BQL15 v Minister for Immigration
[2017] FCCA 1976
•18 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BQL15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1976 |
| Catchwords: MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision of a delegate of the first respondent not to grant applicant protection visa – whether Tribunal took into account Direction No 56 issued pursuant to s.499 of the Migration Act 1958 (Cth) (Act) – whether the Tribunal was obliged to comply with s.424A of the Act – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 36(2A), 424A, 424A(1), 430(1)(c), 499 |
| Cases cited: AJJ15 v Minister for Immigration & Anor [2016] FCCA 482 ARS15 v Minister for Immigration & Anor [2015] FCCA 2035 AUE15 v Minister for Immigration and Border Protection [2016] FCA 331 Sino Iron Pty Ltd v Secretary for the Department of Infrastructure and Transport [2014] FCAFC 103 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 |
| Applicant: | BQL15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2235 of 2015 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 21 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Mills Oakley Lawyers |
ORDERS
The application is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2235 of 2015
| BQL15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).
The applicant is a citizen of Sri Lanka, a Tamil, and a protestant Christian. He claimed protection on the grounds that he is a Tamil, that he will be imputed with a political opinion favourable to the Liberation Tigers of Tamil Eelam (LTTE), and that he is a member of a particular social group, namely, failed asylum seekers.
It is unnecessary to say anything further about the first two of the three claims for protection because the applicant does not claim the Tribunal made any jurisdictional error by rejecting those claims. The applicant does claim the Tribunal made jurisdictional errors in rejecting the third of his claims for protection; and it will be necessary, therefore, to set out in a little detail the claims the applicant made based on his being a failed asylum seeker, and the reasons for which the Tribunal did not accept those claims.
Claims for protection based on being a failed asylum seeker
The applicant’s representative submitted to the Tribunal that country information suggests that both voluntary and forced returnees to Sri Lanka are at risk of harm. It was submitted that, on their return to Sri Lanka, many individuals are subjected to questioning and torture in an attempt to make them admit they committed certain acts.[1] It was also submitted that country information suggested that, on his return, the applicant would be brought before a court and remanded; and that, given the notoriety of Sri Lankan prisons, and the long history of persecution by Sri Lankan authorities against the Tamil minority, it is highly probable the applicant would be subjected to cruel and inhuman punishment while in remand. Further, it was submitted that, if the applicant is unable to pay the required money, he may not be released but instead be subjected to further harm.[2]
[1] CB196
[2] CB207
The applicant’s representative also referred to a report issued by the United States Department of State titled “2011 Country Reports on Human Rights Practices – Sri Lanka, 24 May 2012” which included the following passage:[3]
Prison conditions were poor and did not meet international standards due to overcrowding and the lack of sanitary facilities. In many cases prisoners reportedly slept on concrete floors and often lacked natural light or sufficient ventilation. According to prison officials and civil society sources, prisons designed for approximately 11,000 inmates held an estimated 32,000 prisoners. More than 13,000 of these prisoners either were awaiting or undergoing trial. There were approximately 1,400 female prisoners. In some case juveniles were not held separately from adults. Pretrial detainees often were not held separately from those convicted . . . .
[3] CB211-212
Tribunal’s reasons
The Tribunal accepted that “failed asylum seekers” constituted a particular social group for the purposes of the definition of “refugee” given in the Refugees Convention,[4] and that the applicant would be a member of such group.[5] The Tribunal noted there was considerable information available to the Tribunal about the treatment of those who return to Sri Lanka, including those who had been denied protection abroad. The Tribunal referred to a determination issued by the United Kingdom Upper Chamber, and in particular to the categories of persons identified in that determination who are currently at risk of persecution or serious harm if they were to return to Sri Lanka.[6]
[4] That is, the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees
[5] CB280, [47]
[6] CB280-281, [49], [50]. The determination the Tribunal referred to is GJ and others (post-civil war: returnees) Sri Lanka CG [2013] UKUT 00319
The Tribunal also referred to a report prepared by the Department of Foreign Affairs and Trade (DFAT report), noting that the report stated that it is only those returnees who are suspected of LTTE involvement or criminal activity, including people smuggling, who are at risk of harm, and that claims that returnees from Australia without such links have been targeted have not been substantiated.[7] The Tribunal set out an extract from the DFAT report that described the procedures that applied in Sri Lanka to involuntary returnees. The DFAT report said that, on arrival in Sri Lanka, involuntary returnees are processed by the Department of Immigration and Emigration, the State Intelligence Service, and Airport CID (Criminal Investigation Department); travel documents and identity information are checked against immigration, intelligence, and criminal databases; and where returnees travel on temporary travel documents police investigate the returnee’s identity.
[7] CB281, [51]
The Tribunal accepted that, on his return to Sri Lanka, the applicant would be subjected to the procedures described in the DFAT report. The Tribunal, however, was not satisfied:[8]
a)the applicant would be singled out in a discriminatory manner because of his Tamil ethnicity or for any other reason;
b)the applicant would be arrested, detained, or subjected to harm because he will be suspected of having links with the LTTE;
c)the applicant falls “within any other category of persons who might be at risk of persecutory harm on return, either at the airport or later”;[9]
d)the applicant’s being questioned at the airport, even for an extended period, could in itself reasonably be characterised as harm, or that he would be subjected to any other form of mistreatment there;
e)although the CID might visit the applicant after his return to his home area, and he might be placed under some degree of monitoring, such visiting or monitoring could reasonably be described as harm; and
f)the applicant would be subjected to any more serious forms of official attention.
