AYI15 v Minister for Immigration

[2015] FCCA 2811

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYI15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2811

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to assess the applicant’s claim for protection on the basis of membership of the social group of illegal departees from Sri Lanka – whether the Tribunal failed to correctly apply s.91R – whether the Tribunal failed to comply with Ministerial Direction Number 56 – whether the Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act – no jurisdictional error – application dismissed.

Legislation:

Immigrants and Emigrants Act 1948 (Sri Lanka)

Migration Act 1958 (Cth), s.476

Plaintiff S15 /2002 v The Commonwealth of Australia (2003) 211 CLR 476
SZTAL v Minister for Immigration & Anor [2015] FCCA 64
SZTGM v Minister for Immigration & Anor [2015] FCCA 87
SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552

Applicant: AYI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 493 of 2015

Judgment of: Judge Street

Hearing date: 19 October 2015

Date of Last Submission: 19 October 2015

Delivered at: Sydney

Delivered on: 19 October 2015

REPRESENTATION

Counsel for the Applicant: Mr B Mostafa

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The amended application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

BRG 493 of 2015

AYI15

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 the decision of the Tribunal made on 22 May 2015 affirming the decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.  The applicant’s claims were identified in paragraph 21 of the Tribunal’s reasons, which relevantly refer to being an illegal departee, failed asylum seekers.

3. The grounds of the amended application are as follows:

   1. The Tribunal failed to comply with s 414 of the Act because it failed to assess the applicant’s claim for protection on the basis of membership of the social group of illegal departees from Sri Lanka (Social Group).

   Particulars

   a. The applicant claimed to fear prosecution or serious harm as a result of his membership of the Social Group: Tribunal’s Decision at [21]; submissions to the Tribunal dated 16 March 2015 at [9].

   b. The Tribunal accepted that the applicant had left Sri Lanka illegally: Tribunal’s Decision at [77].

   c. The Tribunal considered the effect of the Sri Lankan Immigrants and Emigrants Act of 1948 (I&E Act) in relation to the applicant’s illegal departure from Sri Lanka, and whether the I&E Act was discriminatory because it was selectively enforced against individuals and the manner in which they have departed (at [84]), but did not consider whether the I&E Act was discriminatory against members of the Social Group, or otherwise consider the applicant’s claim for protection on the basis of membership of the Social Group.

   d. The Tribunal thereby constructively failed to exercise jurisdiction in the manner identified in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088.

   2. In the alternative to ground 1 above, if the Tribunal considered the applicant’s claim for protection based on his membership of the Social Group, the Tribunal misconstrued or misapplied s 91R(1) of the Act.

   Particulars

   a. Tribunal accepted that the applicant had left Sri Lanka illegally: Tribunal’s Decision at [77].

   b. The Tribunal found that, as a result, the applicant might be prosecuted under the I&E Act: Tribunal’s Decision at [77], [80].

   c. The Tribunal found that, once charged under the I&E Act, the applicant would be held on remand for “between one to several nights”: Tribunal’s Decision at [81], [97].

   d. The Tribunal found that a penalty of a fine between 5,000 and 50,000 rupees was likely to be imposed on the applicant under the I&E Act: Tribunal’s Decision at [80], [101].

   e. In finding that the I&E Act was not being applied in a discriminatory manner for a Convention reason because “the law penalises people departing from the country from other than an approved port (Section 34) and departing from the country without a valid passport (Section 35 (a)). It does not discriminate regarding the means of departure although the tribunal accepts that as Sri Lanka has no land borders with other countries, and passports are likely to be checked at airports, persons who breach this law are more likely to leave by boat” (at [84]), the Tribunal asked itself the wrong question.

   f. The Tribunal should have asked itself whether the I&E Act was discriminatory against members of the Social Group: cf Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 (SZNCW).

