CKN16 v Minister for Immigration and Border Protection
[2018] FCA 314
•20 February 2018
FEDERAL COURT OF AUSTRALIA
CKN16 v Minister for Immigration and Border Protection [2018] FCA 314
Appeal from: CKN16 v Minister for Immigration & Anor [2017] FCCA 502 File number: NSD 512 of 2017 Judge: LEE J Date of judgment: 20 February 2018 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – whether the primary judge erred by failing to find that the Immigration Assessment Authority had failed to consider an integer of the appellant’s claim by failing to find that the Immigration Assessment Authority had failed to apply properly the test of “intentionally causing” or “intentionally inflicting” in the context of poor prison conditions – where grounds of appeal fail to demonstrate appellable error – appeal dismissed Legislation: Migration Act 1958 (Cth), ss 36(2)(a), 36(2)(aa) Cases cited: BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169
Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936
Date of hearing: 20 February 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 29 Counsel for the Appellant: The appellant appeared in person, assisted by an interpreter Counsel for the First Respondent: Mr J Kay Hoyle Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent entered a submitting appearance, save as to costs ORDERS
NSD 512 of 2017 BETWEEN: CKN16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
LEE J
DATE OF ORDER:
20 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed with costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)LEE J:
A BACKGROUND
By notice of appeal filed 7 April 2017, the appellant appeals from a judgment of the Federal Circuit Court which dismissed the appellant’s application for judicial review of a decision of the second respondent (IAA) made in August 2016. In that decision, the IAA had affirmed a decision of a delegate of the first respondent (Minister) made in July 2016 to deny a protection visa on the basis that the delegate was not satisfied that Australia owed protection obligations to the appellant pursuant to ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
It is worth noting at the outset that in making the decision in July 2016, the delegate accepted most of the factual bases of the appellant’s claims, but, despite this, formed the view that the appellant did not face a risk of significant harm. The appellant’s claims can be summarised as follows:
(a)he and his family were landowners in an area controlled by the Liberation Tigers of Tamil Eelam (LTTE) and paid money to the LTTE to prevent forced recruitment of the appellant. The Sri Lankan Army (SLA) was aware of the connexion to the LTTE;
(b)in 1991, his father was killed by the SLA and the SLA subsequently took control of the land and killed the family’s cows. Due to continual harassment, he moved to Saudi Arabia in 2001 and returned in 2004;
(c)after his return, he was abducted, taken to an army camp and tortured. His wife and mother paid a ransom to secure his release;
(d)he left Sri Lanka in 2006 to work for the American forces in Iraq. While away, his brother was questioned by the SLA about the appellant’s support for the LTTE. Subsequently, on his return, he was detained and questioned by the Criminal Investigation Department (CID). He was continually harassed for money. Since his departure, the CID had looked for him;
(e)he feared being detained by the Sri Lankan authorities on his return as an illegal returnee and being identified as an LTTE sympathiser.
The appellant arrived in Australia in August 2012 as an unauthorised maritime arrival and subsequently, in October 2015, made an application for a Safe Haven Enterprise visa. By reason of the date upon which he arrived, the appellant became a “fast track applicant” within the meaning of Pt 7AA of the Act, which provides for a limited review process called the “fast track review process”. Of course, the statutory regime introduced by Pt 7AA was summarised in some detail in two recent Full Court decisions: see Minister for Immigration and Border Protection v AMA16 [2017] FCAFC 136 at [11]-[16] per Griffiths J and BMB16 v Minister for Immigration and Border Protection [2017] FCAFC 169 at [64]-[75] per Charlesworth J. It is sufficient for present purposes to note that, as the simplified outline in s 473BA of the Act states:
[Pt 7AA] provides a limited form of review of certain decisions…to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country.