[8] CB282, [54]
[9] CB282, [54]
The Tribunal said that, in reaching these conclusions, it had taken into account a report prepared by a journalist that appeared in a 2013 issue of the Sydney Morning Herald regarding the experience of returnees to Sri Lanka from Australia (SMH report). The Tribunal referred to the six persons mentioned in the SMH report. The Tribunal also referred to the “considerable media reporting” of three Sinhalese men who were reported to have been abused by the CID after they returned from Australia. The Tribunal, however, was not satisfied the cases referred to in these reports were relevant to the applicant’s situation because the applicant has never involved himself in political activity of any kind, or in people smuggling ventures of any kind.[10]
[10] CB282-283, [55]
The Tribunal also considered the fate of returnees who had left Sri Lanka in contravention of the Immigrants and Emigrants Act. The Tribunal noted the information before it indicated that persons who are believed to have departed Sri Lanka illegally are arrested at the airport and brought before a magistrates court for a bail hearing; that bail is routinely given on the accused’s own recognisance, although a family member may also be required to provide surety; and that, if the returnee arrived on a weekend or public holiday, the returnee is placed in the remand section of Negombo prison, possibly for some days.[11] The Tribunal further noted:[12]
Conditions in Negombo prison have been described in media reports as overcrowded and unsanitary, but there is no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Act, including those returned from Australia, have been subjected to torture or other forms of deliberate abuse or mistreatment.
[11] CB283, [58]
[12] CB283, [58]
The Tribunal’s conclusion about that part of the applicant’s claim resting on the treatment he is likely to face if he returns to Sri Lanka was as follows:[13]
Further, I am not satisfied, on the basis of the definition of significant harm in ss.36(2A) and 5(1) that if the Applicant were to be detained and arrested at the airport after being questioned and later remanded in custody for a relatively brief period awaiting a bail hearing, this treatment would in itself constitute significant harm. On the available information I am not satisfied that in his circumstances he would experience mistreatment which would pose a threat to his life or constitute torture. While I accept that conditions during a brief period on remand might well be cramped, uncomfortable and unsanitary I am not satisfied they would involve him suffering severe pain or suffering extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied there would be intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A).
[13] CB285, [69]
Ground 1 – failure to comply with Ministerial Direction 56
The applicant relies on five grounds of application. The first ground is as follows:
The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958.
Particulars
The RRT [sic] failed to take into account the PAM3 Protection Visas Complimentary [sic] Protection guidelines when it made a finding on whether the treatment that the applicant would face on return to Sri Lanka might constitute significant harm within the meaning of the Migration Act and in its consideration of whether that harm would be intentionally inflicted.
Before I set out the applicant’s submissions in support of this ground, it will be necessary to lay down some groundwork.
Directions under s.499 of the Act and PAM3
I begin with s.499 of the Migration Act 1958 (Cth) (Act) which relevantly provides as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
. . . .
(2)Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.
(2A)A person or body must comply with a direction under subsection (1).
(3)The Minister shall cause a copy of any direction given under subsection (1) to be laid before each House of Parliament within 15 sitting days of that House after that direction was given.
. . . .
A number of observations may be made about s.499 of the Act. First, it is concerned with the Minister giving written “directions”. In the context in which it appears, “directions” may be taken to mean “instruction[s]” on “how to proceed or act” or “order[s] to be carried out”.[14] Second, the section identifies the persons or bodies to whom the Minister may give directions. These are persons or bodies that have functions or powers under the Act. Third, s.499 identifies the range of activities of the persons or bodies that may be the subject of directions. These are the functions or powers the persons or bodies have under the Act. Fourth, s.499 provides that the directions may be about the performance of the functions or the exercise of the powers of the persons or bodies to whom the directions are issued. Fifth, directions that are validly given by the Minister under s.499 impose duties on the persons or bodies to whom the directions are addressed to do or not do that which the directions instruct them to do or not do.
[14] Oxford English Dictionary, “direct, n. 5b”
The directions that are relevant to the case before me are those contained in Direction No 56 dated 21 June 2013. It is headed “Consideration of Protection Visa applications”. Clause 1 provides that it applies to “a decision-maker performing functions or exercising powers under section 65, 414 or 415” of the Act “when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa”. Clause 2 provides:
In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’
‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’
Relevant to the case before me is the first of these two guidelines (Guidelines). The introduction to the Guidelines states that “[t]hese Guidelines are designed to provide advice and assistance to Department of Immigration and Citizenship (DIAC) decision makers on the law relevant to the assessment of whether Australia owes protection obligations to applicants under the complementary protection provisions of the” Act. The introduction further states “[t]hese provisions allow consideration of Australia’s non-refoulement obligations under the” International Covenant on Civil and Political Rights (ICCPR), the Second Optional Protocol to the International Covenant on Civil and Political Rights (Second Optional Protocol), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The Guidelines are divided into sections. One is headed “What is complementary protection”. That section identifies Australia’s non-refoulement obligations under Article 3 of the CAT, Articles 6 and 7 of the ICCPR, and Article 33 of the Refugees Convention, and the background to and statutory framework of the complementary protection provisions of the Act. It also identifies the questions a decision maker should ask when assessing a claim under the complementary protection provisions, noting that, when assessing such claims, decision makers “will be considering a number of issues, which are explained in greater detail in the subsequent parts of these Guidelines”.[15] One of the questions identified is whether “the feared harm” would constitute “significant harm (s36(2A) of the Act)”.[16] After identifying the questions a decision maker should ask, the Guidelines state:[17]
These Guidelines provide assistance on how to consider these issues. There is no legal requirement to consider these issues in any particular order, and there is no need to consider all of the issues once it becomes apparent that the applicant has not met a necessary criterion (for example, if the decision maker finds that the claimed harm does not amount to ‘significant harm’).
