CKZ15 v Minister for Immigration and Border Protection
[2018] FCA 162
•23 February 2018
FEDERAL COURT OF AUSTRALIA
CKZ15 v Minister for Immigration and Border Protection [2018] FCA 162
Appeal from: CKZ15 v Minister for Immigration & Anor [2017] FCCA 791 File number: VID 354 of 2017 Judge: KENNY J Date of judgment: 23 February 2018 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal – appeal dismissed Legislation: Migration Act 1958 (Cth) Cases cited: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405; 91 ALJR 936 Date of hearing: 23 February 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 The Appellant appeared in person Counsel for the First Respondent: Ms S Koya Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent submitted to any order, save as to costs. ORDERS
VID 354 of 2017 BETWEEN: CKZ15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
KENNY J
DATE OF ORDER:
23 FEBRUARY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
EX TEMPORE REASONS FOR JUDGMENT
KENNY J:
This is an appeal from the judgment and orders of the Federal Circuit Court of Australia (Federal Circuit Court) delivered on 29 March 2017, which dismissed the appellant’s application for review of a decision of the Administrative Appeals Tribunal of 28 October 2015. The Tribunal decision affirmed the decision of a delegate of the respondent Minister (the delegate) dated 16 August 2013 to refuse the appellant’s application for a Protection (Class XA) visa. The Federal Circuit Court judgment has the citation CKZ15 v Minister for Immigration & Anor [2017] FCCA 791.
BACKGROUND
The appellant is a citizen of Sri Lanka. He arrived on Christmas Island on 20 July 2012 as an “unauthorised maritime arrival” under the Migration Act 1958 (Cth) (the Act)
On 12 November 2012 the appellant applied for a Protection (Class XA) visa (visa). In a statutory declaration accompanying his application, the appellant claimed to fear harm from the Sri Lankan Army (SLA), the Sri Lankan Criminal Investigation Department (CID), and groups supported by the Sri Lankan Government, on the basis he was a young Tamil male from the North East of Sri Lanka with a profile of having suspected links with the Liberation Tigers of Tamil Eelam (LTTE), and as a failed asylum seeker who left Sri Lanka illegally.
On 16 August 2013, a delegate of the respondent Minister refused the appellant’s visa application. The delegate found the appellant to be credible and accepted various aspects of his claims, but did not accept that the appellant faced a real chance of serious harm or a real risk of significant harm for any of the reasons advanced.
On 21 August 2013, the appellant applied to the Refugee Review Tribunal (now the Administrative Appeals Tribunal) (the Tribunal) for review of the delegate’s decision. The appellant attended a hearing before the Tribunal held on 15 September 2015.
The Tribunal made its decision on 28 October 2015, affirming the decision under review.
TRIBUNAL’S DECISION
The Tribunal summarised the claims that the appellant made to the delegate as follows:
a.His family’s land in Kuchchaveli was taken by the Navy and his family home was bombed and taken over by other ethnic groups during the war. His family was forced to flee to Tamil Nadu between 1990-92.
b.He left Sri Lanka because there is no protection for his life. He was stopped and questioned many times by the Sri Lankan Army (SLA), who discriminate against Tamils by rounding them up occasionally to check for LTTE connections and sometimes beating them for no reason. The last time that he was rounded up was in 2011.
c.He knows at least five people who were taken and disappeared including a Tamil friend in 2002. In approximately 2011 two Tamil friends disappeared. His family suggested that he leave because he is the only male in the family apart from his father. After he left Sri Lanka people came to his home enquiring about his whereabouts.
d.He fears being kidnapped because he is a young Tamil from Kuchchaveli, an area formerly under LTTE control. He will be assumed to support the LTTE even though he is not interested in politics because of his ethnicity. He also fears harm because he left Sri Lanka without permission and sought refugee status in Australia. People who return from overseas are treated badly. He will be arrested at the airport and made to disappear. Even if he makes it back to his village, he will be taken and tortured.
After summarising the evidence that the appellant gave at the hearing, however, the Tribunal found the appellant’s evidence to be “vague and inconsistent with information previously provided to the tribunal” and that he was not a credible witness.
The Tribunal accepted that the appellant and his family sought refuge in Tamil Nadu from 1990 to 1992 due to shelling of their home area, and that the shelling destroyed their house. The Tribunal also accepted as plausible that at some stage during the war the Navy may have taken some of the land belonging to the appellant’s family. The Tribunal did not accept, however, that there was a real chance or risk of the appellant facing serious or significant harm as a result of the family’s land having been taken by the Navy over twenty years before.
