BSD15 v Minister for Immigration

[2019] FCCA 1597

FEDERAL CIRCUIT COURT OF AUSTRALIA

BSD15 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1597

Catchwords:
MIGRATION – Persecution – review of Administrative Appeals Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Migration Act 1958, ss.5, 36, 474, 477

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

Applicant: BSD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2319 of 2015

Judgment of: Judge Cameron

Hearing date: 3 June 2019

Date of Last Submission: 3 June 2019

Delivered at: Sydney

Delivered on: 12 June 2019

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms B Rayment of Sparke Helmore

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2319 of 2015

BSD15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of Sri Lanka who arrived in Australia on 20 June 2012. On 1 November 2012 he lodged an application for a protection visa with what is now the Department of Home Affairs, alleging that he feared persecution in Sri Lanka because of his ethnicity, imputed political opinion and membership of a particular social group. On 30 August 2013 the applicant’s application was refused by a delegate of the first respondent (“Minister”). The applicant then applied to the second respondent (“Tribunal”), for a review of that departmental decision. He was unsuccessful before the Tribunal and on 24 August 2015 the applicant applied to this Court for judicial review of the Tribunal’s decision. That application was filed outside the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”) but on 18 February 2019 the applicant was granted an extension of time within which to bring this proceeding, that extension of time being limited to the first ground of the application filed on 24 August 2015.

2. In this judicial review proceeding the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. In its decision the Tribunal summarised the facts alleged in support of the applicant’s claim for protection.  Relevant facts as summarised by the Tribunal are set out below.  

Claims before the Department

1. In his protection visa application and accompanying statutory declaration dated 28 October 2012, the applicant claimed that:

   a)he was Tamil Hindu;

   b)following his father’s death in 2002/2004, he became responsible  for managing his father’s pharmacy business in Batticaloa:

   c)on 26 September 2008 members of the local Karuna group came to his pharmacy and demanded some goods which they promised to pay for later;  

   d)on 1 October 2008 he went to the local Karuna group office to collect his money but for his trouble was beaten for 30 minutes.  He was admitted to hospital but discharged himself after two days following instructions from the Karuna group, who were concerned that he would make a complaint to the police

   e)he was abducted by the Karuna group on the night of his discharge.  His mother and wife later paid the Karuna group 200,000 rupees to secure his release, with a promise to pay another 300,000 rupees in a month’s time;

   f)on 14 November 2008 he received a letter from the Karuna group demanding that he report to their office the next day.  He went to the office but the person in charge was not there (in this statement the applicant claimed that the Karuna group visited his home that morning and threatened to harm him and his family if the promised sum was not paid);

   g)on 26 November 2008 the applicant’s friend advised him that his (ie the friend’s) grandfather had been killed by the Karuna Group. The applicant immediately fled with his wife and child and remained in hiding until his departure from Sri Lanka (in 2012);

   h)he learned through his wife (who had returned to their village while he was in hiding) that the Sri Lankan Army, the Special Task Force and the Criminal Investigation Department had come to their home in search of him on several occasions, threatening “serious consequences” if he did not report to their offices. He believed that members of the Karuna group provided false information to the Sri Lankan authorities; and

   i)he feared harm from the Karuna group.  He also feared harm from the Sri Lankan authorities as he was a Tamil from the east who had left Sri Lanka illegally and had claimed asylum in the west.

Claims before the Tribunal

1. The applicant provided additional evidence and submissions to the Tribunal on 4 May 2014 and 27 February 2015.

2. The applicant appeared before the Tribunal on 4 March 2015 and provided an unsigned statutory declaration that raised additional claims:

   a)in August 2001 his brother was arrested and detained by the police on suspicion of being involved with the Liberation Tigers of Tamil Eelam (“LTTE”);

   b)in about 2003/2004 two members of the LTTE came to the pharmacy to take some medicine but fled upon the army’s arrival, leaving their motorbike behind.  Acting on the LTTE’s instructions, he went to the police station to retrieve the motorbike and was subsequently arrested on suspicion of supporting the LTTE. He was detained overnight and was ultimately required to appear in court on four occasions.  On the last occasion, the judge ordered him not to support or be in involved in the LTTE;

   c)his brother had been managing the pharmacy since 2008 (when the applicant went into hiding).  In January 2013 the business was transferred from his name into his brother’s name; and

   d)the Karuna group continued to take medicine from the pharmacy and his brother had been told that if he complained, he and his family would be harmed.

3. At his hearing before the Tribunal the applicant said that he could not return to Sri Lanka as he “can't take any more beating and I have so many complications with my body”.  He claimed to fear being arrested at the airport and that, if that were to occur, it would be difficult for him to survive, as he needed to have proper treatment and he alleged not to believe he would receive it in Sri Lanka.  He also said that he thought he would be tortured and killed. 

