BNF15 v Minister for Immigration
[2019] FCCA 236
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BNF15 v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 236 |
| Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – Protection Visa application by citizen of Sri Lanka – whether a failure to refer to evidence or material relied upon when making factual findings – whether failure to consider applicable Ministerial guidelines – whether complementary protection assessed in any real or active way – whether jurisdictional error. |
| Legislation: Immigrants & Emigrants Act 1948 (Sri Lanka) |
| AAH15 v Minister for Immigration & Border Protection [2016] FCA 104 AJW15 v Minister for Immigration & Border Protection [2016] FCA 197 AJW15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 2579 ARS15 v Minister for Immigration & Anor [2015] FCCA 2135 Minister for Immigration & Citizenship v MZYZA [2013] FCA 572 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856; (2000) 176 ALR 66 Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 91 ALJR 936; (2017) 347 ALR 405 |
| Applicant: | BNF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 349 of 2015 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 22 February 2016 |
| Date of Last Submission: | 22 February 2016 |
| Delivered at: | Perth |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr J Raftos |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the First Respondent: | Mr P R Macliver |
| For the Second Respondent: | Submitting appearance save as to costs |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application filed 23 July 2015, and amended on 9 December 2015, be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 349 of 2015
| BNF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review (“Judicial Review Application”) under s.476 of the Migration Act 1958 (Cth) (“Migration Act”) of a decision of the Administrative Appeals Tribunal (“AAT Decision” and “AAT” respectively). The AAT Decision affirmed a decision of a delegate (“Delegate’s Decision” and “Delegate” respectively) of the first respondent, the Minister for Immigration & Border Protection (“Minister”), affirming the Delegate’s Decision to not grant the applicant a Protection (Class XA) visa (“Protection Visa”). The AAT Decision appears at Court Book (“CB”) 226-255.
Background Information
The background prior to the AAT Decision is as follows:
a)the applicant, a citizen of Sri Lanka, arrived in Australia as an unauthorised maritime arrival on 28 July 2012 and lodged a Protection Visa application on 16 April 2013: CB 31-68;
b)in support of the Protection Visa application the applicant made the following claims:
i)the applicant’s life was under threat from a member of a provincial council (“Provincial Council Member”) as the applicant was a “main” campaign organiser for an opposition candidate (“Opposition Candidate”): CB 64;
ii)on 11 September 2011 the applicant was sent a message by personal messenger from the Provincial Council Member’s father asking the applicant to work for the Provincial Council Member in a municipal election campaign: CB: 64;
iii)on 1 October 2011 while the applicant was travelling with other campaign members to remove a billboard of the Opposition Candidate, members of the Provincial Council Member’s campaign party, carrying steel rods and batons, confronted the group: CB 64;
iv)the applicant spoke up against this group, and despite being afraid, when asked why they were removing the billboard at night, stated “we are here now to remove it”, and the group attacked the applicant and the six others he was with: CB 64;
v)the applicant attempted to flee, but was caught by three men who began hitting him with a baton who only stopped and fled when they perceived the police were coming, and left the applicant with a suspected shoulder fracture: CB 65;
vi)on 12 October 2011 a group of 25-30 people came to the applicant’s house, the applicant fled out the back door to refuge, but the group told his wife they would kill the applicant if they saw him again: CB 65;
vii)the applicant returned to his home on or about 16 October 2011 and things were normal until 11 December 2011 when the applicant was attacked outside his home by five men at 9.30pm. These men were the Provincial Council Member’s “henchmen”, who beat and threatened the applicant in an endeavour to make him join the Provincial Council Member’s party, but the applicant said he had no interest in being involved in politics again: CB 65;
viii)one of the henchmen confronted the applicant on 31 March 2012 and accused the applicant of deliberately raising the selling price of fish and attacked the applicant with a large fishing knife: CB 66;
ix)the applicant could not report the incident to the Police because they are corrupted by the Provincial Council Member, and the applicant could not trust them: CB 66; and
x)the Provincial Council Member and his family are a very wealthy and influential family with many informants in the region who are aware of the Provincial Council Member’s vendetta against the applicant, and the applicant fears for his family: CB 67;
c)on 31 January 2014 the Delegate’s Decision was to refuse to grant the applicant a Protection Visa: CB 143;
d)on 5 February 2014 the applicant lodged an application for review with the AAT (then the Refugee Review Tribunal) and was invited to appear before the AAT on 15 January 2015 (“AAT Hearing”). The applicant attended the AAT Hearing and was represented by a solicitor migration agent (“Representative”) and assisted by a Sinhalese interpreter: CB 200, 208 and 218;
e)on 26 June 2015 the AAT Decision affirmed the Delegate’s Decision to deny the applicant a Protection Visa: CB 226 and 244 at [85]; and
f)on 30 June 2015 the applicant and his Representative were given notice of the AAT Decision: CB 225.