In accordance with this statutory framework, the delegate’s decision was referred to the Immigration Assessment Authority (IAA) for review. The IAA’s reasons for affirming the delegate’s decision may be summarised as follows:
(a)it accepted the factual basis of the appellant’s claims, finding that his evidence was generally consistent, coherent and plausible (at [28]);
(b)it accepted that it was due to continual harassment that he decided to leave Sri Lanka in 2001 and that he went to work in Saudi Arabia, before returning to Sri Lanka in December 2004 and that upon his return, he was abducted by individuals who accused him of supporting the LTTE (at [35] and [38]);
(c)on the basis of country information, and the appellant’s general credibility, the IAA accepted that the appellant had been accused of supporting the LTTE (at [32] and [38]); it considered, however, that as the appellant was only detained by the SLA for a short period rather than a longer period under prevention of terrorism legislation, it found that this was aimed at extorting money rather than any genuine belief on the part of the SLA, or the paramilitaries working with the SLA, that the appellant was an LTTE supporter (at [38]);
(d)the appellant left Sri Lanka again in 2006 to work in Iraq and returned in October 2011; it was satisfied that the detention and questioning of the appellant at the airport upon his return to Sri Lanka in 2011 was routine and that the appellant was not suspected of being an LTTE supporter (at [42]); the IAA also accepted the claims of the appellant that 15 days after returning to his home, three men in civilian clothes came to his house asking for him and that his wife was frightened by their visit (at [43]);
(e)based on country information, the appellant’s circumstances since 1992 were such that he would not be within any high risk categories identified by the UNHCR (at [46]-[47]);
(f)based on country information, including a change in government, it found that, on balance, the appellant did not face a real chance of serious harm because he was a Tamil, lived in an LTTE-controlled area, or would be the subject of adverse attention because he provided support to the LTTE and could be imputed to be an LTTE supporter (at [50]);
(g)although the IAA accepted that the appellant was the subject of an extortion demand upon his return to Sri Lanka in 2011, it noted that the events had occurred more than five and a half years before and that none of his family had been harmed or asked to pay money during this period (at [54]); while it accepted that he had been the victim of extortion, abduction and beating and that this had caused him to leave Sri Lanka, it found that, based on country information and the intervening period, the chance that the appellant would be in the future subjected to abduction or extortion that amounted to serious harm was remote (at [62]);
(h)the IAA found that upon return to Sri Lanka, the appellant would, as an illegal returnee, be held on remand for a number of hours and then released on bail and required to pay a fine; there was no evidence that the appellant would be unable to pay the fine or bail (at [67]-[68]); the IAA found that because the appellant did not have links or would not be perceived as having links to the LTTE, he would not be detained for a lengthy period or subject to serious or significant harm. It also found that the appellant would be subject to routine processing and that these procedures did not amount to serious harm (at [69]-[70]).
The appellant applied for judicial review of the IAA’s decision, which was dismissed by the primary judge in March 2017. It is, of course, against this dismissal that the appellant now appeals.
In his notice of appeal, the appellant relies on two grounds, as follows:
1. His Honour erred in not finding that the IAA failed to take into account an integer of his claim and thereby denied him procedural fairness
2. His Honour erred in
notfinding that the poor prison conditions did not constitute serious harm when this issue is affected by SZTAL(Uncorrected)
I add for completeness that during the course of the hearing it was appropriately pointed out by the Minister’s counsel that the struck through word “not” in the second ground was a typographical error. I have struck through the word to identify that this error was corrected during the course of the hearing.
B CONSIDERATION
As can be immediately seen, the grounds of appeal, as expressed, present some challenges in understanding the precise bases for the appeal. Despite this, during the course of his thorough and helpful submissions, counsel for the Minister, Mr Kay Hoyle, analysed the grounds and sought to give content to them, particularly by reference to the way in which the grounds for review were advanced before the primary judge. It is convenient to deal with them separately.
B.1 Ground 1: Integer of the Claim
At [23] of the primary judgment, the primary judge set out the first two of three grounds of the application for review which, deleting particulars, were as follows:
Ground 1
The Authority asked itself the wrong question by taking into account the amount of time that had elapsed since the applicant was subjected to extortion demand after his return to Sri Lanka from Iraq in October 2011 (five and half years ago) (at [54]) and none of the applicant’s immediate or extended family members have been harmed or asked to pay money (at [54]) in determining whether there was a real chance that he would face harm
…
Ground 2
The Authority failed to assess applicant’s risk profile as imputed to be an LTTE supporter and erred in making unreasonable findings that the applicant did not have a material profile (at[50])
…
(Uncorrected)
Of course, the first answer to the ground advanced on appeal is that the ground (as identified at [6] above), as presently identified, renders it impossible to identify the precise integer of the appellant’s claim which it is said the IAA failed to take into account. That being said, doing the best one can and based on the way in which the case was advanced before the primary judge, it appears that the appellant contends that the primary judge fell into error by failing to conclude that the IAA erred in basing its conclusion, at least in part, about the risk of harm in its finding that the appellant and his family were not the subject of extortion or harm since 2011.
I have already made reference above to the finding of the IAA that the appellant was the subject of an extortion demand after his return to Sri Lanka in October 2011. The IAA then went on to reason, however, that in assessing the chance of the appellant facing harm in the future, five and a half years had elapsed since those events had occurred and, in the intervening period, none of the appellant’s immediate or extended family members had been harmed or otherwise been the subject of extortion attempts.
