BPF15 v Minister for Immigration
[2016] FCCA 2112
•17 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BPF15 v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2112 |
| Catchwords: MIGRATION – Judicial review – protection visa – applicant alleges Tribunal breached s425 of the Migration Act. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 424A, 425, 499(2A) |
| Cases cited: SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152 |
| Applicant: | BPF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 1784 of 2015 |
| Judgment of: | Judge Harland |
| Hearing date: | 16 June 2016 |
| Date of Last Submission: | 16 June 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 17 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Grinberg |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr Brown |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The amended application filed 24 May 2016 is dismissed.
That the applicant pay the first respondent’s costs fixed in the sum of $7,206.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1784 of 2015
| BPF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant applied for a protection visa on 28 March 2013 after arriving on Christmas Island August 2012. The applicant is a Sri Lankan. He is a Tamil and is Hindu.
The applicant claims he fears persecution based on his religious and political activities and harm from local Muslims. His claims are summarised in the submissions prepared by his counsel. At paragraph 3 of the applicant’s submissions helpfully provide detailed summary of the delegate’s decision and the Tribunal decision at paragraphs 4 and 5. I will not repeat them here.
In his amended application filed on 24 May 2016 the applicant sets out the following grounds:
1. The Tribunal’s decision dated 27 June 2015 is affected by jurisdictional error because the Tribunal failed to afford the applicant procedural fairness and failed to comply with its obligations under s.425(1) of the Migration Act 1958 (Cth) (“Migration Act”).
Particulars
a) In the decision under review by the Tribunal, a delegate of the first respondent accepted the applicant’s claim, as made, that his family’s home had previously been burnt down twice in the Muslim/Tamil conflict.
b) It was not in issue before the Delegate whether or not the family home had been burnt down as a result of the Muslim/Tamil conflict.
c) In contrast to the finding of the delegate, the Tribunal accepted that the applicant’s family home was burnt down twice in 1989 and 1990, however did not accept that this was for a convention reason on either of those occasions.
d) The Tribunal failed to indicate to the applicant that the cause of the family home being burnt down was in issue, and so failed to notify the applicant that this matter was an issue arising in relation to the decision under review.
e) Additionally, the Tribunal failed to put the applicant on notice that it considered his evidence to be vague. The applicant was aware only that it was in issue before the Tribunal whether he had exaggerated or embellished his claims.
2. The Tribunal failed to consider an integer of the applicant’s claim – that there was a risk that the Muslims would occupy his land.
Particulars
a) It was an express claim of the applicant that the Muslim people of his area were trying to occupy the land in his village.
b) The applicant made this claim in his entry interview and it was reaffirmed in the adviser’s written submissions to Tribunal.
c) The Tribunal failed to consider this claim.
3. The Tribunal asked itself the wrong question or applied the wrong test and erred by treating the length of imprisonment as determinative of the question whether imprisonment amounted to serious or significant harm.
Particulars
a) The Tribunal found that, on return to Sri Lanka, the applicant would be remanded for a short period.
b) The Tribunal accepted that there were concerns about overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence in Sri Lanka.
c) In determining whether the applicant’s experience whilst in prison amounted to serious or significant harm, the Tribunal considered only the period of time that the applicant would be incarcerated for.
d) The Tribunal failed to take into account the other forms of harm that the Tribunal found could accompany a period of detention.
4. The Tribunal failed to comply with Ministerial Direction Number 56 of the contravention of s.499(2A) of the Migration Act and thereby overlooked a relevant consideration amounting to jurisdictional error.
Particulars
a) Where relevant, the Tribunal was obliged under s.499(2A), to take into account the PAM3 – Protection Visas – Complementary Protection Guidelines (“the Guidelines”) in the assessment of whether the past harm suffered by the applicant met the definition of significant harm under the Migration Act.
b) The Tribunal found that there was a real chance the applicant may be arrested and imprisoned for a few days on remand because he had departed the country illegally
c) The Tribunal accepted that there are concerns about overcrowding, poor sanitary facilities, limited access to food, the absence of basic assistance mechanisms, a lack of reform initiatives and instances of torture, maltreatment and violence in Sri Lanka.
d) The Tribunal’s findings rendered the Guidelines potentially relevant and enlivened the obligation of the Tribunal to consider their relevance.
e) The Tribunal failed to consider the potential relevance of the Guidelines, which if relevant were mandatory. In failing to do this, the Tribunal overlooked a relevant consideration.
