BZS15 v Minister for Immigration
[2017] FCCA 1217
•7 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BZS15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1217 |
| Catchwords: MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – protection (Class XA) visa – where Applicant claims denial of procedural fairness – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 91R(1)(c) |
| Cases cited: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 |
| Applicant: | BZS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2220 of 2015 |
| Judgment of: | Judge Hartnett |
| Hearing date: | 6 April 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 7 June 2017 |
REPRESENTATION
| The Applicant: | In Person |
| Solicitor acting as Counsel for the First Respondent: | Ms Briffa |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The Application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $6400.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2220 of 2015
| BZS15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relied upon an amended application filed on 6 January 2017 seeking judicial review of a decision of the Second Respondent (‘the Tribunal’) dated 18 September 2015 wherein the Tribunal affirmed a decision made by a delegate of the First Respondent not to grant the Applicant a protection (Class XA) visa (‘the visa’).
The grounds of application are as follows:-
“1. The Tribunal fell into jurisdictional error by not assessing my claims cumulatively of being a Tamil Hindu male from North of Sri Lanka associated with LTTE and was tortured by the Sri Lankan Authorities due to my profile.
2. The Tribunal’s finding that it does not accept that my wife filed report with Human Rights Commission, Sri Lanka and the Sri Lankan authorities continue to have interest on me were not supported by evidence.
3. The Tribunal fell into jurisdictional error by not assessing my integer claims.
4. The Tribunal has not assessed my claims that I will suffer serious harm under section 91R of the Migration Act on my return to Sri Lanka due to my profile.
5. The Tribunal’s finding that questioning, arrest and the poor conditions in remand is not amount to systematic and discriminatory as required by s.91R(1)(C) is so illogical and irrational and not supported by evidence.
6. The Tribunal erred in its construction of the phrase “intentionally inflicted” as it fell into Jurisdictional error because it only considered whether there was an “actual, subjective, intent” to cause harm to the applicant (the harm being exposure to poor prison conditions) and failed to consider whether the Sri Lankan authorities had the necessary intent because they foresaw the consequences of their actions. (SZTAL-v- Minister for Immigration and Border Protection {2016} FACFC 69 – Subject to High Court Appeal – S272/2016)”
The First Respondent seeks dismissal of the application on the basis that no jurisdictional error attends the decision of the Tribunal.
Both parties have filed and rely upon written submissions and the evidence as contained in the Court Book is before the Court.
History
The Applicant is a 34 year old married male who was born in Konavil Village, Karachchi Division Secretariat, Killnochchi District, Northern Province of Sri Lanka. He described his ethnicity as Tamil and his religion as Hindu. The Applicant departed Sri Lanka unlawfully and travelled to Australia by boat. He arrived in Australia in August 2012. Prior to arriving in Australia he was living in Vavuniya District and working as a truck driver. He said he did not own his home but was provided with accommodation for ‘Internally Displaced Tamils from North Sri Lanka’ (‘IDT’). The Applicant’s parents, wife and three children continue to reside in Vavuniya District.
On 30 May 2013, the Applicant applied for the visa. On 9 October 2013, the Applicant attended a protection visa interview with a delegate of the Minister. On 3 April 2014, the delegate refused to grant the Applicant the visa.
On 1 May 2014 the Applicant applied to the Tribunal for review of the delegate’s decision. On 11 August 2015, the Applicant appeared before the Tribunal to give evidence and present arguments. He was assisted by his migration agent, who participated by telephone, and a Tamil interpreter. Thereafter the Applicant’s migration agent forwarded post hearing submissions to the Tribunal which included reference to country information. The Tribunal considered this material. On 18 September 2015, the Tribunal affirmed the delegate’s decision.
The Tribunal
The Tribunal succinctly set out the issue before it as being:-
“10.
… whether the Applicant meets the refugee or complementary protection criteria because:
·of his Tamil Ethnicity (race);
·of his imputed political opinion as a former supporter of the Liberation Tigers of Tamil Eelam (LTTE);
·he is a member of a particular social group – Internally Displaced Tamil male;
·he is a member of a particular social group – a failed asylum seeker who departed Sri Lanka unlawfully and/or as a Tamil male from North Sri Lanka.”
