AYT15 v Minister for Immigration
[2018] FCCA 688
•28 March 2018
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: Abebe v Commonwealth (1999) 197 CLR 510 |
| 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 for the First Respondent: | Sparke Helmore Lawyers |
ORDERS
The application filed on 9 June 2015 be dismissed.
The applicant pay the first respondent’s costs fixed at $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1292 of 2015
| AYT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application filed on 9 June 2015, judicial review is sought of a decision of the Administrative Appeals Tribunal (Tribunal) made on 14 May 2015 affirming a decision of a delegate of the first respondent (Minister), refusing an application for a protection (Class XA) visa.
The applicant, a Sri Lankan national of Tamil ethnicity aged 30 years, is a Sunni Muslim who speaks Tamil and Sinhalese, but little English. He has no relatives in Australia but a large family in Sri Lanka.
The applicant arrived in Australia alone as an irregular maritime arrival in June 2012 without a passport.
On 27 August 2012, the applicant attended an interview during which he recounted his experiences in Sri Lanka and the reasons he had left that country. When asked to explain why he had reason not to return to Sri Lanka the applicant responded that:
I think I am going to die. We were ready for everything when we came here, we don’t know what will happen to us. Because I came here, that is one problem, secondly I already had a problem and because I went away they will think that I was responsible. Already one person who was returned to Sri Lanka has been kidnapped. I heard it on the news.
On 16 November 2012, the applicant lodged an application for a protection (Class XA) visa. He did so with the assistance of a migration agent. On 13 November 2012, the applicant made two statutory declarations. In the first, he declared that he had not been convicted of any offence or otherwise engaged in any conduct which might disqualify him from being eligible for a protection visa. In the second, he declared as to the following circumstances upon which he relied upon in applying for a protection visa:
(a)he was a single male born in the Northern Province of Sri Lanka who had no right of citizenship other than in Sri Lanka;
(b)he described an incident in 2006 when he heard a bomb blast in Poonthadam following which the army arrived and began firing in the streets. The applicant took hiding in a hair salon for some hours. When the applicant came to leave he was arrested on suspicion of being involved in the bomb blast;
(c)the applicant declared that he was then taken by police, beaten, detained and released after some days. He also declared that thereafter the police made demands of money from him;
(d)he described episodes of harassment from the police in which they would confiscate his tricycle;
(e)in 2010, the applicant joined the Muslim Congress Party and claimed that he had participated actively in an election;
(f)in 2011, the applicant decided to run for a seat in local elections. Later, he was approached by two men who cautioned him to discontinue his campaign for public office. He claimed to have discovered that those men were members of the Eelam Peoples Democratic Party (EPDP). Later still, four men who told the applicant to drive them to Mahrambaikulam, stopped his tricycle, gave the applicant a beating and threatened to kill him if he did not discontinue his quest for election;
(g)an interview with the police followed. The police also cautioned the applicant to discontinue his political campaign failing which they threatened to reopen his file for further investigation;
(h)the applicant stopped campaigning but said that he faced continuing harassment from police;
(i)the applicant recounted a series of incidents from 2012 involving the destruction of a Mosque by Sinhalese people following which police began arresting Muslim men suspected of being involved in demonstrations against such destruction. Police came to the applicant’s home but he fled, being fearful that the police would abduct or kill him;
(j)in the course of making his second declaration, the applicant made a number of corrections to information he had initially supplied upon entry to Australia.
On 29 July 2013, a delegate of the Minister refused the application. The delegate accepted that the applicant had been detained in 2006 and that he had joined a political party in 2010. However, the delegate found that in joining that political party, the applicant had been motivated by a desire for protection but had discovered that so joining that party had had the opposite effect. The delegate found that there were no incidents of serious harm since that date.