The Legislation
Section 36(2) refers to the criterion for a protection visa as being:
(a) a non‑citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non‑citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa of the same class as that applied for by the applicant; or
(c) a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant.
Section 36(2)(A) defines significant harm as being:
(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.
Ground one
Ground one complains that the Tribunal breached s.425 of the Migration Act and failed to correctly follow the High Court decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] 228 CLR 152 (“SZBEL”) with respect to the applicant’s evidence firstly about the family home being burnt down twice and secondly about the Tribunal’s findings that the applicant’s evidence was vague.
The applicant complains that as the delegate accepted his evidence that the family homes were burnt down twice in 1989 and 1990 by Muslims that the Tribunal breached the requirements in section 425 of the Migration Act by failing to put him on notice that it had concerns about his evidence on this point. The issue is not whether or not his family home was burnt down twice. Both the delegate and the Tribunal accepted this. The issue is whether or not the Muslims were responsible.
The applicant first refers to this aspect of his claim in his visa application appearing at Court Book (“CB”) 13 where he states that he lived in an area that is the border are between Tamils and Muslims. There have been long term problems where his home has been burnt down by Muslims twice. He also refers to this in his statutory declaration at CB 62 paragraphs 8 and 10. In that statement he says that his family home was burnt down twice in conflicts with Muslims in 1989 and 1990 and that many homes of Tamil Hindus were attacked. He said that local Muslims would burn down into homes and disrespect Hindu temples. The delegate refers to the applicant’s claim that “[h]is family home was burnt down twice in conflicts with Muslims in 1989 and 1990” at paragraph 8 of its decision the period CB 145.
The Court Book 146 the delegate said:
After considering all information available, I accept the following:
The applicant is a Sri Lankan Tamil of Hindu religion from Batticaloa District in the Eastern Province.
The applicant’s family home was burnt down in 1989 and 1990.
The applicant’s family shop was bombed in 2006.
The applicant was questioned by police in 2008.
The applicant has been involved in conflicts between Hindus and Muslims.
The delegate does not say that he accepts that the family home was burnt down by Muslims. The applicant says that it can be inferred from the paragraph above that the delegate accepted that the family home was burnt down by Muslims twice.
The applicant’s migration agent filed submissions in support of the applicant’s claim shortly before the Tribunal hearing. The submissions primarily focused on the applicant’s political claims. The applicant says this was because this was what he was on notice was in issue from the Delegate’s decision
The applicant relies on affidavit filed by his solicitor on 24 May 2016 annexing a transcript of the Tribunal hearing.
The applicant’s evidence is clear at page 11 of the transcript that Muslims burnt down his family home and that Muslims have attacked his people with government support.
The applicant complains that the Tribunal member did not give any indication that who burnt his family homes was in issue. The Tribunal member discussed the delegate decision with the applicant starting at page 15 of transcript.
The Tribunal member asked the applicant what he understood the reasons were for the delegate’s refusing his application. The applicant said he thought that immigration department did not have a clear picture about his issues and what happened and that because there has been a change of government that they thought things have improved. The Tribunal member said that the changing government did not occur until after the delegate’s decision and said that the department accepted some of his claim but not others.
The delegate accepted that the applicant was a Tamil man from Sri Lanka and that his home had been burnt down twice. The Tribunal member does not say that the delegate accepted that the family home was burnt by Muslims. The respondent states that the delegate did not either accept or reject the claim that the family home was burnt down twice by Muslims. As can be seen from paragraph 9 above is an accurate statement of the delegate’s finding.
The applicant argues that this shows where the Tribunal has erred as the Tribunal did not put the applicant on notice that it had concerns about the applicant’s claims with respect to the burning down of family home. The difficulty with this submission is that the delegate did not link the finding about the family home being burnt down twice to problems with Muslims.