The Tribunal set out most of the claims made by the Applicant in paragraphs 16 to 20 of the Statement of Decision and Reasons (‘the Decision Record’). Those substantive claims were as follows:-
“16. Since 1995 the Applicant and his family were forced to flee their home area due to the civil war and have been relocated to the following Internally Displaced Person (IDP)camps located in the Northern Province of Sri Lanka: November 1996, Vattakanda, July 1999, Madu, January 2000,Kolikouttu, Feburary 2000, Poonthottam (Kempas Camp).
17. The Applicant said that in June 2006 due to the escalating tension between the LTTE and the Sri Lankan Army (SLA), his family were forced to leave Poonthottam IDP Camp and moved to Kalanatiinakulam, Vavuniya District in the Northern Province of Sri Lanka.
18. The Applicant said his family was forced to move from camp to camp due to the civil war. In the camps his family was provided with tent accommodation and food from various international aid organisations. He was able to perform some labouring work when granted a pass which enabled him to leave the camp.
19. The Applicant and other inhabitants were forcibly rounded up by the SLA and questioned about their knowledge and/or involvement of the LTTE and its members. The Applicant said that he was not individually singled out by the Sri Lankan authorities and questioned but was questioned with other Tamils in a “general way” about their association with the LTTE.”
The Tribunal found that the Applicant’s account of his experience living as an IDT “credible and consistent with country information”. It also accepted that as a male from the North he would have been questioned by the Sri Lankan authorities while at IDP camps.
The Applicant also claimed as substantive claims that, from around 2001, he had assisted the Liberation Tigers of Tamil Eelam (‘LTTE’) by transporting items for them and smuggling goods across check points. He claimed that he was abducted and tortured by the Sri Lankan Army in 2012 because of that assistance. Since he arrived in Australia, the Applicant stated that members of the Sri Lankan Army had visited his wife looking for him.
The Tribunal did not accept these latter claims. The Tribunal’s findings are as accurately summarised in the submissions of the First Respondent and set out herein:-
“12.
… the Tribunal did not accept that the applicant's links to the LTTE went beyond his Tamil ethnicity or the fact that he came from North Sri Lanka. Ultimately, the Tribunal found the applicant's evidence about assisting the LTTE to be unconvincing. For example, it found his claims to have carried 50 kg bags of cement and to have smuggled goods through one of Sri Lanka's “most significant” military checkpoint to be “lacking in credibility”. It similarly found the applicant's explanation that he failed to disclose his involvement with the LTTE in his entry interview because he was scared of Sri Lankan authorities to be inconsistent with his evidence that he told his wife to disclose the details of his claims to the Human Rights Commission (HRC) in Sri Lanka.”
I note his entry interview was January 2013 and that he claimed to have told his wife to make a report to the Human Rights Commission around April 2013.
“13. Given it did not accept that the applicant had assisted the LTTE, the Tribunal also did not accept that the applicant had come to the attention of the SLA, that he was detained and tortured in 2012 or that he was a person of interest. It also found his account of his injuries and medical treatment lacking in credibility. The Tribunal went on to consider whether the applicant would suffer harm as a Tamil male from Northern Sri Lanka. It relied on country information from the UNHCR which indicated that not all Tamils from the North were vulnerable to harm because of imputed links to the LTTE. It also found that, based on its previous factual findings, the applicant did not fit any of the 'risk profiles' identified by the UNHCR which would cause someone to be imputed with a pro-LTTE opinion. The Tribunal cited country information which indicated that an estimated 300,000 civilians were placed in IDP camps in North Sri Lanka because of the civil war. In the circumstances, the Tribunal was not satisfied that the applicant's fear of harm on the basis of his imputed political opinion or membership of a particular social groups (of internally displaced Tamil males, Tamil males from North Sri Lanka) was well-founded. Nor did it consider those claims gave rise to substantial grounds for believing there was a real risk the applicant would suffer significant harm.”
15. The Tribunal separately considered whether the applicant would face harm because of his Tamil ethnicity. Again it relied on country information from the UNHCR (among other sources) which indicated that there was no longer a need for group based protection mechanisms for Tamils originating from the North. It also found that the applicant did not fit any of the “risk profiles” identified by the UNHCR. Accordingly, it was not satisfied the applicant would face persecution as a Tamil or that there was a real risk he would face significant harm for that reason.
16. The Tribunal accepted that the Applicant had departed Sri Lanka illegally. It also accepted that he would be known to have unsuccessfully sought asylum in a Western country. While the Tribunal accepted that failed asylum seekers had been abused, it found those cases “overwhelmingly” involved people who had (or were suspected of having) connections with the LTTE or who had criminal convictions. The Tribunal also referred to country information from DFAT which indicated that standard procedures applied to returned asylum seekers regardless of their ethnicity.
