Caw17 v Minister for Immigration

[2020] FCCA 3395

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAW17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 3395

Catchwords:
MIGRATION – Persecution – review of Immigration Assessment Authority (“IAA”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the IAA’s decision affected by jurisdictional error by reason that it made unreasonable findings.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473BB, 473CA, 474,

Migration and Maritime Powers Legislation Amendment (Resolving the Asylum

Legacy Caseload) Act 2014 (Cth)

Cases cited:

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210

First Applicant: CAW17

Second Applicant: CAX17

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 1446 of 2017

Judgment of: Judge Cameron

Hearing date: 19 November 2020

Date of Last Submission: 19 November 2020

Delivered at: Sydney

Delivered on: 16 December 2020

REPRESENTATION

Counsel for the Applicants: Mr G. Foster of counsel

Solicitors for the Applicants: Sentil Solicitors

Solicitor for the Respondents: Mr Valliappan of Minter Ellison

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1446 of 2017

CAW17

First Applicant

CAX17

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The first and second applicants, who are husband and wife respectively, are citizen of Sri Lanka who arrived by boat at the Cocos Islands on 25 September 2012 without a visa permitting them to enter and stay in Australia.  On 18 August 2015 they lodged an application for a Safe Haven Enterprise Visa (“SHEV”) with what is now the Department of Home Affairs (“Department”).  The applicants have alleged that they fear persecution in Sri Lanka because of their ethnicity, the first applicant’s imputed political opinions and social group and because they sought refuge in Australia.  On 22 September 2016 a delegate of the first respondent (“Minister”) refused the applicants’ application and the matter was referred to the second respondent (“IAA”) for review.  The applicants were unsuccessful before the IAA and have applied to this Court for judicial review of the IAA’s decision.

2. In this judicial review proceeding the Court’s task is to determine whether the IAA’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

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

FAST TRACK REVIEW LEGISLATIVE FRAMEWORK

1. On 18 April 2015 the Act was amended to provide for a “fast track review” process in relation to certain unauthorised maritime arrivals: sch.4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014. 

Definitions

1. Section 5(1) of the Act relevantly defines a “fast track applicant” as a person:

   (i)who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

   (ii)to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

   (iii)who has made a valid application for a protection visa in accordance with the determination;

2. The applicants are fast track applicants.

3. Section 5(1) also defines a “fast track decision” as a decision to refuse to grant a protection visa to a fast track applicant. A “fast track reviewable decision” is relevantly defined as a fast track decision in relation to a fast track review applicant: s.473BB of the Act. Certain fast track applicants are excluded from the fast track review process but it has not been suggested that either applicant was such an applicant.

Fast Track Process and Procedures

1. Part 7AA of the Act sets out the IAA fast track process and procedures.

2. Section 473CA is found in pt.7AA and provides that the Minister must refer a fast track reviewable decision to the IAA as soon as reasonably practicable after the decision is made. There is no provision for a fast track applicant to apply to the IAA for a review.

STATUTORY CRITERIA FOR THE GRANT OF A PROTECTION VISA

1. Since 18 April 2015, the Act has prescribed the conditions for the grant of a protection visa relevantly in the following terms:

   36 Protection visas—criteria provided for by this Act

   …

   (2)A criterion for a protection visa is that the applicant for the visa is:

   (a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

   (aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

   …

   (2A)  A non-citizen will suffer significant harm if:

   (a)the non-citizen will be arbitrarily deprived of his or her life; or

   (b)the death penalty will be carried out on the non-citizen; or

   (c)the non-citizen will be subjected to torture; or

   (d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or

   (e)the non-citizen will be subjected to degrading treatment or punishment.

   …

   5H Meaning of refugee

   (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:

   (a)in a case where the person has a nationality—is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

   (b)in a case where the person does not have a nationality—is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

   …

   5J Meaning of well-founded fear of persecution

   (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

   (a)the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

   (b)there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

   (c)the real chance of persecution relates to all areas of a receiving country.

   …

   (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

   …

   (b)the persecution must involve serious harm to the person; and

   …

   (5)Without limiting what is serious harm for the purposes of paragraph (4)(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.

