CPN16 v Minister for Immigration

[2017] FCCA 2424

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPN16 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2424

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – SZTAL point – whether the finding that the applicant will not be harmed was illogical or irrational.

Legislation:
Migration Act 1958, s.36(2)(aa)

Cases cited:

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266ALR367; (2010) 84 ALJR 369; [2010] HCA 16
SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

Applicant: CPN16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1976 of 2016

Judgment of: Judge Riley

Hearing date: 26 April 2017

Date of last submission: 26 April 2017

Delivered at: Melbourne

Delivered on: 5 October 2017

REPRESENTATION

Counsel for the applicant: Adam McBeth

Solicitors for the applicant: Wimal & Associates

Advocate for the first respondent: Ada Wong

Solicitors for the first respondent: Mills Oakley

Advocate for the second respondent: No appearance

Solicitors for the second  respondent: Mills Oakley

ORDERS

1. The application filed on 15 September 2016 and amended on 31 March 2017 be dismissed.

2. The applicant pay the first respondent’s costs of the proceeding fixed in the sum of $5,200.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1976 of 2016

CPN16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

ADMINISTRATIVE APPEALS TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (“the Tribunal”).  In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.

2. The decision in this matter was reserved pending the outcome of the appeal to the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34.

The applicant’s claims

1. The applicant is a Tamil from the north east of Sri Lanka.  He claimed to fear persecution on the basis of his Tamil ethnicity, his imputed political opinion as an assumed supporter of the Liberation Tigers of Tamil Eelam (“LTTE”) and his membership of a particular social group consisting of failed Tamil asylum seekers.

2. More particularly, the applicant claimed that:

   a)he and his employer were taken to an army camp, with many others, on 17 September 2009;

   b)the applicant was regularly beaten and deprived of food;

   c)he escaped after four months when his employer paid a bribe;

   d)later, the CID required the applicant to go with them;

   e)they beat him and interrogated him for two days before releasing him;

   f)in January 2010, some people in a white van blindfolded the applicant and took him to a strange room;

   g)the interrogators accused the applicant of being a member of the LTTE and assisting the LTTE;

   h)the applicant was severely beaten;

   i)he was released after three days after his father complained to the Human Rights Commission and borrowed money from the applicant’s boss to secure the applicant’s release;

   j)afterwards, the applicant feared the CID would come back and torture him again;

   k)in February or March 2010, the CID were unable to find the applicant and they detained his father instead;

   l)towards the end of 2011, the applicant’s family received a letter from the CID requiring the applicant to attend for interrogation again; and

   m)the applicant then decided to flee Sri Lanka and was able to do so in March 2012, after his employer gave him some money for the passage.

The Tribunal’s reasons

1. The Tribunal considered that, in significant respects, the applicant’s claims were inconsistent, implausible and lacked detail.  The Tribunal accepted that the applicant and his employer were taken by the army to a camp and mistreated in September 2009.  However, the Tribunal considered that they were released because they were of no interest to the authorities.

2. The Tribunal did not accept that the applicant had been detained, beaten or interrogated by the CID.  The Tribunal did not accept that the applicant’s father lodged a complaint with the human rights commission or that the applicant had ever been in hiding.

3. On the basis of country information, the Tribunal did not accept that the applicant faced a real chance of serious harm on the basis of being a Tamil or a young Tamil male from the north east.  The Tribunal did not accept that the applicant would be imputed to be a supporter of the LTTE because he was a failed asylum seeker, or because he had left Sri Lanka illegally.

4. The Tribunal accepted that, on return, the applicant would be found to have departed to Sri Lanka illegally, would be charged, would be held in remand for a few days, would be released on bail, would eventually be required to pay a fine, and would be able to pay that fine.

5. The Tribunal did not consider that the applicant would face harm of a selective or discriminatory nature arising from his illegal departure from Sri Lanka. The Tribunal accepted that the prison conditions would be poor.  However, the Tribunal did not accept that the authorities would intentionally seek to harm the applicant.  The Tribunal considered that the chance of the applicant suffering torture or any other form of significant harm was remote.

Ground 1

1. The first ground of review in the application filed on 15 September 2016 and amended on 31 March 2017 is:

   The Tribunal incorrectly applied s36(2)(aa) of the Migration Act in finding that cruel or inhuman treatment or punishment required an intention on the part of the Sri Lankan authorities to cause harm to the applicant.

2. This ground related to the following passage from the Tribunal’s reasons for decision:

   [85]I have considered these conditions with respect to the complementary protection provisions of the Act. I note the guidelines of the relevant Departmental PAM3 in this respect, including the discussion of prison conditions. While the applicant may be placed in overcrowded and poor conditions for a short period of time, I do not accept that the authorities are intentionally seeking to harm the applicant by placing him in these conditions for the short period he would be detained.

