Csa16 v Minister for Immigration and Border Protection

[2021] FCCA 404

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSA16 v Minister for Immigration and Border Protection [2021] FCCA 404

File number(s):	MLG 2045 of 2016
Judgment of:	JUDGE BLAKE
Date of judgment:	10 March 2021
Catchwords:	MIGRATION – Administrative Appeals Tribunal –protection (Class XA) visa – whether there was a failure to consider an integer of the Applicant’s claim – whether the Tribunal asked the wrong question in relation to risk of significant harm – no jurisdictional error established – application dismissed.
Number of paragraphs:	32
Date of hearing:	16 February 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Kenneally
Solicitor for the Applicant:	Victoria Legal Aid
Counsel for the Respondents:	Mr Grant
Solicitor for the Respondents:	Sparke Helmore Lawyers

ORDERS

MLG 2045 of 2016

BETWEEN:

CSA16

Applicant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

ORDER MADE BY:	JUDGE BLAKE
DATE OF ORDER:	10 MARCH 2021

THE COURT ORDERS THAT:

1.The Application filed on 22 September 2016 and amended on 20 January 2021 be dismissed.

2.The Applicant pay the First Respondent's costs of the proceeding fixed in the sum of $5,000.

REASONS FOR JUDGMENT

JUDGE BLAKE:

INTRODUCTION

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 26 August 2016. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a protection (Class XA) visa ('visa').

2. For the reasons that follow, I have decided to dismiss the application for review

   BACKGROUND

3. The Applicant is a Sri Lankan national of Tamil ethnicity and Hindu religion. The Applicant arrived in Australia on 3 August 2012 as an unauthorised maritime arrival. He applied for the visa on 18 December 2012.

4. On 8 October 2013, the Applicant attended a Protection Visa interview ('PV interview'). On 10 October 2013, following the PV interview, the Applicant’s legal representative provided the Department with written submissions. On 4 February 2014, a delegate of the Minister ('delegate') refused to grant the Applicant the visa.

5. On 11 February 2014, the Applicant applied to the Refugee Review Tribunal (as it then was) for review of the delegate's decision. Pre-hearing submissions were submitted by the Applicant's legal representative on 11 June 2014. A further pre-hearing submission was submitted on 25 July 2016.

6. On 2 August 2016, a hearing was held at the Tribunal. The Applicant and his legal representative attended the hearing.

7. On 26 August 2016, the Tribunal affirmed the decision not to grant the Applicant the visa.

8. The Applicant filed his Application for review and affidavit in support in this Court on 22 September 2016. An Amended Application ('Application') was subsequently filed on 20 January 2021. The Applicant filed written submissions on 28 January 2021 and the Minister filed written submissions on 11 February 2021.

9. The final hearing proceeded before me by Microsoft Teams on 16 February 2021.

   LEGAL PRINCIPLES

10. The Grounds of Review assert, inter alia, a failure to consider an integer of the Applicant’s claim. The relevant principles to be applied in this matter were not in dispute between the parties. They were conveniently summarised in paragraphs [15]-[19] of the Minister’s written submissions.

    THE APPLICATION

11. The Application contains two grounds of review.  At the commencement of the hearing, the Applicant conceded that he could not succeed on Ground two unless his submissions on Ground one were accepted.  Accordingly, the matter proceeded before me largely on the basis of the parties making submissions in respect of Ground one.

12. The first ground of review in the Application is:

    The Tribunal failed to consider an integer of the applicant’s claim that he faced a real chance of serious harm or significant harm on return to Sri Lanka because he departed the country illegally.

    Particulars

    a. The applicant claimed to satisfy the protection criteria in s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) for reason of his Tamil race, profile as a failed asylum seeker, religion, and his imputed political opinion due to his brother’s LTTE involvement (Court Book (CB) 286, [20] – [21]).

    b. The Tribunal rejected the applicant’s claims relating to: his imputed political and race (CB 294 - 297, [68] – [82]); his religion (CB 297, [84]); and status as a failed asylum seeker (CB 298 – 299, [85] – [91]).

    c. The applicant claimed to face a real risk of significant harm while being held on remand for having departed Sri Lanka illegally due to the threat of torture in interrogation as well as poor prison conditions (CB 266 – 267).

    d. In relation to poor prison conditions the applicant relied on country information that indicated:

    i. violence is prevalent in Sri Lankan prisons, being perpetrated by security forces, guards, or other inmates in prison (CB 123 – 124, 202, 205, 267);

    ii. there are incidents of corporal punishment, as well as food and water being withheld in prison (CB 126, 267); and

    iii. Tamil prisoners are more likely to suffer mistreatment in prison (CB 127, 206).