The AAT Decision
The AAT referred to the following material when making its findings:
a)the Procedures Advice Manual No. 3 Complementary Protection Guidelines and Refugee Law Guidelines (“PAM 3 Guidelines”) “to the extent that they … [were] relevant to the decision under consideration”: CB 247 at [100] (and see at [7] below where this paragraph is set out in full);
b)reports entitled:
i)Department of Foreign Affairs and Trade (“DFAT”) Country Report on Sri Lanka dated 3 October 2014 (“2014 DFAT Country Report”): CB 247 at [100];
ii)DFAT Country Report on Sri Lanka dated 16 February 2015 (“2015 DFAT Country Report”), and noted that the 2015 DFAT Country Report was published subsequent to the AAT Hearing, but to the extent that it was relevant to the applicant’s individual circumstances it contained no materially different information to the 2014 DFAT Country Report: CB 247 at [100]; and
iii)Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam dated 3 October 2014 (“Thematic Report”): CB 247 at [100];
c)the United Nations High Commissioner for Refugees (“UNHCR”) Eligibility Guidelines for Assessing the International Protection Needs of Asylum Seekers from Sri Lanka dated 21 December 2012 (“2012 UNHCR Guidelines”): CB 249 at [105];
d)independent news sources including the Sydney Morning Herald, Asian Mirror and The Sunday Leader: CB 252 at fn.13 and 255 at fns.24 and 27;
e)foreign government sources and foreign legislation including the United Kingdom Home Office guidance notes, United States Department of State country reports and Sri Lankan legislation: CB 252 at [119]-[120]; and
f)materials provided by the applicant including:
i)a letter dated 8 March 2013 from a fishermen’s cooperative society stating that the applicant was engaged in the sales of fish on about 15 January 2012 when a minor incident occurred, and the applicant handed over his fishing desk on 31 March 2013 as a result of repeated pressures and targeting of the applicant (“Cooperative Society Letter”): CB 229 at [12];
ii)a certificate of completion of a 50 hour short course in foreign employment dated April 2012: CB 229 at [13]; and
iii)copies of his birth certificate, marriage certificate, passport and educational accreditations: CB 229 at [13].
The AAT:
a)accepted the applicant was a citizen of Sri Lanka who does not have the right to enter or reside in another country and who ordinarily resided in a district in the Western Province of Sri Lanka: CB 227 at [6]-[8];
b)highlighted various inconsistencies in claims made by the applicant:
i)at the entry interview;
ii)in the applicant’s statement in support of his Protection Visa application;
iii)in the applicant’s interview with the Delegate; and
iv)at the AAT Hearing,
and noted the substantial and material nature of the inconsistencies led to the inference that events claimed to have occurred had not occurred: CB 229 at [15] and 236 at [43];
c)concluded the applicant was not credible in some aspects of his claim, and rejected parts of his evidence as unreliable, exaggerated or fabricated: CB 230 at [20];
d)accepted the applicant may have helped the Opposition Candidate in the campaign for the October 2011 municipal elections: CB 234 at [37];
e)found the Cooperative Society Letter supplied by the applicant was inconsistent and contained incorrect information, and thus gave it little weight as evidence as it was likely written for the sole purpose of enhancing the applicant’s Protection Visa claims: CB 234-235 at [38];
f)was satisfied the events described at [2(b)(iii)-(v)] above had occurred as such events were consistent with reports in country information, however, was not satisfied the applicant was the specific target of the attacks, nor that his involvement had caused him to develop any political profile or to come to adverse attention: CB 235 at [39];
g)was not convinced the applicant would become involved in politics of any form if he returned to Sri Lanka, and contrary to his statement of being in a “leading role” for the campaign of the Opposition Candidate, found his political profile was more likely to be that of an occasional low level supporter of the United National Party of Sri Lanka: CB 235 at [40];
h)on the basis of the adverse credibility findings did not accept:
i)the alleged incidents on 12 October 2011 and 11 December 2011 had occurred: CB 236 at [43];
ii)the applicant was unable to work because of political pressure: CB 236 at [44];
iii)the alleged incident on 31 March 2012 occurred: CB 236 at [45];
iv)that the applicant’s assistance had been sought to support the campaign of the Provincial Council Member, as the evidence did not support the assertion that the applicant had a profile high enough to be the face of a political campaign: CB 237 at [46]; and
v)the assaults and threats to the applicant had happened, or that he is of any interest to the Provincial Council Member’s family, such that his return to Sri Lanka would suggest he would face harm in the reasonably foreseeable future: CB 237 at [47];
i)found the applicant was not within the classes of people who might be at risk of persecution on return to Sri Lanka, and the questioning the applicant would face during processing at the airport on return to Sri Lanka would not amount to harm within the meaning of s.91R(1)(b) of the Migration Act: CB 239-240 at [58]-[59];
j)found that the applicant faced no real chance of serious harm in the reasonably foreseeable future on account of being a failed asylum seeker, and consequently any fear of harm or persecution is not well-founded: CB 240 at [61]; and
k)accepted the applicant would likely be charged under the Immigrants & Emigrants Act 1948 (Sri Lanka) (“I & E Act”) as an illegal departee, but any chance of detention or imprisonment would, in the applicant’s circumstances, be remote, and short term: CB 241 at [65]-[66].