   …

2. Section 5(1) also provides the following further, relevant definitions:

   …

   cruel or inhuman treatment or punishment means an act or omission by which:

   (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

   (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

   but does not include an act or omission:

   (c)that is not inconsistent with Article 7 of the Covenant; or

   (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

   (a)    that is not inconsistent with Article 7 of the Covenant; or

   (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

   …

   torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

   (a)for the purpose of obtaining from the person or from a third person information or a confession; or

   (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

   (c)for the purpose of intimidating or coercing the person or a third person; or

   (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

   (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

   but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

BACKGROUND FACTS

Protection visa claims

1. The applicants’ written claims for protection were first made in a statement made by the first applicant on 30 July 2015 attached to the applicants’ SHEV application. Their legal representative also made submissions on 18 August 2015.  The applicants gave oral evidence in entry interviews on 12 January 2013 and at a departmental interview on 27 October 2015.  As summarised by the Minister in his written submissions, the applicants relevantly made the following claims:

   7.On 4 April 2011, the applicants were involved in a motorcycle accident in which the second applicant (the wife) was taken to hospital.  She sustained broken bones in her arm and can no longer raise her arm above her shoulder.  The wife also injured her back and has significant vision impairment which makes walking very difficult (CB 217–218 at [39]–[42]).

   8.The applicants in their submissions to the delegate claimed to fear harm for reason of their profile as a failed asylum seeker.  It was submitted that while the Immigrant and Emigrants Act 1949 (Sri Lanka) (I&E Act) appeared to be a law of general application, the treatment the applicants may receive would not be for a legitimate objective.  Further, it was submitted that because of their profile, the applicants may be detained and subject to torture for their unlawful departure (CB 235 at [7.8]–[7.11]).

   9.Following the referral of the matter to the Authority, the applicants, on 6 April 2017, made further written submissions.  It was submitted that the applicants would not have a family member who would assist with their bail should they plead not guilty to departing Sri Lanka illegally.  Further, it was submitted that they would be exposed to a risk of serious or significant harm during their detention in below standard prisons (CB 496–498 at [3]–[7]).

The IAA’s decision and reasons

1. After discussing the claims made by the applicants and the evidence before it, the IAA found that it was not satisfied that they were persons to whom Australia has protection obligations under s.36(2)(a) or (aa) of the Act. The IAA’s findings were summarised by the Minister in his written submissions in the following terms:

   10.The Authority accepted that the applicants were involved in a motorcycle accident (at [43]).  Further, the Authority accepted that the applicants departed unlawfully by boat and would be subject to background checks on return.  It noted that DFAT reported that all returnees are treated according to standard procedures irrespective of their ethnicity and are not subject to mistreatment during the process (at [56]–[57]).

   11.The Authority on the basis of the country information before it was not satisfied that the mere fact of having claimed asylum, spent time abroad, or these factors combined with being a Tamil from a former LTTE-controlled area in the north, would lead to an adverse interest or a real chance of harm.  Further, it noted that DFAT had assessed the risk of torture or mistreatment for the majority of returnees including those suspected of offences under the I&E Act was low (at [58]).  The Authority noted that the first applicant's … assistance to the LTTE was known to but was not of ongoing adverse interest to the Sri Lankan authorities and so was not satisfied he would be identified as a person of adverse interest during questioning (at [59]).

   12.The Authority was not satisfied that there was a real chance of the applicants being detained for additional questioning beyond those checks, or suffering torture or other serious harm during the return process.  The Authority took into consideration the applicants' genuine subjective fear of the Sri Lankan authorities, the symptoms outlined in the letters from their counsellor and the medical report, their age and the wife's injuries, but was not satisfied the background check and any questioning it entailed would amount to serious harm (at [59]).

   13.  The Authority accepted that the applicants would be identified as persons who departed Sri Lanka illegally.  The Authority noted that after processing at the airport, persons who depart illegally are charged under the I&E Act, fingerprinted and photographed, and then transported to the closest Magistrate's Court at the first available opportunity once investigations are completed.  Prior to being taken from the airport, an illegal departee can remain in custody at the airport for up to 24 hours after arrival or three days [in a nearby prison] if no magistrate is available before then (at [60]).

   14.The Authority then considered the penalties for a person charged under the I&E Act.  It noted that DFAT had been advised that no mere passenger had ever been issued a custodial sentence and that if a person pleaded guilty they would be fined and free to go.  Further, it noted that where a person pleads not guilty, they are immediately granted bail on the basis of a personal surety or a family member acting as a guarantor (at [61]).  The Authority was not satisfied … in the circumstances that the applicants would be detained for more than a brief period (at [62]).

