BTW17 v Minister for Immigration

[2017] FCCA 1752

FEDERAL CIRCUIT COURT OF AUSTRALIA

BTW17 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1752

Catchwords:
MIGRATION – Immigration Assessment Authority – protection visa – whether the Authority’s decision lacked an intelligible justification – whether the Authority properly considered an intention to inflict harm – whether the Authority’s decision was irrational or illogical – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 5J, 36, 473CB, 476.
Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:

SZTAL v Minister for Immigration and Border Protection 243 FCR 556

Applicant: BTW17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: PEG 226 of 2017

Judgment of: Judge Street

Hearing date: 27 July 2017

Date of Last Submission: 27 July 2017

Delivered at: Sydney

Delivered on: 27 July 2017

REPRESENTATION

Counsel for the Applicant: Mr M Crowley via video link

Solicitors for the Applicant: AUM Legal

Counsel for the Respondents: Mr P Macliver via video link

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. Grant leave to the applicant to amend the amended application, adding at the end of paragraph 1 after the words “immediate future”:

   “and the decision was otherwise unreasonable by the failure to make an obvious enquiry”;

   and dispense with the need for the filing of any further amended application.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 226 of 2017

BTW17

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA made on 23 March 2017 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant claims that he shot a criminal gang member in 2011 and that this person will kill him on return to Sri Lanka. The applicant also alleges he faces criminal charges and that the police and security agencies will torture and kill him on return.

2. The applicant arrived at Christmas Island as an unauthorised maritime arrival on 16 September 2012 and was subsequently transferred to Nauru in 2012 and subsequently transferred back to Australia. The applicant lodged an application for a protection visa through his agent on 14 September 2016. On 8 February 2017, a delegate of the first respondent refused to grant the applicant a Safe Haven visa. The delegate found that the applicant failed to meet the criteria under the Act and found that the applicant was not an excluded fast-track applicant.

The Authority’s decision

1. By letter dated 14 February 2017 the Authority informed the applicant that the matter had been referred to the Authority for review. The letter identified that there were limited circumstances in which the Authority could consider new information. The letter provided an attached fact sheet and Practice Direction and gave the applicant an opportunity to put on new information and to provide submissions.

Information before the Authority

1. By email dated 27 February 2017, submissions were made by the applicant, purporting to provide new information. The Authority in the decision, dated 23 March 2017, identified the applicant’s background in relation to the making of the application. The Authority identified having regard to the material referred to it under s.473CB. The Authority referred to the submissions dated 27 February 2017 and identified the circumstances in which the Authority could receive new information.

2. The Authority found that there were exceptional circumstances to justify the receipt of a newspaper article, and that there were exceptional circumstances for receiving two articles from Reuters. Reference was made to a Committee Against Torture report from the United Nations, dated 21 January 2017. The Authority noted that the report does not provide information on the specific recent cases of torture occurring after 2015. It was in those circumstances the Authority was not satisfied there were exceptional circumstances to justify considering the Committee Against Torture report.

Refugee assessment

1. The Authority identified the applicant’s claims and set out the relevant law. The Authority accepted the applicant shot a gang member in 2011. The Authority accepted that the applicant was arrested and spent 13 months on remand and then, after his release on bail, he did not report to police as required and subsequently left Sri Lanka illegally. The Authority was satisfied that the applicant may be identified and detained on arrival, and this will be the result of the lawful prosecution of a crime by Sri Lankan authorities, and does not amount to persecution.

2. The Authority found the enforcement of a law of general application does not ordinarily constitute persecution for the purpose of s.5J of the Act. The Authority found the arrest, detention, subsequent prosecution, and punishment of the applicant by the Sri Lankan law enforcement and judicial systems does not amount to persecution for the purposes of s.5J of the Act.

3. The Authority made reference to the applicant’s concerns about torture and arbitrary death at the hands of police and other security agencies. The Authority did not accept that the applicant faces a real chance of torture or arbitrary death. The Authority placed significant weight on the fact that the applicant was apprehended and charged with offences and held in remand for 13 months and that there was no indication that he was tortured or otherwise mistreated by the police or authorities during this time.