The AAT concluded that:
a)in light of country information and the findings made on the political profile of the applicant it was not satisfied that:
i)the applicant would be a person of interest to any groups; or
ii)by reason of the applicant’s political opinion he faces a chance of serious harm, including harm capable of amounting to persecution under s.91R of the Migration Act, in the reasonably foreseeable future: CB 238 at [50];
b)the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Migration Act: CB 244 at [82]; and
c)no complementary protection obligation was owed to the applicant under s.36(2)(aa) of the Migration Act: CB 244 at [83].
The AAT affirmed the Delegate’s Decision not to grant the applicant a Protection Visa: CB 244 at [85].
The AAT Decision had two annexures, Annexure A and Annexure B, the former dealing with the relevant law, and the latter with independent country information. In Annexure A the AAT referred to the relevant law in relation to the refugee and complementary protection criteria and also to a Ministerial Direction made under s.499 of the Migration Act (at CB 247 at [100]) in the following terms:
100. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and country information assessments prepared by DFAT expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. Reports relevant to this application are DFAT Country Reports on Sri Lanka, 3 October 2014 and 16 February 2015 and Thematic Report on People with Links to the Liberation Tigers of Tamil Eelam, 3 October 2014. The Country Report dated 16 February 2015 was released after the hearing but before the Tribunal finalised its decision. The Tribunal has had regard to this report, although the applicant has not been asked to comment on it. Inasmuch as it is relevant to the circumstances of this applicant, and to the findings of fact on which this decision is based, the 16 February 2015 Report is identical in its terms to the earlier 3 October 2014 [Report] which was discussed with the applicant at the hearing. The main differences between the most recent Report and the earlier Reports concern changed circumstances following the recent presidential election. To the extent that the most recent Report is relevant to the Tribunal's consideration of the applicant's particular circumstances, it contains no information that is materially different to the earlier Reports.
The independent country information in Annexure B considers a number of issues pertinent to the applicant and his treatment in Sri Lanka, including the treatment of returnees to Sri Lanka: CB 250-252 at [114]-[119].
The AAT expressly indicated in the AAT Decision that it “applied the law set out in Annexure “A”” of the AAT Decision which includes the reference to the Direction and the PAM 3 Guidelines at CB 247 at [100]: see CB 227 at [4]. In that regard, CB 227 at [4] read in its entirety, is as follows:
4. The Tribunal must consider and decide whether the applicant has a well-founded fear of being persecuted in Sri Lanka for one or more of the five reasons set out in the Refugees Convention and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. In considering these issues, the Tribunal has applied the law set out in Annexure "A" and has carefully considered all of the applicant's claims and evidence in light of the independent material referred to by the applicant and that referred to by the delegate in their decision which was attached to the application for review as wel1 as the independent country information referred to in this decision as set out in Annexure "B".
Judicial Review Application
In accordance with an order made by a Registrar of this Court on 14 October 2015, an amended Judicial Review Application was filed on 9 December 2015 (“Amended Judicial Review Application”).
Prior to the hearing the Court was notified the applicant would no longer pursue ground 1 of the Amended Judicial Review Application. At the commencement of the hearing the applicant indicated ground 2 of the Amended Judicial Review Application would no longer be pursued, although some content of ground two would be incorporated into and submitted in support of the sole remaining ground, which was ground 3.
The sole remaining ground, ground 3, reads as follows:
In coming to its finding at [76]-[77] the Tribunal did not:
(a) refer to the evidence or any other material on which the above findings of fact were based, in breach of s 430(1)(d) of the Act; and
(b) assess in any real or active way the applicant’s complementary protection claim under s 36(2A) of the Act.
The findings referred to in ground 3 are at CB 243 at [76]-[77] and are as follows:
76. The Tribunal considered whether there is a real risk of the applicant facing significant harm while being detained pending appearance before a Magistrate for the purposes of charge under the I&E Act. The Tribunal accepts that prison conditions in Sri Lanka are poor and overcrowded, that the applicant may suffer discomfort whilst in prison and they may not meet international standards. However, the Tribunal finds that based on credible country information that the applicant will be remanded for a short period, between one night to several nights. The Tribunal does not accept that in the applicant’s case, a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.
77. The Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment.
Consideration
Jurisdictional error required
The AAT Decision may be set aside by this Court upon judicial review if it is affected by jurisdictional error: Migration Act, ss.474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24. An error will constitute a jurisdictional error where the AAT:
a)identifies a wrong issue;
b)asks the wrong question;
c)ignores relevant material; or
d)relies on irrelevant material,
in a way that the AAT’s exercise or purported exercise of power is thus affected resulting in a decision exceeding, or a failure to exercise, authority or powers given under the Migration Act: Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; (2001) 75 ALJR 1105; (2001) 180 ALR 1; (2001) 62 ALD 225 (“Yusuf”) at [82] per McHugh, Gummow and Hayne JJ.