The IAA then went on to consider developments in Sri Lanka since 2011, not only by reference to a 2014 Amnesty International report (see [56] of the IAA’s decision), but also by reference to changes consequent upon a change of government in Sri Lanka following the publication of that report. This analysis led to the conclusions expressed in [61]-[62], which are as follows:
[61] I note that more than five years have passed since these events occurred and in that time there has been significant change in Sri Lanka. As stated previously, a new government was elected in 2015 and a level of positive change and reform was introduced. I note that the paramilitary groups were disbanded, leading figures in the Karuna group are under criminal investigation, and the incidence of extortion, ransom, and abduction are greatly reduced. Recent human rights reports do not refer to extortion and ransom in Sri Lanka.
[62] After assessing the evidence, on balance, I find that the chance of the applicant being subjected to abduction or extortion that amounts to serious harm to be remote.
(Uncorrected)
The primary judge, at [27], accepted the Minister’s submissions that the time which had elapsed since the extortion attempt in 2011:
was a relevant consideration and that the adverse finding made by the Authority in relation to the risk to which the applicant would be subjected was reasonable and open on the material.
There is no error evident in his Honour accepting that proposition. It is elementary that it is a part of the process of rational fact-finding that the lack of events occurring for a significant period is material to assessing the likelihood of such an event occurring in the future. To the extent that authority is necessary for such an elementary proposition of logic, it is established that past events may be relevant to assessing future risk (which is, in effect, the obverse but mirror equivalent of what I have just stated): see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 573ff per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ.
Accordingly, there is no substance to ground 1.
As noted above, however, it is apparent that the case below also proceeded on the basis that an allegation was made that the IAA did not address the appellant’s risk profile as a person imputed to be an LTTE supporter and that it fell into error in making unreasonable findings that the appellant did not have “a material profile”. The difficulty for the appellant is that it is plain, by reference to the IAA’s decision, that such an assessment was made and, as the primary judge found at [29], the IAA “did address the [appellant’s] profile and fear of being imputed as an LTTE supporter”. As Mr Kay Hoyle submitted, this is evident from [46] and [47] of the IAA’s decision, which are in the following terms:
[46] The United Nations High Commission for Refugees (UNHCR) assessed in July 2010 that there was no longer a group-based need for protection for Tamils originating from the north and east, solely on the basis of their ethnicity and geographical location. The 2012 UNHCR Eligibility Guidelines refer to particular groups of people who may be at risk of harm in Sri Lanka and warrant international protection. The particular groups include “persons suspected of certain links with the Liberation Tigers of Tamil Eelam (LTTE).” The UNHCR states that the nature of the links to the LTTE can vary, but may include people with the following profiles:
1) Persons who held senior positions with considerable authority in the LTTE civilian administration, when the LTTE was in control of large parts of what are now the northern and eastern provinces of Sri Lanka;
2) Former LTTE combatants or “cadres”;
3) Former LTTE combatants or “cadres” who, due to injury or other reason, were employed by the LTTE in functions within the administration, intelligence, “computer branch” or media (newspaper and radio);
4) Former LTTE supporters who may never have undergone military training, but were involved in sheltering or transporting LTTE personnel, or the supply and transport of goods for the LTTE;
5) LTTE fundraisers and propaganda activists and those with, or perceived as having had, links to the Sri Lankan diaspora that provided funding and other support to the LTTE;
6) Persons with family links or who are dependent on or otherwise closely related to persons with the above profiles.
[47] I note that the applicant’s cousin was with the LTTE and killed in 1992. However I am satisfied that the applicant’s circumstances since that time, as outlined in his written claims and elaborated further at his interview, do not place him within any of the risk profile categories of people identified by the UNHCR.
(Uncorrected, footnotes omitted, italics in original)
Again, to the extent that ground 1 before me repeats, in substance, the complaint made before the primary judge (there framed as ground 2), there is no error disclosed in the way in which the primary judge disposed of this attack on the IAA’s decision.
B.2 Ground 2: SZTAL
It is fair to say that what the appellant argues in relation to ground 2 is far from pellucid. It will be recalled that in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936, the appellants were Sri Lankan nationals who argued that protection visas should be granted because there was a real risk of significant harm if they returned to Sri Lanka. In this context, the Tribunal in that matter accepted that prevailing conditions in Sri Lankan prisons fell below international standards and that the Sri Lankan authorities were aware of this, but found that the period of remand during which the appellants would likely be held in prison did not amount to an act or omission by which severe physical or mental pain or suffering was “intentionally inflicted” within the meaning of the Act.
In dismissing the appeal, Kiefel CJ, Nettle and Gordon JJ, at 943 [26]-[27], held that:
The reference in the Act to “intentionally inflicting” and “intentionally causing” is to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent. As Zaburoni confirms, a person intends a result when they have the result in question as their purpose.