   g. In rejecting a submission that the I&E Act was not appropriate and adapted towards a legitimate purpose, the Tribunal reasoned that the “Sri Lanka authorities wish to regulate entry and exit into the country which is a legitimate purpose and there are a range of penalties that can be imposed”: Tribunal’s Decision at [85]. In taking that approach, the Tribunal erred because (SZNWC):

   i. the Tribunal failed to consider how much of a problem was illegal departure from Sri Lanka;

   ii. the Tribunal merely noted that a range of penalties could be imposed, but did not ask whether the penalties that were likely to be imposed were proportionate to the legitimate object identified by the Tribunal;

   iii. failed to ask itself whether the applicant’s spending between one to several nights in prison, in conditions that the Tribunal accepted were “poor and overcrowded” (at [97]) and which the country information referred to by the Tribunal described as likely to breach the prohibition on inhuman or degrading treatment or punishment or to amount to degrading treatment (at [90]), was appropriate and adapted towards the legitimate end identified by the Tribunal.

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

   Particulars

   a. The Tribunal failed to take into account PAM3: Refugee and humanitarian – Complementary Protection Guidelines when it:

   i made findings that the treatment the applicant would face on being detained in Sri Lanka would not amount to degrading treatment or punishment or was not cruel or inhuman treatment or punishment (at [97]-[98]); and

   ii considered the intention requirements attaching to the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” under the Act (at [99]).

   4. The Tribunal misconstrued or misapplied ss 5 and 36(2A) of the Act.

   Particulars

   a. The Tribunal misconstrued the intent requirements attaching to the definitions of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” under the Act (at [99]).

4. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

5. Under a bold heading “Relevant Law”, the Tribunal set out criteria relating to the applicant’s claim for protection, and relevantly identified a subheading relating to Refugee Criterion and a subheading relating to “Complementary Protection Criterion”.  The Tribunal also had a subheading headed “Section 499 Ministerial Direction”, in which para.19 provided as follows:

   19. 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 ofimmigrationPAM3 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The tribunal has had regard to DFAT Country Information Report, Sri

   Lanka, 16 February 2015 (DFAT Report) and DFAT Thematic Report - People with links to the LTTE 3 October 2014 (DFAT LTTE Report).

6. In relation to ground 1, the applicant asserted that being an illegal departee was a social group, which the Tribunal should have addressed in relation to the application of the Immigrants and Emigrants Act 1948 and whether it operated in a discriminatory manner. 

7. The only reference to the applicant being a member of a social group in this regard was a passing reference in an 83-paragraph submission dated 26 March 2015 with a heading Issue 2:  “whether the applicant has a well-founded fear of persecution upon return due to his status as an illegal departee/failed Tamil asylum seeker”.  Immediately under that heading, the opening paragraph provided:

   9. The Tribunal cited a number of findings from recent DFAT reports on Sri Lanka regarding forced returnees.  It remains my submission that the Applicant faces a real chance of serious harm upon return by virtue of his membership of the social groups of illegal departees and failed asylum seekers.

8. I accept the first respondent’s submission that the reference to a social group of illegal departees and failed asylum seekers in that paragraph was not a clear identification of a claim that the Tribunal had to address in relation to ground 1.  Further, in this case, it is clear that the Tribunal addressed whether the Immigrants and Emigrants Act 1948 was one that was a discriminatory law or applied on a discriminatory basis.  Relevantly, the Tribunal said:

   83. The tribunal acknowledges that DFAT advises that since 2 November 20 12, Sri Lankan irregular maritime arrivals non-voluntarily returned from Australia were being charged under Immigration and Emigration Act for offences related to their irregular departure from Sri Lanka. From late November 20 12, the Sri Lankan Government started to enforce the law in all cases regardless of whether a person has been returned voluntarily or non-voluntarily. The country information relied on by the applicant's representative refers to the first Tamil asylum seeker to be deported since the end of the war.26 Not that they were the first group ever returned. Other Country information indicates that Australia has returned Sri Lanka asylum seekers (voluntarily and involuntarily) before July 2012.27 The tribunal does not accept that the enforcement of the law was connected to returns from Australia. The tribunal notes that at the end of the war the government with the UNHCR's help was facilitating returns to Sri Lanka.28 In these circumstances the law may not have been enforced in relation to people who had fled during the war. The tribunal does not accept that the enforcement of the law since November 2012 means that it is not a law of general application.