Ground 3 in two parts
The parties addressed ground 3 in two parts as follows:
a)whether there was a failure to observe s.430(1)(d) of the Migration Act in relation to the findings made at CB 243 at [76]-[77] of the AAT Decision; and
b)whether there was a failure to consider, or determine, if the PAM 3 Guidelines are relevant to the applicant’s claims.
The Court has addressed these two parts as “Ground 3A” and “Ground 3B” respectively.
Ground 3A
Applicant’s submissions
The applicant submitted that in coming to the relevant findings at CB 243 at [76]-[77]:
a)the AAT failed to refer to evidence or any other material on which finding of facts were based as required by s.430(1)(d) of the Migration Act: SZTIF v Minister for Immigration & Border Protection & Anor [2014] FCCA 945; (2014) 285 FLR 251 (“SZTIF”);
b)the AAT having referred to a claim or asserted fact does not necessarily mean that the AAT considered that claim or asserted fact. In Minister for Immigration & Border Protection v MZYTS & Anor [2013] FCAFC 114; (2013) 230 FCR 431; (2013) 136 ALD 547 (“MZYTS”) the Full Court of the Federal Court, held that a jurisdictional error arose as the AAT’s reasons:
i)showed that “the Tribunal did not assess in any real or active way” the applicant’s claim: MZYTS at [39] per Kenny, Griffiths and Mortimer JJ;
ii)did not disclose any “consciousness of the contents” of the claim “as opposed to their existence”: MZYTS at [41] per Kenny, Griffiths and Mortimer JJ; and
iii)did not disclose “any evaluation”: MZYTS at [45] per Kenny, Griffiths and Mortimer JJ, of the material or any “process of weighing evidence and preferring some over the other”: MZYTS at [50] per Kenny, Griffiths and Mortimer JJ;
c)a failure to refer to evidence may entitle the Court to infer the AAT did not base the factual finding on any evidence: SZTIF at [38] per Judge Manousaridis; and
d)the AAT fell into jurisdictional error in failing to refer to any evidence or other material that was relied on when making the factual finding that spending up to a fortnight in conditions which are cramped, uncomfortable and unsanitary does not amount to significant harm, and that such treatment was not intentional by Sri Lankan authorities.
Minister’s submissions
The Minister submitted that:
a)if the AAT did not comply with the requirement in s.430(1)(d) of the Migration Act in relation to its findings at CB 243 at [76]-[77], that of itself would not constitute jurisdictional error in relation to the making of the AAT Decision: Yusuf at [67]-[69] per McHugh, Gummow and Hayne JJ and [203]-[205] per Callinan J;
b)when read as a whole, there was clearly no failure by the AAT to refer to the evidence or other material upon which its findings at CB 243 at [76]-[77] were based;
c)the findings on material questions of fact at CB 243 at [76]-[77] are that:
i)“the prison conditions in Sri Lanka are poor and overcrowded”;
ii)“the applicant may suffer discomfort whilst in prison and they may not meet international standards”; and
iii)“that the applicant will be remanded for a short period, between one night to several nights”; and
d)the AAT had earlier (at CB 240 at [63] and 241 at [65] and [67]) referred to country information regarding the duration of detention upon return to Sri Lanka, the granting of bail and Sri Lankan prison conditions, and that country information was set out at CB 251 at [115]-[116] and 252 at [119].
Consideration of Ground 3A
In Ground 3A the applicant submits that the AAT fell into jurisdictional error in failing to refer to the evidence and material it relied on when making the factual finding that time spent by the applicant in conditions which are cramped, uncomfortable and unsanitary does not amount to significant harm and that that treatment was not intentional by Sri Lankan authorities. The applicant submitted that the findings at the centre of this ground are those at CB 243 in the last sentence of [76] and at [77] of the AAT Decision. The failure to make any reference to evidence was claimed to be a breach of s.430(1)(d) of the Migration Act. Section 430(1) of the Migration Act is as follows:
(1) Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:
(a) sets out the decision of the Tribunal on the review; and
(b) sets out the reasons for the decision; and
(c) sets out the findings on any material questions of fact; and
(d) refers to the evidence or any other material on which the findings of fact were based;
There are numerous authorities for the proposition that a breach of s.430(1) of the Migration Act is not proof of jurisdictional error, and furthermore that non-compliance with s.430(1) of the Migration Act is not enough to render the AAT Decision invalid, including Re The Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 74 ALJR 405; (2000) 168 ALR 407; (2000) 58 ALD 609 (“Durairajasingham”) at [70] per McHugh J and Minister for Immigration & Citizenship v SZLSP & Ors [2010] FCAFC 108; (2010) 187 FCR 362; (2010) 272 ALR 115; (2010) 117 ALD 259 (“SZLSP”) at [46]-[47] per Kenny J and [85] per Rares J.