3. The applicant conceded in his written submissions that:

   the outcome of the present case must follow the outcome of the High Court’s decision in SZTAL.

4. In view of the High Court’s decision in SZTAL, this ground must fail.

Ground 2

1. The second ground of review in the application filed on 15 September 2016 and amended on 31 March 2017 is:

   The finding of the Tribunal that the applicant will not face torture or mistreatment upon his return was irrational and/or unreasonable, in that it relied on DFAT country information for a proposition it did not support.

   Particulars

   The DFAT country report relied on by the Tribunal at [67] acknowledged that it was aware of reports of torture or mistreatment of returned asylum seekers, but had been unable to verify the reports. It could not sustain a finding that the applicant did not face a real risk of harm upon his return, particularly in light of country information to the contrary.

2. The DFAT report referred to in ground 2 was described by the Tribunal at paragraph 67 of its reasons for decision as follows:

   4.22In the December 2015 report, DFAT relevantly noted that:

   DFAT is aware of a small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports. Verification is complicated by the fact that many allegations are made anonymously, often to third parties.

   4.23There have been thousands of asylum seekers returned to Sri Lanka since 2009, including from Australia, the US, Canada, the UK and other European countries, with relatively few allegations of torture or mistreatment (see also ‘Treatment of Returnees’, below). Although DFAT does not routinely monitor the situation of returnees, DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act. Under the previous Rajapaksa government, DFAT assessed that the risk of torture or mistreatment for returnees was greater for those suspected of committing serious crimes, including terrorism offences. This was due mostly to the greater exposure these returnees had to authorities on their return which generally includes extended periods of pre-trial detention. While overall monitoring has reduced under the Sirisena government and general fears about mistreatment have reduced, it is difficult to verify if the intent to improve general conditions has yet led to a lower risk of torture or mistreatment of returnees.13 (emphasis added)

   13DFAT Country Information Report – Sri Lanka – 18 December 2015, 4.22 – 4.23.

3. The Tribunal considered other country information, particularly in paragraphs 62, 63, and 69 of its reasons for decision, as follows:

   [62]As discussed with the applicant at the hearing, the most detailed and comprehensive advice indicates that failed asylum seekers are subject to the same entry procedures regardless of ethnicity:

   R1. Returnees are subject to standardised identity and security checks regardless of ethnicity and the circumstances of their departure from Sri Lanka. Tamils returning to Sri Lanka are subject to the same entry procedures as any other citizen of Sri Lanka. The Government of Sri Lanka has standardised re-entry procedures in place at the airport to undertake identity and security checks for all returnees. These processes are applicable to all Sri Lankan returnees regardless of ethnicity and are standard for returnees from all countries regardless of the circumstances around their departure from Sri Lanka (i.e. regardless if the returnee is voluntary or involuntary).

   …

   R.2.Post has not received any evidence to support allegations of mistreatment of returning Tamils to Sri Lanka. To date, Sri Lankans who have been returned from Australia have not made any complaints to post of mistreatment at the airport or on return to their places of residence. Post has not received any allegations of mistreatment by returnees since 2009. Post followed up an allegation of mistreatment made by a Sinhalese returnee in 2009 and no evidence was found to substantiate the allegation.

   We have spoken to NGOs involved in facilitating the voluntary return of former asylum seekers/refugees to Sri Lanka. NGOs told us they have not witnessed or        received any allegations of mistreatment from any of the Tamil Sri Lankans they have facilitated.

   We contacted the British High Commission in Colombo to follow up on allegations documented by the organisation Freedom from Torture in its September 2012 report “Sri Lankan Tamils tortured on return from the UK” [CIS24086]. The Migration Directorate from the Foreign and Commonwealth Office (FCO) in London responded:

   “We have received no substantiated cases of mistreatment on returns for our returnees, and claims made by organisations such as Freedom from Torture and Human Rights Watch are not supported by any of our interlocutors. There was an instance earlier this year (2012) where one of our returnees claimed to have been tortured on arrival. We had him medically examined and two scrapes on his shins were considered consistent with his allegation that he had been kicked under the table by a CID officer. Nothing was ever confirmed however and even if it had been it could hardly be considered to be torture.”7

   [63]     The UNHCR noted claims of detention, ill-treatment or torture regarding Sri Lankan – particularly Tamil – asylum seekers returned to Sri Lanka following the rejection of asylum claims, but also noted that ‘[t]here is no systematic monitoring after arrival in Sri Lanka of the treatment of Sri Lankans who were forcibly returned’.8

