BHB15 v Minister for Immigration

[2016] FCCA 2299

FEDERAL CIRCUIT COURT OF AUSTRALIA

BHB15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2299

Catchwords:
MIGRATION – Visa – protection visa – whether Tribunal misconstrued s.91R of Migration Act – whether Tribunal misconstrued definition of ‘cruel or inhumane treatment or punishment’ – whether Tribunal failed to comply with Ministerial Direction given under the Act – no error demonstrated – application dismissed.

Legislation:

Immigration and Emigrants Act 1949 (Cth)

Migration Act 1958 (Cth), ss.5, 36(2)A, 91R, 424(a), 476 & 499(2A)

Cases cited:

Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23

Applicant: BHB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: ADG 245 of 2015

Judgment of: Judge Heffernan

Hearing date: 10 March 2016

Date of Last Submission: 10 March 2016

Delivered at: Adelaide

Delivered on: 12 September 2016

REPRESENTATION

The Applicant: In person with an interpreter

Counsel for the Respondents: Mr K Tredrea

Solicitors for the Respondents: Sparke Helmore Lawyers

ORDERS

1. The application filed 6 July 2015 is dismissed.

2. The applicant do pay the first respondent’s costs fixed in the amount of FIVE THOUSAND, EIGHT HUNDRED DOLLARS ($5,800).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 245 of 2015

BHB15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review pursuant to s.476 of the Migration Act 1958 (Cth) (‘the Act’) against a decision of the Refugee Review Tribunal (‘the Tribunal’) as it then was, affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is unrepresented. He appeared at the hearing of this matter with the assistance of a Tamil interpreter.

2. On 14 August 2015, the Registrar gave the applicant leave to file any amended application by 18 December 2015, and leave to file and serve such further material, including the transcript of the proceedings that he may rely upon at the hearing.  The applicant was also ordered to file and serve any outline of submissions 10 business days prior to the hearing.

3. No amended application was filed, no further materials were filed by the applicant, and he has not filed an outline of submissions.

4. The application to this Court, dated 6 July 2015, raises three grounds.  Each ground is particularised in considerable detail.  The grounds are as follows:

   “1.The Tribunal misconstrued or misapplied s 91 R (1) of the Act.

   Particulars

   a.The applicant claimed to fear persecution on the basis of his membership of the social group of illegal departee returning to Sri Lanka and the Tribunal accepted that the Applicant left Sri Lanka illegally: at [125].

   b.The Tribunal found that the applicant would be “charged under the Immigrants and Emigrants Act (IEA) for illegal departure” and may be held on remand for up to two weeks: at [129]; [134].

   c.The Tribunal accepted that “conditions in Sri Lanka's prisons are generally poor, overcrowded and unsanirtary.” (sic) at [136].

   d.The Tribunal reasoned that it was “not satisfied that any problems the applicant may face as a result of being charged, questioned, held on remand in cramped and uncomfortable and unsanitary conditions are for any Convention reason. I consider that any sanctions imposed for illegal departure are not essentially and significantly for the applicant’s membership of a particular social group ie ... illegal departee returning to Sri Lanka.”: at [135].

   e.In adopting this reasoning process, the Tribunal failed to ask itself wherther (sic) the IEA was discriminatory in accordance with the approach required by law: see Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23.

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

   Particulars

   a.The applicant repeats particulars 1.b and 1.c.

   b.The Tribunal reasoned that it did “not accept that pain or suffering caused by the overcroeding (sic) and other problems in prison in Sri Lanka is intentionally inflicted’ on the applicant as required by the definition of cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act”: at [158].

   c.In engaging in this reasoning process, the Tribunal erred in:

   i.     Failing to identify whose intention was relevant to whether the definition of cruel or inhuman treatment or punishment had been met;

   ii. Failing to consider whether the deliberate act of imprisoning the applicant in conditions that might involve pain or suffering came within the definition of “intentionally inflicted” in the definition of “cruel or inhuman treatment or punishment” in s5 of the Act;

   iii. Failing to consider whether the act of imprisoning the applicant in the conditions described by the Tribunal was such that “severe pain or suffering whether mental or physical” might be inflicted on the applicant: s5 of the Act;

   d.The errors in paragraph 2.c. above reveal that the Tribunal misconstrued ss5 and 36(2A) of the act.

