BEV15 v Minister for Immigration

[2015] FCCA 3205

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEV15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3205

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal properly considered the consequences to the applicant of returning to Sri Lanka – whether Tribunal’s finding as to the nature of the detention in Sri Lanka was in error – whether the Tribunal properly notified the applicant that bail was a live issue – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Cases cited:
SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978 at 63
Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069

Applicant: BEV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1908 of 2015

Judgment of: Judge Street

Hearing date: 2 December 2015

Date of Last Submission: 2 December 2015

Delivered at: Sydney

Delivered on: 2 December 2015

REPRESENTATION

Solicitors for the Applicant: Mr S. Hodges
Stephen Hodges Solicitor

Counsel for the Respondents: Mr J. Kay Hoyle

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The amended application dated 27 November 2015 is dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1908 of 2015

BEV15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

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 to a decision of the Tribunal made on 10 June 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 applicant claimed to fear violence by reason of being a member of a social group, being illegal departees or failed asylum seekers, as well as being by reason of his Tamil ethnicity or an imputed opinion of being an LTTE supporter.  The Tribunal found that the applicant was an illegal departee and addressed the consequence of the applicant being returned to Sri Lanka.

3. The Tribunal considered what occurred in terms of the applicant being detained upon his return to Sri Lanka in poor conditions and found that any time spent in detention by the applicant would be brief.  In identifying what was likely to occur to the applicant by reference to country information the Tribunal found the applicant would face the imposition of a fine and that most returnees are granted bail on person recognisance immediately by the magistrate.  The Tribunal had a footnote to its findings from a DFAT report to the effect, “that a family member must act as guarantor and sometimes returnees need to wait until a family member comes to collect them.”

4. Mr Hodges, the solicitor for the applicant, advanced the following ground in an amended application: 

   The tribunal committed a jurisdictional error because it failed to comply with the provisions of Section 425 of the Migration Act and contrary to the requirements described by the High Court in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63.

   PARTICULARS

   (vi) The AAT found that the applicant would be arrested on his return to Sri Lanka as a Tamil returnee [CB 224 paragraph 52],

   (vii) The AAT found that in most cases returnees are granted bail on personal reconnaissance and in a footnote adds that a family member must act as guarantor [CB224, paragraph49].

   (viii) The AAT inferred that any period of time the applicant spent in prison would be brief [CB224, paragraph 52];

   (ix) The inference or assumption by the AAT involves the assumption that some family member would be able and willing to provide the guarantee required for the applicant's bail.

   (x) The issues arising in the review before the AAT therefore included:

   • The terms of the guarantee required by the authorities;

   • Who satisfies the description of the term "family member" as reported in the country information;

   • Whether any family member of the applicant would be able to provide a guarantee as required;

   • Whether any family member of the applicant would be willing to provide a guarantee as required.

   (xi) The conclusion by the AAT that a family member of the applicant would be able and willing to provide a guarantee as adverse to the applicant and not obviously open on the known material.

   (xii) The AAT did not give the applicant the opportunity of identifying that issue.

5. Mr Hodges confirmed that the other grounds in the amended application, filed on 4 November 2015, were otherwise no longer pressed. 

6. Mr Hodges submitted that an assumption made by the Tribunal in its finding that the applicant would only be detained for a brief period was that a family member would be required to act as guarantor for the applicant and that this was an issue that had not been raised and fell within the principle identified in SZTQS v Minister for Immigration and Border Protection [2015] FCCA 978 at [63], affirmed Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069.

7. Mr Hodges took the Court to the transcript in which the member said:

   Member: Now this information also talks about, what happens to Tamils who go back to Sri Lanka after applying for protection in another country and also because they left Sri Lanka illegally so this information says that on arrival you will be questioned this is to confirm your identity. You will then be taken to a court. That is because you left Sri Lanka illegally if a court is not available on the day you arrive in Sri Lanka you could be held briefly in a prison and when you go to courts you will get bail and sometime after that you will get fine of up to Rs. 50,000.