The purpose of s.430(1) of the Migration Act has been considered in judgments by the Federal Court and High Court (which this Court is bound to follow: Suh & Ors v Minister for Immigration & Citizenship & Anor [2009] FCAFC 42; (2009) 175 FCR 515; (2009) 108 ALD 470 (“Suh”)), including the following:
a)in SZLSP at [84] per Rares J it was held the purpose of the AAT preparing a written statement is to allow a person affected by the decision to “shape… further conduct,” such as making an application for judicial review;
b)in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1 (“Wu Shan Liang”), CLR at 277 per Brennan CJ, Toohey, McHugh and Gummow JJ, the High Court stated the purpose of s.430(1) of the Migration Act was for the AAT to provide reasons which are meant to inform, but which should not be scrutinised in an over-zealous fashion;
c)in Minister for Immigration & Citizenship v SZMDS & Anor [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [31] per Gummow ACJ and Kiefel J the relevance of reasons under s.430 of the Migration Act was discussed in context as follows:
… a system of judicial review which cannot cope with crucial questions of fact necessarily is seriously defective. In Australia that deficiency is alleviated by requirements in various laws … for the obtaining of reasons for the decision. Section 430(1) of the Act is such a provision. …
d)in Durairajasingham at [64]-[65] per McHugh J the High Court said that s.430(1) of the Migration Act does not impose an obligation on the AAT to do anything more than to refer to the evidence on which findings of fact are based, and does not require reasons for rejecting evidence inconsistent with findings made, and that the AAT need only identify the evidence or other material on which its findings are made: see too Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856; (2000) 176 ALR 66 at [44] per Hill, Mathews and Lindgren JJ.
In this case it is plain that the AAT referred to the evidence and materials which founded its findings at CB 243 at [76]-[77], and that that evidence and material included the following:
a)that there was country information indicating that an applicant returning to Sri Lanka having departed illegally might be held for a short period of remand while arranging bail or waiting to appear before a magistrate: CB 238-239 at [54];
b)the 2014 DFAT country report which “assesses that detainees are not subject to mistreatment during their processing at the airport”: CB 240 at [59];
c)country information (which was put to the applicant) that the applicant may be detained and held in Negombo Prison for a short number of days before being brought before a magistrate for a bail hearing: CB 240 at [63];
d)country information which indicated that prison conditions likely to be experienced by the applicant while waiting to appear before a magistrate for the grant of bail are likely to be overcrowded and unpleasant: CB 241 at [67];
e)that the period of remand would be short, a finding based on credible country information: CB 243 at [76]; and
f)Annexure B to the AAT Decision, being the independent country information summarised by the AAT, in which reference was made to country information from various sources, as to prison conditions in Sri Lanka: CB 252 at [119]. That country information was considered by the AAT in assessing the applicant’s claims: CB 227 at [4] (which is set out at [9] above).
When read as a whole it is apparent that the AAT did refer to evidence and material upon which it based the findings of fact at CB 243 at [76]-[77], and further that the consideration upon which those findings were based was detailed, and had regard to the evidence to which the Court has referred at [21] above, as well as other evidence in relation to the treatment of failed asylum seekers who had departed Sri Lanka illegally: CB 238-244 at [52]-[81].
In all of the above circumstances, Ground 3A does not establish any jurisdictional error in the AAT Decision.
Ground 3B
Applicant’s submissions
The applicant submitted that:
a)the AAT was required to, but failed to, assess and determine whether the PAM 3 Guidelines were relevant, and if so whether the detention faced by the applicant if he was returned to Sri Lanka could amount to significant harm: SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 (“SZUQZ”) at [34] per Judge Driver;
b)in order to take account of the PAM 3 Guidelines as required by s.499(2A) of the Migration Act, the AAT needed to demonstrate active intellectual engagement with the application of the PAM 3 Guidelines;
c)in ARS15 v Minister for Immigration & Anor [2015] FCCA 2135 (“ARS15”) at [4]-[5] per Judge Street, the Court held that in the absence of any actual acknowledgement of the engagement and application of the PAM 3 Guidelines beyond the reciting of the force of Ministerial Direction No. 56 (“Direction”), and notwithstanding the AAT’s reference to prison conditions and duration of imprisonment, the Court may be satisfied that the AAT failed to engage in the application of the PAM 3 Guidelines; and
d)the relevance of the PAM 3 Guidelines is for the AAT to determine, but they cannot make that determination by mere silence: SZUQZ at [54] per Judge Driver; SZTPD v Minister for Immigration & Anor [2015] FCCA 3109 at [28] per Judge Nicholls.
The following parts of ground 2 of the Amended Judicial Review Application were incorporated, to the extent they were necessary, into the content of the applicant’s submissions made in relation to Ground 3B:
The Tribunal made a jurisdictional error by finding at [76]-[77] that:
(a) spending a short period of remand in poor and overcrowded prison does not amount to ‘significant’ harm as defined in subsection 36(2A) of the Migration Act 1958 (“the Act”);
(c) such treatment does not amount to an act or omission which is intended to cause extreme humiliation which is unreasonable.
