions.  This ground is not made out.

Conclusion

1. As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:     29 November 2016