   3.The Tribunal failed to comply with s 4992(A) of the Act and Directions No 56 – Consideration of Protection Visa applications, dated 21 June 2013 (Direction 56).

   Particulars

   a.Direction 56 provides that in ''performing functions or exercising powers under section 65, 414 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department ... to the extent they are relevant to the decision under consideration.

   “PAM3: Refugee and humanitarian - Complimentary Protection Guidelines.””

   b.In relation to cruel or inhuman treatment or punishment, section 23 “intentionally inflicted pain or suffering” of PAM 3 : Refugee and humanitarian – Complimentary Protection Guidelines states that in “certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted”.

   c.The applicant repeats particulars 2.a. and 2.b. above. The Tribunal’s reasoning as outlined in those particulars shows that Tribunal erred in:

   i.     Failing to consider whether, in the applicant's being imprisoned in the conditions described by the Tribunal, it was evident that pain or suffering may be knowingly inflicted on the applicant;

   ii.    Failing to consider whether it may be appropriate to infer an intention to inflict pain or suffering on the applicant if it was evident that pain or suffering may be knowingly inflicted on the applicant;

   d.The errors in paragraph 3.c. above reveal that the Tribunal failed to take account of the Complimentary Protection Guidelines on a point relevant to the decision under consideration, and thereby failed to comply with the Direction 56 and s.499(2A) of the Act.”

5. The applicant made brief oral submissions before me, to which I refer later, that did not directly address his grounds.  The background and procedural history of this matter does not appear to be in dispute.  I will paraphrase the helpful summary of those matters as detailed in the outline of submissions for the first respondent.

6. The applicant, a Sri Lankan national, arrived in Australia on 21 May 2012 as an unauthorised maritime arrival.[1]  His application for a protection visa was lodged on 22 September 2012.

   [1]     Court Book (‘CB’) p 108.

7. The applicant is a Tamil.  He claimed to fear persecution because of his ethnicity, his actual or imputed political opinions, and his membership of the social groups of failed Tamil asylum seekers, Tamil fisherman in Sri Lanka, and young single males living in Sri Lanka.[2]

   [2]     CB pp 86 -90.

8. The applicant claimed to have been part of a group of approximately 100 young men who were rounded up and detained in 2008 or 2009.  He claimed they were detained for a period of one day.[3]  In a further incident, he claimed to have been slapped in the face and hit across the head by a Sinhalese naval officer in 2011.  He also claimed that in December 2011 he was threatened by authorities whilst he was in his home.  He claimed that he had been pursued by the authorities after he left Sri Lanka.

   [3]     CB p 87.

9. His visa was refused by a delegate of the Minister on 21 August 2013.  His application for review before the Tribunal was made on 8 September 2013. 

10. On 13 January 2015, the Tribunal invited him to appear before it to give evidence and present arguments relating to the issues arising in his case.[4]

    [4]     CB pp 190-194.

11. The Tribunal hearing occurred on 5 March 2015.  The applicant had the assistance of an interpreter and an advisor.  There were no apparent difficulties with the quality of the interpretation.[5]

    [5]     CB p 277 at [52]-[53].

12. On 10 March 2015, the Tribunal sent a letter to the applicant, pursuant to s.424(a) of the Act, inviting him to comment or respond to information which the Tribunal considered would (subject to his comments or response), be the reason, or part of the reason, for affirming the decision under review. After some correspondence, which I will not summarise, the applicant’s migration agent responded on behalf of the applicant in a letter dated 24 March 2015, and by an email on 13 April 2015, which attached written submissions and country information.