The delegate further found that the applicant feared harm for a Convention reason and that the harm was of a kind which could constitute serious harm amounting to persecution. The delegate also accepted that the applicant had a subjective fear of harm that was genuinely held. In assessing whether, objectively, the applicant’s fear of harm was well-founded, the delegate gave detailed consideration to country information. The delegate concluded that the applicant’s profile was not such as would make him susceptible to serious harm arising from an imputed political association. The delegate did not accept that there was any indication that the lives of Muslims were more generally at imminent risk of danger. For those reasons, the delegate concluded that the applicant did not have a real chance of being persecuted for a Convention reason and that his fear of such persecution was not well-founded. The delegate also found that the applicant was not owed complementary protection. As the criteria under paras 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act) were not satisfied, the application was refused.
On 2 August 2013, the applicant sought a merits review of the delegate’s decision. The lawyers appointed by the applicant to assist him in that application lodged with the Tribunal a submission, additional evidence and a further statutory declaration.
The applicant was invited to attend a hearing before the Tribunal where he could provide evidence and make submissions on the issues arising in relation to the decision made on his application. A hearing was conducted on 16 December 2014. The applicant was assisted at the hearing by his migration lawyer and an interpreter. Following the hearing, the applicant’s lawyers filed some additional evidence under cover of an email stating that the applicant had been unable to locate evidence relating to the incidence of Buddhist attacks on Mosques in the applicant’s home or in the locality of his home town.
On 14 May 2015, the Tribunal affirmed the delegate’s decision refusing the protection visa application and provided a written statement of its reasons for doing so (Reasons).
Procedural history
On 9 June 2015, the applicant’s lawyers filed an application for judicial review of the Tribunal’s decision. The application contained three grounds each of which are addressed below.
By his affidavit made in support of the application, the applicant exhibited a copy of the Tribunal’s Reasons.
By his response, the Minister opposed the application on the ground that the Tribunal’s decision was not affected by jurisdictional error and contended that no particulars had been provided in relation to any of the grounds of review stated in the application.
On 14 October 2015, orders were made by consent for the application to be listed for final hearing. The applicant was afforded, but did not take, an opportunity to file an amended application containing particulars of the grounds upon which he relied together with any affidavits. The applicant’s lawyers withdrew from the proceeding on 10 January 2017.
In the combined circumstances of the applicant having filed an application containing grounds of review which were not amplified by any particulars and having not filed any submissions, the Minister filed submissions which addressed the grounds of review in the terms stated in the application.
The applicant prepared a detailed written submission dated 31 March 2017, which was not filed until the commencement of the hearing.
The applicant appeared at the application for judicial review with the assistance of an interpreter. Although the applicant’s lawyers had been provided a copy of the court book and the applicant had exhibited a copy of the Reasons to his affidavit, the applicant did not bring either of those documents with him to court. The Minister’s counsel provided a further copy of the court book to him. It is convenient to address the Tribunal’s consideration of the applicant’s claims in the context of the three grounds of review that are relied upon.
Judicial review
Prerogative relief of the kind sought in this application is available only where the impugned decision is affected by jurisdictional error: s 476.
The grant or refusal of a protection visa requires that the Minister has been satisfied or not satisfied (as the case requires) that the criteria prescribed for such visa have been ‘satisfied’: ss 36(2)(a), 36(2)(aa), 65(1)(a), 65(1)(b). Ministerial satisfaction that a protection visa applicant has fulfilled the criteria prescribed by s 36 is both a condition precedent to the exercise of, and a jurisdictional fact upon which the Minister derives, authority to grant an application pursuant to s 65: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, [37]-[38]; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [40], [102]. For those reasons, is clear that s 65 requires the decision-maker to refuse to issue a visa in the absence of a positive finding of satisfaction of the criteria applicable to the particular visa application: Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [72] citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 274-275.
On an application for judicial review, the court is required to determine whether the Tribunal decision is affected by jurisdictional error: s 476; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. As the applicant was self-represented at the hearing before me, I have re-examined the Reasons together with the materials comprising the court book. I consider each of the grounds of review in turn below.
