BSB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2021] FCCA 1830

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSB16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1830

File number(s):

SYG 1754 of 2016

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

11 August 2021

Catchwords:

MIGRATION – Immigration Assessment Authority – Temporary Protection (Subclass 785) visa – whether The Authority misconstrued or misapplied the words "intentionally inflicted" and "intended to cause" in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" in s 5(1) of the Migration Act 1958 (Cth) in assessing the Applicant's detention – whether the Authority committed jurisdictional error by erroneously rejecting claims in entirety without proper consideration – whether the Authority denied the Applicant procedural fairness in its consideration of the claims – whether the Authority fell into jurisdictional error in assessing the Applicant's detention and denied the Applicant procedural fairness – whether jurisdictional error is made out – no jurisdictional error is made out – the application is dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5, 36, 473, Part 7AA,

Immigrants and Emigrants Act 1948

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Number of paragraphs:

38

Date of last submission/s:

4 August 2021

Date of hearing:

4 August 2021

Place:

Parramatta

Solicitor for the Applicant:

The Applicant appeared in person.

Solicitor for the Applicant:

Ms Francois appeared on behalf of the First Respondent.

ORDERS

SYG 1754 of 2016

BETWEEN:

BSB16

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MUTLICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	11 AUGUST 2021

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.

2.The application is dismissed.

3.The Applicant to pay the First Respondent’s costs fixed in the amount of $9,000.00.

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a male citizen of Sri Lanka. The applicant is of Tamil ethnicity and Hindu faith. The applicant arrived in Australia as an unauthorised maritime arrival in September 2012. On 23 October 2015, the applicant lodged an application for a Temporary Protection (Subclass 785) visa. On 16 December 2015, a delegate of the Minister for Immigration (“the delegate”), refused to grant the applicant a Protection visa.

2. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 9 June 2016, the Authority affirmed the delegate’s decision not to grant the applicant his visa.

3. The applicant now seeks judicial review of the Authority’s decision.

   THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

4. The Authority decision is detailed and comprehensive, running to some 21 typed pages and consisting of 99 paragraphs.

5. The applicant’s claims are set out at paragraph 8 of the Authority decision and are as follows in summary:

   ŸThe applicant is a Hindu Tamil from an area close to Batticaloa in the Eastern province of Sri Lanka.

   ŸDuring the civil war, the Liberation Tigers of Tamil Eelam “LTTE” controlled the village where the applicant’s family lived. The applicant’s father assisted the LTTE by transporting food and other materials for them. Two of the applicant’s maternal uncles were LTTE members were killed before the applicant was born.

   ŸIn 2007, the family was displaced due to the fighting. They moved to an IDP camp. While at the camp they were questioned about LTTE links. They returned to their home village in about 2008.

   ŸIn August 2012, the applicant was approached by some members of the Karuna group who demanded they join his group and stay with them. The applicant was asked to transport people and election campaign equipment. The applicant refused to assist. The Karuna group members left the applicant with the threat that he would be punished.

   ŸAbout 10 days after the incident, some Karuna group members went to the applicant’s home but he was not there. They beat the applicant’s parents. They threatened to abduct the applicant’s baby sister and kill her if he did not join the group. The applicant’s mother rang the applicant and he came home. The men showed at the applicant’s mother a photograph of a group of LTTE members in uniform. One of the men was the applicant’s uncle who was shot in 1990 whilst a member of the LTTE. The men again demanded the applicant assist them in their campaign. Fearing for his younger sister’s safety, the applicant agreed. The applicant assisted the group for 5 days.

   ŸAbout 4 September 2012, the applicant was at home when his mother noticed a white van outside the family home. The applicant went outside to investigate and was bundled into the van by men whose faces were covered with scars. The applicant was taken to an unknown place, locked in a room. The men threatened to shoot him. The applicant believed that his abductors were members of the Pillayan group, a faction that split from the Karuna group and were in opposition to it. The men told him he belonged to an LTTE the family.