4. The Authority was not satisfied that the applicant failing to meet his bail requirements would result in adverse action that would lead to torture, arbitrary killing, or other harm. The Authority accepted the applicant may experience poor conditions whilst in prison in Sri Lanka. The Authority found the essential significant reason for any resulting harm he would experience would not be for a reason of his race, religion, nationality, membership of a particular social group, or political opinion and would not amount to persecution under s.5J of the Act.

5. The Authority did not accept the applicant’s assertion that he was unable to work for three years following an assault. The Authority was not satisfied that the incident resulted in serious injury that prevented him from working for three years. The Authority found the applicant had exaggerated the injuries sustained in this incident for the purpose of enhancing his claims for protection. The Authority noted that after the incident in 2003 there was no indication that the gang showed any further interest in the applicant.

6. The Authority accepted that the applicant did not support the gang’s candidate in the 2009 election and found that there were no repercussions for not doing so. The Authority referred to a confrontation in 2010, but noted that that was a result of the applicant intervening when a colleague was being attacked by two gang members and not as a result of the applicant being targeted. In assessing the real chance of the applicant facing harm on return, the Authority gave significant weight to the lack of harm to the applicant either while in custody on remand or after his release while he was living in the community.

7. The Authority found that if the gang members intended to carry out their threats to kill the applicant, and if his claim that killing someone in prison is viable, then the gang members had ample opportunity to do so while he was on remand. The Authority accepted that, thereafter, he did not live at his family home, but stayed with friends and family, including parents-in-law. The Authority also made reference to the applicant’s claims that relocating within Sri Lanka after serving any time in prison to avoid the gang would not be effective, as they could track him down, yet they failed to do so in 2012.

8. The Authority did not accept that the burning of the vehicle of an associate of the applicant who had paid his bail points was connected to the applicant, and found that the burning in this regard being subject of a link to the applicant was speculation.

9. The Authority identified that there were claims of the applicant that were difficult to reconcile. Therefore, the Authority was not satisfied that gang members would kill him if he returned and was imprisoned in Sri Lanka and found that there was no information before the Authority that indicates any change in the circumstances that would make killing him in prison easier now than it would have been in 2011 and 2012. The Authority found there was no real chance the applicant faces harm from his shooting victim or of the person’s relatives and associates on return to Sri Lanka.

10. The Authority accepted the applicant would be imprisoned due to the outstanding criminal case, and found that this is due to the application of law of general application, and would not amount to persecution. The Authority accepted that the applicant would be subject to the Immigrants and Emigrants Act 1949 (Sri Lanka) (“the IE Act”) due to his departure other than from an approved port in 2012. The Authority found that the investigation, prosecution and punishment of the applicant under the IE Act would be the result of a law of general application and does not amount to persecution.

11. The Authority accepted the applicant’s details were disclosed through the data breach. The Authority found there was not a real chance in this resulting in gang members informing the Australian Government that he has committed other crimes. It has been three years since the data breach and the Authority found there is no indication that gang members have done so. The Authority was not satisfied the applicant faced a real chance of harm due to the data breach.

12. The Authority was not satisfied there was a real chance the applicant would face any harm as a result of being a failed asylum seeker. The Authority found the applicant did not meet the definition of refugee in s.5H(1) of the Act and found the applicant did not meet the criterion under s.36(2)(a).

Complementary protection assessment

1. The Authority made reference in relation to complementary protection, having found that the applicant would be prosecuted for criminal charges relating to the shooting in 2011, and that that would not amount to persecution.

2. The Authority did not accept that the applicant would be tortured and arbitrarily deprived of his life, and was not satisfied that the applicant would be subject to cruel, inhuman, or degrading treatment or punishment. The Authority made reference to the applicant’s concern that he would face the death penalty in Sri Lanka. The Authority made reference to an Amnesty International report that the death penalty continues to be passed as a sentence for some serious crimes, however, they reported that no death sentences have been carried out in over 10 years, and described Sri Lanka as abolitionist in practice.