   15.The Authority found that the treatment of the applicants under the I&E Act is not discriminatory conduct but rather [conduct pursuant to] a law of general application and that the evidence did not suggest that it was selectively enforced or applied in a discriminatory manner (at [64]).  In relation to the fine, the Authority noted that the applicants continued to own assets in Sri Lanka and that it could be paid in instalments.  The Authority considered the brief period of detention, even considering the poor prison conditions and the applicants’ particular vulnerabilities, including their age, fear and the wife's injuries did not rise to the level of serious harm (at [65]).

   16.Turning to the complementary protection criterion, the Authority accepted that on return to Sri Lanka there was a real risk the applicants would be investigated and detained at the airport, potentially detained for a number of days pending bail, and then imposed with a fine.  However, it found this treatment did not amount to significant harm (at [73]).  Further, the Authority was not satisfied there was an intention in the execution of the I&E Act to cause significant harm (at [74]).

2. I adopt that summary.

3. Given the matters in issue in this case, it is important to quote the IAA’s description of the conditions in the prison to which the applicants might be remanded following return to Sri Lanka:

   63I … accept that prison conditions in Sri Lanka are poor, due to a lack of resources, overcrowding and poor sanitary conditions.

   …

   75… To the extent that the applicants may be detained in crowded and unsanitary conditions while on remand, the evidence before me is that this treatment arises from the application of Sri Lankan law and that the prison conditions in Sri Lanka are poor because of a lack of space and resources, which the government is said to be taking steps to address. …

PROCEEDING IN THIS COURT

1. In the amended application the applicants alleged:

   1.The IAA erred when it found there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicants will suffer significant harm. The Applicants do not meet S 36 (2)(aa).

   Particulars

   i.Paragraph 78 [CB551];

   ii.Applicant 2 suffers from injuries or disabilities including:

   a.     An arm injury;

   b.     Broken bone;

   c.      Inability to raise her arm over her shoulder;

   d.     Backbone injured;

   e.      Inability to walk;

   f.      Loss of vision in left eye;

   g.     Slight vision in right eye;

   h.     Difficulty Walking      [CB217/8]

   iii.The IAA accepted that the Applicants will experience upon return to Sri Lanka being questioned, investigated, held up to 24 hours at the airport and potentially for number of days in overcrowded and unsanitary conditions pending appearance before a magistrate and bail [CB549] because the prison conditions in Sri Lanka are poor [CB548];

   iv.The IAA noted Applicant 2 had been badly injured in a motor cycle accident [CB535],

   v.The IAA however was erroneously not satisfied that acts or omissions of the Sri Lankan officials could are [sic] intended to cause severe pain or suffering, pain or suffering which could reasonably be regarded as cruel or inhuman, or extreme humiliation, as is required by the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in S 5(1) and did not amount to significant harm within the meaning of s 36 (2A) [CB551];

   Such error being unreasonable thereby amounting to jurisdictional error.

   2.The IAA erred when it found the totality of treatment the applicants will experience does not amount to serious harm.

   Particulars

   i.Paragraphs 59 [CB547], 66 [549];

   ii.Particulars ii to iv above are repeated;

   Such error being unreasonable thereby amounting to jurisdictional error.

CONSIDERATION

Ground 1

1. The first ground of the amended application alleged that the IAA’s lack of satisfaction that the applicants met the complementary protection criteria found in s.36(2)(aa) of the Act was unreasonable if regard was had to the injuries the second applicant still carried and the limitations she still suffered as a result of the April 2011 motor cycle accident. It was argued that given the severity of the second applicant’s injuries, it was unreasonable of the IAA not to find that detaining her in a Sri Lankan prison would cause or was intended to cause her:

   a)severe pain or suffering, pain or

   b)suffering which could reasonably be regarded as cruel or inhuman, or

   c)extreme humiliation,

   sufficient to meet the Act’s tests for one or all of:

   d)cruel or inhuman treatment or punishment,

   e)degrading treatment or punishment, and

   f)torture.