   ŸThe applicant was detained for one night. The next day the applicant was interrogated again and they beating with metal rods. The applicant managed to escape. When he returned home, it was decided it was not safe for the applicant to remain in Sri Lanka and his father and a friend arranged for him to depart Sri Lanka on a boat. The applicant travelled without his passport, which was left at home.

   ŸSoon after the applicant’s arrival at Christmas Island, he rang his family and was told that some people have come to the house looking for him. The applicant’s parents stated they believed the men belonged to the authorities. They told the men the applicant had gone abroad. At the end of 2013, the applicant’s parents told him that they were visited by authorities to search the house. They found the applicant’s passport and a national identity card, which they took.

   ŸThe applicant fears to be arrested and detained by authorities on return to Sri Lanka because of his family’s links with the LTTE, his Tamil ethnicity and because he departed unlawfully. The applicant also fears he will be harmed by the Karuna group for failing to assist them. The applicant also fears the members of the group that abducted him for helping the Karuna group. The applicant says he cannot relocate to another part of Sri Lanka because he fears the authorities.

6. In paragraphs 10 through to 13 of its decision, the Authority was prepared to consider it plausible that the applicant’s uncles were members of the Liberation Tigers of Tamil Eelam (“LTTE”). The Authority considered that it plausible that the applicant’s father may have provided assistance to LTTE members when asked, but was not an LTTE member.

7. Paragraphs 14 to 22 of the Authority decision, deal with the claim of the approach by the Karuna group. At paragraph 17 of its decision, the Authority noted that during the Safe Haven Enterprise Visa (“SHEV”) interview, the applicant claimed that he put up posters for the Karuna group in September 2012. When asked if it was a local election, the applicant said maybe it was the general election. The delegate stated that there was no general election in Sri Lanka in 2012. The applicant then said the election was on 8 September 2012, but he was not sure what it was for, because he is not really interested in government elections or anything.

8. The applicant was asked to give more detail about what the people he drove around in his rickshaw for a number of days, were campaigning about. The applicant was unable to provide significant detail. At paragraph 21 of its decision, the Authority was prepared to accept that the applicant was not politically sophisticated and that a political campaign for provincial elections took place in August 2012. However, the Authority considered it implausible, even with the passage of time, that the applicant would not know what party the Karuna group men were campaigning for, if he drove around for a number of days and claimed to have been putting up posters to do with the campaign. At paragraph 22 of its decision, after considering the evidence, the Authority did not accept that the applicant was approached by the Karuna group or that he assisted them in the manner that he claimed.

9. Paragraphs 23 to 29 of the Authority decision deal with the applicant’s claims of abduction and detention. At the end of the SHEV interview, the applicant’s representative stated that the applicant simply did not know who took him and “he has been making guesses”.

10. At paragraph 28 of its decision, the Authority concluded that inconsistencies in the applicant’s evidence caused it to doubt the credibility of the applicant’s claims of being abducted by men in a white van. The Authority noted that there was considerable evidence of “white van” abductions and subsequent disappearances during the conflict. This was over a long period of time. Given the history of white van abductions in Sri Lanka, the Authority found it implausible that the applicant’s mother would encourage him to go outside and investigate who was in the van, which had stopped outside the house. Further, the Authority found it implausible that the applicant was able to escape unnoticed by simply opening an unlocked door and leaving, while the men were distracted.

11. In the applicant’s SHEV statement, the applicant gave details of men coming to his home looking for him, soon after it departed Sri Lanka. This was not referred to in the statement made in 2013. At paragraph 35 of its decision, the Authority noted that the applicant’s evidence regarding the 2012 visit was contradictory and incoherent. As the Authority did not accept that the applicant was kidnapped, it did not accept that his kidnappers passed a photograph to authorities for investigation. The Authority did not accept that the applicant’s home was visited on two occasions, searched, and that his passport and identity card were taken.