   Some allegations have been made that Tamils who went back to Sri Lanka after applying for Protection overseas suffered harm. But the number of these allegations is small considering the thousands of Sri Lankans who have applied for protection overseas have gone back to Sri Lanka. In addition the department says that the allegations that people got harmed have not been verified. So this information suggests to me that because you left Sri Lanka illegally and because you applied for protection in Australia, the risk of you suffering serious harm is remote. Do you wish to comment on that?

   Applicant: What they say is this but what happens there is different.

   Member: BEV15 thank you for answering those questions, I don't have any more questions to ask, so I will just ask your Representative whether she has any matters that she would like to raise.

   Representative: I would. Will it be possible for me to have a break to talk to the Applicant.

   Member: You can do that you can also if you like just ask for leave to file written submission in a week or two. If that's easier for you.

   (emphasis added)

8. From the transcript quote referred to above the Tribunal member clearly raised the proposition that the applicant would get bail.  Thereafter the Tribunal provided a further opportunity to the applicant of two weeks to provide submissions in relation to what was said or raised by the Tribunal.

9. In this case, the Tribunal did not accept the applicant’s credibility and rejected the applicant’s evidence about his financial status and noted specifically that the applicant “made no claim to be unable to pay the fine.” 

10. The applicant’s representative did file further submissions in which the issue of the potential consequences of the applicant being detained were addressed.  Relevantly in the submission dated 4 May 2015 provided as follows:

    2. Issue one: the Applicant’s well-founded fear as a member of the social groups ‘illegal departees’/‘failed asylum seekers’

    …

    5. The DFAT report indicates that following questioning upon return at the airport, returnees who departed Sri Lanka illegally are transported by the police to the Magistrates Court in Negombo at the first available opportunity after investigations are completed (when custody/responsibility shifts to the courts or prison services). DFAT also indicates that should magistrates not be available, those charged are held at the nearby Negombo prison.

    …

    6. Country information regarding the time spent in reman varies.  Imprisoned returnees from Australia on 14 and 15 October 2013 were detained for up to 15 days.  Similarly, a vessel recently returned from Australia indicated that five individuals were remanded in custody for two weeks.

    …

    38. The most recent DFAT reports indicates that a Magistrate in Negombo has been issuing fines of around 50,000 SLR. The lower fines indicated by DFAT are questionable given that the legislation prescribes fines of ‘not less than 50 000 rupees’. Alternatively, country information stipulates that returnees are ‘transported by police to the Magistrates Court in Negombo’, which indicates that returnees are likely to appear before a Magistrate in Negombo.

    39. In order to determine whether such fines are ‘appropriate’ they are also required to be considered in a Sri Lankan context; accounting for what the figure represents to an ordinary Sri Lankan citizen. A fine of 50 000 SLR, for instance, represents a figure that is over 13 time the official national poverty line in Sri Lanka.

    40. This figure does not factor into account the returnee’s circumstances including their earning capacity and whether the returnees are subject to debts as a result of fleeing their country. In these circumstances, the fines represent a far higher burden. Such penalties lead to the possibility of the convicted returnee spending years, if not decades, paying off the fine.

11. What was said by the Tribunal member made clear that the applicant being granted bail was an assumption being made by the Tribunal and as such it was an obvious and live issue.  The submissions of the applicant’s representative, after the hearing before the Tribunal that occurred on 15 April 2015, addressed the issue of the applicant obtaining bail by reference to the applicant being detained for up to 15 days which is consistent with the obtaining of bail being an obvious live issue in the review.

12. Further this is a case where prior to the hearing the representative of the applicant, by submissions dated 15 May 2015, raised the following:

    119. Most – but not all – returnees are granted bail based on personal recognisance with a family member standing as guarantor. Certain returnees (including repeat offenders and those suspected of facilitating the illegal movement of people) are not granted bail. Returnees granted bail must return to court at a later date to answer to charges under the Immigrations and Emigrants Act. By law, convicted returnees are liable for up to five years in prison or a fine of up to 200,000 Sri Lankan Rupees (“SLR”). In practice, convicted returnees generally receive fines.