    e. The Tribunal found at [100] of its reasons the applicant would – at most – spend a few days on remand (CB 301).

    f. The Tribunal found at [102] that “given its findings” in relation to “the applicant’s other claims” he did not face a real chance of serious harm or real risk of significant harm during his time in custody (CB 301).

    g. The applicant’s claims to fear harm in custody were not entirely contiguous with claims to fear harm in the community as a Tamil, failed asylum seeker, and his imputed political opinion.

    h. Therefore, the Tribunal erred by failing to consider integers of the applicant’s claim that:

    i. he could suffer harm from other inmates or guards for reasons unrelated to his previous claims or Tamil race; and/or

    ii. the applicant – as a Tamil – faced a greater risk of mistreatment while on remand.

13. The second ground of review in the Application is:

    The Tribunal asked itself the wrong question in relation to the applicant’s risk of significant harm as a result of having departed illegally.

    a. The applicant repeats and relies on particulars (a) – (d).

    b. The Tribunal found at [103] that “discomfort or anxiety” suffered as a result by poor prison conditions did not meet the statutory definition of “significant harm” as the conditions were poor due to a lack of resources, rather than intention by Sri Lankan authorities to inflict harm (CB 301 – 302).

    c. The Tribunal asked itself the wrong question at [103] in determining whether the applicant suffered significant harm by focusing on whether the poor prison conditions were intentionally created by the Government, as opposed to whether the acts – corporal punishment, violence between inmates, and withholding of food and water – were intentionally inflicted.

14. The dispute between the parties centred on findings made by the Tribunal at paragraphs [101]-[103] of its reasons. Those paragraphs are set out below:

    101.The tribunal has considered whether the applicant would face a real chance or risk of serious or significant harm during the limited period he would be held in prison. Country information indicates that prison conditions in Sri Lanka may not meet international standards due to overcrowding, poor sanitary facilities. Torture has been used by the authorities in some cases to extract information or confessions from suspects and other incidents of ill treatment have been reported.

    102.Given its findings in previous sections in relation to the applicant's other claims, the tribunal does not accept that he faces a real chance of serious harm for any Convention related grounds while in prison for a maximum of a few days upon his return to Sri Lanka. Nor does the tribunal find that he would face a real risk of significant harm for any of the reasons raised by the applicant in his claims.

    103.As required by ministerial direction, the tribunal has taken into account the relevant guidance in the PAM including in relation to the circumstances in which harsh detention conditions may amount to significant harm (see "Lawful Sanctions Not Inconsistent with the ICCPR; Section 29; Imprisonment/Prison Conditions"). Given that the applicant will be on remand for no more than a few days maximum, the tribunal finds that the risk that he would face significant harm for any reason while on remand for this short period is remote. The tribunal further notes that, as discussed with the applicant at hearing, under Australian legislation, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. Country information indicates that the poor prison conditions in Sri Lanka are due to a lack of resources rather than an intention by the Sri Lankan government to inflict severe pain or suffering or to cause extreme humiliation. The tribunal does not accept that any anxiety and/or discomfort that the applicant would face while on remand for the short period described amounts to significant harm, where evidence indicates that such discomfort and anxiety is not caused by an intention by the authorities to inflict severe pain or suffering or to cause extreme humiliation.

15. The Applicant submitted before me that the Tribunal had not dealt with significant integers of his claim to fear harm when on remand due to his illegal departure.  The integers said not to have been addressed include the risk of harm from violence between inmates, the risk of ill-treatment and violence from prison authorities unrelated to his political opinion or profile, and the risk of ill-treatment or violence from prison authorities because he was of Tamil ethnicity. The Applicant submitted that the reasoning of the Tribunal set out at paragraphs [101]-[103] fails to deal with these claims.  It was submitted that the opening words of paragraph [102] of the Tribunal’s reasons limit and narrow the finding which follows in paragraph [102] i.e. that the Applicant would not face a real chance of serious harm on his return to Sri Lanka. 