12. Paragraphs 37 through to 40 of the Authority decision, deal with new claims raised in the applicant’s SHEV statement about his brother fleeing Sri Lanka and going to Qatar. Whilst the Authority was prepared to accept that the applicant’s brother may have gone to Qatar, the Authority did not accept that he fled because of threats. The applicant also raised is his SHEV statement, claims that his family were being threatened and asked to pay money. The applicant confirmed that his parents and sisters were still living in the family home. The Authority did not consider it plausible that the applicant’s parents and sisters would continue to live in the family home if his father was being threatened and asked for money.

13. Paragraphs 42 through to 74 of the Authority decision, deal with an assessment of the applicant’s claims for the purposes of refugee protection. The Authority found that it was not satisfied that the applicant faced a real chance of persecution if he were to be returned from either the Karuna group or associated groups, from the individuals who captured him, as a member of a social group of taxi drivers in Sri Lanka, due to his father being threatened for money or because the applicant is a Tamil mail from the eastern province. In relation to the last claim, the Authority made reference to relevant country information which indicated that there have been improvements in relation to the situation for the Tamil population in Sri Lanka since the applicant left.

14. Paragraph 60 through to 74 of the Authority decision, deal with that assessment of risks of persecution due to LTTE links. While the Authority was prepared to accept that the applicant’s father had provided low-level support to the LTTE, and had two paternal uncles who were killed during the fighting and were members of the LTTE, the applicant would not have a profile either individually or due to his family links which would put him at significant risk were he to return, due to imputed LTTE links. The applicant’s father, mother and three sisters continue to live in the family home. The Authority did not consider it plausible that if the applicant’s family were able to live in the family home, his father’s profile as an LTTE supporter was such as to continue to attract the attention of authorities. The Authority was not satisfied that the applicant had a profile such that he would be of interest to Sri Lankan authorities now, or the reasonably foreseeable future.

15. Paragraph 75 through to 88 of the Authority decision, deal with risks to the applicant associated with his return to Sri Lanka as a failed asylum seeker and illegal departee from Sri Lanka. The Authority accepted that the applicant would be returning to Sri Lanka without documentation. By reference to the most recent country information, the Authority was satisfied that the applicant would be identified upon return as being an illegal departee. The applicant would be arrested by police at the airport, have his fingerprints taken and photographed. The applicant would then be transported to the closest Magistrates Court. There was a possibility he could remain in police custody for up to 24 hours if a Magistrate was not available at the time. The applicant could be held for a short period of time at a nearby prison which the Authority found, did not meet international standards due to overcrowding, poor sanitary conditions and lack of resources. If the applicant were to plead guilty for leaving Sri Lanka illegally the most likely outcome would be the imposition of a small fine. The applicant would be allowed time to pay the fine and would be free to go. If the applicant entered a not guilty plea, he would be bailed either on his own surety or have a family member act as a guarantor.

16. The Authority was not satisfied that the applicant would be dealt with in a discriminatory manner and that his prosecution under a law of general application did not amount to persecution. Further, even having regard to the poor conditions in custody, the Authority was not satisfied that this would constitute the level of threat to the applicant’s life or liberty that would amount to serious harm.

17. For the above reasons, the Authority found that the applicant did not meet the definition of a refugee or meet the criteria under s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act’).

18. Paragraphs 90 to 98 of the Authority decision, deal with complementary protection considerations. For the same reasons as set out above, the Authority was not satisfied that, as a necessary foreseeable consequence being return from Australia to Sri Lanka, there was a real risk that the applicant would suffer significant harm. The Authority therefore found that the applicant does not meet the criteria in s 36(2)(aa) of the Act.

    GROUNDS OF JUDICIAL REVIEW

19. The applicant’s grounds of judicial review are set out in an Initiating Application filed with the Court on 7 July 2016. They are as follows verbatim:

    Ground One

    The Authority misconstrued or misapplied the words "intentionally inflicted" and "intended to cause" in the definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" ins 5(1) of the Act in assessing the Applicant's detention.