   84. It was submitted that the law is discriminatory because it is selectively enforced against individuals and the manner which they have departed, particularly those people who have left Sri Lanka illegally by boat to seek asylum. The tribunal notes that the law penalises people departing from the country from other than an approved port (Section 34) and departing from the country without a valid passport (Section 35 (a)). It does not discriminate regarding the means of departure although the tribunal accepts that as Sri Lanka has no land borders with other countries, and passports are likely to be checked at airports, persons who breach this law are more likely to leave by boat. This, in the tribunal 's view, does not mean that the laws are being discriminatorily applied for a Convention reason.

   85. The tribunal does not accept that the laws are not appropriate and adapted towards a legitimate purpose as submitted by the applicant's representative. The Sri Lanka authorities wish to regulate entry and exit into the country which is a legitimate purpose and there are a range of penalties that can be imposed.

   86. The tribunal finds that even if the applicant was to face prosecution, such a prosecution would not be persecution within the meaning of the Convention as it would amount to the enforcement of a law of general application which is not discriminatory on its terms and is applicable to all persons in Sri Lanka.

   87. The evidence available to the tribunal does not indicate that the applicant would be treated more harshly in relation to these offences for a Convention reason, or that these laws would be discriminatorily applied, implemented or enforced against the applicant for a Convention reason. Therefore the harm the applicant fears is not Convention based persecution

9. In my opinion, the findings of the Tribunal that the law is one which is a law of general application which is not discriminatory on its terms and is applicable to all persons in Sri Lanka is fatal to ground 1. It is clear that the Tribunal has made a finding about the non-discriminatory nature of the law, and in para.87 made a finding as to the non-discriminatory application of that law.  No jurisdictional error of kind alleged in ground 1 is made out.

10. In relation to ground 2, having found that the law was not a discriminatory law, it was not necessary for the Tribunal to determine whether or not the laws were proportionate and adapted to a legitimate purpose.  However, to the extent necessary, the Tribunal did make such a finding in para.85. In light of the above findings by the Tribunal including the findings in para.85, ground 2 fails to make out any jurisdictional error.

11. In relation to ground 3, in addition to para.19 referred to above, the Court was taken to the following paragraphs in the decision of the Tribunal:

    90. Country information indicates that prison conditions in Sri Lanka may not meet international standards. Concerns include overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence. Prison conditions in Sri Lanka have been reported as likely to breach Article 3 of the European Convention on Human Rights which prohibits "inhuman or degrading treatment or punishment". The US Department of State, citing an assessment by a former UN Special Rapporteur on Torture, also reported that "the combination of severe overcrowding and antiquated infrastructure of certain prison facilities places unbearable strains on services and resources, which for detainees in certain prisons, such as the Colombo Remand Prison, amounts to degrading treatment".

    …

    97. The tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison. The applicant may be remanded for a short period of time, between one night to several nights. The tribunal does not accept that in the applicant's case as a young man that a relatively shott period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.

    98. The tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment.

    99. Further, under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law. In SZTKF v MIBP39 the applicant argued that the tribunal applied the incorrect test in relation to significant harm by requiring an intentional element in respect of the overcrowding and poor conditions, and that the correct lest was to assess whether the authorities' placement of the applicant into those known conditions was intentional thereby exposing the applicant to significant harm. The court held that the proposition that intention is made out if there is an intentional act that exposes a person to the risk of serious harm is incorrect. 'Intention' in relation to a particular act or state of affairs requires advertence to the act or state of affairs and the desire to commit the act or bring about the state of affairs. Therefore in relation to the poor prison conditions in Sri Lanka there is no intention on the part of the Sri Lanka authorities to harm the applicant. The tribunal finds that a period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm within the meaning of s36(2A) or s.5 of the Act.