1. In Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 the Full Court of the Federal Court of Australia said:

   … we are inclined to the opinion that, where there are reasons for the exercise of a power, it is those reasons to which a supervising court should look in order to understand why the power was exercised as it was. The “intelligible justification” must lie within the reasons the decision-maker gave for the exercise of the power — at least, when a discretionary power is involved. That is because it is the decision-maker in whom Parliament has reposed the choice, and it is the explanation given by the decision-maker for why the choice was made as it was which should inform review by a supervising court. … Where there are reasons, either the reasons given by the decision-maker demonstrate a justification or they do not. It would, we think, be a rare case where the reasons demonstrate a justification but the ultimate exercise of the power would be seen to be legally unreasonable. (at 446 – 447 [47])

2. Consequently, in a case such as the present, where the decision in question is supported by detailed reasons, an IAA decision is unlikely to be affected by jurisdictional error if it was open to the IAA to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it:

   … the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based.  If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.  (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 648 [131] per Crennan and Bell JJ)

3. The requirement of reasonableness in the IAA’s reasoning and fact finding is not limited to its ultimate decision on the review but applies also to its intermediate findings although:

   Even if an aspect of reasoning, or a particular factual finding, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result … (Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210 at 221 [55])

4. The relevant passage in both of the IAA’s reasons states:

   … on the available country information I am not satisfied that there is a real risk of the applicants being subjected to mistreatment while in police custody or of the police making a request to a magistrate to keep the applicants in custody rather than bailing them.  To the extent that the applicants may be detained in crowded and unsanitary conditions while on remand, the evidence before me is that this treatment arises from the application of Sri Lankan law and that the prison conditions in Sri Lanka are poor because of a lack of space and resources, which the government is said to be taking steps to address.  Considering the entirety of this treatment, even considering the applicants’ particular vulnerabilities, I am not satisfied that the acts or omissions of the Sri Lankan officials in this process are intended to cause severe pain or suffering, pain or suffering which could reasonably be regarded as cruel or inhuman, or extreme humiliation, as is required by the definitions of torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment in s.5(1).  …  I find that this treatment does not amount to significant harm within the meaning of s.36(2A).

5. The applicants argued in addresses that the IAA’s decision was “just quite unreasonable” but this submission did not rise above an emphatic disagreement with the IAA’s conclusion.  For instance, the Court was not taken to evidence that had been before the IAA that might have given the applicants’ submission some logical foundation.  For the Court to conclude that the IAA reached a conclusion that lacked an intelligible justification, in the sense that it was a decision which no reasonable decision maker would have reached on the available evidence, something more compelling than reference to an uncontextualised set of disabilities was required.

6. Notwithstanding the applicant’s submissions I also find that it was open to the IAA to find, as it in substance did, that if the applicants were to be remanded in custody until brought before a magistrate, that was the result of the ordinary operation of Sri Lankan law and they were not singled out for detention.  It was also open to the IAA to conclude, as it in substance did, that the nature of the experience that the applicants might have while remanded in custody would be the product of the state of the prison system in Sri Lanka, rather than of the intentional actions of government functionaries.

7. In reality, this ground of the application was an invitation to engage in merits review and does not identify any jurisdictional error.

Ground 2

1. The second ground of the amended application referred to paras.59 and 66 of the IAA’s reasons which, in both decision records, relevantly states:

   59… I find that in the course of any routine investigation upon return, the authorities will quickly establish that the applicants have no relevant adverse profile.  I am not satisfied that there is a real chance of the applicants being detained for additional questioning beyond those checks, or suffering torture or other serious harm during the return process or subsequently in the reasonably foreseeable future.  I have taken into consideration what I accept to be the applicants’ genuine subjective fear of the Sri Lankan authorities, the symptoms outlined in the letters from their counsellor and the medical report, their age and the applicant wife’s injuries, but am not satisfied that the background check and any questioning it entails amounts to serious harm.  …

   …

   66Considering the totality of the treatment that the applicants will experience, including being questioned and investigated as part of the background checks, held for up to 24 hours at the airport and potentially for a number of days in overcrowded and unsanitary conditions pending appearance before a magistrate and bail, and having to pay a fine, I find that this treatment does not amount to serious harm.

2. It was submitted that:

   … the injuries and disabilities sustained by Applicant 2 are so serious that the Applicant will face ‘serious harm’ upon arrival in Sri Lanka, such placement by the authorities amounting to significant physical harassment and/or significant physical ill-treatment under S 5J (5) of the Act …

3. The IAA’s assessment was otherwise.  Again, the applicants allege unreasonableness but in reality invite merits review because they do no more than express disagreement with the IAA’s reasons rather than identify a material legal error.

CONCLUSION

1. Jurisdictional error on the part of the IAA has not been demonstrated.

2. Consequently, the application will be dismissed.

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

Associate: 

Date: 16 December 2020