    Particulars

    The Tribunal erred in failing to properly assess the application and in accordance with the guidelines.

    Ground Two

    The Authority committed jurisdictional error by erroneously rejecting claims in entirety without proper consideration.

    Particulars

    The Tribunal did not engage with the claims but simply irrationally and I or illogically rejected the claims in global fashion.

    Ground Three

    The Authority denied the Applicant procedural fairness in its consideration of the claims.

    Particulars

    The Tribunal did not engage with the claims but simply irrationally and I or illogically rejected the claims in global fashion.

    Ground Four

    The Authority fell into jurisdictional error in assessing the Applicant's detention (at [80]) and denied the Applicant procedural fairness.

    Particulars

    The Tribunal did not engage with the detention issue.

    The Tribunal presumed that the Applicant would be granted bail.

    The Tribunal did not address whether the Applicant had mail.

20. The Court assumes where the words Tribunal is used in the particulars this should read Authority.

    THE APPLICANT’S SUBMISSIONS

21. The applicant appeared before the Court unrepresented. The applicant was assisted by an Interpreter in the Tamil language. Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books and that the first respondent’s submissions had been interpreted to him. The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.

22. At the commencement of the hearing the Court carefully explained that the Court was undertaking judicial review and not merits review, and the difference between the two types of review. The Court also carefully explained the process by which the hearing would be undertaken.

23. Despite Court orders, no written submissions or other material were filed by the applicant in support of his case. The applicant initially told the Court that he did not wish to say anything and expected that the Court would do justice to him.

24. Following the first respondent’s oral submissions, the applicant was again asked if he wished to say anything to the Court in reply. The applicant stated that all his statements and documents were contained within the Court Book. All of the applicant’s statements were truthful and the documents were genuine. The applicant stated that he came to Australia seeking refuge and if he went back he would face problem.

    THE FIRST RESPONDENT’S SUBMISSIONS

25. Ground one alleges  that the Authority misconstrued the “intention elements” of the definitions in s 5 of the Act with respect to degrading treatment or punishment and cruel or inhuman treatment or punishment when assessing the harm the applicant may face if he is returned to Sri Lanka and detained for reasons of his illegal departure from Sri Lanka. Presumably, the applicant seeks to raise the arguments addressed that are now clearly rejected by the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34. Accordingly, ground one has no merit.

26. Grounds two and three, in substance both allege that the Authority reached its conclusions irrationally and/or illogically. These allegations cannot be established. It is plain that the Authority considered the applicant’s claims and made detailed factual findings at paragraphs 10 to 41 of its decision that were open on the evidence. Notably, the Authority accepted some of the applicant’s claims (such as, his uncles being LTTE members who were killed in the war and that his father provided assistance to the LTTE) and, like the delegate, rejected the majority the applicant’s claims including that he was of interest to the Karuna group or that he was abducted and detained by men in a white van because his evidence had been inconsistent and implausible. There is nothing on the face of the Authority’s decision which supports the applicant’s un-particularised assertions in this regard.

27. Ground four alleges that the Authority failed in assessing the applicant’s “detention” and in particular that it presumed the applicant will be granted bail and did not address whether the applicant had the capacity to meet bail.

28. On the issue of bail, the Authority referred to country information at paragraph 83 of its decision, which stated that where persons are charged under the Sri Lankan Immigrants and Emigrants Act 1948, for leaving Sri Lanka illegally, if they plead guilty they will be fined and released and if they plead not guilty, they will be granted bail on a personal surety or may be required to have a family member act as guarantor. Subsequently, the Authority found that the applicant would either be issued with a fine or be released, or he would be released on his own personal surety. Accordingly, the Authority did consider whether the applicant would be granted bail and found that he would only need to be providing a personal surety and would thus be released. Accordingly, no error arises.