17. The Tribunal accepted that the Applicant would be questioned at the airport about his illegal departure. It also accepted that there was a possibility he would be remanded for a limited period awaiting bail. It accepted that the conditions on remand had been described as “overcrowded and unsanitary”. However, it cited country information that people suspected of illegal departure are routinely granted bail on their own recognisance after a short period. It also found that the penalty for illegal departure was a fine between 50,000 and 200,000 LKR. It did not accept that such a fine amounted to serious harm. Nor did it accept that the Applicant would be imputed with a political opinion because he left illegally. The Tribunal was also satisfied that the law under which the applicant may be charged for his illegal departure was a “law of general application with the legitimate aim of managing the proper exist and entry of persons from Sri Lanka”.
Consideration
No jurisdictional error attends the decision of the Tribunal for the reasons which follow.
Ground 1
The Tribunal carefully considered each of the Applicant’s claims arising from his Tamil ethnicity, his former support of the LTTE and his claimed membership of a particular social group of Tamil males from North Sri Lanka. It is also considered but rejected the Applicant’s factual claim to have been tortured by the Sri Lankan Army.
These claims were also considered cumulatively, as set out in paragraph 95 of the Decision Record, relevantly:-
“…having considered the country information referred to by the applicant's representative, and the UNHCR guidelines the Tribunal accepts that the authorities in Sri Lanka have dealt harshly with people they consider in opposition to them and this has included Tamils associated with the LTTE and sympathisers. However, having considered the applicant's claims cumulatively and his personal circumstances, the Tribunal does not accept that he has a profile with the Sri Lankan authorities due to his imputed or actual involvement or support for the LTTE, either because of his Tamil ethnicity or because he is a Tamil male from northern Sri Lanka or an Internally Displaced Tamil male or by virtue of departing Sri Lanka illegally.”
Ground 2
Contrary to the Applicant’s assertion, the Tribunal did not “reject” the Applicant’s claim that his wife had lodged a complaint with the Human Rights Commission. Indeed, it found that the Applicant’s claim that he was frightened to tell the Australian authorities about his involvement with the LTTE in January 2013 was inconsistent with his claim that he told his wife to disclose the details of his claims to the Human Rights Commission a few months later.
The Tribunal otherwise found the Human Rights Commission Complaint card which the Applicant submitted, to be of little assistance, which was a finding that was open to it.
As to the Applicant’s complaint that the Tribunal did not accept that the Applicant was of ongoing interest to the authorities, such finding was based on inconsistencies and implausibility in the Applicant’s evidence and again a finding open to the Tribunal on the evidence before it. Moreover, the Tribunal canvassed with the Applicant matters of concern to it and sought his response which was provided at the hearing and in part in his submissions following the Tribunal hearing.
Grounds 3 and 4
These grounds must fail. The Tribunal carefully considered each of the Applicant’s claims and integers of such claims and made findings open to the Tribunal on the evidence before it.
Grounds 5 and 6
The Tribunal found, relevantly, the following:-
“75. …the Tribunal has considered the fact the applicant left Sri Lanka illegally and what is likely to happen to him on his return given his profile discussed above.
76. The applicant arrived in Australia by boat in August 2012 as an unauthorised maritime arrival (UMA). He departed Sri Lanka unlawfully without a passport, in breach of the Immigrants and Emigrants Act (the I&E Act). Under s.45(1 )(b) of the I&E Act, it is an offence to depart other than via an official port of entry or exit such as a seaport or airport. He is not a people smuggler and came to Australia as an ordinary passenger seeking asylum.
77. The Tribunal has accepted that the applicant left Sri Lanka illegally. The Tribunal also accepts that it will be known upon his return that he has unsuccessfully sought asylum in a Western country. The Tribunal has considered the applicant's fear of harm on the basis of his membership of a particular social group, being a failed asylum seeker from a Western country.
78. The Tribunal has considered the situation both in terms of the applicant's immediate arrival and following his arrival and resettlement in his village.
79. The Tribunal accepts that there are reports that Sri Lankan failed asylum seekers have suffered abuse on their return to Sri Lanka. However, the cases in relation to returnees overwhelmingly involve persons who are Tamil and have had connections with the LTTE or who are suspected of such connections, or persons who have criminal connections.