[15] Guidelines, [7]
[16] Guidelines, [7]
[17] Guidelines, [7]
Another section of the Guidelines is headed “Significant harm”. It notes that “significant harm” is defined in s.5(1) of the Act to mean harm of a kind mentioned in s.36(2A) of the Act, and it then sets out what s.36(2A) defines as “significant harm”. The Guidelines further state:[18]
The terms ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are defined in s5(1) of the Act. The definitions derive from, and require decision makers to turn their minds to, international jurisprudence.
The definitions have been provided to assist decision makers to determine whether a particular type of claimed harm amounts to significant harm. They are also intended to confine significant harm to acts which could engage a non-refoulement obligation.
[18] Guidelines, [14]
The Guidelines consider each of these terms and the definitions given to them by the Act. Particularly relevant to the applicant’s case is the discussion of “lawful sanctions that are not inconsistent with Article 7 of the” ICCPR,[19] which forms part of the definition of “degrading treatment of punishment” given in s.5(1) of the Act. In that discussion, the Guidelines consider “Imprisonment/Prison conditions” where the following is noted:[20]
Detention is not of itself a breach of Article 7, although particularly harsh conditions of detention may constitute a violation of Article 7. Prison conditions may constitute cruel, inhuman or degrading treatment or punishment if they seriously or systematically deprive a detainee of human dignity.
[19] Article 7 provides: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”.
[20] Guidelines, [29]
After noting that a minimum level of severity is necessary to breach Article 7, and that the assessment of this minimum depends “on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim”, the Guidelines give examples. One of these is “extremely cramped or unsanitary conditions”. A footnote directs attention to the determination of the Human Rights Committee in Portorreal v Dominican Republic.[21]
[21] Comm No 188/1984, UN Doc CCPR/C/OP/2 (5 November 1987) at [11]. The Human Rights Committee is established by Part IV of the ICCPR as that treaty’s monitoring body.
In that case the complainant was arrested and ultimately transferred into a cell measuring 20 metres by 5 metres where approximately 125 persons accused of common crimes were being held and where, owing to lack of space, some detainees had to sit on excrement. The complainant received no food or water until the day after he was placed in the cell, and he was released after 50 hours of detention. The complainant was not informed of the reasons for his arrest. The Human Rights Committee concluded, among other things, that, on these facts, Articles 7 and 10(1) of ICCPR were violated because the complainant “was subjected to inhuman and degrading treatment and to lack of respect for his inherent human dignity during his detention”.[22]
[22] Counsel for the applicant provided a copy of the decision which appears to have been obtained from the University of Minnesota Human Rights Library. The quotation is from paragraph 11 of the copy I have been provided.
Nature of duty created by Direction 56
Direction 56 directs, – that is, it imposes a duty - on the persons or bodies to whom it is addressed to “take into account” two sets of guidelines, one of which is the Guidelines, “to the extent that they are relevant to the decision under consideration”. Two questions arise. What is the nature of the duty imposed by the expression “is to take into account” the Guidelines? And how, in any given case, is it to be decided whether the Tribunal or any other decision maker has failed to comply with that duty?
The first question has not been considered in any detail in the cases. Counsel for the applicant relies on the following passage from the reasons for judgment of Perry J in Sino Iron Pty Ltd v Secretary for the Department of Infrastructure and Transport:[23]
In requiring that the Secretary “take into account” the matters identified in s 14(2), the Secretary must give weight to them “as a fundamental element in making his determination”: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329 (Mason J (Gibbs J agreeing at 324)). In other words, when required to consider material, the process of consideration must involve “‘an active intellectual process’ directed at the nominated subject-matter”: Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 182 (Rares J, citing Black CJ in Tickner v Chapman (1995) 57 FCR 451) (approved in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] (the Court)).
[23] [2014] FCAFC 103
Counsel for the applicant also relied on the judgment of the Full Federal Court in Lafu v Minister for Immigration and Citizenship which included the following passage:[24]
The Minister accepted that jurisdictional error would be established if the AAT did not genuinely take into account the question of general deterrence as required by Direction 21: see the primary Judge’s decision at [21]; and the discussion by Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 181–182 [105]-[107], and by the Full Court in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267].
[24] [2009] FCAFC 140 at [47]
Both Perry J in Sino Iron and the Full Federal Court in Lafu referred with approval to a section of the reasons for judgment of Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission that included the following:[25]
A decision-maker must give proper, genuine and realistic consideration to the merits of the case. . . . In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration “… involves an active intellectual process” directed at the nominated subject-matter . . . .