    100. The tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm. As discussed with the applicant and set out above the country information indicates that the penalty most likely to be imposed on the applicant is a fine. Based on this information, the tribunal finds that the likelihood of a prison sentence is remote and not a real risk.

12. In substance, it was contended that the Court should infer that the Tribunal had failed to have an intellectual engagement with the PAM3 in accordance with direction 56, and that this should be inferred by reason of the absence of an express acknowledgement of having actually had regard to the guidelines, and the absence of reference to international jurisprudence.  It was submitted on behalf of the applicant that the findings could be explained by reference simply to the country information and the submissions that had been put to the Tribunal without the Tribunal properly engaging in an intellectual deliberation of the application of the PAM3. 

13. I reject that submission.  It is clear from paras.90 and 97 that this is a case where the Tribunal descended into the nature of the conditions to which the applicant would be exposed.  In my opinion, that is a clear basis upon which the decisions in SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 and Plaintiff S15 /2002 v The Commonwealth of Australia (2003) 211 CLR 476 can be distinguished. The reference to overcrowding by the Tribunal is not one which should be inferred to have come just from country information or the applicant’s submissions. I reject the contention that the last sentence of para.19 implies some exclusivity in regard to information which the Tribunal was required to take into account. It is clear from the Tribunal’s reasons in paras.64 through to 70 that the Tribunal had regard to a broad range of country information.

14. Counsel for the applicant sought to argue that by reference to particular parts of the PAM3 and in particular pp.6, 22, 23, 24, 30 to 34 and p.46, footnote 62 and the failure to make reference to any international jurisprudence that this was a basis upon which an inference should be drawn that there was no intellectual engagement with the guideline.  I reject that submission.  The reference to a deliberation by the Tribunal in relation to overcrowding and the conditions referred to in para.90 are all consistent with a proper engagement with the content of PAM3.  The absence of reference to international jurisprudence is not a basis in light of the reasons read as a whole to infer a failure to have regard to and to apply the PAM3 guidelines.  Ground 3 is not made out.

1. Ground 4 as put was a formal submission in light of authority that the applicant accepted which was likely to be followed and could not be said to be clearly incorrect.  It was submitted that the matter should be adjourned pending the determination of proceedings in the Full Court of the Federal Court.  That adjournment was opposed by the first respondent.  Part of the reason why it was opposed was because of the findings by the Tribunal in this case in paras.96 and 97:

   96. 'Cruel or inhuman treatment or punishment' is defined in the Act as an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on a person; or an act or omission by which physical or mental pain or suffering is intentionally inflicted on a person so long as the act or omission could reasonably be regarded as cruel or inhuman. 'Degrading treatment or punishment' is defined in the Act as an act or omission that causes and is intended to cause extreme humiliation which is unreasonable.

   97. The tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded and that the applicant may suffer discomfort whilst in prison. The applicant may be remanded for a short period of time, between one night to several nights. The tribunal does not accept that in the applicant's case as a young man that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.

2. I am not satisfied that the decisions in SZTAL v Minister for Immigration & Anor [2015] FCCA 64, SZTGM v Minister for Immigration & Anor [2015] FCCA 87 and SZTCY v Minister for Immigration & Anor [2015] FCCA 85 are plainly wrong. The above findings by the Tribunal mean the appeal to the Full Court may not determine a principle that applies to the applicant in this case. An adjournment would also unnecessarily increase the costs of the parties and utilise limited Court time. For these reasons the adjournment was refused. Ground 4 fails to make out any jurisdictional error.

3. The amended application is dismissed. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  22 October 2015