Ground 1 – Integer of claim
Ground 1 reads:
The Tribunal has erred and fell into jurisdictional error by not assessing the applicant’s integer claims cumulatively being of a Tamil Muslim of Islamic faith, associate with LTTE and a candidate of a political party known as SLMC. (Emphasis added)
The applicant contended that the Tribunal failed to consider an integer of his claim. The integer identified by the applicant was cumulatively being of a Tamil Muslim of Islamic faith, associated with LTTE and a candidate of a political party known as SLMC.”
The applicant’s written submission stated that the Tribunal was bound to assess his claims separately and cumulatively and having not done so, had fallen into jurisdictional error, citing Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802.
The Minister submitted that the Tribunal had considered each of the claims made by the applicant both individually and cumulatively.
Consideration
By s 414, the Tribunal is required to review the applicant claims. To make a decision upon a merits review without having considered all of the claims so made is to fail to complete the statutory task required of the Tribunal. For that reason, each of the components, or integers, of each claim must be considered: Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136, [42]; Minister for Immigration and Border Protection v SZRKT(2013) 212 FCR 99; Minister for Immigration and Border Protection v MZYTS(2013) 230 FCR 431. A failure to consider the integers of each claim or a failure to consider a sufficiently significant item of evidence may amount to jurisdictional error. A failure to make a finding upon a relevant fact may amount to jurisdictional error.
Where a Tribunal fails to make a finding upon a substantial, clearly articulated argument relying upon established facts, such failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. In other cases, a failure of this kind is characterised as the Tribunal having exceeded its jurisdiction. The failure is constituted by a failure to consider each substantial, clearly articulated argument. The argument must arise expressly or be squarely or sufficiently raised on the material: SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121, [50]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1, [53], [62]; see also Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, 394, [24], [95]; Singh v Minister for Immigration and Border Protection[2017] FCAFC 195, [27]; Commissioner of Taxation v Primary Health Care Limited[2017] FCAFC 131, [24]; AMT15 v Minister for Immigration and Border Protection [2018] FCA 366 at [14].
The test posed in NABE at [62] and endorsed in SZTQP at [50] is whether a Tribunal has failed to deal with a claim that had been raised by the evidence and contentions before it which, if resolved in one way, would or could be dispositive of the review. If a failure of that kind is established it may constitute a failure of procedural fairness. But it is not necessary for the Tribunal to refer to every piece of evidence in its reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593, [46].
In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431, Kenny, Griffiths and Mortimer JJ at [34] characterised the error in failing to consider more recent information as being a failure to perform the statutory task imposed on the Tribunal by the Act. The Court reasoned that by s 414 the task to be performed by the Tribunal was to form for itself on the material before it the requisite state of satisfaction under s 65 of the Act. It observed that, commonly, if not uniformly, such satisfaction turned on the criterion posed by para 36(2)(a); namely, whether the applicant was a non-citizen in Australia in respect of whom Australia owed protection obligations because the person was a refugee. The definition of refugee is found in s 5H. The Court held at [33]-[34] that:
The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded. (Emphasis added)
In those passages, the Full Court identified the settled approach that is required in the consideration of a merits review on a protection visa application and the tasks that it entails: see also CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14, [23].
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).
The dual requirements that the claim must be substantial and clearly articulated (or must emerge clearly from the materials before it), combine to underscore the restraint to be shown before concluding that a Tribunal has exceeded its jurisdiction.
Before it can be determined that a Tribunal has exceeded its jurisdiction by reason of a failure to consider a claim, it must be demonstrated that the claim which is said not to have been considered is properly characterised as being substantial and as having: (1) been clearly articulated by the applicant, or; (2) emerged clearly from the materials. The requirement that the claim be ‘substantial’ draws attention to the need to demonstrate that such claim may have had a direct bearing on the conclusion whether the criteria in para 36(2)(a) or (aa) were satisfied. In cases where the claim was not expressly made but is said to have clearly arisen on the material before it, the court should not lightly draw such a conclusion. On whichever basis judicial review is sought, it must also be shown that the claim or integer was made out on established facts or contentions.
For those reasons, a Tribunal’s decision must always be considered in light of the basis on which the application was made. Judicial review is not an opportunity to advance a claim which had never previously been put forward as the basis on which an application for a protection visa should have been considered on its merits. To do so would invert the process by which administrative decisions may be reviewed.