The Tribunal accepted as plausible that the appellant’s father may in the past have been taken by the Navy and beaten on suspicion of being an LTTE member, but the Tribunal did not accept that the appellant’s father was currently of any particular adverse interest to the authorities. The Tribunal also accepted as plausible that the appellant was beaten on two occasions by the Navy while fishing with his father, and that the appellant was beaten on another occasion by a police constable because he had a friend’s identity card on him. The Tribunal noted that, according to the appellant’s own evidence, these incidents occurred during the war, and that he had not claimed any ongoing harm as a result of these incidents. The Tribunal did not accept that the appellant faced a real chance or risk of future serious or significant harm resulting from the incidents.
The Tribunal was willing to accept that the appellant may have been stopped and questioned by SLA or Navy while working as a boat motor mechanic in areas where the LTTE was present during the conflict, but noted that the appellant did not indicate he was harmed during these encounters.
The Tribunal referred to the appellant’s claims of occasional roundups of Tamils to check for LTTE connections, and that Tamils were sometimes beaten for no reason. The Tribunal was willing to accept that the appellant was involved in a roundup at some stage in 2011, but given his “vague evidence” did not accept that he was harmed during that roundup.
The Tribunal then considered the appellant’s reference to the kidnapping of five people in his home area. The Tribunal was willing to accept that a Tamil friend disappeared in 2002 but was not satisfied that it was in any way related to the alleged disappearances of four other men in 2011; or that the disappearance of his friend related to the appellant; or that he faced any consequences due to the 2002 disappearance of his friend. In relation to the kidnapping of two men from neighbouring areas in 2011, the Tribunal noted that the appellant was only able to give “vague and undetailed evidence”.
The Tribunal found that the appellant was able to provide more details about the alleged 2011 kidnapping of two of his friends, although it noted he only provided significant details at the Tribunal hearing and did not mention key details to the delegate. The Tribunal noted that the appellant’s claims about this (that he went into hiding soon after his friends were kidnapped and that people came looking for him after his friends disappeared and while he was still in hiding) were raised for the first time in the Tribunal. The Tribunal indicated it had credibility concerns about the appellant’s claims about going into hiding, and found it implausible that he would go into hiding for four months, even if he were the only male in the family apart from his father. The Tribunal also did not accept the appellant’s claim that unknown men came to his home inquiring about him and have done so regularly for the past three years.
The Tribunal noted that, prior to the hearing, it had received a copy and translation of an extract of a police complaint purportedly made by the appellant’s mother and a TamilNet news article regarding the arrest of a Tamil student. Given discrepancies in the appellant’s evidence and country information regarding the availability of fraudulent documents in Sri Lanka, the Tribunal gave the document allegedly made by the appellant’s mother very little weight. The Tribunal did not accept that three people were shot and murdered in January 2007 as a result of which the appellant went to Malaysia; that the appellant was arrested along with three others at a motorcycle shop after his return; or that three people came to the house searching for him after he went to India in 2011 and have continued to search for him and threatened his mother, as claimed in that document.
In light of its credibility concerns about the appellant’s evidence, the Tribunal did not accept that:
(1)two of the appellant’s friends disappeared or were kidnapped in 2011;
(2)two other men from neighbour villages were kidnapped or disappeared;
(3)the appellant’s two friends were involved in or helped the LTTE including smuggling for them, worked for someone heavily involved in the LTTE, or the police found weapons in the garage where they worked;
(4)the appellant went into hiding for four months as a result or was told to do so by his family; or
(5)unknown men came looking for the appellant at any time while he was hiding in Sri Lanka or after he travelled to Australia.
The Tribunal did not accept that the appellant would face a real chance of serious harm or a real risk of significant harm due to being a Tamil, a Tamil (man) from the East and/or a formerly LTTE-controlled area or due to his actual or imputed political opinion arising as a result of his profile.
In relation to the appellant’s claim to fear harm as a failed asylum seeker, the Tribunal considered the country information before it and noted that returnees/failed asylum seekers with a profile of interest to the Sri Lankan authorities may be of adverse interest to those authorities. The Tribunal did not accept that the appellant had a relevant profile and would be of interest to the Sri Lankan authorities upon his return. The Tribunal found that, on his return to Sri Lanka, the appellant would only be subject to the standard questioning and procedures described by the Australian Department of Foreign Affairs and Trade. The Tribunal did not accept that this would amount to serious or significant harm.
