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AYT15 v Minister for Immigration

AYT15 v Minister for Immigration

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FEDERAL CIRCUIT COURT OF AUSTRALIA

AYT15 v MINISTER FOR IMMIGRATION & ANOR

[2018] FCCA 688

Catchwords:
MIGRATION – Application for judicial review of decision affirming refusal of protection visa application – applicant claimed fear by reason of political association – whether Tribunal properly considered applicant’s claims – whether Tribunal considered integers of claim – whether pain or suffering caused by the overcrowding of Sri Lankan jails was intentionally inflicted on prisoners so as to constitute cruel or inhuman treatment or punishment – whether an actual subjective intention on the part of the perpetrator required – grounds not established – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5J, 36, 65, 91R, 476

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)

Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967), Art. 1A

Cases cited:

Applicant:

AYT15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

MLG 1292 of 2015

Judgment of:

Judge A Kelly

Hearing date:

4 April 2017

Date of Last Submission:

4 April 2017

Delivered at:

Melbourne

Delivered on:

28 March 2018

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Young

Solicitors…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FCCA 688
Decision Date: 28 March 2018

CaseChat Overview and Summary

This matter concerned an appeal by AYT15 against a decision of the Minister for Immigration. The applicant sought judicial review of a decision made by the Administrative Appeals Tribunal, which had affirmed the Minister's decision to refuse to grant a protection visa. The core of the dispute revolved around whether the Tribunal had adequately considered the applicant's arguments regarding his fear of persecution.

The legal issues before the court were whether the Tribunal had failed to consider a "substantial and clearly articulated argument" made by the applicant, and whether the applicant had established a well-founded fear of persecution or a claim for complementary protection. Specifically, the court had to determine if the applicant's submissions were sufficiently clear and substantial to place the Tribunal on notice, and if the Tribunal's findings regarding the risk of significant harm upon return to Sri Lanka were reasonably open to it.

The court applied principles established in previous cases, notably *CPE15 v Minister for Immigration and Border Protection* and *SZSSC*, which require the Tribunal to consider arguments that are both "substantial and clearly articulated." An argument is considered substantial if its failure to be considered may have materially affected the Tribunal's conclusion, and it must be capable of affecting the formation of the satisfaction required by section 65 of the *Migration Act 1958* (Cth). The court also referred to *BRF038 v Republic of Nauru*, which affirmed that the question of a well-founded fear of persecution is fact-dependent. Regarding complementary protection, the court endorsed the view that "intentionally inflicted" in the definition of cruel or inhuman treatment or punishment requires an actual, subjective intention on the part of the perpetrator.

The court found that the Tribunal's conclusion that the applicant would not be subjected to treatment amounting to significant harm upon return to Sri Lanka was reasonably open, given the country information available. The Tribunal had referred to reports indicating few instances of mistreatment among returning asylum seekers and DFAT information suggesting short detentions and fines. Furthermore, the court found that the applicant's argument concerning complementary protection, which relied on the interpretation of "intentionally inflicted" and "intended to cause," was not made out, as the Tribunal's findings did not compel the conclusion that Sri Lankan officials possessed the requisite subjective intention to inflict severe pain or suffering or extreme humiliation. Consequently, the appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

More recently, in BRF038 v Republic of Nauru [2017] HCA 44, Keane, Nettle and Edelman JJ observed at [43] the holding in WZAPN was that whether a person had a well-founded fear of persecution was a fact-dependent question on which reasonable minds may differ. Their Honours said at [44]:The findings of the Tribunal were not such as to compel the conclusion that the appellant faced such serious, sustained and systematic harm that he has a well-founded fear of persecution in Somalia by reason of his membership of the Gabooye tribe. On the contrary, it was open to the Tribunal to conclude that the appellant was not faced with a well-founded fear of “persecution” within the meaning of the Refugees Convention. (Emphasis added. Footnotes omitted) In the present case, the Tribunal was not satisfied that the applicant would be subjected to treatment as a result of his illegal departure such as would constitute harm at a level of severity sufficient to amount to significant harm. Such a view was reasonably open. The Tribunal referred to country information from British, Canadian and Australian sources that, of the thousands of asylum seekers who had returned to Sri Lanka since 2009, there were relatively few reports of mistreatment. It also referred to DFAT information that, apart from smugglers, such persons were generally detained for a short period and fined: Reasons, [44], [48]. It was reasonably open to the Tribunal to conclude that the applicant would not be exposed to significant harm. In the result, the first limb of the applicant’s submission in relation to Ground 3 must be rejected. As to the second limb of Ground 3, the applicant also relied upon the circumstance that the Full Court’s decision in SZTAL which, although decided adversely to the applicant’s submission in this case, was the subject of an application for special leave to appeal to the High Court. SZTAL concerned consideration of complementary protection obligations under para 36(2)(aa) of the Act. Relevant to this application was whether, in sending the appellants to prison, Sri Lankan officials could be said to intend to inflict severe pain or suffering or to intend to cause extreme humiliation. In the Full Court, Kenny and Nicholas JJ held to establish that the treatment of a person constituted cruel or inhuman treatment or punishment required an actual subjective intention on the part of the perpetrator before it could fall within the statutory definition of the relevant expressions in sub-s 5(1). The High Court dismissed the appeal: (2017) 347 ALR 405. The plurality (Kiefel CJ, Nettle and Gordon JJ) at [8] (Edelman J agreeing), endorsed the view that:. . . that “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” connotes the existence of an actual, subjective, intention on the part of a person to bring about suffering by his or her conduct. His Honour considered the same to be true with respect to the words “intended to cause” in the definition of “degrading treatment or punishment”. (Emphasis added)

Ratio Decidendi

Legal Principle Established

The ambit of the Tribunal’s obligation to consider a clearly articulated argument was considered in detail by Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, [35]-[42]. Her Honour distilled the principles as follows at [40]:The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument. (Emphasis added)As Mortimer J explained at [42], “assessments by a reviewing court of whether the identified argument was “substantial and clearly articulated”, and what the Tribunal did or did not do in its reasons in terms of considering it, will be highly fact dependant and will need to be considered against the background of each individual case”. More recently, in BDJ15 v Minister for Immigration and Border Protection [2017] FCA 1281, [49], Charlesworth J, citing MZYTS, emphasised that the Tribunal was required to examine and deal with the claims for asylum that were made by the applicant. Other recent authority suggests that some care is required in the application of the holding in MZYTS: see ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054, [24]-[33] (Bromberg J). In SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, Robertson J examined the scope of the requirement to deal with claims that had been expressly articulated or squarely or sufficiently raised by the material: [44]-[52]. His Honour endorsed views that: (1) the Tribunal was not required to deal with claims which were not articulated and which did not clearly arise from the material before it; (2) the court insists that on judicial review, a decision of the tribunal must always be considered in light of the basis on which the application was made, not on an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process; (3) if the claim was not expressly made, it must emerge clearly from the materials before it; (4) a conclusion that the tribunal has failed to consider a claim which is not expressly advanced is not to be made lightly: (citations omitted).