BFG15 v Minister for Immigration

[2017] FCCA 3090

FEDERAL CIRCUIT COURT OF AUSTRALIA

BFG15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3090

Catchwords:
MIGRATION – Application for review of former Refugee Review Tribunal decision – whether the Tribunal took into account an irrelevant consideration – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 476

Cases cited:

SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936; (2013) 347 ALR 275

Applicant: BFG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1815 of 2015

Judgment of: Judge Nicholls

Hearing date: 29 November 2017

Date of Last Submission: 29 November 2017

Delivered at: Sydney

Delivered on: 13 December 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr D Eberl of Australian Government Solicitor

ORDERS

1. The application made on 30 June 2015 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $4,700.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1815 of 2015

BFG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 30 June 2015, seeking review of the decision of the then Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”) made on 12 June 2015, which affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).

Before the Court

1. The parties first came before a Registrar of the Court on 23 July 2015. On that day orders were made, by consent, which, amongst other things, gave the applicant the opportunity to file any amended application and any evidence by way of affidavit. The applicant has not filed any amended application nor has he filed any evidence by way of affidavit.

2. The parties next appeared before a Registrar of the Court at a mention on 3 March 2016. On that day orders were made which, amongst other things, gave the parties the opportunity to file written submissions and set the matter down for final hearing. The applicant has not filed any written submissions. The Minister filed written submissions on 22 November 2017.

Background

1. The applicant is a citizen of Sri Lanka (CB 36). He arrived in Australia in July 2012 as an “Irregular Maritime Arrival” (CB 1 and CB 37). His application for a protection visa was received by the Minister’s department on 6 November 2012 (CB 24 to CB 90).

2. The applicant set out his claims to fear harm in a written statement submitted with his protection visa application (CB 72 to CB 75). He claimed to fear harm from Sri Lankan authorities due to his Tamil ethnicity and perceived connections to the Liberation Tigers of Tamil Eelam (“LTTE”). He also claimed to fear harm due to his illegal departure from Sri Lanka to Australia.

3. The delegate refused the applicant a protection visa on 21 March 2014 [note: the delegate’s decision appears to be incorrectly dated see CB 113.8] (CB 91 to CB 113). The applicant applied for review of the delegate’s decision to the Tribunal on 26 March 2014 (CB 114 to CB 116). The applicant and his representative appeared at a hearing before the Tribunal on 6 March 2015 (CB 130 to CB 132). His representative provided post-hearing written submissions to the Tribunal on 14 April 2015 (CB 133 to CB 143).

4. The Tribunal affirmed the delegate’s decision on 12 June 2015 (CB 148 to CB 173). Relevant to the application that is currently before the Court, the Tribunal considered the applicant’s claim to fear harm as a failed asylum seeker returning to Sri Lanka, both in relation to the Refugees Convention criterion (s.36(2)(a) of the Act), and in relation to the complementary protection criterion (s.36(2)(aa) of the Act) ([195] at CB 168 to [230] at CB 171).

5. The Tribunal considered relevant country information regarding the return of asylum seekers to, and illegal departures from, Sri Lanka ([121] at CB 160 to [128] at CB 163 to CB 164).

6. The Tribunal considered the country information in relation to the applicant’s circumstances, and found that on return to Sri Lanka, the applicant would be interviewed by Sri Lankan government agencies,  will face charges for his illegal departure, and will be required to appear before a magistrate (see [199] – [208] at CB 169).

7. The Tribunal found that the Immigrants and Emigrants Act (Sri Lanka) is a law of general application ([212] at CB 170), and that any harm that the applicant may suffer as a result of being detained for a short period of time (a maximum of 15 days while on remand), would not be intentionally inflicted ([215] at CB 170). The applicant therefore was not entitled to protection based on the Refugees Convention criterion (s.36(2)(a) of the Act).

8. The Tribunal also found that the applicant would not suffer “significant harm” on return as a failed asylum seeker, so he was also not entitled to protection based on the complementary protection criterion (s.36(2)(aa) of the Act) ([228] – [229] at CB 171).

The Application to the Court

1. The application to the Court contains one ground. It is in the following terms:

   “1. The Tribunal erred by making irrelevant considerations in consideration of the complementary protection provisions

   Particulars

   a. At paragraph 222 the Tribunal made an irrelevant consideration in applying the refugee convention criterion of law of general application; and

   b. At paragraph 225 the Tribunal made an irrelevant consideration in finding that the situation of prisons in Sri Lankan and many other countries in that region will be less sanitary, more crowded and with less services than would be available in Australia.”