The Tribunal found that the appellant did not face a real chance of serious harm or a real risk of significant harm on account of his illegal departure from Sri Lanka. The Tribunal accepted that he had departed the country without a valid travel document and from a place other than an approved place of departure, and that it was likely he would be charged with an offence under the Sri Lankan Immigrants and Emigrants Act. The Tribunal was satisfied that that law did not have discriminatory intent or impact, and that it was not being applied selectively or in a discriminatory manner for a Convention reason. The Tribunal was satisfied that, if charged with an offence under that Act, the appellant would be held in remand for a short period, from between one day to several days, before appearing before a bail court. The Tribunal noted that the appellant’s parents and sister live in Sri Lanka and that they would be able to guarantee his bail. The Tribunal found that the appellant would not be denied bail given that he has not been involved in people smuggling nor had he previously been convicted of any offences in Sri Lanka. The Tribunal found that the penalty most likely to be imposed on the appellant if convicted of an offence under the Immigrants and Emigrants Act was a fine of between 5, 000 and 50, 000 rupees, and did not accept that this amounted to significant harm.
The Tribunal noted that country information indicated that poor prison conditions in Sri Lanka were due to lack of resources rather than an intention by the Sri Lankan Government to inflict severe pain and suffering or to cause extreme humiliation. It did not accept that there was a real risk that the appellant would suffer significant harm from poor prison conditions while on remand for a short period of time.
The Tribunal concluded that, having considered the appellant’s claims both separately and cumulatively, it did not accept that he faced a real chance of serious harm for any Convention ground. The Tribunal concluded that it was also not satisfied that the appellant was a person in respect of whom Australia had protection obligations under the Refugees Convention and therefore the appellant did not satisfy the criterion in s 36(2)(a) of the Act. The Tribunal also concluded that the appellant did not satisfy the criterion in s 36(2)(aa).
PROCEEDINGS IN THE FEDERAL CIRCUIT COURT
By an application filed on 19 November 2015 the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court, stating:
1. The decision of the Tribunal:
a. is affected by an error of law; and
b. denied the applicant procedural fairness.
2.I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.
The appellant’s application was heard on 29 March 2017. The Federal Circuit Court judge delivered an ex tempore judgment following the hearing, dismissing the application with costs. After summarising the findings made by the Tribunal, his Honour concluded that the appellant had been unable to articulate in oral submissions (there being no written submissions) any complaint that would fall into the stated grounds of review, beyond saying that he could not understand what his lawyer said to the Tribunal member at the hearing. His Honour observed that there was no evidence about what actually occurred at the hearing, although there was an interpreter present. He also observed that the complaint being made was about the conduct of the appellant’s own lawyer. His Honour concluded that the appellant was seeking to argue that merits review should be undertaken, as he did not agree with the Tribunal’s findings. Since merits review was not open on a judicial review application, and the appellant was unable to indicate any fact or circumstance or argument that could be a basis for judicial review, his Honour dismissed the application.
PROCEEDINGS IN THIS COURT
By a notice of appeal filed 10 April 2017, the appellant raised one ground of appeal but this ground had two limbs:
1. The decision of the Federal Circuit Court is affected by jurisdictional error.
Particulars
a.The Court has failed to consider each integer of the applicant’s claim and/or failed to take into account the whole of the evidence in determining whether the feared persecution claimed amounted to persecution and serious harm as per section 91R of the Migration Act.
b.The Court has not properly considered the alternative criterion in s.36(2)(aa), that is, whether there are substantial grounds for believing that as a foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant will suffer significant harm. This is especially so given that the decision maker has accepted there is a risk the applicant will be questioned by the authorities, yet despite country information to the contrary does not accept that there is a real chance he may be detained for up to several days in a Sri Lankan prison, which is recognized in the country information as being places where there is cruel & inhuman treatment and degrading treatment.
The appellant also filed an affidavit in support, sworn by him on 10 April 2017, which in substance repeated the particulars contained in his notice of appeal.
The appellant sought the following orders:
1. An order quashing or setting aside the decision.
2.An order that the matter be remitted to the Administrative Appeals Tribunal for further consideration.
3.Alternatively, an order that the Applicant/s be granted any consequential necessary visas to be able to remain in Australia.
4.Costs.
5.Such further or other orders as the Court deems fit.
As in the Federal Circuit Court, the appellant was not legally represented in this Court. The appellant did not file written submissions. He was assisted at the hearing by a Tamil interpreter.
At the hearing the appellant maintained that he would suffer persecution in Sri Lanka if he were returned there. In support of this submission, he provided the Court with some documents respecting conditions in that country. As the Court sought to explain, the contents of these documents were not relevant to the issues arising in this appeal, and the Court had no authority to determine whether or not he should be granted a protection visa. The Court had a more limited role, which it sought to explain to him.