The Tribunal’s Reasons confirm that the following approach was adopted by the Tribunal in its assessment of the applicant’s claims:
(a)the Tribunal was conscious of the applicant’s level of education and that he had given evidence, with the assistance of an interpreter, in a language other than his first language. It identified the principles upon which it would proceed in conducting an evaluation of the applicant’s claims;
(b)it considered the applicant’s home village as the place where he had spent the majority of his life;
(c)Claims: the Tribunal identified each of the applicant’s claims and considered them in turn: Reasons, [21]ff;
(d)SLMC Candidacy: the Tribunal accepted that the applicant had been, but was no longer, a member of this political party and rejected as fabrications two letters written in English which the applicant provided after the hearing in support of this claim. It accepted that the applicant had once provided low level support at political campaigns but rejected claims that he had stood as a candidate or that he had been beaten or threatened by opposition supporters or by the police. The Tribunal concluded that the applicant had fabricated those claims in order to create a profile upon which to advance his application. It rejected the applicant’s claim to past harm on account of his past political affiliations and considered the prospect of him suffering harm in the future as remote and speculative;
(e)Tamil: pro-LTTE: the Tribunal was prepared to give the applicant the benefit of the doubt that he had been arrested and detained following the bomb blast in 2006. It observed that the applicant had been released and found not guilty. It found that the applicant had fabricated claims of ongoing contact from or harassment by police, or that there was an open file on this investigation. It did not accept that the applicant would be imputed with any anti-government or pro-LTTE opinion by reason that he was a Tamil, had worked and lived in a Tamil area or had been released following detention after the 2006 bomb blast. It considered, but rejected, the applicant’s claim to past harm on this account and considered the prospect of him suffering harm by reason of being arrested, detained, assaulted, abduct or killed in the future as remote and speculative;
(f)Failed asylum seeker: based on country information and the applicant’s circumstances, the Tribunal found that the applicant would not be imputed with an anti-government or pro-LTTE political opinion because he would be returned to Sri Lanka as a person who had applied for asylum overseas. It had regard to a range of country information respecting the treatment of thousands of asylum seekers who had returned to Sri Lanka since 2009. Noting that there were relatively few reports of such persons being mistreated, the applicant was asked to but had no comment on this issue. The Tribunal was not satisfied that the applicant faced a real chance of serious harm because of any imputed political opinion or affiliation or membership of any particular social group arising as a risk upon return to Sri Lanka either now or in the reasonably foreseeable future;
(g)Illegal departure from Sri Lanka: the Tribunal rejected this claim, noting that the usual practice was for such persons to be held in remand for a short period, released, and then fined. The Tribunal put to the applicant that the only persons upon whom a custodial sentence was imposed were smugglers. Asked as to this, again the applicant had no comment;
(h)Sunni Muslim: The applicant’s evidence before the Tribunal was that he feared harm arising from the steps which he would take in response to attempts to damage Mosques – he identified no other fear of harm on this account. While there had been serious incidents in other parts of Sri Lanka in 2011, 2012 and 2013, these had involved damage to property and not harm to individuals. The applicant was unable to identify other incidents of such damage in or near his own village. The Tribunal rejected (as recent invention) and placed no weight on letters produced by the applicant in support of a claim that he had been identified as an organiser of protests against attacks on Mosques. It rejected as fabrications, claims by the applicant that he had organised a large scale protest in his home village in 2012 or that the police had sought him out;
(i)Complementary protection: the Tribunal accepted on the basis of country information that historically, there had been a degree of harassment and discrimination against Tamils in Sri Lanka. It was not satisfied that the kinds of treatment experienced by Tamils constituted serious or significant harm;
(j)Illegal departure: the Tribunal had regard to the treatment that the applicant may suffer on being returned to Sri Lanka. It considered the nature of the questioning he would face, his conditions on bail and in detention, and the fine which may be imposed. It was not satisfied that the suffering caused to persons being detained in prison was intentionally inflicted.