3. The Authority made reference to a DFAT report, advising that the last death sentence in Sri Lanka was carried out in 1976. The Authority made reference to the President in September 2015 in response to public concerns and media reports of violence, violent crime, making an announcement of an intention to implement the death penalty from 2016. The Authority noted that according to the information of a DFAT report published as at January 2017, there was no indication that approval for implementation of the death penalty would be provided.

4. The Authority found, taking into account the country information, that there was not a real risk that the applicant would be subject to the death penalty in Sri Lanka. The Authority found that the harm the applicant may face in relation to his punishment and prison would not involve the intentional infliction of pain or suffering that is cruel or inhuman in nature, or severe pain or suffering, or would be intended to cause him extreme humiliation. The Authority did not accept that such treatment of the applicant in respect of his punishment and imprisonment would constitute significant harm.

5. The Authority was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk the applicant will suffer significant harm. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act.

Proceedings before this Court

Grounds of the application

1. The grounds of the amended application are as follows:

   The IAA’s purported decision was vitiated by jurisdictional error:

   1. By reasoning that there was not a real risk that the Applicant would be subject to the death penalty in Sri Lanka, in circumstances where the incumbent President Sirisena announced an intention to reintroduce the death penalty, because the death penalty had not been implemented for many years and that ‘parliamentary approval’ would not be provided, where there was no evidence that parliamentary approval was required, and where the composition of parliament necessarily changed, was irrational or illogical, or lacked an intelligible justification, or exposed a failure to look to the reasonably foreseeable future as opposed to the immediate future, and;

   2. By misconstruing the expression ‘intentionally inflicted’ in the definitions of ‘torture’ and ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Migration Act 1958 (Cth), and the expression ‘intended to cause’ in the definition of ‘degrading treatment or punishment’ to involve an actual, subjective intent.

Consideration

Ground 1

1. In relation to Ground 1, Mr Crowley has sought leave to have added at the end of the Ground 1 an additional argument concerning a failure to make an obvious inquiry. That leave was granted in relation to the Ground 1 as identified in these reasons. Mr Crowley sought to argue that the finding in paragraph 36 in respect of the applicant not facing a real risk of significant harm in respect of the prospect of introduction of the death penalty was irrational or illogical. Mr Crowley criticised the reference of the Authority in referring to the DFAT report as at January 2017 to the effect that there was no indication that parliamentary approval for implementation of the death penalty would be provided.

2. Mr Crowley sought to argue that the latest that information could have been up to date to was September 2016. Mr Crowley argued that there was an inference available that the position may change thereafter. Mr Crowley argued that the Authority had not considered the risk of a change in the parliamentarians and the introduction of the death penalty. Mr Crowley also submitted that the date of publication and the timing of the information available in respect of whether or not the death penalty would be implemented was the subject of an error in the source material that could have been ascertained by the Authority, which would have indicated that it was only up to September 2016.

3. I do not accept that any such matter was the subject of a duty of inquiry. There is no readily ascertainably fact in respect of a credible issue for the purpose of the determination of the applicant’s claims. On the face of the material, the Authority made dispositive findings in respect of the applicant’s claims that were open on the material before the Authority. The Authority referred to country information and provided reasons in support of its adverse findings in support of the applicant’s fears about the death penalty. There was no irrationality, illogicality, or unreasonableness in the adverse determination by the Authority in finding that the applicant would not face a real risk of significant harm by reason of the future implementation of the death penalty.

4. It was a matter for the Authority to make findings in respect to the applicant’s claims. In substance, Ground 1 is an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by Ground 1.

Ground 2

1. In relation to Ground 2, Mr Crowley of counsel on behalf of the applicant accepted that this Court was bound by the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection 243 FCR 556 and formally submitted that that decision was incorrect, but accepted this Court was bound by the same. That was a proper course for Mr Crowley to take to preserve his client’s rights in that regard. No jurisdictional error is made out by Ground 2.

Conclusion

1. The amendment application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 24 August 2017