Minister’s submissions
The Minister submitted that:
a)the AAT expressly referred to its obligations under the Direction and the PAM 3 Guidelines at CB 247 at [100] of the AAT Decision;
b)it should not lightly be inferred that the AAT, an expert body, failed to take into consideration the PAM 3 Guidelines which it is required to consider and apply everyday : SZTCU v Minister for Immigration & Anor [2014] FCCA 1600 at [39] per Judge Cameron;
c)clause 2 of the Direction only requires consideration of the PAM 3 Guidelines “to the extent that they are relevant to the decision under consideration”, and the “relevance” referred to is not objective relevance to be determined as a jurisdictional fact by a court on review: SZTMD v Minister for Immigration & Border Protection [2015] FCA 150; (2015) 150 ALD 34 at [20] per Perram J (“SZTMD”);
d)the PAM 3 Guidelines observe that imprisonment and prison conditions and detention is not in itself a breach of Article 7 of the International Covenant on Civil and Political Rights (New York, 1966) [1980] ATS 23 (“ICCPR Article 7”), but particularly harsh conditions of detention may constitute a violation of ICCPR Article 7;
e)the AAT Decision demonstrates by its content that the AAT had read and understood, and thus took into account the PAM 3 Guidelines, and in particular:
i)the AAT cited evidence concerning conditions in prisons, and reasoned that any detention of the applicant would only be of short duration: CB 240 at [63], 241 at [67], and 243 at [76];
ii)it can be inferred from the focus on the short period of detention that the AAT was applying precisely the sort of duration-based reasoning in assessing prison conditions against ICCPR Article 7 urged upon it by the PAM 3 Guidelines; and
iii)the only proper inference to be drawn is that having found the applicant would be detained for only a brief period, the AAT did not consider the other parts of the PAM 3 Guidelines to be relevant: SZTMD at [15] per Perram J, citing Yusuf at [69] per McHugh, Gummow and Hayne JJ;
f)the AAT Decision is not to be read overzealously in search of error: Wu Shan Liang, CLR at 271-272, 277 and 280-281 per Brennan CJ, Toohey, McHugh and Gummow JJ and 294-295 per Kirby J;
g)the absence of a formulaic statement of obedience to the PAM 3 Guidelines cannot be used to overwhelm the evidence of their influence on the AAT’s reasoning, and excessive weight is not to be given to slight and inconsequential variations in the expression of reasoning, in materially similar cases: ALA15 v Minister for Immigration & Anor (No 2) [2015] FCCA 2048 at [23]-[24] per Judge Street; and
h)even if there was an error with respect to the PAM 3 Guidelines, the second aspect of the AAT’s reasoning at CB 243 at [78]-[79] was that there was a lack of the requisite intention, and that finding is fatal as it renders any error irrelevant.
Consideration of Ground 3B
The issue before the Court is, in the context of the AAT Decision read as a whole, what inference should be drawn from the reference by the AAT to the PAM 3 Guidelines at CB 247 at [100] (as set out at [7] above). The reference to the PAM 3 Guidelines at CB 247 at [100] appears in the AAT Decision in “Annexure A: Relevant Law”.
What must be asked is whether the AAT actively engaged with and considered the PAM 3 Guidelines as far as they were relevant. Put differently, the issue is whether the reference to the PAM 3 Guidelines at CB 247 at [100] of the AAT Decision is merely “reciting the requirement that that factor be taken into account”: Lafu v Minister for Immigration [2009] FCAFC 140; (2009) 112 ALD 1 (“Lafu”) at [54] per Lindgren, Rares and Foster JJ.
The extract from the AAT Decision at CB 227 at [4] (which is set out at [9] above) demonstrates that the AAT did proceed on the basis that it was applying the Direction and the PAM 3 Guidelines. In that respect the applicant’s oral submission that the AAT made no statement that it had considered the Direction and the PAM 3 Guidelines: Transcript at page 4, is wrong, and therefore the applicant’s submissions, proceed upon an essentially erroneous basis.
In any event, what is required to be undertaken is a consideration of the reasoning in AAT Decision as a whole, and an evaluation as to whether the omission of any further specific reference to the PAM 3 Guidelines can be understood, or rationalised, as being because the AAT did deal with the matters the subject of the PAM 3 Guidelines, albeit without further specifically referring to the PAM 3 Guidelines, or because the matters or evidence which were required to be considered were not material to the AAT’s reasons: Minister for Immigration & Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67 at [33]-[34] per Katzmann, Griffiths and Wigney JJ; Minister for Immigration & Citizenship v MZYZA [2013] FCA 572 at [48] per Tracey J.