The delegate referred to country information with respect to religion. The delegate records at CB 150 that the 2013 Department of Foreign Affairs and Trade country information report notes the rising religious tension and to the number of attacks Muslims places of worship and that in most cases it was Sinhalese Buddhist attacking other religious places of worship. There were an increased number of incidents of verbal and physical attacks on Muslims and Muslim businesses and a rise in anti-Muslim sentiment.
The delegate further recorded that the only reference to Hindus within the 2012 UNHCR guidelines for Sri Lanka was that most Sri Lankans feel free to express religious views in public with the exception of a notable minority of Muslims and Hindus who feel restricted. The delegate accepted that there were tensions between Muslims and Hindus but did not accept there was a real chance of harm based on religion in light of the country information. Considering this, it is not correct when the applicant says that the delegate’s concerns were based on the applicant’s political claims. The applicant also on notice that delegate did not find that his religious activities amounted to a real chance of harm.
The parties also differ in how they interpret paragraph 83 of the Tribunal’s decision which contains the critical finding with respect to the applicant’s religious claim. It is set out below:
The Tribunal considered the applicant’s claims that his family house was burnt down twice. He claimed this occurred in 1989 and 1990. The Tribunal is prepared to accept is plausible that his home was in fact burnt down twice. However, having regard to its assessment of the applicant’s evidence and his exaggeration of his evidence, when considered in the context of the prevailing circumstances at that time, that he is in the context of a violent civil war or, the Tribunal does not accept the motivation behind the burning down of the house was for one of the Convention grounds. Further, in light of the present circumstances and improved security situation in Sri Lanka as reflected in the relevant country information, the Tribunal finds the past burning down of the applicant’s home is not result in him facing a real chance, all real risk of serious or significant harm now or in the reasonably foreseeable future if he returns to Sri Lanka.
The applicant argues that the reference to “further” in that paragraph is not an alternative finding and relates back to what the Tribunal said at paragraph 75. The applicant says that that is the reference to the Tamil and Singalese conflict. The first respondent says it is a separate finding. In my view it does not matter which view is correct because the critical issue and this is consistent with the delegate’s finding as well (which is relevant because of the applicant’s complaint that it was not on notice that the issue of who burnt down of family homes was in dispute) is the country information whether there is a serious risk of harm now or in the future.
The applicant draws attention to paragraphs 35 and 36 of SZBEL:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
It is also important to recognise that the invitation to an applicant to appear before the Tribunal to give evidence and make submissions is an invitation that need not be extended if the Tribunal considers that it should decide the review in the applicant's favour. Ordinarily then, as was the case here, the Tribunal will begin its interview of an applicant who has accepted the Tribunal's invitation to appear, knowing that it is not persuaded by the material already before it to decide the review in the applicant's favour. That lack of persuasion may be based on particular questions the Tribunal has about specific aspects of the material already before it; it may be based on nothing more particular than a general unease about the veracity of what is revealed in that material. But unless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.
The applicant also relies on the comments made by Justice Edmonds in SZHBX v Minister for Immigration and Citizenship [2007] FCA 1169 at paragraph 14:
Section 425, as construed in SZBEL, requires the Tribunal to disclose to an applicant additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue. If the Tribunal proposes to make an adverse finding on a matter where the delegate accepted or found no deficiency in the applicant’s claims and the applicant has not otherwise been notified that the matter is in issue, the Tribunal should disclose to the applicant that it has a concern about the matter ((2006) 81 ALJR 515 at [36]). It is an entirely different matter to say that the Tribunal is bound to treat the applicant’s case before the Tribunal as identical to the case the applicant presented to the delegate. Following the delegate’s decision an applicant may present additional evidence, and/or elaborate upon or change the Convention ground claimed. The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings. Nor does the Tribunal have a duty under s 425 to inform an applicant that because the claims are now framed on the basis of a different Convention ground it will be required to consider whether the evidence supports the new claim.