80. As stated above, the Tribunal has found that the applicant is not suspected or accused of any LTTE connections and there is not a real chance he will be harmed for this reason upon his return to Sri Lanka.
81. The information from DFAT indicates that allegations of mistreatment of returnees without such links have not been substantiated.[1]
[1] DFAT 2013 Country Information Report Sri Lanka, 31 July paragraphs 3.4, 3.64, see also Freedom from Torture, Submission to the Committee against Torture for its examination of Sri Lanka in November 2011.
82. The Tribunal accepts that DFAT does not routinely monitor the situation for returnees, but there is also information from the Canadian Immigration and Refugee Board in January 2013 that the treatment of people at the airport did not depend on their ethnicity but on their political activities.[2]
[2] Immigration and Refugee Board of Canada, 'Sri Lanka: Treatment of Tamil returnees to Sri Lanka, including failed refugee applicants, 12 February, LKA 104245.E.
83. The Upper Tribunal also concluded that reports by Amnesty International claiming that failed Sri Lankan asylum seekers faced harm upon their return “lacked substance” and an April 2012 press report from the UNHCR noted that it carries out regular monitoring and it has assisted the voluntary return of 1,728 Tamils in 2011 and 408 in the first quarter of 2012.[3]
[3] UK Home Office 2012, Country Policy Bulletin - Sri Lanka, October, pp.1-8.
84. The information before the Tribunal, including from DFAT, the Upper Tribunal and UNHCR also indicates that standardised procedures apply to all cases, regardless of a person's ethnicity or the circumstances in which they left the country.
85. As a result of tightened procedures adopted in late 2012, returnees who are believed to have left the country in breach of immigration laws are arrested at the airport and brought before a court and charged under the I&E Act. The information indicates that returnees are routinely interviewed at the airport on arrival by the Immigration and Emigration Department, the State Intelligence Service and the airport Criminal Investigation Department (CID). These processes involve police and security clearances, including checks with the person's local police station and may take some hours. If they reveal outstanding arrest warrants for prior criminal offences, or if there are alerts against the person's name on immigration watch-lists, they may be subject to further questioning. Additional questioning would also be involved if the person was of security interest or if there was evidence of involvement in people smuggling.
86. Persons suspected of illegal departure are taken to a court to apply for bail. Bail is routinely given on the person's recognisance, although a family member is also required to provide surety. If the arrival occurs over a weekend or on a public holiday, the returnee is placed in the remand section of Negombo prison until a bail hearing is available. The evidence before the Tribunal also indicates that the penalties imposed on returnees by the courts for illegal departure may take the form of fines or a custodial sentence.
87. The Tribunal accepts, therefore, that the applicant will be questioned at the airport. The Tribunal also accepts that there is a possibility he will be held for a limited period in remand whilst waiting bail, but DFAT has reported that returnees are transported by police to the Magistrates Court in Negombo at the “first available opportunity” and it is only if a magistrate is not available because of a weekend or a public holiday that those persons who are charged are taken to the nearby Negombo prison.[4] The Tribunal accepts that conditions in remand have been described in media reports as overcrowded and unsanitary, with a lack of access to adequate food, water and a lack of access to assistance and limited reform regarding violence and maltreatment. However, the Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for only a short period in remand will then be bailed.
88. The evidence also indicates that the most likely penalty for leaving Sri Lanka illegally would be a fine, unless the person is considered to be an organiser of people smuggling.[5]
89. The Tribunal does not accept there is any evidence that the applicant will be suspected of people smuggling or there is any evidence of outstanding criminal matters or that he would be on a watch list. DFAT was informed in March 2014 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally.
90. The penalties eventually imposed on returnees by the courts for illegal departure take the form of fines ranging from 50,000 to 200,000 LKR. However, DFAT was informed in March 2014 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally and the fines levied by the Magistrates Court in Colombo are typically about 5,000 Sri Lankan Rupees (around AUD 40), although one magistrate in Negombo typically levied fines of around 50,000 Sri Lankan Rupees (around AUD 400) to act as a deterrent.[6] The Tribunal accepts on the basis of the information discussed above that the Applicant would be subjected to such processes on return.
91. The Tribunal is not satisfied that the scale of the fine is such that it amounts to serious harm. Further, the Tribunal considers that the evidence indicates that anyone who has left Sri Lanka illegally may be subject to a fine for doing so and there is also no evidence of differential treatment in the application of the fine.
92. The Tribunal is not satisfied that he will be imputed with a political opinion because he has left illegally or singled out or treated differently because he is a member of a particular social group of failed asylum seekers or any other particular social group.