In written submissions dated 12 February 2018, the Minister sought an order that the appeal be dismissed with costs. The Minister submitted that the task of the Federal Circuit Court in determining the judicial review proceeding brought by the appellant was to determine whether the Tribunal's decision was affected by jurisdictional error. The Minister submitted that the task of this Court on appeal was to determine whether the judgment of the primary judge was affected by appellable error. The Minister contended that the appellant’s ground of appeal proceeded on the mistaken basis that his Honour ought to have assessed the appellant's claims for itself, and that the Federal Circuit Court was correct to decline to review the merits of the appellant's claims.
At the hearing, counsel for the Minister relied on the Minister’s written submissions, and maintained that the Tribunal had adequately addressed the complementary protection criteria in s 36(2)(aa) of the Act. She also took the Court to the Tribunal’s findings about what the appellant faced on return to Sri Lanka as someone who had departed that country unlawfully. She drew the Court’s attention to the Tribunal’s finding that the appellant would not face a real chance or risk of serious or significant harm on this account.
CONSIDERATION
It is clear enough that the learned Federal Circuit Court judge addressed the questions that the appellant raised on his judicial review application. I can discern no error in his conclusion that the appellant had not established that he was denied procedural fairness or that there was any other error in the decision of the Tribunal that might have entitled the appellant to the relief he sought.
His Honour was not able to look again at the appellant’s claims and evidence to determine whether or not the appellant should be granted a protection visa, as the appellant’s case below apparently sought. This was the task of the Tribunal only. On a judicial review application of the kind the appellant filed in the Federal Circuit Court, the task for that Court was to determine whether or not there had been a denial of procedural fairness as the appellant alleged. More broadly, bearing in mind that the appellant was without legal representation, the Court had the task of determining whether the appellant had raised any other error that might entitle him to the relief he sought. There is no apparent error in his Honour’s conclusion that the appellant had not shown that there had been a denial of procedural fairness and had not identified any other relevant error.
Under the heading “Particulars” in his notice of appeal in this Court, the appellant alleged that the Federal Circuit Court had “failed to consider each integer of the appellant’s claim and/or failed to take into account the whole of the evidence in determining whether the feared persecution claimed amounted to persecution and serious harm”; and that the Federal Circuit Court “has not properly considered the alternative criterion in s.36(2)(aa)” of the Act. These grounds must be rejected for the reasons I have already outlined. That is, it was not the role of the Federal Circuit Court to consider the appellant’s claims for a protection visa and his supporting evidence in the same way that the Tribunal had done. The Court was unable to provide another level of merits review. The primary judge correctly understood that his task was to determine whether there had been a denial of procedural fairness as the appellant alleged and, if not, whether the appellant had identified some other jurisdictional error in the Tribunal’s decision.
In any event, there is no discernible jurisdictional error in the Tribunal’s decision. First, the Tribunal’s reasons for decision were comparatively detailed. It is not apparent that the Tribunal failed to consider any integer of the appellant’s claims or indeed any aspect of his evidence. Furthermore, there is no apparent error in the Tribunal’s conclusion with respect to the criterion in s 36(2)(aa) of the Act. The Tribunal found that the appellant did not face a real risk of significant harm on any of the bases that the appellant had raised, including on the basis of his illegal departure from Sri Lanka. The bases for these findings have already been discussed, and no relevant error is discernible.
Finally, it may be noted that the final hearing of this proceeding was stood over pending the High Court’s judgment in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 347 ALR 405; 91 ALJR 936 (SZTAL). In SZTAL, the High Court concluded that the references in the definition of “cruel or inhuman treatment or punishment” in s 5(1) of the Act to “intentionally inflicted”, and in the definition of “degrading treatment or punishment” in s 5(1) to “intended to cause”, are references to the natural and ordinary meaning of the word “intends” and therefore to actual, subjective, intent on the part of a person to bring about the relevant result: see SZTAL at [26]-[27]. In the present matter, as indicated above, the Tribunal found that “poor prison conditions ... are due to a lack of resources”. The Tribunal concluded that, in detaining the appellant in prison for a short period on return to Sri Lanka, the authorities could not be said to intend to inflict severe pain or suffering or to cause extreme humiliation and did not accept that any anxiety and discomfort that the appellant would face amounted to significant harm as set out in s 36(2A) of the Act. Having regard to SZTAL, these findings do not disclose any relevant error.
For the reasons stated, the appeal should be dismissed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate:
Dated: 23 February 2018
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