   [Errors in original.]

Consideration

1. At the hearing the applicant appeared in person. He was assisted by an interpreter in the Tamil language.

2. The applicant explained that he had “nothing to say” about the grounds of the application. He stated that they had been written for him, based on what he said he had “described” to the author of the grounds. The only other submission made by the applicant was that there were “still problems” in his home country,  that his brothers had been taken away, and that he could not survive in Sri Lanka. Nothing that the applicant submitted orally to the Court assisted with the further explanation of the grounds of his application. In essence, the applicant sought impermissible merits review.

3. The sole ground of the application asserts the Tribunal “made” [took into account] irrelevant considerations. With reference to particulars, the applicant asserts that in considering the applicant’s claims against the complementary protection criterion (s.36(2)(aa) of the Act), the Tribunal erred by “applying” the Refugees Convention concept of a law of general application, and further, “in finding” that prison conditions in Sri Lanka would be “less sanitary, more crowded and with less services” than in Australia.

4. The applicant’s ground directs attention to [222] – [225] (at CB 171) of the Tribunal’s decision record, which is as follows:

   “[222] As discussed above I find that the applicant will face checks and will appear before a magistrate charged with having departed the country illegally in breach of a law of general application.

   [223] The process of appearing at the magistrate’s court may result in a period of detention of up to two weeks.

   [224] The situation of prisons in Sri Lanka and many other countries in that region will be less sanitary, more crowded and with less services than would be available in Australia.

   [225] However, the evidence before me leads me to conclude that any hardship for that brief period is not as a result of intent or discrimination.”

5. As best as it could be understood, the applicant’s assertion of legal error appears to be that the terms “law of general application” and “discrimination” as they appear at [222] (at CB 171) and [225] (at CB 171) of the Tribunal’s decision record, are concepts relevant to the Refugees Convention. That is, they are relevant to the criterion at s.36(2)(a) of the Act, and not to the complementary protection criterion at s.36(2)(aa) of the Act. In short, the applicant asserts that the Tribunal erred in applying these concepts to the complementary protection criterion (s.36(2)(aa) of the Act).

6. The Minister accepts that these concepts are normally associated with the Refugees Convention test (s.36(2)(a) of the Act). However, and I agree with the Minister, that notwithstanding this, no legal error is made out in the circumstances of this case.

7. First, although not determinative of the complaint, the Tribunal correctly set out its understanding of the complementary protection criterion (s.36(2)(aa) of the Act) in its decision record at [8] (at CB 149), and see in particular the reference there to “significant harm”.

8. Second, and of greater importance, when considering the applicant’s claims as against the complementary protection criterion (s.36(2)(aa) of the Act), the Tribunal made specific reference to the definition of “significant harm” as set out at s.36(2A) of the Act. It reproduced the relevant part of the section at [227] (at CB 171) of its decision record.

9. Third, attention must be given to how the Tribunal explained its reasoning in this regard. At [219] – [220] (at CB 170) of its decision record, the Tribunal correctly identified that having found that the applicant did not satisfy s.36(2)(a) of the Act (as discussed above), it was necessary to consider s.36(2)(aa) of the Act.

10. From [221] – [225] (at CB 171), which contains the impugned paragraphs of the Tribunal’s decision record, the Tribunal referred to its findings of fact made earlier in its decision record. On a fair reading, what follows at [226] – [227] (at CB 171) of its decision record, are the Tribunal’s relevant findings as against various elements of the definition of “significant harm” as derived from s.36(2A) of the Act (and as reproduced at [227] at CB 171).

11. Therefore, the Tribunal’s reference to a “law of general application” as it appears at [222] (at CB 171) of its decision record, when read fairly, is a part of the description of the Tribunal’s previous findings. For the purposes of s.36(2)(aa) of the Act, what the Tribunal applied to that criterion, was its earlier expressed factual finding that on return to Sri Lanka, the applicant would not face a real risk of significant harm.

12. Fourth, on a fair reading, what the Tribunal was referring to at [222] (at CB 171) of its decision record, was its analysis in relation to the applicant’s claim that he would suffer harm on return to Sri Lanka as a failed asylum seeker, because he had breached Sri Lanka’s relevant immigration laws, and because of his Tamil ethnicity.

13. When read fairly, what is set out at [222] (at CB 171) of its decision record, is the Tribunal’s finding as also set out previously in its decision record (see [207] at CB 169 to [217] at CB 170), that on return to Sri Lanka the applicant would appear before a magistrate because he had left Sri Lanka illegally, and therefore breached the relevant law, which was also a law of general application.