The Tribunal was not satisfied that the applicant was owed protection obligations under the Refugees Convention or that the applicant had satisfied the criteria under paras 36(2)(a) or 36(2)(aa) of the Act.
From my examination of the Reasons, together with the materials comprising the court book, including the applicant’s various statutory declarations, I consider that the Tribunal properly considered each of the applicant’s claims. Ground 1 is rejected.
Ground 2 – Freedom of worship
Ground 2 reads:
The Tribunal has not assessed his claim that he will be deprived his freedom of worship in the foreseeable future due to many Mosques being destroyed in Sri Lanka.
It is not clear how this ground arose from the claims presented by the applicant on the merits review by the Tribunal.
The applicant’s written submission contended that the Tribunal applied the incorrect test when not giving him the benefit of the doubt in relation to his claim that he had been attacked by Buddhists while protecting a local Mosque. He complained that the approach taken by the Tribunal was inconsistent with its earlier statement that if an applicant’s account appeared credible he should, absent good reason to the contrary, be given the benefit of the doubt: see Reasons, [17].
The Minister submitted that the applicant had not expressly advanced a claim that his freedom of worship was restricted in Sri Lanka. Rather, the applicant’s claim had focused on the destruction of Mosques and this claim had been considered by the Tribunal.
Consideration
The Tribunal did consider the claims which had been advanced by the applicant. Each aspect of the applicant’s claims was discussed with him during the hearing. He was allowed an opportunity to adduce further evidence in relation to the issue of whether Mosques in or near his local village had been damaged. It rejected parts of this claim as a fabrication designed to elevate the applicant’s profile for the purposes of the application: Reasons, [55]-[59].
I do not consider that the claim now raised by Ground 2 was a claim expressly made, or otherwise arose clearly or sufficiently on the face of the materials before the Tribunal.
The Tribunal did not merely apply a principle that an applicant should be given the benefit of the doubt either in unqualified terms or in disregard of other principles applicable to the determination of an administrative review of a delegate’s decision. The Reasons at [17]-[18] explained that the Tribunal recognised an applicant may face difficulties in providing documentary proof and that he should be given the benefit of the doubt unless there was good reason to the contrary to do so. It also observed that it was obliged to assess claims as being possibly true where, faced with adverse information, it was not able to reject a claim with confidence: citing Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220.
While the Tribunal operates in an inquisitorial manner, it is under a duty to arrive at the correct or preferable decision on review according to the material which is before it: MZZZW v Minister for Immigration and Border Protection [2015] FCAFC 133, [56]-[58]. However, the Tribunal is not required to accept uncritically all or any allegations made by an applicant. Nor is it required to have rebutting evidence before it can make a finding that a particular factual assertion by an applicant is not made out: CQG15 v Minister for Immigration & Border Protection [2016] FCAFC 146, [65]; Minister for Immigration and Ethnic Affairs v Guo Wei Rong(1997) 191 CLR 559, 596; Randhawa v Minister for Immigration and Local Government and Ethnic Affairs (1994) 52 FCR 437, 451.
In the course of the hearing before me, the applicant confirmed that he had been unable to locate any evidence of such attacks. It was for the applicant to provide evidence and make arguments in sufficient detail so as to enable the Tribunal to establish the facts necessary to make out his claim. It was not for the Tribunal to do so: Abebe v Commonwealth (1999) 197 CLR 510, [187] (Gummow and Hayne JJ); Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214, [76] (Heerey, Conti and Jacobsen JJ). As noted above, following the Tribunal hearing the applicant’s lawyers sent an email stating that the applicant had been unable to locate evidence relating to the incidence of Buddhist attacks on Mosques in the applicant’s home region.
I agree that the Tribunal considered in detail the claim that the applicant had in fact made concerning his religion. The claim that the applicant would be denied freedom of worship was neither sufficiently nor clearly articulated and I consider there was no error in the Tribunal failing to give distinct consideration to it. Ground 2 is rejected.