   7 CX299951: Sri Lanka: CIS Request Sri Lanka: Questions arising from recent applications, DFAT, 29 November 2012

   8 UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, p.8

   …

   [69]I have had regard to the USDOS, Human Rights Watch, the reports from Navi Pillay and Yasmin Sooka reports about the general human rights situation and reports of torture or other harm and the impunity of the authorities quoted in the [applicant’s] April 2015 submission, and the specific cases of such harm included in the Freedom from Torture, HRW and Tamils Against Genocide reports. These reports identify a risk of torture that is more likely to occur for Tamil failed asylum seekers, and discuss specific cases, but they do not detail the specific profiles of those detained and tortured or otherwise harmed, and many of these reports are now a number of years old. For these reasons I find the DFAT information more current and more detailed about the risk or chance of a person who returns as a Tamil failed asylum seeker may face. (emphasis added)

4. In paragraphs 70 and 71 of its reasons for decision, the Tribunal made findings as follows:

   [70]I discussed this information with the applicant, including whether he had any fears of being harmed whilst being questioned and then returning to his village. He indicated that I was saying he would be questioned at the airport and checked by the authorities, and that there would be records that say he has involvement with the LTTE, so he would be detained and harmed. For the reasons above, I do not accept that the applicant would have a profile that would impute him with LTTE involvement. I do not accept that him being detained and then released from an army camp indicates that he would be imputed with LTTE involvement or that he would be treated in any way differently from other failed asylum seekers returning - I find his release indicates that the authorities were not interested in him and therefore I find that they would not link him with, or impute to him any LTTE involvement, even if the authorities on his return to Sri Lanka became aware that he had been in the Vanni prior to the end of the war and was detained by the army there. Given the country information above, I find that him being released (as I have found) from the camp means that the authorities had no concerns in relation to the applicant. As above he did not indicate he had been charged or involved in people smuggling.

   [71] Ihave had regard to the country information, including that in the [applicant’s] submission, but I find I prefer the specific, recent information from DFAT which deals with the specific situation for returnees, agrees with the more recent February 2015 information from DFAT, and with the information from IRBC and the other sources cited above. I note also that the reports from Freedom from Torture and other groups deal with a small number of specific cases, are generally not verified and are generally allegations, against which, as DFAT notes, many thousands of asylum seekers have been returned but there have been few allegations of torture or trauma. I find that, on assessing all of the country information it indicates to me that there is not a real chance or real risk of people returning as failed asylum seekers being harmed or differentiated on that basis by the authorities, and that the authorities do not see the attempt to seek asylum as a concern, unless the person has actual or imputed links with the LTTE, certain opposition politicians and political activists, human rights activists or journalists. I have considered the applicant’s profile and his claims, and I do not consider that he is a person whom the authorities would have any interest in, I do not accept that the applicant has, or would be imputed with, any of these profiles. I do not accept he has any outstanding charges against him, and I do not consider, assessing what I accept of his claims, that there is any reason why the authorities would have any interest in him on return to Sri Lanka. I find that the applicant is not wanted by the Sri Lankan authorities and will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. I find that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka, nor on his return to his home area. (emphasis added)

5. The Tribunal’s decision was dated 26 August 2016.  The Tribunal’s reference in paragraph 71 of its reasons for decision to the February 2015 DFAT report may have been a typographical error, in that it may have been intended to refer to the December 2015 DFAT report quoted above.  Alternatively, the statements made in the February 2015 DFAT report may have been repeated in the December 2015 DFAT report.  Either way, it does not seem to me to make any difference in the circumstances of this case.  February 2015 and December 2015 were both recent, as at the time of the Tribunal’s decision on 26 August 2016.

6. The applicant conceded in oral argument that it would have been open to the Tribunal to conclude that the applicant was unlikely to be harmed[1].  However, the applicant argued that it was irrational for the Tribunal to have found that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka, nor on his return to his home area. (emphasis added)

   [1] Tr. p.6 l.42-43

7. The applicant noted that, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 266 ALR 367; (2010) 84 ALJR 369; [2010] HCA 16, Crennan and Bell JJ said:

   [131]What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, 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.