13. On 3 June 2015, the Tribunal affirmed the decision of the delegate refusing to grant a visa to the applicant.

Tribunal decision

1. The Tribunal considered the applicant’s claims at length.[6]  It rejected them and made significant findings of credit against him.  This included an overarching assessment of his lack of credibility when it concluded that it “did not accept the applicant is a witness of truth”.[7]  More specifically, it did not accept that he had been harmed by a naval officer in 2011.[8]  It rejected his claim that the authorities had been looking for him “every month”[9] in 2012 and 2013, after his departure, or that he had for any reason, been singled out for individual harm.[10]  It rejected the claim that the applicant had ever had pro LTTE opinions imputed to him, and rejected that he had been subjected to any form of harassment or harm, let alone serious or significant harm after May 2009, for any reason.

   [6]     CB pp 268-288.

   [7] CB p 292 at [108].

   [8]     CB ibid.

   [9] CB p 273 at [49].

   [10] CB p 292 at [208].

2. Whilst the Tribunal accepted that for a period after the war ended, the navy imposed new fishing regulations against Tamils that did not apply to Sinhalese fisherman,[11] it considered and accepted country information that advised that the navy is no longer involved in the administration of fishing licences.[12]  It did not accept that Tamil fisherman were being targeted for harm and it found that whilst he might be subjected to security checks by the navy, there was no reason to conclude that the applicant would be prevented from working as a fisherman.[13]

   [11] CB p 292 at [109].

   [12] CB p 293 at [110].

   [13]    CB p 294 at [112]-[113].

3. The Tribunal considered and rejected the applicant’s claim that he would be subjected to a real chance of serious or significant harm based on his ethnicity.[14]

   [14]    CB p 294 at [114]-[120].

4. The Tribunal considered, in considerable detail, the question of whether the applicant would be persecuted by reason of his illegal departure.[15]  It found as follows:

   “I do not accept that there is a real chance the applicant will be subjected to discrimination which would amount to serious harm on the basis of his ethnicity as an ethnic Tamil, being a returnee from the west, a failed asylum seeker, an illegal departee returning to Sri Lanka.  I am not satisfied, that the application of a penalty for illegal departure amount (sic) to systematic and discriminatory conduct as required by s.91R(1)(c).”[16]

   [15]    CB pp 296-299.

   [16] CB pp 299-300 at [142].

5. The Tribunal went on to say:

   “I have considered the claims of the applicant individually and cumulatively.  For the above reasons, I find that the applicant faced no serious harm in the past and I am not satisfied the applicant faces a real chance of serious harm upon return to Sri Lanka for a Convention related reason in the reasonably foreseeable future.  I am not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Sri Lanka.”[17]

   [17] CB p 301 at [150].

6. The law with respect to complimentary protection obligations was set out by the Tribunal.[18]  There was no error in this brief summary of the law.  It considered the complimentary protection obligations in light of the factual findings it had made and rejected that Australia owed the applicant any complimentary protection obligations.

   [18]    CB pp 304-305 at [175]-[176].

Submissions

1. The effect of the applicant’s oral submissions was that he was assisted by another person at the Tribunal hearing.  He confirmed that he was able to understand what was said at the proceedings with the assistance of the interpreter.  He told the Court that he had difficulty in understanding the reasons of the Tribunal because they were not in English.  He advised that he had discussed the Tribunal Decision Record with a friend and understood basically what the conclusions of the Tribunal were.  In his reply to the submissions of the first respondent, the applicant queried why he had not been provided with a lawyer for the purpose of his final hearing.  He claimed only to have received the letter notifying him of today’s hearing a couple of days earlier.  He submitted that he was not aware that he had to arrange his own legal representation.  He acknowledged that he had had some assistance from somebody else in drafting his grounds of application.  It was pointed out to the applicant that the notice for the final hearing had also been sent to him by email.  The applicant submitted that he had not received the email.  He then corrected himself and acknowledged that he had received the email from this Court notifying him of the hearing.  The Court file shows that the notice was emailed to him on 18 November 2015.  The hearing date was stated in the attachment to the email.

2. The applicant did not make an application for an adjournment of these proceedings in order to obtain legal advice.  Had he done so, it is likely to have been refused.  He has clearly had detailed advice about the preparation of his grounds of review.  He filed his application in July 2015 and has had considerable time in which to arrange legal representation or obtain further advice, if that is what he sought to do.