An intention of a person as to a result concerns that person’s actual, subjective, state of mind. For that reason, as the plurality in Zaburoni were at pains to point out, knowledge or foresight of a result is not to be equated with intent. Evidence that a person is aware that his or her conduct will certainly produce a particular result may permit an inference of intent to be drawn, but foresight of a result is of evidential significance only. It is not a substitute for the test of whether a person intended the result, which requires that the person meant to produce that particular result and that that was the person’s purpose in doing the act.
(Footnotes omitted)
Similarly, Edelman J held that the ordinary meaning of “intention” did not include what his Honour described as “oblique intention”, which his Honour considered a proxy for another concept, such as recklessness or a mental state other than intention (see 949-950 [67], 955-956 [96] and 957 [103]).
The effect of SZTAL is that the complementary protection regime in the Act uses the concept of intention in its “natural and ordinary meaning” (see 950 [68] and 957 [103]).
Ground 3 below was in the following terms:
Ground 3
The Authority fell into jurisdictional error in dealing with the applicant's claim regarding detention for illegal departure in harsh conditions under s 36(2)(aa) of the Act and in particular did not address the question of knowledge and intention. The actions in putting the applicant in prison would constitute relevant intention to inflict harm.
Particulars
a. The Authority failed to address whether the applicant’s detention in harsh condition would be intentionally inflicted (with knowledge of the authorities)
b. The Authority committed jurisdictional error
(Uncorrected)
In dealing with the argument as advanced below, the primary judge found at [30]:
In relation to ground 3, it is apparent that the Authority correctly identified the relevant law and made adverse findings in relation to complementary protection and whether the applicant would be subjected to significant harm. No findings were made to support an assertion that there was an intention to harm the applicant. Ground 3 fails to make out any jurisdictional error.
If one turns to the IAA’s decision, this topic was addressed by it under the heading “Fears of harm because of departing illegally and returning as a failed asylum seeker”.
The IAA made a finding that it was satisfied that, on being returned to Sri Lanka, the appellant would likely be held for a number of hours (which could extend to a number of days if the period of arrival occurred on a weekend or a public holiday). The IAA went on (at [67]-[70]):
[67]…DFAT states that if a person pleads guilty, they will be fined and discharged. Generally, if a person pleads not guilty, they are granted bail on personal surety and may be required to have a family member act as guarantor and if so may have to wait until a family member comes to collect them. There are rarely any conditions in relation to being released on bail.
[68] There is no evidence before me to indicate that the applicant will be unable to pay the fine or bail imposed in relation to his illegal departure.
[69] There is no evidence before me to indicate that the applicant has engaged in people smuggling, or any other crime, or that he has the profile of an anti-government activist or a Tamil separatist. I do not accept that he has or will be perceived as having links to the LTTE. As such, I am satisfied that the applicant will not be detained for a lengthy period of time or subjected to serious harm or significant harm on arriving back in Sri Lanka. I am satisfied that the applicant will undergo routine processing as outlined in the preceding paragraphs.
[70] According to DFAT returnees are treated according to these standard procedures, regardless of their ethnicity and religion. I find that the procedures the applicant will undergo on return do not amount to serious harm.
(Footnotes omitted)
What is apparent from what the IAA reasoned is that, as the primary judge observed, no findings were made to support an assertion that there was any intention to harm the appellant. In that regard, there seems to be somewhat of a disconnect between the appellant’s reliance on SZTAL and the circumstances of his case.
The issue concerning intention arose in SZTAL because, as I have explained, the Tribunal in that case made the two findings to which I have made reference, that is, that SZTAL would be subject to a period of imprisonment and the related finding as to the conditions of that imprisonment to the knowledge of the Sri Lankan authorities. As the extract from the IAA’s decision above makes plain, in the present case, the IAA dealt with alleged fear of harm for departing illegally and returning as a failed asylum seeker by noting that the appellant would be treated according to “these standard procedures” as found by the IAA, regardless of ethnicity and religion, and that the procedures the appellant would likely undergo on return did not amount to serious harm.
In light of the way the High Court in SZTAL explained the concepts of “intentionally causing” and “intentionally inflicting”, these phrases are to be construed by reference to their natural and ordinary meaning. Accordingly, ground 3 below (and ground 2 before me) seems to suggest a misplaced reliance on some notion of recklessness or oblique intention as not having been taken into account by the IAA. Any such contention, for reasons I have already explained, has no substance and no error is apparent in the way the primary judge rejected ground 3.
C CONCLUSION AND ORDERS
For these reasons, there is no merit in the contention that the primary judge fell into appellable error for the two reasons set out in the notice of appeal, and for that reason the appeal must be dismissed with costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate:
Dated: 13 March 2018
0
5
1