93. The Tribunal considers that factors in relation to returnees apply to anyone who has left Sri Lanka illegally. The Tribunal is not satisfied therefore, that questioning, arrest, and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91 R(1)(c). Furthermore, the Tribunal does not accept that any of this amounts to persecution for a Convention reason. The Tribunal considers that the elements of the processing of returnees, and any penalties to which the applicant may be subjected, will be applied on a non-discriminatory basis under a law of general application.
94. Accordingly, having considered all the evidence in relation to the situation for returnees, the Tribunal considers that despite the large numbers of reported involuntary returnees to Sri Lanka, there is very limited evidence of returnees suffering mistreatment, either upon their arrival or following return to their villages. The Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival or the fact of his illegal departure from Sri Lanka, and the authorities' awareness that he has applied for asylum in a Western country and has lived in a Western country for some time.”
[4] DFAT, Sri Lanka: Country Report, 3 October 2014, p.23.
[5] DFAT Sri Lanka: RRT Country Information Request- LKA40999, 19 October 2012, CX29741; DFAT Country Information Report N0.12/67, dated 29 November 2012, CX299951; DFAT Report 1478, dated 28 February 2013, DFAT Report 1479, dated 4 March 2013, DFAT Country Information Report, Sri Lanka, 31July2013, paragraphs 3.73, 3.75, 3.77, 3.79. See also "Asylum seekers transferred at sea by Australia to face court in Sri Lanka" face-court-in-sri-lanka.
[6] DFAT 2014, Country Report Sri Lanka, 3 October at 5.28 to 5.29.
(Footnotes in original.)
The above findings of the Tribunal were clearly informed by up to date country information from the Department of Foreign Affairs and Trade (‘DFAT’) and other sources.[7] To succeed in ground 5 the Applicant must establish that no rational or logical decision maker could have arrived at the same conclusion as the Tribunal on the same evidence.[8] The Minister submits that the Applicant cannot satisfy this test. The Court accepts that submission. The Tribunal’s conclusion was based on probative country information and cogent reasons. The weight to be given to the evidence before it was a matter for the Tribunal.
[7] DFAT 2015, Country Report Sri Lanka, 16 February 2015, paragraphs 2.30, 3.33, 3.34.
[8] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611,128-130.
The Tribunal as described in its Decision Record extracted above, concluded that the questioning, arrest, and poor prison conditions in remand did not amount to systematic and discriminatory conduct as required by s.91R(1)(c) of the Migration Act 1958 (Cth) (‘the Act’) nor persecution for a Convention reason. The Tribunal also considered the Applicant’s claims having regard to the Complementary Protection provisions and concluded that the Applicant was not a person in respect of whom Australian had protection obligations under s.36(2)(aa) of the Act. The Tribunal found, as set out in paragraph 100 of the Decision Record:-
“100. The Tribunal is not satisfied that during any questioning at the airport that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor is the Tribunal satisfied that the fact that the applicant may spend up to a fortnight in remand/jail on his return to Sri Lanka establishes that the pain or suffering caused by severe overcrowding and poor and insanitary conditions is intentionally inflicted on detainees as required by the definition of cruel or inhuman treatment or punishment. Nor does the Tribunal accept that the severe overcrowding and poor conditions are intended to cause extreme humiliation as required by the definition of 'degrading treatment or punishment'.[9] The Tribunal is also not satisfied that the evidence indicates that during a period in remand there is a real risk that the applicant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.”
[9] See SZTKF v MIBP [2014] FCCA 282, 4 December 2014, in which Manousaridis, J, found that the
(Footnote in original.)
In SZTAL v Minister for Immigration and Border Protection [2015] FCCA 64 (‘SZTAL’) at [52]-[53], Judge Driver found that the concept of “intentionally inflicted” connoted the existence of an actual, subjective intention as reasoned by the Tribunal in this proceeding. On appeal, the Full Court of the Federal Court of Australia found the primary judge not to have erred in construing this expression. The Court is bound by this authority.
The application shall be dismissed with costs.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Hartnett
Date: 7 June 2017
intentionally placing the applicant, a Tamil citizen in remand whilst awaiting sentence did not establish that the harm was intentional such that it was significant harm. In an earlier decision, the Federal Circuit Court found that mere negligence without more, was not capable of amounting to intentional infliction of pain or suffering see SZSPE v MIBP [2013] FCCA 1989.
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