14. As the Minister submits, the Tribunal was seeking to address the applicant’s relevant claim relating to his departure and fears on return, as he had put that claim to the Tribunal.

15. Fifth, the reference to “discrimination” at [225] (at CB 171) of the Tribunal’s decision record needs to be understood in context. The applicant had claimed that he would suffer harm on return to Sri Lanka because, amongst other things, he would be a failed asylum seeker of Tamil ethnicity who left Sri Lanka illegally in breach of the relevant immigration laws (see for example CB 21.8 to CB 22.4 and [136](d.) at CB 164). I note further, that in submissions made by the applicant’s representative, they explained as follows (CB 136.8):

    “The applicant has broken a Sri Lankan law by leaving illegally (a law of general application) and decision makers generally agree that according to country information he would most likely suffer detention for only a few days before being released. Some recent decisions from the Tribunal consider the risk of any periods of detention on return presents an unacceptable risk of serious harm.

    The country information states that Sri Lankans who depart illegally commit a criminal act under Section 45 (1) (b) of the Immigration Act 1998. It is well known that those who depart like the applicant are arrested and charged and the question remains whether Tamils are treated discriminatorily during this process. DFAT reports that the returnees are not held for long and they are usually fined a modest sum whilst being bailed.”

16. The reference to the applicant’s Tamil ethnicity in this context, was to submit that as a Tamil who had left illegally, he would be treated differently to other Sri Lankans of non-Tamil ethnicity on return to Sri Lanka (for example, see the references to “Tamil” and “ethnic identity” in the applicant’s representative’s submissions of 28 October 2012 (CB 22.3) and “Tamil returnees … who were targeted for detention and torture in Sri Lanka” (CB 21.9)). That is, he would suffer discrimination because of his Tamil ethnicity.

17. The Tribunal’s analysis must be read holistically. What the Tribunal was saying at [225] (at CB 171) of its decision record, is to be read, in particular, with [222] (at CB 171) of its decision record and further, in the context of [221] – [225] (at CB 171) of its decision record, as a whole. In short, the Tribunal reasoned that any hardship that the applicant would suffer was not, amongst other things, as a result of “discrimination” because he was a Tamil, as he had claimed. That is, the Tribunal attempted to address the claim as actually made by the applicant.

18. When it came to apply the findings at [222] – [225] (at CB 171) of its decision record, the Tribunal did so at [228] – [230] (at CB 171) and [232] (at CB 171 to CB 172) of its decision record in the context of the definition of “significant harm”, which is reproduced at [227] (at CB 171) of its decision record.

19. Specifically, the applicant claimed that as a Tamil returnee he would be perceived to have LTTE links, and would be subjected to torture (CB 21 first and second dot points), and arbitrary arrest or detention (CB 20.8).

20. In assessing “significant harm” (at [228] – [230] at CB 171 and [232] at CB 171 to CB 172), the Tribunal was entitled to rely on factual findings expressed earlier in its decision record, and as later “summarised” at [221] – [225] (at CB 171) of its decision record (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26).

21. Sixth, and as the Minister correctly submits, in considering the complementary protection criterion (s.36(2)(aa) of the Act), it was not irrelevant of the Tribunal to consider the conditions in detention in Sri Lanka.

22. The applicant claimed, and Tribunal accepted, that on return to Sri Lanka he would be required to appear at a magistrates Court, and may be detained for approximately two weeks. In this context, it was appropriate for the Tribunal to consider the conditions of detention in Sri Lankan prisons in the context of “cruel or inhuman treatment or punishment” (s.36(2A)(d) of the Act). That consideration was not “irrelevant” if that is what the applicant’s ground intends to assert.

23. Further, it was also appropriate for the Tribunal to consider whether the applicant’s confinement in prison was as a “result of intent” on the part, relevantly, of the Sri Lankan authorities (although the harm does not necessarily need to be inflicted by a person in an official capacity). This is because the definition of “cruel or inhuman treatment or punishment” as defined in s.5 of the Act, requires consideration of “intention” which is an element in that definition.

24. On what is before the Court, the Tribunal’s analysis of this ground does not reveal jurisdictional error (see SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936; (2013) 347 ALR 275 at [26] – [27]).

Conclusion

1. There is no jurisdictional error arising from the ground of the application. The application should be dismissed. I will make the appropriate order.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  13 December 2017