[25] [2008] FCA 1758 at [106]
Like all words used in a statute or legislative instrument, the meaning of “take into account” as used in Direction 56 must be considered in the context in which that expression appears. As the Guidelines themselves state, their purpose is to advise “decision makers on the law relevant to the assessment of whether Australia owes protection obligations to applicants under the complementary protection provisions of the” Act. The matters, therefore, that the decision maker is required to take into account are not matters of fact but statements, or, more accurately, opinions about the law that are relevant to determining whether a person meets the criteria for protection under the complementary protection provisions of the Act, and how those rules should or may be applied in any given case.
This distinguishes the obligations imposed by Direction 56 on decision makers to take into account the Guidelines from obligations imposed by statutory or regulatory provisions, such as those considered, for example, by the High Court in R v Hunt; Ex parte Sean Investments Pty Ltd,[26] by Rares J and the Full Federal Court in Telstra Corporation,[27] by the Full Federal Court in Lafu and, by Perry J in Sino Iron. In those cases the relevant provision required the decision maker to take into account or have regard to matters of fact. These provisions have been interpreted as requiring the decision maker to give weight to each matter “as a fundamental element in making his determination”.[28] That, however, does not accurately describe the nature of the obligation imposed by Direction 56 on decision-makers to take into account what amount to opinions about the law to be applied to the assessment of claims for complementary protection; and that is so for two reasons.
[26] (1979) 180 CLR 322
[27] Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153 at 182 (Rares J); Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267] (the Court))
[28] R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 at 329
First, the operation of any given rule of law depends on the existence or non-existence of a set of one or more facts. The set of facts that must exist or not exist for a rule of law to apply depends on the particular rule or rules of law that is or are relevant to the decision at hand. It may make little sense, therefore, to say that the obligation imposed by Direction 56 on decision makers to take into account the Guidelines requires the decision maker to give weight to the opinions of law stated in the Guidelines as a fundamental element in the making of a decision, because whether or not the rule can be said to form a fundamental element of the decision depends on whether or not the necessary facts for the operation of the rule are found by the Tribunal to exist or not exist. This may suggest that, at most, the obligation to take into account the Guidelines imports an obligation on the decision maker to consider whether the facts that are before him or her engage the legal rules identified and explained by the Guidelines and, if so, consider whether and, if so, to what extent, the opinions there stated represent the principles of law it should apply.
Second, even if it is sensible to say that a decision based on an opinion of law as explained in the Guidelines amounts to a decision of which the opinion of law is a fundamental element, it would not be open to say that the duty of a decision maker is to apply as a fundamental element the opinion of law expressed in the Guidelines. That is so because the duty of the decision maker is to apply the law, and what is stated in the Guidelines is no more than opinions about the law. Stated another way, to the extent the decision-maker is under a duty to have regard to a principle of law as a fundamental element in the making of his or her decision, it is a duty to have regard to the law, and not to the opinions of the law expressed in the Guidelines.
In my opinion, therefore, the duty of a decision maker to take into account the Guidelines is not a duty to have regard to any one or more of the matters contained in the Guidelines as a fundamental element in the making of the decision. It is a duty to acquaint himself or herself with the Guidelines for the purpose of the decision maker informing himself or herself of the law the decision maker should apply when considering a claim for complementary protection, and the steps the decision maker may take to determine such claims according to the relevant legal principles, and determining which of the opinions are relevant to the decision the decision maker is required to make.
The next matter to note is that Direction 56 directs decision makers to have regard to the Guidelines “to the extent that they are relevant to the decision under consideration”. Counsel for the Minister has referred me to the following passage from the judgment of Perram J in SZTMD v Minister for Immigration and Border Protection.[29]
. . . it was for the Tribunal to form an opinion as to what was relevant under cll 2 and 3 and what was not. The usual way of reading provisions such as these clauses is that they are construed as requiring the formation by the decision-maker of an opinion on the standard (here, relevance) imposed; that is to say, they are not generally construed as requiring the existence of a jurisdictional fact: see, for example, Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468 (FC). Consequently, there is no occasion to consider whether this Court is of the opinion that there were relevant parts of the guidelines or country information. It is the Tribunal’s views on relevance which matter, not those of this Court. . . .
[29] [2015] FCA 150 at [20]
Two observations may be made about this passage from his Honour’s judgment. First, the passage should be read having regard to the nature of the Guidelines. As I have already said, the Guidelines express opinions about the law that should be applied in the context of claims for complementary protection. It is for the decision maker to determine which opinion or opinions in the Guidelines is or are relevant to identifying the law that applies to a claim for complementary protection; but obviously it is not for the decision maker to determine what is the relevant law that is to be applied to the determination of such claim. Second, the Tribunal is not free to ignore the Guidelines. At the very least it must consider the Guidelines for the purpose of determining whether it considers the Guidelines contain opinions of law relevant to the review before it and, if so, whether the Guidelines correctly represent the law.