4. The applicant’s adviser also provided post hearing submissions dated 19 March 2015 and 7 April 2015.  Relevantly, the applicant claimed that whilst in hiding his brother would bring him any business documents to sign and had also signed blank documents in anticipation that they might be required.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), or s.36(2)(aa) of the Act.

2. Overall, the Tribunal found that the applicant was not a credible witness and did not accept his claims of being wanted or harmed by the Karuna group or the authorities.  It found that he had fabricated those claims and the claims of being hiding for the purposes of his protection visa application, noting the following matters in particular:

   a)as the pharmacy was a family run business, the Tribunal considered it reasonable that further demands for money would have been made of the applicant’s brother (who continued to operate the business) and the applicant’s wife and mother (who had negotiated with the Karuna group).  The Tribunal did not consider it plausible that the applicant’s family would have continued to operate the pharmacy or reside in the village if they were under serious threat of harm;

   b)the Tribunal accepted that the new claims raised by the applicant in his unsigned statutory declaration had occurred.  However, given that they had occurred over a decade earlier – in 2001 and 2003/2004 – the Tribunal was not satisfied that the incidents had any ongoing consequence or significance for the applicant;

   c)the Tribunal did not accept the applicant’s claim that the Karuna group continued to take medicine from the pharmacy and had threatened his family with harm if his brother complained.  The Tribunal noted that based on country information the Karuna group had not operated in the Batticaloa area since early 2012;

   d)the Tribunal was not satisfied that the applicant had spent 3.5 years in hiding prior to coming to Australia because:

   i)it was not reasonable to believe that the applicant would have been able to hide in his local area during the claimed period given that in the aftermath of the civil war the authorities actively looked for people with significant LTTE ties;

   ii)the Tribunal did not accept that the applicant could or would have continued to be the proprietor of the pharmacy and to sign business documents if he was in hiding.  The Tribunal was of the view that the applicant did so because he had been the manager and had been looking after the shop;

   iii)during this period the applicant visited churches in his area on a regular basis which indicated to the Tribunal that he was not in hiding and not being sought by anyone; and  

   iv)in the Tribunal’s view, the fact that the business was transferred from his name to his brother’s name several months after his departure from Sri Lanka evidenced that he was operating the business up until that point; and

   e)the Tribunal did not accept that it was reasonable to believe that the authorities might suspect a connection between the LTTE and applicant’s pharmacy.  It noted that the authorities had actively pursued people of concern during the war and in the years immediately afterwards.  Further, the authorities would have been aware of the court case involving the applicant from years earlier.  The Tribunal did not accept that these matters would cause any concern now or in the reasonably foreseeable future.

3. Similarly, the Tribunal did not accept that the applicant would be imputed with any adverse political opinion, including being an LTTE member or sympathiser, as neither he nor any of his family members had ever been involved in the LTTE. Further, the Tribunal did not accept that the applicant had the level of profile that would cause him to be considered as a suspect by the authorities for any matter.

4. Neither was the Tribunal satisfied that the applicant faced a real chance of serious harm because he was a young Tamil male or because of his Tamil ethnicity in general.   While the Tribunal accepted that Sri Lankan Tamils had faced risks until the war ended in May 2009 and for a period beyond that point, country information before the Tribunal suggested that the security situation for Tamils has stabilised and that the risks posed to them had substantially reduced.

5. The Tribunal accepted that the applicant would undergo questioning and checks by the Sri Lankan authorities on his return and that he might be charged with departing Sri Lanka illegally, remanded in custody for a brief period, possibly in cramped and unsanitary conditions, and fined.  However, the Tribunal was satisfied that these were legitimate procedures being applied in a non-discriminatory manner under a law of general application, and not for a Convention reason.

THE PROCEEDING IN THIS COURT

Application

1. Ground one of the initiating application was pleaded as follows:

   1.The Tribunal failed to comply with Ministerial Direction no.56 in contravention of s499(2A) of the Act.

   Particulars

   a.At [9] the Tribunal noted Ministerial Direction no.56 and s499 of the Act; and

   b.At [69] the Tribunal failed to take into account the PAM3 complementary Protection guidelines when it made a finding on whether the treatment that the applicant would face on being detained in Sri Lankan was degrading even when the applicant’s representatives specifically raised the issues of prison conditions.