   …

   [135]On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims.  There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

1. The applicant also noted that, in SZSFK v Minister for Immigration and Citizenship [2013] FCCA 7, Judge Driver said:

   [31]I note at the outset that the Reviewer, in his report, made a number of questionable assumptions.  First, at [51]67 the Reviewer relied upon an Australian Embassy report of 18 March 2010 which stated that the post was “not aware of Faili Kurds being targeted because of their ethnicity, but those without documents risked deportation”.  The Reviewer used that report to support the proposition that the Basij treats everyone, including Iranian citizens, in a similar manner across all sectors of Iranian society.  It is questionable whether the report supports that proposition.  The fact that a diplomatic post is not aware of something does not mean that it did not occur.  Further, Faili Kurds may be targeted for some other reason than their ethnicity (which may be simply Kurdish ethnicity, although Faili Kurds constitute a particular social group in both Iran and Iraq).  The Embassy report does suggest that undocumented Faili Kurds are at some greater risk than other groups within Iran which might expose them to greater risk from the Basij.

   67 CB 102.

   …

   [39]The above survey of questionable aspects of the Reviewer’s reasoning in dealing with the applicant’s claims is of no legal significance unless bearing upon an assertion of reviewable legal error.  I now turn to consider the grounds of review.

2. The applicant accepted the Minister’s submission that it is necessary to relate the Tribunal’s questionable reasoning to a ground of review, and said that, in the present case, the ground of review was illogicality.  That ground was not raised in SZSFK, where Judge Driver allowed the application for review on other bases.  In the present case, the applicant argued that the Tribunal’s unequivocal finding that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka, nor on his return to his home area was not logically open on the evidence.

3. The Minister argued that there was ample country information before the Tribunal to logically support its finding that the applicant would not be harmed.  The Minister submitted that the choice and weight to be given to items of country information were matters for the Tribunal.  The Minister also submitted that it was clearly open to the Tribunal to conclude that the applicant only faced a remote risk of mistreatment on his return.  The applicant conceded that point.

4. However, the Tribunal did not, in terms, find that the applicant only faced a remote risk of mistreatment on his return.  The Tribunal found that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka, nor on his return to his home area (emphasis added).  The Minister did not directly grapple with the applicant’s submission that it was the absolute nature of the finding that the applicant will not be harmed that constituted the jurisdictional error.

5. The particulars to ground 2 take issue with the finding that the applicant did not face a real risk of harm upon his return.  However, the ground itself takes issue with the finding that the applicant will not face torture or mistreatment.  That is sufficient to raise the matter as a ground of review.

6. It can be accepted that the Tribunal was well aware that the question before it was whether the applicant faced a real risk of harm.  The Tribunal used that phrase earlier in paragraph 71 of its reasons for decision.  The fact that the Tribunal went further than was necessary, and found that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka, nor on his return to his home area, in any view, is a reflection of the Tribunal’s confidence that the applicant would not be harmed upon return to Sri Lanka.

7. If the country information had consisted solely of the DFAT report that it had been unable to verify allegations of harm to returnees, the Tribunal’s conclusion may not have been logical.  Obviously, the mere fact of being unable to verify that an event occurred does not logically prove that the event did not occur.  Having said that, there are the notorious difficulties in proving a negative.

8. In any event, the Tribunal had a good deal of other country information before it, as follows.  The December 2015 DFAT report said that it was aware of a small number of allegations of torture or mistreatment but also said that thousands of asylum seekers had returned to Sri Lanka since 2009.  The December 2015 DFAT report also said that DFAT assessed the risk of harm for the majority of returnees as low, including those that were suspected of offences under the Immigrants and Emigrants Act (Sri Lanka). The DFAT report dated 29 November 2012 said that the post had received no complaints of torture of Tamil returnees since 2009, and one complaint of mistreatment of a Sinhalese returnee that was not substantiated.  The November 2012 DFAT report also said that DFAT had made enquiries of NGOs and none had witnessed any mistreatment or received any allegations of mistreatment.  The November 2012 DFAT report said that DFAT had contacted the British High Commission which said that it had no substantiated reports of mistreatment of returnees, and one allegation of being tortured by being kicked under a table by a CID officer which turned out to have resulted in two scrapes on a returnee’s shins.

9. The Tribunal noted that the reports of mistreatment mentioned in paragraph 69 of the Tribunal’s reasons for decision did not provide the profiles of those allegedly harmed and, in any event, the reports were a number of years old. 

10. In addition to that country information, the Tribunal found that the applicant did not have a profile that would put him at real risk of harm upon return.

11. Taking the country information together with the applicant’s characteristics, I consider that it was logical, in the relevant sense, to conclude that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka, nor on his return to his home area.  In other words, the risk of the applicant being harmed at those points was so remote as to be non-existent.

12. Ground 2 is not made out.

Conclusion

1. As neither of the applicant’s grounds has been made out, the application must be dismissed with costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date:         5 October 2017

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