Determining whether decision maker complied with Direction 56
Given the nature of the Guidelines – opinions about the law that apply or may apply to claims for complementary protection and how the law may be applied in particular circumstances – it is reasonable to suppose it would be rare to find the Tribunal has not taken into account the Guidelines or, if it has not done so, the Tribunal has committed a jurisdictional error for that reason. If it is apparent from the Tribunal’s reasons that it asked the questions the law required it to ask and apply when considering a complementary protection claim, the inference will readily be available that the Tribunal took into account the Guidelines, assuming the Guidelines accurately state the law. Even if that inference is not available to be drawn it may be difficult to conclude that the Tribunal’s not taking into account the Guidelines will result in any jurisdictional error if the Tribunal otherwise asked the questions the law requires it to ask, and has applied the correct law in relation to the claim for complementary protection that was before it. On the other hand, if it is apparent the Tribunal failed to ask the questions it was under the relevant legal rules required to ask, a jurisdictional error will be found, not, however, because the Tribunal failed to take into account the Guidelines, but because the Tribunal did not determine the claim according to law.
What do the authorities say about how a court is to determine whether the Tribunal (or any other decision maker) took into account Direction 56? Before I answer that question, it would be useful to refer to the observations made by the plurality and by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Yusuf[30] about the circumstances in which a court may be entitled to infer from a Tribunal’s reasons for decision that the Tribunal failed to consider a matter.
[30] [2001] HCA 30; 206 CLR 323
In Yusuf the Full Federal Court held that s.430(1)(c) of the Act requires the Tribunal to record in a 430 statement the objectively ascertainable material questions of fact that were before the Tribunal, and to the extent the Tribunal fails to do so, it commits a jurisdictional error. The majority of the High Court, however, held that s.430(1)(c) of the Act only requires the Tribunal to record what the Tribunal actually considered were the material questions of fact. Notwithstanding that conclusion, however, the majority recognised that the reasons the Tribunal does in fact give for its decision is relevant to determining whether the Tribunal made any jurisdictional error, including a jurisdictional error based on its not having considered matters it ought to have considered.
The plurality said:[31]
It is not necessary to read s 430 as implying an obligation to make findings in order for it to have sensible work to do. Understanding s 430 as obliging the Tribunal to set out what were its findings on the questions of fact it considered material gives the section important work to do in connection with judicial review of decisions of the Tribunal. It ensures that a person who is dissatisfied with the result at which the Tribunal has arrived can identify with certainty what reasons the Tribunal had for reaching its conclusion and what facts it considered material to that conclusion. Similarly, a court which is asked to review the decision is able to identify the Tribunal's reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error. The Tribunal's identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration.
[31] [2001] HCA 30; 206 CLR 323 at [69] (emphasis in original)
And Gleeson CJ said:[32]
By setting out its findings, and thereby exposing its views on materiality, the Tribunal may disclose a failure to exercise jurisdiction, or error of a kind falling within a ground in s 476(1) other than s 476(1)(a), or may provide some other ground for judicial review. There may be cases where it is proper to conclude that the Tribunal has not set out all its findings. The consequences that might follow are not presently in issue.
[32] [2001] HCA 30; 206 CLR 323 at [10]
Thus, in principle, if there is a basis in the Tribunal’s reasons for inferring the Tribunal did not take into account the Guidelines, it is open to the Court to infer from those reasons that the Tribunal did not take into account the Guidelines.
I now turn to cases that have considered whether the Tribunal took into account the Guidelines. First there is the decision of Rares J in AUE15 v Minister for Immigration and Border Protection.[33] In that case it was submitted the Tribunal did not take into account the Guidelines because it did not refer to them in that part of its reasons in which it dealt with the visa-applicant’s return to Sri Lanka.[34] Rares J rejected the submission:[35]
The introduction to the PAM3 guidelines stated that they were designed to provide advice and assistance to decision-makers on the law relevant to the assessment of whether Australia owed protection obligations to applicants under the complementary protection provisions of the Act. In my opinion, it is plain beyond argument that the Tribunal did have regard to matters in the PAM3 guidelines that it found were relevant to the issues under s 36(2A)(e) in considering the appellant’s situation were he to return to Sri Lanka as an illegal departee. I accept that the Tribunal did not mention the PAM3 guidelines expressly in the section of its reasons dealing with the illegal departee issue, or make any reference to, for example, the matters discussed in par 29 of those guidelines, as examples of prison conditions, that could constitute, depending on the circumstances, breaches of Art 7 of the Covenant. However, the Tribunal expressly had regard to the factors relevant to that subject that were in the country information and submissions of the appellant, namely, whether extremely cramped or unsanitary conditions in the circumstances would amount to significant harm for the purposes of s 36(2A)(e). The Tribunal also had regard to the fact that the statutory definition of “degrading treatment or punishment” had two elements, namely, whether the relevant matter complained of caused extreme humiliation that was unreasonable and also was intended to cause that outcome.