3. In addressing the application before this Court, the applicant submitted that it would be very dangerous for him to be returned to Sri Lanka. 

4. The first respondent submitted as follows. With respect to ground one which alleges a misapplication, or misconstruction of s.91R of the Act, it says that the entire ground is itself based on a mistaken premise. Section 91R of the Act states:

   “(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b)the persecution involves serious harm to the person; and

   (c)the persecution involves systematic and discriminatory conduct.

   (2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a)a threat to the person’s life or liberty;

   (b)significant physical harassment of the person;

   (c)significant physical ill-treatment of the person;

   (d)significant economic hardship that threatens the person’s capacity to subsist;

   (e)denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (3)For the purposes of the application of this Act and the regulations to a particular person:

   (a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

5. The first respondent submits that the Tribunal did in fact consider whether the Immigrants and Emigrants Act 1949 (Cth) (‘I&EA’) provisions was discriminatory.  In making this submission, it points to two paragraphs of the Decision Record in particular.  At paragraph 133 of the Decision Record, the Tribunal stated:

   “I also find that Sri Lankan departure laws are laws of general application and therefore the enforcement of the laws do not constitute serious harm.  I do not accept that the I&EA provisions that deal with breach of the departure laws from Sri Lanka are discriminatory on their face, or disclose discriminatory intent or that they are implemented in a discriminatory manner.  Independent information indicates the Sri Lankan departure laws are applied regardless of ethnicity to all persons who are returnees and are not applied in a way that is discriminatory or selectively enforced against a particular group of those returnees.”[19]

   [19] CB p 298 at [133].

6. In other words, the Tribunal specifically considered whether the I&EA was discriminatory.  It made a finding that the law was one of general application.  The first respondent submitted that in a case referred to in the particulars to ground one[20] can be distinguished because that was a matter in which the Court found that the law was in fact of discriminatory effect.  The fact that the Tribunal in this matter did not find that the I&EA was discriminatory towards the applicant, did not mean that it failed to undertake the necessary consideration.

   [20]    Minister for Immigration & Citizenship v SZNWC (2010) 190 FCR 23.

7. With respect to ground two, the first respondent submitted that it was not necessary for the Tribunal to determine whose intention was relevant when considering whether the definition of cruel or inhumane treatment or punishment had been met.

8. With respect to ground three, the first respondent submitted that this ground was also misconceived.  It submitted that the Tribunal had expressly referred to the relevant Ministerial Direction, and that it had made a finding that clearly showed it had taken the provisions of PAM 3 into account.

Consideration

Ground one – The Tribunal misconstrued or misapplied s.91R(1) of the Act

1. I do not accept that this ground establishes jurisdictional error on the part of the Tribunal.  As the first respondent submits, the Tribunal considered and specifically rejected that the I&EA was discriminatory.  It specifically found that the laws were of general application.[21]

   [21] CB p 298 at [133].

2. The Tribunal considered the submissions of the applicant’s advisor that there was a real chance he would on return to Sri Lanka suffer torture and mistreatment.  It summarised that submission and I quote the relevant paragraph in full below:

   “The applicant’s advisor submits that the applicant faces interrogation and there is a real chance he will suffer torture and mistreatment on arrival in Sri Lanka or during the questioning process to establish identify and bail.  It was submitted that should the applicant be subject to punishment under the law of Sri Lanka for his illegal travel between Sri Lanka and Australia, he will face disproportionate treatment, amounting to persecution, from the Sri Lankan authorities on account of his profile as a young Tamil male, a fisherman or a person who has on a previous occasion in 2004 been deported to Sri Lanka.  Even if the applicant were held on remand for a short period of up to two weeks, I do not accept the applicant will be treated any differently.  I am of the view that questioning at the airport, the possibility of being in remand for a short period and charged, payment of a fine is not because of his race, ethnicity, religion or political opinion, but because he left Sri Lanka illegally.  I am not satisfied that any problems the applicant may face as a result of being charged, questioned, held on remand in cramped and uncomfortable and unsanitary conditions are for any Convention reason.  I consider that any sanctions imposed for illegal departure are not essentially and significantly for the applicant’s membership of a particular social group ie. ‘young single Tamil male who worked as fishermen during the war’, a ‘Tamil male who left Sri Lanka during civil ware and was deported from Thailand to Sri Lanka’, ‘returnee from the West’, ‘failed asylum seeker’ or ‘illegal departees returning to Sri Lanka’.”[22]

   [22] CB p 298 at [135].

