BZAFP v Minister for Immigration

[2014] FCCA 1805

FEDERAL CIRCUIT COURT OF AUSTRALIA

BZAFP v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1805

Catchwords:
MIGRATION – Judicial review – Refugee Review Tribunal – Protection (Class XA) visa – whether the Tribunal’s decision was not arrived at in accordance with the Migration Act 1958 (Cth) – no jurisdictional error demonstrated.

Legislation:

Migration Act 1958 (Cth), ss.91R, 474, 477.

Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 217 CLR 387
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Li v Minister for Immigration & Anor [2011] FMCA 12
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594

Applicant: BZAFP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: BRG 858 of 2013

Judgment of: Judge Cassidy

Hearing date: 26 June 2014

Date of Last Submission: 26 June 2014

Delivered at: Brisbane

Delivered on: 15 August 2014

REPRESENTATION

Counsel for the Applicant: Mr Steele

Solicitors for the Applicant: Holding Redlich Lawyers

Counsel for the First Respondent:

Solicitors for the First Respondent

Ms Wheatley

Sparke Helmore

Solicitors for the Second Respondent Entered a submitting appearance

ORDERS

1. That the applicant be given leave to proceed with the application filed 25 September 2013. 

2. That the application filed 25 September 2013 be dismissed.

3. That the applicant pay the first respondent’s costs, of and incidental to the application filed 25 September 2013, fixed in the sum of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 858 of 2013

BZAFP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review that seeks to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The application contains the following grounds for review:

   “[1] “The second respondent constructively failed to exercise jurisdiction, or alternatively failed to properly understand or undertake the task required of it, because the second respondent failed to consider:

   (a) harm which may arise to the applicant in the event of him being remanded to prison after returning to Sri Lanka, prior to bail (if any) being granted (sic)

   (b) whether fear of such harm amounted to a well-founded fear of persecution; or

   (c) submissions made by the applicant’s advisers in that regard”.”

2. The applicant must establish that the Tribunal went beyond jurisdiction in making the decision.  The decision is a privative clause decision and is therefore final and conclusive (s.474 of the Migration Act 1958 (Cth) (“the Act”)). The applicant also seeks an extension of time in which to proceed with the application.

Background

1. The submissions of the first respondent adequately summarise the background in paragraphs 4 – 12 of the outline of submissions filed 20 June 2014:

   “[4] The Applicant claims to be a citizen of Sri Lanka born on 25 October 1995, who arrived at Christmas Island as an irregular maritime arrival. The Minister, personally exercised his discretion pursuant to s46A(2) of the Act to allow the Applicant to lodge a Protection (Class XA) Visa on 19 August 2012. On that day, the Applicant’s application for a protection visa was lodged.

   [5] On 8 February 2013, the delegate of the Minister refused the application for the protection visa. 

   [6] On 19 February 2013, an application for review to the RRT was received. 

   [7] On 22 April 2013, the RRT wrote to the Applicant’s agent advising that it was unable to make a decision in the Applicant’s favour on the material before it, therefore the Applicant was invited to a hearing to give oral evidence and present arguments.  The hearing was listed for 12 June 2013, at Brisbane.  The Applicant’s agent returned the response to hearing form on 5 May 2013. 

   [8] On 9 May 2013 the Applicant’s agent provided written submissions and a further statutory declaration of the Applicant in support of his claims. 

   [9] On 12 June 2013, the Applicant attended the RRT, together with his migration agent (being Ms Kylie McGrath from the same firm as Ms Polak), and gave oral evidence and presented arguments at the hearing. 

   [10] After the hearing, the Applicant’s representative was allowed until 26 June 2013 to provide additional information, comments and a response in writing.  On 26 June 2013 the Applicant’s migration agent did provide further written submissions. 

   [11] The RRT affirmed the decision not to grant the Applicant a Protection Visa, on 20 August 2013 and provided notification of that decision, under cover of a letter dated 21 August 2013, on the basis that the Applicant did not satisfy the criteria set out in Section 36(2) of the Act.

