BNS15 v Minister for Immigration and Border Protection & Anor

[2015] FCCA 2877

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNS15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2877

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants and Refugees Division) – Protection (Class XA) visa – whether the Tribunal correctly applied the test for ‘significant harm’ – no jurisdictional error – application dismissed.

Legislation:

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

Applicant: BNS15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2100 of 2015

Judgment of: Judge Street

Hearing date: 26 October 2015

Date of Last Submission: 26 October 2015

Delivered at: Sydney

Delivered on: 26 October 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Mr A Keevers
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2100 of 2015

BNS15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 7 July 2015 affirming a decision of delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country as the country of nationality and the receiving country.

2. The applicant claimed a fear of persecution for reasons of his race as a Tamil, his imputed political opinion, because the applicant applied for asylum in Australia with his membership of a particular social group defined either as Tamil asylum seekers, because the applicant would be a returnee to Sri Lanka, or Tamil people who have applied for asylum abroad and who have failed to secure protection, who, having failed to secure protection, have been removed to Sri Lanka.

3. The application for protection visa was refused by the delegate of the Minister for Immigration on 19 December 2013, and the applicant applied for review before the Tribunal.  The applicant was invited to attend a hearing by letter dated 10 December 2015 to be held on 7 January 2015.   The applicant appeared on that day to give evidence and present arguments and was assisted by an interpreter and his migration agent.  The ground of the application are as follows:

   1. The Tribunal erred by applying the wrong test as to what constitutes significant harm by failing to consider whether the enactment of the Immigrants and Emigrants Act (IE Act) by the Sri Lankan Parliament constituted an act for the purposes of definition of degrading punishment or treatment ins 5(1) of the Migration Act.

4. The Tribunal, in para.2, identified the law as set out in attachment A, which summarised the principles in relation to complementary protection criterion as follows:

   10. An applicant for a protection visa who does not meet the refugee criterion in paragraph 36(2)(a) of the Act may nevertheless meet the complementary protection criterion in paragraph 36(2)(aa) of the Act, set our as relevant to this application above.  The Full Court of the Federal Court has held that the ‘Real risk’ test imposes the sake standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the context of the Refugees Convention as referred to above (see Minister for Immigration and Citizenship v SZQRB [2013] FCAFC at [246] per Lander and Gordon JJ with whom Besanko and Jogot JJ (at [297]) and Flick J (at [342]) agreed).  ‘Significant harm’ for the purposes of the complementary protection criterion is exhaustively defined in subsection 36(2A) of the Act: see subsection 5(1) of the Act. A person will suffer ‘significant harm’ if they will arbitrarily deprived of their life, if the death penalty will be carried out on them or if they will be subjected to ‘torture’ or to ‘cruel or inhuman treatment or punishment’ or to ‘degrading treatment or punishment’.  The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and degrading treatment or punishment’ are further defined in subsection 5(1) of the Act. 

5. It is also apparent that the Tribunal took into account the ministerial directions referred to in para.11 attachment A and expressly identified in para.83 of the Tribunal’s reasons.

6. It is not apparent that the applicant advanced the contention before the Tribunal that the enactment of the Immigrants and Emigrants Act 1949 by the Sri Lankan Parliament constituted an act for the purposes of the definition of degrading punishment or treatment in s.5(1) of the Migration Act 1958. Section 5(1) defines “degrading treatment or punishment” to mean:

   “degrading treatment or punishment” means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

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

   (b)  that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

7. The Court accepts the first respondent’s argument that the enactment of the legislation could not, itself, constitute an act that causes or is intended to cause extreme humiliation which is unreasonable.  The enactment of the legislation is the exercise of a legislative law making power.  The enactment of the legislation is a matter different from its enforcement and application.  It is apparent from what was said by the Tribunal in para.76 that the Tribunal found enforcement of the Act to be a non-discriminatory enforcement of a law that applies generally in Sri Lanka.

8. It is also apparent from the Tribunal’s decision that the Tribunal turned its mind to and made findings in relation to complementary protection and whether enforcement of the legislation fell within s.5(1) of the Migration Act 1958.  The Tribunal was correct in saying what is required is an intention to inflict pain or suffering or to cause extreme humiliation.  It was in those circumstances where the Tribunal had correctly identified the relevant test in which it was open to the Tribunal to make the adverse findings found in para. 83. There is no substance in the allegation that the Tribunal applied the wrong test. Further, the Tribunal was not required to address an issue that did not arise on the material before the Tribunal and which was not articulated. No jurisdictional error is made out by ground 1.

9. This is a case where the Tribunal made adverse findings in relation to the credit of the applicant in relation to his claims.  Relevantly:

   68. …I do not accept on the evidence before me that there is a real chance that the applicant will be harmed by the people smuggler or people acting on behalf of the people smuggler or that he will be a victim of extortion if he returns to Sri Lanka now or in the reasonably foreseeable future. 

   …

   79. …However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returned to Sri Lanka now or in the reasonably foreseeable future.

10. On 3 September 2015, the Registrar provided an opportunity for the applicant to file and serve an amended application, affidavit and submissions.  No such documents were filed. 

11. Nothing said by the applicant from the bar table identified any arguable jurisdictional error.  For the reasons I have given, there is no substance in the contention that the Tribunal applied the wrong test in relation to complementary protection.  The application fails to make out any jurisdictional error.  The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 October 2015