1. The Tribunal’s consideration of the effects of the I&EA were detailed and comprehensive. It did not misconstrue or misapply s.91R of the Act. I dismiss this ground.

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

1. The relevant part of s.5 of the Act is as follows:

   “cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   data base (except in Part 4A) means a discrete body of information stored by means of a computer.

   significant harm means harm of a kind mentioned in subsection 36(2A).”

2. Section 36(2)A of the Act is as follows:

   “(2A)     A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   (2B)However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:

   (a)it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or

   (b)the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or

   (c)the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.”

3. The Tribunal appears to have proceeded on the basis that the relevant intention was that held by the authority in Sri Lanka that might be responsible for implementing the I&EA.  That would appear to be a logical conclusion.  I reject the proposition in paragraph 2(c)(i) of the applicant’s grounds that the Tribunal fell into error in the manner complained of.  The findings by the Tribunal clearly stated that it did not accept that any treatment the applicant might experience on his return to Sri Lanka by reason of being punished for having departed illegally, would be “intentional” as required by the law in Australia.[23]

   [23] CB p 302 at [158].

4. The findings of the Tribunal in this regard are clear and detailed.

   “I also do not accept that such treatment is intentional as is required by the law in Australia. I do not accept that pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on the applicant as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Nor do I accept that overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

   I am not satisfied that the applicant has any personal characteristics that renders him vulnerable to harm on remand.  Nor am I satisfied that during any questioning at the airport, bail conditions, possible detention on remand, prison conditions or subsequent contact or monitoring visit that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.  I find that there is no real risk that the applicant will suffer significant harm.

   I do not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act. I am not satisfied, specifically, that there is a real risk that the applicant would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject to cruel or inhuman treatment or punishment or to degrading treatment or punishment.”[24]

   [24]    CB p 302 at [158]-[160].

5. Those findings were clearly made with s.36(2)(aa) criteria in mind.  I am satisfied that the Tribunal gave adequate consideration to the question of “cruel or inhumane treatment or punishment” as defined in s.5(1) of the Act. As for subparagraph 2(c)(ii) of the applicant’s grounds, the Tribunal clearly stated, with respect to prison conditions, that it found they would not involve “cruel or inhumane treatment or punishment.”[25]  The Tribunal made a finding on the very issue that this subparagraph complains of.  I reject the contention in this subparagraph.  I dismiss this ground.

Ground three - Failure to comply with s.499(2A) of the Act and Ministerial Direction 56 (‘MD 56’)

[25] CB p 309 at [159].

1. I accept the submission of the first respondent that the Tribunal referred to the fact that pursuant to s.499, it was required to comply with directions of the Minister, and in particular MD 56, which required it to have regard to the PAM 3 guidelines to the extent that they were relevant. It did so in that part of its Decision Record that dealt with the relevant law.[26]

   [26] CB p 306 at [178].

2. As the first respondent submitted, support for the proposition that the Tribunal did have regard to the considerations set out in PAM 3 can be found in the Decision Record.

3. The distinction drawn by the Tribunal in paragraph 158 of the Decision Record between suffering that was “intentionally inflicted” and suffering that was incidental to overcrowding and other aspects of prison conditions in Sri Lanka, is exactly the distinction referred to in paragraph 23 of PAM 3. I am not satisfied that the Tribunal failed to comply with MD 56, or failed to properly consider PAM 3, or that it failed to comply with s.499 of the Act. I dismiss this ground.

1. Accordingly, I make the orders to be found at the beginning of these reasons.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Heffernan

Date: 12 September 2016