   [12] That is, the RRT was not satisfied that the Applicant had a well founded fear of persecution if he returned to Sri Lanka and found that the Applicant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.” 

   [Footnotes omitted.]

Extension of Time

1. Section 477 of the Act relevantly provides:

   “(1) An application to the Federal Circuit Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

   (2) The Federal Circuit Court may, by order, extend that 35 day period as the Federal Circuit Court considers appropriate if:

   (a) an application for that order has been made in writing to the Federal Circuit Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

   (b) the Federal Circuit Court is satisfied that it is necessary in the interests of the administration of justice to make the order.”

2. The Act provides that the application for review must be filed within thirty-five days of the decision.  In this case, the thirty-five days expired on 24 September 2013, because the decision was made on 20 August 2013.  I accept that there was an error in calculating the relevant period that the applicant’s then advisors made.  The application was consequently filed one day out of time on 25 September 2013. 

3. I have the power to extend time if I consider it is necessary for the administration of justice.  Federal Magistrate Nicholls (as his Honour then was) in Li v Minister for Immigration & Anor [2011] FMCA 12 said at paragraph 35:

   “[35] … all the relevant elements arising from the circumstances of a particular case (the extent of the delay, the reasons for it, any prejudice to the respondent, the impact on the applicant if time is not extended, the interests of the public at large, any exercise of the Court’s discretion, and the merits of the substantive application (not an exhaustive list)) are all factors relevant to the question as to whether it is in the interests of the administration of justice to make an order extending time.”

4. In the present case there is a very minor delay and there is no pleaded prejudice to the respondents, so I am satisfied that it is in the interests of justice to allow the application to extend time. 

The Application

1. The applicant summarises the areas of the Tribunal decision that he says are the basis for his application.  These are set out at paragraphs 9 – 14 of his submissions:

   “Tribunal Decision

   [9] The Second Respondent concluded that the Applicant did not have a well-founded fear of persecution for a convention reasons.  In coming to that conclusion, the Second Respondent found, at paragraph [64]:

   “After assessing all of the evidence before it the Tribunal does not accept that the applicant was harassed, assaulted, forced to work and prevented from attending school by soldiers from the Sri Lankan army as claimed.  The Tribunal finds the applicant’s evidence in this regard to be inconsistent and exaggerated.”

   [10] In relation to the possible detention of the Applicant by security forces upon his return to Sri Lanka, the Tribunal considered the claims and evidence from paragraph [77] of its reasons, and stated, at paragraph [95]:

   “After assessing all of the evidence before it, the Tribunal is satisfied that, on return to Sri Lanka, the applicant will be detained for questioning and security and character checks will be undertaken.  He will be remanded and charged with an offence under the I&E Act because he departed Sri Lanka illegally.  The Tribunal notes there is no evidence before it to indicate that the applicant has used any false or fraudulent documents or that he was an organiser or people smuggler.  The applicant will be released on bail, with a family member as surety, to appear in Court at a future date.  This will occur because he departed Sri Lanka illegally and is therefore in breach of section 45(1)(b) of the I&E Act, as cited above.  The Tribunal does not accept that this amounts to serious harm for a Convention reason.”

   [11] The basis for that decision appears to derive from paragraph [90] of the reasons for decision, where the Tribunal sets out part of country information provided by the Department of Foreign Affairs and Trade, dated 31 July 2013.  Relevantly, that paragraph reads:

   “… those who have departed illegally under Sri Lankan law have been arrested by the police at the airport.  They have been taken by the police form [sic] the airport and presented at the Negombo Magistrates Court at the first available opportunity.  The returnees have been granted bail on personal surety immediately by the magistrate.”