    CONSIDERATION

1. Bare assertions without sufficient particulars are unable to be answered and as such do not constitute jurisdictional error. Matters reviewed under Part 7AA of the Act are subject to significant restrictions as to the way they are conducted by the Authority. Section 473DA of the Act indicates that the provisions of Part 7AA of the Act are an exhaustive statement of the rights of procedural fairness in relation to applicants in these reviews.

2. Ground one asserts that the Authority failed to properly assess the risk to the applicant if he were to be held in detention for a short period of time in sub-standard conditions in Sri Lanka, pending being placed before a Magistrate. In particular, given the sub-standard conditions, it is contended that this would involve an intentional infliction of cruel, inhuman or degrading treatment. This issue was dealt with by the High Court in SZTAL V Minister for Immigration and Border Protection [2017] HCA 34 per Keifel CJ, Gordon and Nettle JJ at [28]-[29] where the following was said:

   [28] In the present cases the question for the Tribunal was whether a Sri Lankan official, to whom knowledge of prison conditions can be imputed, could be said to intend to inflict severe pain or suffering on the appellants or to intend to cause them extreme humiliation by sending them to prison.  That question was to be answered by the application of the ordinary meaning of "intends", as the Tribunal concluded.

   [29]As has been explained, evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention.  In some cases, the degree of foresight may render the inference compelling.  But in the present matters, having regard to the evidence before the Tribunal (including evidence about what the Sri Lankan authorities might know), the Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation.

3. Accordingly, ground one fails.

4. Ground two complains that the Authority committed jurisdictional error by rejecting the applicant’s claims in their entirety. In so doing the Authority acted irrationally or illogically. As set out above, the Authority engaged in a detailed and comprehensive analysis of the applicant’s claims. The findings, including the adverse findings were open to it on the evidence before it and for the reasons it gave. None of the reasoning approached the level of extreme illogicality or irrationality required to ground jurisdictional error.

5. Further, it is factually incorrect to suggest that the Authority rejected the applicant’s claims in their entirety. The Authority accepted that two of the applicant’s maternal uncles were LTTE members and were killed during the civil war. The Authority accepted the family village of the applicant was controlled by the LTTE during the civil war, and that the applicant’s father provided low level assistance to the LTTE, transporting food and other supplies in his taxi. Ground two fails.

6. Ground three alleges a denial of procedural fairness in that the Authority did not engage with the applicant’s claims and rejected them irrationally or illogically. No particular has been given as to how the Authority breached any procedural fairness requirements imposed by

   
    

   Part 7AA of the Act. Given the lack of particulars and the Courts findings in relation to Ground two, ground three has no merit. There is no material before the Court that would indicate that any procedural fairness requirement was not complied by the Authority.

7. As a ‘fast track” reviewable decision, the Authority was required to conduct a review on the papers without requesting new information or interviewing the applicant: (see; s 473DB of the Act). The Authority considered the new information provided by the applicant but for the reasons set out at paragraphs 3 to 7 of its decision, rejected that information. No error is apparent in that decision.

8. Ground four appears to be a variation of Ground one. At paragraphs 75 through to 89 of its decision, the Authority engaged in a comprehensive examination of the applicant’s fears of harm if returned to Sri Lanka as a failed asylum seeker. Relevant country information was cited at paragraph 83 of the Authority decision, that indicated if the applicant pleaded guilty he would be given a small fine and released with time to pay the fine. If the applicant pleaded not guilty, he would be released immediately on a personal security or may be required to have a family member act as a guarantor. The Court is satisfied that the Authority engaged with this issue in some detail and on the basis of country information was satisfied the applicant would be able to be released after he appeared before a magistrate, even if he pleaded not guilty. Further this was a law of general application and does not discriminate against the applicant personally. Ground four fails.

9. As the applicant is unrepresented, the Court has reviewed the Authority’s reasons and is unable to detect any unarticulated jurisdictional error.

   CONCLUSION

10. Accordingly, the application is dismissed.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       11 August 2021