2. As the applicant conceded, the Tribunal had noted Ministerial Direction 56 at para.9 of its decision record but his concession did not record that the Tribunal had also referred to PAM3.  What the Tribunal said was:

   In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

3. That statement indicates the Tribunal’s appreciation of the potential significance of the guidelines. 

4. The next matter of importance is the fact that the Tribunal’s consideration demonstrated an appreciation not only of the claims advanced by the applicant but also of relevant aspects of PAM3.  In relation to the former, at para.70 of its decision, the Tribunal said of issues relevant to the availability of complementary protection:

   As detailed above and for the same reasons I do not accept that the applicant has a level of adverse profile such that he is of any adverse interest to the authorities or anyone else in Sri I Lanka.  I accept he may be arrested on return and held on remand awaiting grant of bail.  He will most likely be fined.  He may be questioned about where he has been, however I do not accept that anything other than this will happen.  I do not accept he had any ongoing issues or concerns in Sri Lanka.  I do not accept he is of any adverse interest from the authorities.  I do not accept this will cause him any concern on return to Sri Lanka.  I do not accept that this is significant harm as meant by section 36 (2A).

5. In relation to the conditions which the applicant might confront if detained on return to Sri Lanka, the Tribunal recorded in para.59 of its decision that prison conditions in Sri Lanka’s Negombo were “cramped and probably unsanitary” but at para.69 stated that it did not accept that they would amount to significant harm.  It also noted that individuals such as the applicant, returning from the West as failed asylum seekers, “are detained possibly for 3 days at which time they are bailed for a future court appearance”.  At para.61 it rejected the contention that the applicant would be denied medical care in prison.  

6. Turning to the Tribunal’s appreciation of PAM3, part of those guidelines was introduced into evidence and it relevantly said:

   The question of whether a lawful sanction constitutes torture, cruel or inhuman treatment or punishment or degrading treatment or punishment (by reference to Article 7 of the ICCPR) is the beginning and the end of the analysis.

   and continued

   As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7.  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.

   Examples of conditions which have been held to constitute breaches of Article 7 include:

   •extremely cramped or unsanitary conditions, exposure to cold or inadequate ventilation or lighting

   •lack of adequately nutritious food or water, lack of adequate clothing or a separate bed, threats of torture or death, lack of opportunity for adequate exercise

   •prolonged solitary confinement or total isolation

   •denial of medical treatment

   •harsh rules of conduct restricting fundamental rights of prisoners; the use of harsh punitive measures such as frequent resort to solitary confinement or being forced to maintain a certain position for prolonged periods of time; unfair procedures for deciding on disciplinary measures; inadequate protection against reprisals by warders; lack of a credible complaints mechanism and frequent use of protective measures such as leather handcuffs and

   •violent treatment in detention (force may be used to enforce discipline, but must be proportionate in light of circumstances), including acts such as beatings or assaults by prison warders, repeated death threats, mock executions, theft or destruction of personal possessions or displaying prisoners in a cage to the press.

   The existence of one relatively minor condition (for example, a small cell) may not be sufficient to breach Article 7.  However, the accumulation of a combination of poor or unreasonably restrictive conditions (for example, a small cell, overcrowding, prolonged detention and lack of opportunities for exercise) may raise the severity of the treatment above the necessary threshold.  (references omitted)

7. Comparing those passages with the Tribunal’s reasons it becomes apparent that the Tribunal considered the applicant’s claims with PAM3 in mind and used it as a touchstone.  I accept the Minister’s submission that:

   .. the Tribunal used language found in the guidelines, such as cramped and unsanitary conditions, which further confirms its awareness of and regard for the guidelines.

   That the Tribunal did not expressly discuss the applicant’s claims by reference to the guidelines is therefore not significant. 

8. I am not persuaded that the Tribunal failed to have regard to PAM3.

Other matters

1. In his written submissions the applicant raised a number of other matters.  The first was the possibility that the Tribunal had overlooked his claim to fear torture, cruel or inhuman or degrading treatment or punishment upon a return to Sri Lanka.  This argument cannot be sustained in light of paras.67, 68 and 70 of the Tribunal’s decision where it refers to:

   a)the “significant harm” criterion for the grant of a protection visa under s.36(2)(aa) of the Act;

   b)the fact that “significant harm” as defined by ss.5 and 36(2A) of the Act involves concepts of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment; and

   concludes that the circumstances which the applicant would meet on a return to Sri Lanka did not amount to “significant harm as meant by section 36(2A)”.

2. For the same reasons, the contention advanced in the applicant’s written submissions that the Tribunal overlooked his claim that he would be tortured whilst on remand in Sri Lanka is not made out.

3. Finally, in his written submissions the applicant argued that the Tribunal’s:

   … state of mind [had been] so committed to a conclusion already formed as to be incapable of alteration, despite the evidence and arguments presented by the applicant …

4. That is an allegation of actual bias but it was not pleaded or particularised as it ought to have been.  In those circumstances it should not have been included in the written submissions and is vexatious.  In any event it goes no further than complain that the applicant’s evidence was not accepted.  That is an insufficient basis for a finding of bias.

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been identified.

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Date: 12 June 2019