   [12] However, nowhere in the reasons for decision does the Tribunal consider, or otherwise refer to, the submission made on behalf of the Applicant by the Refugee and Immigration Legal Centre on 26 June 2013, that, inter alia:

   “DFAT concludes that an applicant who arrived on a weekend may be held on remand for up to 3 or 4 days.  However, further to the reports of DFAT, we refer to the recent report of the US Department of State which indicated that it was unlikely in practice for a person charged to appear before a Magistrate that same day.”

   [13] The Tribunal was provided with the RILC report of 26 June 2013, together with an earlier report dated 9 May 2013.

   [14] The RILC report of 9 May 2013 made similar references risks to young persons, such as the Applicant, upon returning to Sri Lanka after leaving “illegally”, including the risk of being detained indefinitely.  That report also pointed to possible sex trafficking of young persons returning to Sri Lanka.”

   [Footnotes omitted.]

Ground: Failure to Consider the Harm that may arise in the Event of the Applicant being remanded to Prison after Returning to Sri Lanka and Prior to any Bail being granted

1. The applicant alleges jurisdictional error because the second respondent failed to consider the risk to the applicant of being remanded in custody on his return to Sri Lanka, whilst awaiting bail.  It is submitted that the risk was referred to by the applicant’s advisors in two separate written submissions dated 9 May 2013 and 26 June 2013. 

2. It is common ground that the applicant will be detained for questioning and will be remanded and charged with an offense because he departed Sri Lanka illegally.  It is also common ground that the applicant will be released on bail with a family member as surety to appear in Court at a future date. 

3. It is submitted that in making the finding of fact, that the returnees are released on bail, the second respondent failed to consider the time which might elapse between being placed into custody and being released on bail and whether that could give rise to a well-founded fear of prosecution in someone such as the applicant. 

4. The submissions that the applicant relies on are extracted in the applicant’s outline, and in particular, there was a submission dated 9 May 2013 and 26 June 2013 that raised this issue.  The 9 May 2013 submission stated at page 35:

   “… we refer to the report of the Immigration and Refugee Board of Canada which indicates that returnees are almost always detained:

   [I]mmigration authorities are alerted about the impending arrival of those who are deported or who are ‘returned’ as a result of failed asylum processes.  …  They are almost always detained, sometimes for few hours, and sometimes for months...”

5. The same passage continued:

   “In situations in which most families of the deported/returned persons have been displaced due to the war, are not contactable by telephone … obtaining the required security clearance may take months.  If there is no family member to follow up, this may lead to indefinite detention.”

6. At page 8 of the 26 June 2013 submissions, the applicant relied on the following:

   “DFAT concludes that an applicant who arrived on a weekend may be held on remand for up to 3 to 4 days.  However, further to the reports of DFAT, we refer to the recent report of the US Department of State which indicated that it was unlikely in practice for a person charged to appear before a Magistrate that same day.

   By law authorities are required to … bring that person before a magistrate within 24 hours, but in practice several days and sometimes weeks or months elapsed before detained persons appeared before a magistrate.”

   [Footnotes omitted.]

7. The applicant submits that the second respondent failed to take into account those submissions.  The applicant argues that the second respondent limited its considerations to paragraph 90 of the DFAT report on this point. 

8. I note that the Tribunal, at paragraph 46 of its decision, referred to the extensive written submissions which had been carefully considered: 

   “[46] The representative provided an extensive written submission dated 9 May 2013 in support of the application and post-hearing submissions dated 26 June 2013.  The submissions addressed questions of law and provided country information relevant to the applicant’s claims.  The post hearing submission addressed concerns raised by the Tribunal at the hearing.  The Tribunal has carefully considered the submissions together with the evidence provided by the applicant, human rights reports and other relevant country information.”