Justice Bromberg’s comments in SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 (“SZTKE”) at paragraph 36 is also relied on:
I do not accept those submissions. More is required than that the Tribunal abstain from positively indicating to an appellant that his or her account will be accepted. More is required than that an appellant be merely given an opportunity to explain himself or herself. So much is evident from the fact that in SZBEL the relevant evidence was “elicited” by the Tribunal without further comment and that, notwithstanding that elicitation, it was held that procedural fairness had not been afforded. There must be something that indicates to the appellant that the issue is live.
I accept the correctness of SZBEL and Justice Bromberg’s comments in SZTKE. The issue is their application to the circumstances of this case. The critical issue is whether or not the applicant’s claim that his family home was burnt down twice on Muslims was dipositive. The applicant’s claim of fear of persecution and several aspects to it, one of which was the burning down of family homes. These burnings occurred many years ago. There were more recent events that the applicant’s also relied on. Both the delegate and the Tribunal accepted that the family homes burnt down. Given the rest of the applicant’s claims on religious grounds which refers to a pattern of conduct and is beginning with time spent the later destruction of business and also attacks on Hindu temples in the issue of whether or not the homes were burnt down by Muslims cannot reasonably be seen as dipositive when these burnings occurred many years ago and are several more recent aspects of his claim dealing with persecution on religious grounds.
In my view the dipositive issue for the delegate was not whether or not the family home was burnt down my Muslims. That took place over 25 years ago. The dipositive issue with respect to the matters argued under ground one was whether or not the country information supported the applicant’s claim that he would fear persecution because of the conflicts with Muslims if he returned to Sri Lanka.
The applicant says that the circumstances were similar in SZTKE where the Court set out a test at paragraphs 70 and 81. Whilst the issue of embellishment was put to the applicant, vagueness was not. The applicant’s counsel argued that there is a tension between embellishment and vagueness. In my view is clearly possible for the Tribunal to make a finding that the applicant has embellished evidence as well as finding that aspects of the evidence is vague. The two are not mutually exclusive.
The applicant acknowledged the authorities referred to by the respondent stating that the decision maker is not required to expose this is also thought processes to the applicant but that the issue the applicant but the issue with respect to section 424A and the obligation to put the adverse information to the applicant for comment.
The respondent says that it is said that the delegate accepted that the applicant’s family home was burnt down convention reason for the Tribunal did not. Even if that is correct there was another strand in its reasoning at paragraphs 76 onwards. The factual substratum of the claim with respect to religion was because of the family homes being burnt down. The delegate looked at the country information for its finding and as substance that for the Tribunal did as well at paragraph 79 noted that the current country information indicated that the primary group being targeted as for discrimination based on religion were Muslims not Hindus and that whilst the applicant may find that Muslims are a significant proportion of the population surrounding his village, the Tribunal was not satisfied that the applicant had been threatened as he claimed and that is a secular country information and his unreliability as a witness the Tribunal rejected his claims that in 2012 he was warned by a group of Muslims to stop his activities the Tribunal also refer to the country information revealing a fairly high level of religious tolerance in Sri Lanka even though Buddhism is the foremost of the religions in Sri Lanka.
The respondent submits that the current country information is highly relevant and is important to bear in mind that the claims with respect to the houses being burnt occurred some 25 years ago. The respondent argues that the reference to the word “further” in paragraph 83 is referring to another strand of its reasoning for its finding, and is reference to its earlier discussion about the country informant. Even if it were to be accepted that the Tribunal’s finding was contrary to the delegate’s finding it does not matter because the Tribunal has rejected that as a claim based on current country information.
The Tribunal member also traversed the issue of the current country information with the applicant at pages 11 and 12 of the transcript. The respondent argues that when paragraph 83 when considered in context it was part of the applicant’s broader claim are that he feared harm on the basis of religion.
I accept the respondent’s submission on this point. The important factor with respect to this claim is the kind of country information the important issue is looking at current and future harm rather than past harm that is not ongoing.
The respondent argues that if it is accepted that the Tribunal erred by not informing the applicant the reason for the burnings of the family home was in issue the error did not affect the result because of the country information. He referred to SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 in support of this contention.
In reply the applicant argued that the respondent is inappropriately attempting to put words in the Tribunal’s mouth with respect to the respondent’s interpretation of paragraph 83 and that when the reasons are read fairly and as a whole the reference that country information is not the reference to paragraph 79 but rather paragraph 75 and this is clear because of the reference to improved security information at paragraph 83 of its reasons and page 11 of the transcript where Tribunal member referred to his scepticism.