Ground 3 – detention as serious harm
Ground 3 reads:
The Tribunal finding that a relatively short period of remand or incarceration of the applicant on his return is not amount to serious harm under 91 R of the Migration Act is contrary to recent Federal Court finding in WZAPN-V-MIBP {2014} 947. (Errors in original)
The applicant contended that the Tribunal may have fallen into error in its construction of the phrase ‘intentionally inflicted’ when assessing whether he was exposed to a real risk of serious harm: Reasons, [65]. There the Tribunal did not accept that the 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 as defined by s 5(1) of the Act.
In reaching that conclusion the Tribunal stated the relevant definitions required that the pain and suffering, treatment or punishment respectively be intentionally inflicted upon the person or intended to cause the person extreme humiliation. The Tribunal identified and applied the principle that mere negligence or indifference was not sufficient to satisfy the requirement of intentional infliction of harm, citing SZSPE v Minister for Immigration and Border Protection [2014] FCA 267, [25]-[26], [40] (Yates J).
The Minister submitted, correctly, that reliance on the decision of the Federal Court in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 was misplaced by reason that the holding of that decision had been reversed by the High Court in Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610.
In support of Ground 3, the applicant also relied upon the pending outcome of an application for special leave to appeal to the High Court and the result of an appeal in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.
Consideration
By para 36(2)(a), one criterion for the grant of a protection visa had been that the applicant is a non-citizen ‘to whom . . . Australia has protection obligations under the Refugees Convention.’ While para 36(2)(a) has since been amended, it is necessary to understand the legislative history of the provision for the purposes of Ground 3 which is under consideration. Article 1A of the Refugees Convention[1] identified criteria upon which to determine whether, relevantly, Australia owed a person protection obligations.
[1]Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967).
At the relevant time, sub-s 91R(1) of the Act provided that for the purposes of the application of the Act and regulations to a particular person, Article 1A(2) of the Refugees Convention, as amended, did not apply in relation to persecution for one or more of the reasons mentioned in that Article unless certain conditions were satisfied.
Sub-section 91R(2) provided a non-exhaustive description of conditions which might constitute serious harm. One of those conditions was that the identified form of persecution posed a threat to the person's life or liberty: para 91R(1)(a). Another was that the persecution involved serious harm to the person: para 91R(1)(b).
While s 91R was repealed by Item 12 of Sched 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), a like provision is now located in s 5J of the Act: see WZAPN, [84]-[85].
In WZAPN, the High Court reversed a decision of a single justice sitting as a Full Court and held that for the purposes of s 91R of the Act, the likelihood of temporary detention of a person for a reason mentioned in the Refugees Convention was not, “of itself and without more, a threat to liberty within the meaning of s 91R(2)(a) of the Act.” The High Court entertained the appeal in WZAPN in circumstances where, following the decision below, another Full Court had refused to follow the earlier decision: see WZAPN, [4]; SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, [59], [154].
On appeal, the High Court undertook a detailed consideration of the proper construction of s 91R having regard to textual and contextual considerations, Australian and international jurisprudence, convention and academic writings upon the subject. The plurality held at [71] that:
It is persecution, involving serious harm inflicted by the violation of fundamental rights and freedoms, from which the convention and s 91R of the Act are concerned to provide asylum. Both the convention and s 91R of the Act embody an approach which is concerned with the effects of actions upon persons in terms of harm to them. That approach is not engaged automatically upon the demonstration of any breach, or apprehended breach, of human rights in their country of nationality or former habitual residence.
(Emphasis added)
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)
It follows that the applicant’s written submission on Ground 3, which aspired to a reversal of the Full Court’s holding in SZTAL is misplaced.
Ground 3 is rejected.
Conclusion
It is essential to the grant of relief by this court that jurisdictional error is demonstrated in the decision of the Tribunal: s 476.
The applicant has failed to establish that there is error arising in the manner of the conduct of the application before the Tribunal, or in the hearing or in any of the grounds that were advanced in this application. Nor is such error exposed upon my independent re-examination of the Tribunal’s Reasons or the manner in which the application was addressed by it once the applicant sought review by that Tribunal. The application must be dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 28 March 2018
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