9. Further, at paragraph 81:

   “[81] In August 2011, the Research Directorate of the Immigration and Refugee Board of Canada (IRB) published a research response which provided information from a number of sources on the treatment of Tamil returnees, including failed asylum seekers, on their return to Sri Lanka.  It was reported that an official from the Canadian High Commission in Sri Lanka had sought information “from Sri Lankan government officials, mission staff and other in-country stakeholders” and had provided the information that had been gathered to the IRB on 16 August 2011.  This information indicated that Sri Lankan nationals are subject to the same screening process on their return to Sri Lanka, regardless of their ethnicity.  It was noted that persons removed to Sri Lanka are interviewed at the airport by security forces to obtain information in relation to human trafficking and smuggling.  In addition, it was stated that criminal background checks of returnees are also conducted which may take 24 to 48 hours to complete.  A Canadian High Commission official stated that the High Commission was aware of “only four cases” of persons being detained upon arrival.  The official indicated that these cases “involved outstanding criminal charges in-country and were not related to their overseas asylum claims or their ethnicity”.

   …

   [83] In the Country Information Report on Sri Lanka dated 31 July 2013, the DFAT assessed that Sri Lankan returnees are treated along standard procedures applying to all Sri Lankans, regardless of their ethnicity and religion.  DFAT has not observed any difference in the way Tamil returnees are treated in comparison to Sinhala or Muslim returnees.”

   [Footnotes omitted.]

10. The Tribunal went on to consider the penalties for an illegal departure from Sri Lanka and at paragraph 90 of its decision, the Tribunal said:

    “[90] Since November 2012, Sri Lankan irregular maritime arrivals returned from Australia have been charged under the I & E Act for offences related to departing Sri Lanka and remanded in custody until they are presented to a magistrate at the first available opportunity.  The International Organisation for Migration (IOM) has advised DFAT that, from their experience in delivering post-arrival support for voluntary returnees from Australia, those who have departed illegally under Sri Lankan law have been arrested by the police at the airport.  They have been taken by the police form (sic) the airport and presented at the Negombo Magistrates Court at the first available opportunity.  The returnees have been granted bail on personal surety immediately by the magistrate.  Sometimes returnees then need to wait until a family member comes to court to collect them.  IOM is present with the returnee during this process.

    [91] Under Sri Lankan law people who depart from any place other than an approved port of departure (such as an airport or seaport) and/or depart without valid travel documents can be charged with an offence under the Immigration and Emigration Act of 1948 (I&E Act). Section 45(1) of the I & E Act lists the relevant offences. Section 45(1)(b) refers to the offence of leaves Sri Lanka in contravention of any provision of this Act or of any order or regulation made thereunder.  Documentary offences, such as passport fraud, and people smuggling offences are also covered by the I & E Act. 

    …

    [94] From late November 2012, the Sri Lankan Government started to enforce the law in all cases regardless of whether a person has been returned voluntarily or non-voluntarily.  Since then returned Sri Lankan nationals who arrived in Australia by boat (and thus departed Sri Lanka illegally) have been charged and remanded for offences regarding their illegal departure.  They have been released on bail, with a family member as surety, and are to appear in court at a later date.  As yet no court sittings have occurred in this regard. 

    [95] After assessing all the evidence before it, the Tribunal is satisfied that, on return to Sri Lanka, the applicant will be detained for questioning and security and character checks will be undertaken.  He will be remanded and charged with an offence under the I & E Act because he departed Sri Lanka illegally.  The Tribunal notes there is no evidence before it to indicate that the applicant has used any false or fraudulent documents or that he was an organiser or people smuggler.  The applicant will be released on bail, with a family member as surety, to appear in court at a future date.  This will occur because he departed Sri Lanka illegally and is therefore in breach of section 45(1)(b) of the I & E Act, as cited above.  The Tribunal does not accept that this amounts to serious harm for a Convention reason.” 

11. At paragraph 98 of its reasons, the Tribunal concluded:

    “[98] After assessing all the evidence the Tribunal finds that the applicant does not have a well-founded fear of Convention-based persecution in Sri Lanka because of his illegal departure.” 

12. With respect to the findings of the Tribunal, I accept the submission of the first respondent (at paragraph 35) that “Laws of general application will not be persecutory where they are to achieve a legitimate objective and are implemented in a way that is proportionate to achieving that objective”.  This is set out in Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 217 CLR 387:

    “[44] In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.”