I do not accept the applicant’s submissions. The delegate did not accept or reject the applicant’s claims that his family home was burnt down by Muslims. Even if the applicant’s argument was accepted on this point that he was not accorded procedural fairness, the country information makes it clear that this claim could not be made out. Therefore even if the Tribunal made an error, and I do not find that it did, it could not have affected the outcome.
The task of considering whether or not an applicant faces a real chance of harm for a convention reasons if returned to the applicant’s country is harm is predictive. The Full Court of the Federal Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 at [33] observed:
The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 571-573.
The Full Court went on to state that this can only occur by assessing circumstances in the person’s country at the time that person is likely to be returned, see paragraph 35.
Credibility
Turning to the issue of credibility and the complaint about vagueness the respondent referred to this at paragraph 70 after noting that some aspects of his evidence was credible but that his evidence was exaggerated and that all embellished “the Tribunal also observed the applicant’s evidence to be vague and lacking in detail where reasonable detail could reasonably be expected.”. The applicant’s complaint is that being on notice by the delegate that aspects of his evidence were exaggerated and embellished he would be minded to give less detail. No being on notice that the Tribunal member thought his evidence was vague meant that he did not have the opportunity to give more detailed evidence.
Paragraphs 71, 81 and 90 set out orthodox appraisals of the applicant’s evidence by the Tribunal. It refers to the factors the Tribunal is required to consider when assessing credibility.
By virtue of being invited to appear at a hearing before the Tribunal the applicant’s credibility as an issue. In the statutory context the Tribunal is making a fresh decision. Whenever an applicant is invited to the hearing because credibility is an issue is the applicant needs to be believed in order to satisfy the statutory provision.
The Tribunal member told the applicant that the delegate found that some of his claims were embellished the delegate not satisfied that he had a significant profile with the TNA. The applicant was asked to comment on these.
I do not accept the proposition that being on notice that the delegate found his evidence to be embellished and exaggerated would lead to him giving less detail to the Tribunal which in turn lead to a finding that his evidence was vague. The assessment of credibility is multi-faceted. One of the things that makes evidence credible is a level of detail which indicates what is being described was a lived experience. This does not mean that a person’s memory has to be perfect. No one’s memory is.
The respondent also relied on SZGQZ vMinister for Immigration and Citizenship [2007] FCA 1091 and the finding in that case that the Tribunal had made its own appraisal of the applicant’s claims in making the finding that the applicant was not credible.
Neither strand of ground one is made out.
Ground two
The applicant complains that the Tribunal did not assess his claim which he first in his entry interview at CB 13 about Muslims wanting to occupy his village. The applicant there is “as far as I know that the Muslims they want to occupy our village the – take control of our village – because am a member of the religious group and the youth club – they try to take our lands – …” [sic].
This was also raised in his written submissions at CB 228 which also deals with the clashes between Muslims and Hindus. The applicant refers to paragraph 79 and 81 - 82 of the Tribunal’s decision. Paragraph 79 refers to the Tribunal’s acceptance that he may find that there a large number of Muslims living in the area surrounding his village but the country information shows that Muslims rather than Hindus are targeted and that “there is a reasonably high level of religious tolerance”.
At paragraph 81 the Tribunal referred to the applicant’s claim that he has been prevented from starting a business. The Tribunal rejected that evidence.
At paragraph 82 the Tribunal found that the applicant was not at a real risk of harm for a convention ground because of playing cricket and the disputes with Muslims about that.
The respondent argues that the Tribunal did not need to address this aspect because of its general finding based on country information. The respondent relied on Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 Full Court Federal Court at paragraph 47 where it states:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
I find that the applicant’s claim about Muslims surrounding his village was part of his claim about religious conflict and the conflict between Muslims and Tamils. That is how it is characterised in his written submissions at CB 228. I do not accept the applicant’s submission that the Tribunal failed to consider an integer of the applicant’s claim.
Ground two also fails.