[33] [2016] FCA 331
[34] [2016] FCA 331 at [31]
[35] [2016] FCA 331 at [34]
Rares J considered it was significant the visa applicant was unable to point to any matter raised in any part of the Guidelines that the Tribunal, despite not mentioning them expressly, had not considered in arriving at its decision; and that the Tribunal had stated it had regard to the Guidelines “at a number of points in its decision and its reasoning process identified considerations that those guidelines expressly raised in considering the [visa applicant’s] position were he to be returned as an illegal departee”.[36]
[36] [2016] FCA 331 at [36]
Next there is the decision of Perram J in SZTMD. The Tribunal in that case referred to the Guidelines “by an incorporating reference” which stated that a “summary of the relevant law is set out at Attachment A”.[37] The attachment contained a statement identical to that contained in the reasons of the Tribunal in the case before me (which I set out below). The Tribunal otherwise did not go beyond this.[38] It did not explain whether it dealt with the Guidelines, nor did it explain whether it regarded some parts or all of the Guidelines to be irrelevant to the task it was required to perform.[39] As Perram J noted, it was “this silence by the Tribunal which formed the platform” for the visa applicant’s submission that the Tribunal did not take into account the Guidelines.[40] Perram J was not prepared to infer from the Tribunal’s silence that the Tribunal did not consider the Guidelines. That is so because the inference that was available to be drawn from the Tribunal’s silence was that the Tribunal did not consider the Guidelines to be relevant; and his Honour concluded the “Tribunal did address itself to the issue of the relevance of the material and decided that it was irrelevant”.[41]
[37] [2015] FCA 150 at [10]
[38] [2015] FCA 150 at [11]
[39] [2015] FCA 150 at [11]
[40] [2015] FCA 150 at [12]
[41] [2015] FCA 150 at [19]
From the Federal Court I turn to two judgments of this Court. One is the judgment of Judge Driver in SZUQZ v Minister for Immigration & Anor.[42] His Honour there found the Tribunal failed to consider the potential relevance of the Guidelines, which, if relevant, it was mandatory for the Tribunal to take into account, and thus overlooked a relevant consideration.[43] His Honour so concluded, even though the Tribunal referred to the Guidelines in an attachment to its reasons for decision. What appears to have proved significant for his Honour was the Tribunal’s not referring to the Guidelines when concluding the applicant would not suffer significant harm in circumstances where the Tribunal’s findings of fact rendered the Guidelines at least potentially relevant.[44]
[42] [2015] FCCA 1552
[43] [2015] FCCA 1552 at [54]
[44] [2015] FCCA 1552 at [54]
Finally, there is the judgment of Judge Smith in AJJ15 v Minister for Immigration & Anor. [45] In that case the Tribunal referred to Direction 56 but otherwise did not expressly engage with the matters covered by the Guidelines. His Honour was not prepared to conclude the Tribunal did not consider the relevant section of the Guidelines because that section was “so vague as to be almost meaningless”, and that the Tribunal’s not drawing the relevant inference could have been the result of a number of things.[46]
[45] [2016] FCCA 482
[46] [2016] FCCA 482 at [49]
Parties’ submissions
The starting point of the applicant’s submissions is that the Tribunal accepted that, if returned to Sri Lanka, the applicant may be held on remand for a short period, and that conditions in prisons in Sri Lanka were difficult and poor.[47] Notwithstanding its acceptance of these matters, the Tribunal did not refer to the extensive discussion of prison conditions in the Guidelines, and the Tribunal “made no attempt to grapple with the issues of how the prison conditions of Negombo prison were distinguishable from those found by the Human Rights Committee to amount to degrading treatment or punishment”.[48] The applicant submits that the Tribunal therefore failed to take into account that the decisions of the Human Rights Committee are relevant to the meaning of the terms defined in s.36(2A) and s.5(1) of the Act.
[47] Applicant’s Submissions, [16]-[17]
[48] Applicant’s Submissions, [18]
The applicant also submitted that:
a)when concluding the applicant would not suffer significant harm within the meaning of s.36(2A) of the Act,[49] the Tribunal did not refer to the Guidelines;[50]
b)the Tribunal’s acknowledging the existence of the Guidelines does not necessarily mean it took into account the Guidelines, as they might apply to the circumstances before it;[51] and
c)the Tribunal’s obligation to take into account the Guidelines was triggered once the Tribunal became aware of matters that might engage complementary protection obligations.[52]
[49] CB285, [69]
[50] Applicant’s Submissions, [21] relying on ARS15 v Minister for Immigration & Anor [2015] FCCA 2035 and SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552
[51] Applicant’s Submissions, [22]
[52] Applicant’s Submissions, [24]
In oral address, counsel for the applicant drew my attention to a newspaper article that concerned prison conditions in Negombo prison to which the Tribunal referred in a footnote.[53] The article, which was admitted into evidence,[54] reported on a group of 50 Sri Lankan nationals who, on their return to Sri Lanka, were taken to Negombo prison. It was reported the 50 persons were put in with murderers and drug addicts, they slept on the floor in line with their bodies pressed up against each other, and they were released after four days. Another asylum seeker was placed in a cell where persons took turns sleeping because there was no space. It was further reported that some people spend up to a fortnight in gaol while others are released within days. Counsel submitted the Tribunal did not refer to this article when concluding the applicant would not suffer significant harm. Counsel further submitted that, had the Tribunal taken into account the Guidelines, and in particular, that part of the Guidelines that dealt with unsanitary conditions:[55]
it would have seen that there is international jurisprudence about extremely cramped and unsanitary conditions, which is given to it in the footnote references and it could have found that 50 hours of detention was sufficient, but there’s no indication of that having occurred by the tribunal.