    [Footnotes omitted.]

1. The submission of the first respondent is that the objective of this legislation is to deter people from joining the people smuggling ventures in Sri Lanka and deter or cease the organisers and facilitators of the people smuggling. 

2. Page 20 of the Tribunals’ reasons states:

   “[92] Section 45 A to G of the I & E Act deals with penalties for offences under the Act.  The Sri Lanka’s Attorney-General’s Department (AGD) has told staff from Australia’s overseas post in Sri Lanka (post) that people being intercepted on people smuggling boat ventures in Sri Lanka are considered to be “victims” and are not given a custodial sentence but are issued a fine for the offence of departing Sri Lanka illegally under Section 45(1)(a).  The fine is to act as a deterrent to joining boat ventures in the future.

   [93] AGD said if a person is considered to be an organiser, the person will be charged and prosecuted for the relevant offence under the I & E Act.  Prosecutors would seek a prison sentence and the maximum fine of 200,000 LKR for people smuggling or the facilitation of people smuggling.” 

3. I am satisfied that the Tribunal carefully considered the submissions referred to by the applicant.  I am satisfied that the law that he may be detained under on his return to Sri Lanka is a law of general application that is not persecutory. 

4. In deciding whether the Tribunal appropriately considered the time that might elapse that the applicant might spend in custody before his bail, I note the submissions of the first respondent at paragraph 37 of her written submissions:

   “[37] The Applicant’s submissions contend that the RRT failed to consider the time which might elapse but as McHugh J [said] in Ex parte Durairajasingham[39]:

   “…it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal.  …””

   [39] Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajafingham (sic) (2000) 168 ALR 407 at [65]

5. Having reference to Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46] – [47] and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [63], I am satisfied that the Tribunal considered the release of the applicant and considered that the release would follow shortly due to the findings it made in respect of lack of serious harm. I accept that an inference that the Tribunal has failed to consider an issue should not be readily drawn where the reasons are otherwise comprehensive and the issue has been identified at some point.

6. I am satisfied that the issue was identified by the Tribunal at paragraph 46 of its reasons and there was an extensive analysis of this issue.  I am therefore not prepared to find that the Tribunal failed to consider the issue.  

7. Section 91R of the Act states:

   “(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:

   (a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

   (b) the persecution involves serious harm to the person; and

   (c) the persecution involves systematic and discriminatory conduct.

   (2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:

   (a) a threat to the person’s life or liberty;

   (b) significant physical harassment of the person;

   (c) significant physical ill‑treatment of the person;

   (d) significant economic hardship that threatens the person’s capacity to subsist;

   (e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;

   (f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

   (3) For the purposes of the application of this Act and the regulations to a particular person:

   (a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

   disregard any conduct engaged in by the person in Australia unless:

   (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.”

8. Section 91R of the Act defines persecution. I accept the submission of the first respondent that s.91R was introduced to provide a manifest statutory intention to define persecution and to qualify the nature, the extent and the form of persecution required before the convention can be said to apply to a person for the purposes of the Act. To the extent that that is different from the submissions of the applicant, at paragraph 38 of those submissions where he discusses the term persecution as considered in a number of authorities, I accept the submission that the statutory definition is the relevant definition to apply in the present case.

Conclusion

1. I am satisfied that the Tribunal did address the applicant’s claims regarding his return to Sri Lanka and being remanded in custody, awaiting bail.  I accept the submission of the first respondent that it was a comprehensive decision.  The Tribunal did not accept the applicant’s submissions, as put before the Tribunal, although they were considered, but preferred other aspects of the reports and material that was before it.  I accept the submission that the findings made by the Tribunal were clearly available on the evidence and I am not, in this forum, able to conduct a merits review. 

2. No jurisdictional error is identified by the ground for review. 

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Cassidy

Date: 15 August 2014.