    120. These facts demonstrate that the Applicant will be:

    a. identified as a failed asylum seeker to the Sri Lankan authorities;

    b. arrested upon arrival in Sri Lanka and taken into police custody;

    c. interrogated by the DIE, the CID, the SIS and/or the TID at the airport for an unspecified period of time;

    d. detained at Negombo prison for an unspecified period of time

    e. tried and convicted of charges relating to his illegal departure; and

    f. likely required to pay a fine of up to $200,000 SLR

    (emphasis added)

13. The paragraphs referred to above in the submissions provided prior to hearing are an express recognition by the applicant’s representative of the potential need for a family member to stand as guarantor in order for the applicant to obtain bail. 

14. Given the reference to that subject matter in para.119, of the applicant’s submissions as well as the reference to the potential unspecified period of detention in para.120, this is a case in which the obtaining of bail was an obvious and live issue.

15. The finding by the Tribunal that the applicant’s detention would be brief was open on the evidence before the Tribunal and cannot be said to lack an evident and intelligible justification.

16. I note that there is also included in the material before the Tribunal earlier submissions provided by the applicant’s legal representative to the delegate dated 24 December 2013 which referred to a country report that suggested that bail required funding. 

17. It is a matter for the Tribunal as to what country information it accepts.  It is clear from the country information referred to by the applicant in the submissions dated 15 May 2014 that the suggestion of a need for funding in order to obtain bail is not supported by other country information that suggests that all that is required is a personal recognisance by the applicant with a family member standing as guarantor.

18. That country information does not support the requirement of the surety having to provide a funded suretyship or funded guarantor or paying any amount in order to act as surety.

19. The Tribunal in the present case made reference to the country information identifying that in most cases returnees have been granted bail on personal recognisance immediately by the magistrate and identified the ability of a family member to act as guarantor. 

20. For the reasons I have given this is a case where it cannot be said that the Tribunal failed to comply with s.425 of the Migration Act 1958 as the detention of the applicant and the obtaining of bail was an obvious and live issue before the Tribunal.

21. Accordingly, no jurisdictional error of the kind alleged in the amended application dated 27 November 2015 is made out.  I should add that the decision in SZTQS is distinguishable first by reason of the fact that in SZTQS at [63] there is reference to an obligation for the family member to pay which appears to assume some funded financial obligation on the family member beyond acting merely in the role of unfunded suretyship.

22. Whilst there is, in my opinion, no difference between the role of guarantor and surety there is a material distinction between a funded guarantee or a funded suretyship.  The country information accepted by the Tribunal in the present case did not support any obligation requiring a family member to pay or that the suretyship be funded.  In my opinion that was a material matter in relation to the reasoning of the Court at first instance in SZTQS in finding that there had been non-compliance with s.425(1) of the Act.

23. Further, for the reasons I have given, SZTQS can be distinguished given what occurred during the hearing before the Tribunal in this case and the raising of the issue of obtaining bail, as referred to in the transcript quoted above.  Further SZTQS can be distinguished in the present case by reason of the subject matter and topic of bail being addressed in the submissions provided post hearing by the applicant’s representative dated 4 May 2015.

24. Further SZTQS can be distinguished in the present case given the submissions prior to hearing by the applicant’s representative dated 15 May 2014 that clearly flagged the issue of a family member standing as guarantor in order to obtain bail.

25. I should also add that the solicitor for the applicant properly acknowledged that it was not easy to identify any single principle referrable to the decision in SZTQS.  In my opinion SZTQS was a case that turned on its own facts and materially on the concept that appears to have played a role in the assumption that the family member had to pay something in order to act as a surety to obtain bail.

26. It was in those circumstances in SZTQS where the implicit assumption of the ability of a family member to provide funds in the role of surety was found to have been an issue that the Tribunal in that case should have raised.  For the reasons I have given that is the not the position in the present case and specifically there was no finding by the Tribunal that there was any sum that had to be paid by the surety to support the obtaining of bail.

27. In my opinion the decision in SZTQS is distinguishable from the present case and for the reasons given the amended application dated 27 November 2015 is dismissed.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 11 December 2015

Corrections

In Paragraph 7 the name of the applicant was replaced with a pseudonym.