[53] CB283, [58], fn.11
[54] Exhibit A
[55] T19.45
The Minister, on the other hand, submits the real question is not whether the Tribunal took into account the Guidelines, but whether it took into account the Guidelines to the extent it considered them to be relevant.[56] The Minister also submits the Tribunal did take into account the Guidelines to the extent it considered them relevant.[57] The Minister relies on the Tribunal having referred to the legal requirement that it comply with Direction 56 and the Guidelines where relevant,[58] to the Guidelines directing decision makers to consider the nature of, rather than simply the fact of, the detention, and to the Tribunal’s referring to the nature and conditions of the detention.[59]
[56] Submissions of the First Respondent, [19]
[57] Submissions of the First Respondent, [21]
[58] Submissions of the First Respondent, [21(a)]
[59] Submissions of the First Respondent, [21(c)]
Did the Tribunal take into account the Guidelines?
I do not accept the Minister’s characterisation of the issue that is raised by ground 1, namely, whether the Tribunal took into account the Guidelines to the extent it considered them to be relevant. The question is whether the Tribunal took into account the Guidelines with a view to determining whether any of the opinions contained in the Guidelines were relevant to its determination of the applicant’s claims for complementary protection.
In answering that question, it is necessary to compare the Guidelines with what the Tribunal did. As I have already noted, the Guidelines set out the relevant provisions of the Act relating to complementary protection, and considered each of the terms and the definitions given to them by the Act, including the expression “lawful sanctions not inconsistent with Article 7 of the” ICCPR, which forms part of the definition of “degrading treatment or punishment” in s.5(1) of the Act, and the circumstances in which detention may constitute a violation of Article 7 of the ICCPR. As I have already noted, it is in that context that the Guidelines refer to its having been held that being detained in “extremely cramped or unsanitary conditions” may constitute a violation of Article 7.
The Tribunal acknowledged that the applicant’s claims required the Tribunal to consider not only whether the applicant satisfied the criterion specified in s.36(2)(a) of the Act, but also, if the applicant did not satisfy that criterion, whether the applicant satisfied the criterion specified by s.36(2)(aa) of the Act, which the Tribunal identified as “the complementary protection criterion”.[60] The Tribunal then referred to Direction 56, noting that it is required to take into account, among other things, the Guidelines. After assessing and determining adversely to the applicant the applicant’s claims based on s.36(2)(a) of the Act, the Tribunal considered whether the applicant satisfied s.36(2)(aa) of the Act. The Tribunal referred to “significant harm, as provided in s.36(2A) and further defined in s.5(1) of the Act”;[61] and it then considered whether any one or more of the imposition on the applicant of a fine, or the applicant’s being arrested, detained, and questioned at the airport, or the applicant’s being remanded in custody for a relatively brief period awaiting a bail hearing, constituted significant harm.[62] The Tribunal particularly considered whether the “cramped, uncomfortable and unsanitary” conditions the applicant might experience while being briefly remanded would involve the applicant “suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment”.[63]
[60] CB265, [7]
[61] CB285, [67]
[62] CB285, [68]-[69]
[63] CB285, [69]
In my opinion, from what the Tribunal did it is apparent, and I find, that it took into account the Guidelines, and identified and applied, or at least purported to identify and apply, to the circumstances of the applicant’s case those principles or standards stated in the Guidelines the Tribunal considered were relevant. In particular, the Tribunal took into account, or at least purported to take into account, that part of the Guidelines that dealt with the circumstances in which detention may constitute a violation of Article 7 of the ICCPR.
An underlying assumption of the applicant’s case is that, on the evidence that was before the Tribunal, the conditions in which the applicant is likely to be detained on his return to Sri Lanka meritted the characterisation of “extremely cramped or unsanitary”. As I have already noted, counsel for the applicant submitted that the Tribunal failed to have regard to international jurisprudence concerning “extremely cramped and unsanitary” conditions of detention, and it is on the basis of the Tribunal’s not considering that international jurisprudence that the applicant submits the Tribunal failed to consider the Guidelines.
The assumption on which the applicant relies, however, is unwarranted. The severity of the conditions of detention the applicant is likely to encounter on his return to Sri Lanka was a matter for the Tribunal to assess. Although the Tribunal found that the conditions in which the applicant is likely to be detained on his return to Sri Lanka will be “cramped, uncomfortable and unsanitary”, the Tribunal did not find that those conditions would be “extremely cramped or unsanitary”. In those circumstances, it is not open to infer from the Tribunal’s not referring to international jurisprudence concerning “extremely cramped and unsanitary” conditions that the Tribunal did not take into account the Guidelines.
The Guidelines referred to “extremely cramped or unsanitary conditions” as one of a number of examples of what has been held to constitute a violation of Article 7 of the ICCPR. The Guidelines prefaced those examples with the observation that “particularly harsh conditions of detention may constitute a violation of Article 7” if a minimum level of severity is present, and whether such minimum level of severity is present depends “on all the circumstances of the case”. On a fair reading of the Tribunal’s reasons for decision, the question the Tribunal considered was whether, in all the circumstances of the case, the conditions under which the Tribunal found the applicant would be detained on his return to Sri Lanka would amount to the applicant “suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment”.
For these reasons, ground 1 fails.