Ground three
The applicant says the Tribunal erred by focussing on the length of detention as being determinative and not addressing with the other concerns it identified being torture, violence and overcrowding in Sri Lanka prisons, in considering whether or not the imprisonment the applicant would face on his return amounted to a serious or significant harm.
The applicant relies on Judge Driver’s decision of SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552 where he refers at paragraph 38 the length of imprisonment not being determinative.
The applicant refers to the High Court decision of Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] 254 CLR 610 (“WZAPN”) at the comment at paragraphs 65 that short periods of detention does not amount to persecution when there are not other forms of harm involved with it. If other forms of harm are identified considering the length of detention is not enough.
The respondent submitted that it is important to look at what the Tribunal said. The Tribunal identified the conditions in prisons in considering whether the applicant would suffer a real risk of harm if he returned to Sri Lanka as the Tribunal accepted that he would be found to have breached the Immigrants and Emigrants Act 1949. The Tribunal found he would be detained and fined. At paragraph 116 the Tribunal referred to the prison conditions in Sri Lanka which may not meet international standards due to overcrowding, poor sanitary conditions, limited access to food, lack of access to basic assistance mechanisms, lack of reform and instances of torture, maltreatment and violence. The Tribunal found that the prison conditions may cause the applicant some discomfort but also found that based on the country information he would be detained for a short period and that this would not amount to an intention infliction of harm that could be regarded as cruel or inhuman. At paragraph 117 the Tribunal found that under Australian law, cruel or inhuman treatment must be intentionally inflicted. A lack of resources does not amount to cruel, inhuman or degrading punishment.
The applicant places a lot of emphasis on the reference to torture being a concern in prison separate to the other prison conditions the Tribunal referred to.
The applicant argues that the error lies in the fact that the Tribunal did not make a finding either way about whether or not there was a real risk of harm because of the prison conditions.
The respondent refutes the Tribunal did not make a finding that there was a real risk the applicant would suffer harm because of the any of the prison conditions the Tribunal identified. Rather the Tribunal found that he may suffer some discomfort whilst detained.
The respondent says that SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (“SZTAL”) is on all fours with the present case. He quoted paragraph 59:
It seems to us that R v Ping [[2005] QCA 472] is persuasive because it concerned the interpretation of relevantly the same concept as the relevant definitions in s 5(1) of the Migration Act (the intentional infliction of severe pain and suffering), albeit in a different context (the prosecution of an accused under a State criminal statute). The Court’s reasons were not only consistent with the authorities but, more particularly, as the Court itself said, reflected the natural and ordinary meaning of the words of the legislation, which are the same in this case. The natural and ordinary meaning of intentional infliction is actual subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct. Cf. Tillman v Attorney-General (NSW) [2007] NSWCA 327; 70 NSWLR 448 at [106] and Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5; 233 CLR 259 at [31].
The respondent also points out that in WZAPN the Court was considering different statutory provisions. SZTAL considered the same statutory provisions as in the present case being section 36(2A) and (5) which are set out at paragraph 4 of these reasons.[1]
[1] Migration Act 1958, s.5(1) “significant harm” means kind of harm mentioned in subsection 36(2A).
The comments of Buchanan J in the same case are also instructive. – see paragraphs 94 and 95:
Although the RRT referred more generally (at [70] and [76]) to prison conditions in Sri Lanka, to reports of instances of torture and to reports of mistreatment, those references do not support any argument that the RRT contemplated as likely that any of the appellants were, or would be, in such a situation. The contrary is the case.
The RRT’s findings of fact were, in my respectful view, fatal in the present cases to any reliance on s 36(2)(aa) of the Act. Unless the RRT made a jurisdictional error in the way it approached its task then its decision about the merits of the visa applications was shielded from judicial review by s 474 of the Act.
The applicant’s complaint under ground three has not been made out.
Ground four
At the commencement of the hearing counsel for the applicant indicated that ground four was no longer being relied on in the light of the recent Federal Court decision of SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 (“SZTAL”). The affidavit annexing the PAM guidelines was also not be relied on in those circumstances.
Conclusion
The applicant has been wholly unsuccessful. I will hear from the parties as to costs.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 17 August 2016
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