The AAT referred to independent country information, including penalties for illegal departure and the treatment of returnees, and in that regard it is relevant to note that the AAT:
a)observed that it was an offence to depart Sri Lanka from any place other than an approved port of departure and to depart without valid travel documents under the I & E Act: CB 250-251 at [114];
b)set out the screening process engaged in in relation to returnees: CB 251 at [115];
c)cited the 2014 DFAT Country Report, observing that a person arrested on return because of their previous illegal departure from Sri Lanka might remain in police custody at the CID Airport Office for up to 24 hours, and if a magistrate was not then available, for example because of a weekend or a public holiday, the person would be held at the nearby Negombo Prison: CB 251 at [115];
d)noted that illegal returnees (other than people smugglers or persons involved in the facilitation of people smuggling) were ordinarily fined for their illegal departure: CB 251 at [116]; and
e)set out what the country information said concerning prison conditions in Sri Lanka: CB 252 at [119].
The AAT accepted that if returned to Sri Lanka the applicant would likely be questioned, detained, held in Negombo Prison and fined: CB 240 at [59] and [63], and on the basis of the country information and other evidence accepted that prison conditions in Sri Lanka were likely to be overcrowded and unpleasant: CB 241 at [67] and 243 at [76], but that the evidence before the AAT did not indicate that returnees charged with illegal departure and remand in prison had been subject to pain or suffering by an intentionally inflicted act or omission, or that significant harm arose from the detention and questioning that the applicant was likely to face upon return to Sri Lanka: CB 242-243 at [74]-[75].
In assessing the applicant’s complementary protection claims the AAT specifically dealt with whether the applicant would experience significant harm for reasons of returning as a failed asylum seeker or an illegal departee: CB 243 at [76]-[77] set out at [13] above. The AAT then went on at CB 243 at [78]-[79] to observe as follows:
78. Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Therefore in relation to the poor prison conditions in Sri Lanka there is no intention on the part of the Sri Lanka authorities to harm the applicant. The Tribunal finds that a period of remand on return to Sri Lanka does not give rise to a real risk the applicant will suffer significant harm within the meaning of s36(2A) or s.5 of the Act.
79. Having regard to all of the evidence before it, and the evidence which indicates that the application of the Immigrants and Emigrants Act is a law of general application and that all Sri Lankans who depart in a manner contrary to the manners permitted will be detained and prosecuted, the Tribunal does not find that there is an intention by the S[r]i Lankan authorities to inflict cruel or inhuman treatment or punishment or degrading treatment or punishment through the temporary detention of returnees pending the grant of bail.
It is evident from the foregoing that the AAT engaged at an appropriate intellectual level with the claims made by the applicant, both in the context of the refugee and complementary protection assessments: Lafu at [47]-[54] per Lindgren, Rares and Foster JJ.
In AAH15 v Minister for Immigration & Border Protection [2016] FCA 104 (“AAH15”) the PAM 3 Guidelines were referred to in an attachment to the decision of the AAT, as in the present case, and the Federal Court stated there was “great difficulty” in accepting that there is any sound basis to argue that the AAT failed to give consideration to certain matters arising from the PAM 3 Guidelines: AAH15 at [83] per Katzmann J. In this case not only are the PAM 3 Guidelines referred to in Annexure A, CB 247 at [100], but the AAT has also said in the AAT Decision that it has applied the law set out in Annexure A, which must include the Direction and the PAM 3 Guidelines.
In SZTMD at [19] per Perram J the Federal Court observed that:
19. The inference in Yusuf is not mandatory. The manner in which a statement of reasons is drawn, or even its surrounding context, may provide material which detracts from, or even displaces, the inference. For example, there may be country information which was available to the Tribunal which is so obviously relevant that it is unthinkable that the Tribunal would not have referred to it if it had actually considered it. There is nothing, however, like that in this case. The applicant’s argument did not move beyond the generality of the claim that the material was not considered to any detailed analysis of what that might signify. In those circumstances, there is no good reason not to draw the Yusuf inference. Once that occurs it seems to me that I cannot avoid the conclusion that the Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant.
Earlier in SZTMD at [15] per Perram J the Federal Court had said that:
15. Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.
In AJW15 v Minister for Immigration & Border Protection [2016] FCA 197 (“AJW15-Federal Court”) at [46] per Barker J the Federal Court said that:
46. The Court agrees that the Tribunal's statement that it was required to take account of the guidelines should in itself, on a fair reading of the Tribunal's reasons in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271-272; [1996] HCA 6, be sufficient to conclude the Tribunal has done so. See SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 at [14].
In the circumstances, the Court is of the view that the rationale adopted by the Federal Court in SZTMD, AAH15 and AJW15-Federal Court is preferable, and ought to be followed, and in any event must be followed as binding on this Court: Minister for Immigration & Multicultural & Indigenous Affairs v SZANS [2005] FCAFC 41; (2005) 141 FCR 586; (2005) 215 ALR 733; (2005) 86 ALD 583 at [38] per Weinberg, Jacobson and Lander JJ; Suh at [29] per Spender, Buchanan and Perram JJ.