Ground 2 – failure to take into account relevant matter
The second ground is as follows:
The Tribunal failed to take into account a relevant consideration
Particulars
The applicant repeats the particulars to ground 1
This ground overlaps with ground 1 and, to the extent it does, ground 2 fails for the reasons I have held ground 1 fails. The applicant, however, relies on ground 2 for a reason that does not overlap with ground 1. That reason relates to the following passage from the Guidelines:[64]
To meet the definition of torture, an act or omission must be intended to inflict severe pain or suffering. An act or omission which is not intended to cause pain or suffering but inadvertently did so, would not fall within the definition. In certain circumstances, it may be appropriate to infer an intention to inflict severe pain or suffering if it is evident that such pain or suffering was or may be knowingly inflicted.
[64] Applicant’s Submissions, [26]
The applicant submits this statement is or may be inconsistent with the Full Federal Court’s decision in SZTAL v Minister for Immigration and Border Protection.[65] The applicant accepts, however, that ground 2, to the extent it relies on this passage from the Guidelines is bound to fail in the face of the Full Federal Court’s decision of SZTAL. The applicant, however, formally submits that the Full Federal Court’s decision in SZTAL is wrong.
[65] [2016] FCAFC 69
Ground 3 – s.424A of the Act
Ground 3 is as follows:
The Tribunal failed to comply with s 424A of the Migration Act
Particulars
In assessing the applicant’s claims to be a member of a particular social group of failed asylum seekers the Tribunal took into account information concerning 6 returnees from Australia who had been harassed following their release from the airport and their return to their homes in Batticaloa. Further information was that they were campaign workers from the Tamil National Alliance and they had been threatened by paramilitary groups allied to the government. It also took into account information that 3 Sinhalese men who had returned to Sri Lanka from Australia were reportedly abused by the CID. The Tribunal noted that two of the sinhalese [sic] me[n] had been accused of involvement in people smuggling. The Tribunal affirmed the decision under review on the basis of the chain of reasoning of which this information formed a part. No written invitation was provided to the applicant by the Tribunal to respond to this information.
This ground arises out of the Tribunal’s stating it had taken into account information which it identified in its reasons for concluding that on his return to Sri Lanka the applicant did not fall within any identified category of persons who might be at risk of persecutory harm. The information was contained in a newspaper report about what occurred to two separate sets of Sri Lankan nationals when they returned to Sri Lanka. One set consisted of six persons who had claimed they were workers for the Tamil National Alliance (TNA) who, together with other TNA activists were threatened by paramilitary groups allied to the government. The second set consisted of six Sinhalese men who were reportedly abused by the CID after their return from Australia. Two of the three were brothers who had been charged with people smuggling. In relation to the reports about these two sets of persons, the Tribunal said:[66]
Having considered these cases I am not satisfied they have any relevance to the situation of the Applicant, who has never involved himself in political activity of any kind, and has never been involved in people smuggling ventures.
[66] CB283, [55]
In his written submissions, counsel for the applicant submitted that, although the Tribunal considered the information concerning the persons as irrelevant, the information was relevant because “the Tribunal has reasoned that the circumstances of these 9 individuals were comprehensive as to the class of persons who were at risk of harm as failed asylum seekers returning to Sri Lanka from Australia”.[67] Counsel further submits that the information was of an “evidential nature”.[68]
[67] Applicant’s Submissions, [33]
[68] Applicant’s Submissions, [34]
When it applies s.424A of the Act requires the Tribunal to do two things. The first is to give particulars of “information”. The “information” of which the Tribunal must give particulars is “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review”. The second thing s.424A(1) requires the Tribunal to do is to ensure, as far as is reasonably practicable, that the applicant understands why the “information” is relevant to the review, and the consequence of its being relied on in affirming the decision that is under review. Subsection 424A(1) does not expressly state when the Tribunal comes under the obligation to do the two things it requires the Tribunal to do; but it is implicit that the duty arises as soon as the Tribunal considers there is “information” that “would be the reason, or a part of the reason, for affirming the decision under review”.
The applicant does not articulate how the information concerning the nine men could conceivably have been information the Tribunal considered would be the reason or a part of the reason for affirming the decision under review. That is not surprising, because it is difficult to conceive how the information could have been so considered by the Tribunal. The only circumstance in which the information concerning the nine individuals could conceivably have been relevant to any claim for protection the applicant had made is if the applicant had claimed, or there was material before the Tribunal that could reasonably have given rise to the claim, that the applicant was a member of a particular social group that was characterised by participation in political activity or people smuggling. The applicant, however, made no such claim, and the applicant does not submit that such claim reasonably arose from the material that was before the Tribunal. Even if, however, the applicant had made such claim, the information would have supported the applicant’s claim because it would have supported the existence of such particular social groups. In other words, the information “did not contain in [its] terms a rejection, denial or undermining of the” applicant’s claims to be a person to whom Australia owed protection obligations; instead, the information would “have been a relevant step towards rejecting, not affirming, the decision under review”.[69]
[69] SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17]
Ground 3, therefore, fails.
Grounds 4 and 5
These grounds are premised on the Full Federal Court’s having incorrectly decided SZTAL v Minister for Immigration and Border Protection.[70] I need only record that the applicant formally submits that the Full Federal Court’s decision in SZTAL is incorrect.
[70] [2016] FCAFC 69
Disposition
I propose to order that the application be dismissed.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 18 August 2017
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