In ADO15 v Minister for Immigration & Anor [2016] FCCA 88 (“ADO15”) this Court observed as follows at [52]-[54] per Judge Smith:
52. The first point to note is that cl.2 of the Direction only requires the Tribunal to “take account of” the relevant guideline. It does not require the Tribunal to follow the guideline slavishly as though it were a statement of law. In this case, the Tribunal stated, at [6] that it was required to take the guideline into account. In light of that, it is clear that the Tribunal was at least cognisant of its obligation under s.499 of the Act. Thus, in my view, in order to succeed the applicant must show from the balance of the Tribunal’s reasons that, in spite of this cognizance, the Tribunal failed to have any regard to the guidelines.
53. The second point to note is that the particular paragraph in the guidelines relied upon by the applicant (the second paragraph quoted at [51] above) is very general in nature and application. The Direction does not say when it would be appropriate to make certain inferences, or when certain inferences must be drawn. Indeed, if it did it would probably be beyond the power in s.499(1) of the Act.
54. There is nothing in the Tribunal’s reasons to suggest that it did not “take account” of any part of PAM3. The ground is hopeless and I refuse leave to rely on it.
As in ADO15 the reference to the PAM 3 Guidelines at CB 247 at [100] indicates that the AAT was well aware of the requirement to take the PAM 3 Guidelines into account. That is reinforced in this case by the fact that the AAT expressly said that it had “applied the law set out in Annexure “A”” which included at CB 247 at [100] the reference to the Direction and the PAM 3 Guidelines, as well as relevant country information: CB 227 at [4] and 247 at [100].
In the Court’s view it can (if needs be) plainly be inferred from the AAT Decision that the AAT read, understood and took into account the PAM 3 Guidelines, particularly insofar as it focussed upon the likely short period of detention: CB 240 at [63] and 243 at [76]-[77]. The AAT also set out the meaning of “significant harm” for the purposes of s.36(2)(aa) of the Migration Act: CB 242 at [70], and engaged with that definition by reference to its various elements to reach its conclusion that there was not a real risk of the applicant suffering any form of significant harm if returned to Sri Lanka: CB 242-244 at [71]-[81], and see also CB 250-252 at [114]-[119] as summarised at [31] above. The focus on the short period of detention allows an inference that the AAT was applying duration-based reasoning as a centrally important factor in assessing prison conditions against Article 7 of the ICCPR as indicated in the PAM 3 Guidelines. The necessary implication to be drawn from this inference is that having found the applicant would be detained for only a short period, the AAT did not consider the other parts of the PAM 3 Guidelines relevant, as opposed to failing to consider them: SZTMD at [15] per Perram J. Otherwise, the AAT specifically considered country information concerning prison conditions, in the context of a short period of confinement, as it was required to do by the PAM 3 Guidelines: AJW15 v Minister for Immigration & Border Protection & Anor [2015] FCCA 2579 at [3] per Judge Street. SZUQZ and ARS15 are therefore distinguishable in these circumstances, the Court being of the view that in this case the AAT’s reasons indicate that it read, understood and took into account the PAM 3 Guidelines.
For all of the above reasons, and because the Court is bound to follow the Federal Court’s judgments in SZTMD, AAH15 and AJW15-Federal Court, and applying those judgments, and the rationale in ADO15, the Court is of the view that the AAT was aware of the requirement to, and, as a matter of substance and not mere form, did take into account, the PAM 3 Guidelines.
Finally, it is pertinent to observe that even if there was an error with respect to the treatment of the PAM 3 Guidelines by the AAT in the AAT Decision, the finding by the AAT at CB 243 at [79] that the mere act of imprisonment in the applicant’s circumstances does not have a requisite intention to cause significant harm means that any error with respect to the PAM 3 Guidelines would be irrelevant: see SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64 at [49] per Judge Driver (and now see SZTAL v Minister for Immigration & Border Protection [2017] HCA 34; (2017) 91 ALJR 936; (2017) 347 ALR 405 at [4] per Kiefel CJ, Nettle and Gordon JJ, and [74] per Edelman J).
To the extent that that part of ground 2 sought to be incorporated in Ground 3B refers to the AAT’s finding at CB 243 at [76]-[77] as “unreasonable”, nothing was advanced in either the written or oral submissions for the applicant which would indicate that the AAT Decision was affected by unreasonableness constituting jurisdictional error within the accepted meaning of “unreasonableness” as it applies to migration decisions under the Migration Act, as to which see the summary in Minister for Immigration & Border Protection v Pandey & Ors [2014] FCA 640; (2014) 143 ALD 640 at [41] per Wigney J.
In all of the above circumstances, Ground 3B does not establish any jurisdictional error in the AAT Decision.
Conclusion and orders
The Court has concluded that there is no jurisdictional error in the AAT Decision. It follows that the Amended Judicial Review Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 8 February 2019