16. In support of that submission, the Applicant directed the Court to the findings made in ‘previous sections’ of the Tribunal’s reasons.  In particular, the Applicant made reference to paragraphs [71]-[72] of the Tribunal’s reasons (which deal with the risk, inter alia, of being placed on a stop list), paragraphs [73]-[76] of the Tribunal’s reasons (that deal with the Applicant’s family association with the Liberation Tigers of Tamil Elam (‘LTTE’), and paragraphs [77]-[79] of the Tribunal’s reasons (that deal with, inter alia, whether the Applicant would find employment on return home and the risk to him of doing so). The Applicant emphasised that his claims to fear harm within the Sri Lankan prison system were not dealt with previously and were not exclusively reliant on these other claims.  The Applicant further contended that the claims that the Tribunal failed to deal with were significant and material. He contended that the types of harm that he may suffer while on remand were distinct, and that his submission that Tamils were at greater risk was a point he had maintained throughout the course of the proceedings involving him.  In that regard, he pointed to his submissions to the Tribunal dated 11 June 2014 (Court Book 183) and his submissions of 25 July 2016 (Court Book 271).

17. The Applicant’s submissions to the Tribunal did contain references to, inter alia, the treatment of Tamil prisoners at the hands of Sri Lankan authorities and other prisoners (Court Book 183, 271). Country information included reports of mistreatment in Sri Lankan prisons. The Applicant prepared written submissions, which included extracts or conclusions reached by the Tribunal in other matters. The Applicant sought to rely on the conclusions reached by the Tribunal in other matters in support of his claims, however, while the Applicant’s submissions contained extracts from the conclusions of Tribunal decisions in 2013 and 2016, the material upon which those conclusions were reached did not form part of and were not included in the Applicant’s submissions. Further the Applicant did not rely on the information extracted in his 2013 submission when he came to prepare his 2016 submission. In this respect, I also observe that the information said not to be considered are reports dating from 2011 and 2012 that are contained within the Tribunal excerpts to which I have referred.

18. Notwithstanding what I have set out above, a review of the Applicant’s submissions and the reasons of the Tribunal disclose that the Tribunal carefully considered the Applicant’s submissions, including his position as a Tamil male. For example, the Tribunal referred specifically to the 2012 United Nations High Commissioner for Refugees (UNHCR) Eligibility Guidelines for Assessing the International Protection needs of Asylum Seekers from Sri Lanka (at [70]), a UK Home Office Country Information and Guidance-Sri Lanka, a Tamil Separatism (May 2016) report (at [70]-[71]) and the matter of GG [2013] UKUT 00319 (IAC) (‘GG’).  Each of these sources of information were relied on by the Applicant in his written submissions (Court Book at 267 – 70, 271). The Tribunal identified in its reasons that incidents of ill treatment have been reported, and specifically referred to the Applicant’s submissions of June 2014 and July 2016. Finally, at paragraph [72] of its reasons, the Tribunal referred to the matter of GG.  That matter was referred to by the Applicant in his written submissions (Court Book 272).  Of some significance, the Applicant’s submissions in respect of GG appeared directly after the Applicant had extracted into the written submissions the reasons of Tribunal Member Webb.   

19. When the above matters are considered, I am satisfied that the Tribunal was cognizant of and considered carefully the submissions made by the Applicant. 

20. A review of the Tribunal’s reasons then discloses the  following:

    (a)The Tribunal recorded the Applicant’s claims at paragraph [21] of its reasons;

    (b)The Tribunal recorded at paragraph [23] of its reasons that ‘several submissions were provided by the Applicant’s representatives to the Department and the Tribunal (from June 2014 and July 2016, including further new information on the applicant’s instructions) setting out claims and country information, which the Tribunal has considered, along with the applicant’s evidence at hearing’;

    (c)At paragraph [68], the Tribunal stated that it had considered the risk faced by the Applicant in the future ‘on the basis of the above findings and general claims regarding his risk of harm as a Tamil (or variants of this profile), his LTTE associations and imputed pro LTTE and/or anti-government political opinion’ (emphasis added); and

    (d)At paragraph [69], the Tribunal recorded that it put country information to the Applicant that, inter alia, the situation in Sri Lanka for Tamils has improved greatly.

21. There is then paragraph [80] of the Tribunal’s reasons. This paragraph is critical, in my view, to understanding the findings made by the Tribunal at paragraphs [101]-[103], particularly in light of the manner in which the claims were advanced. The Applicant contended, inter alia, that the findings contained in paragraph [80] of the Tribunal’s reasons focus on the risk the Applicant faced based on profile and on his risk in the community, and do not deal with the risks he faced were he to come into custody. The Minister contended that paragraph [80] encompassed broader findings, and included a finding that the Applicant does not face a real chance of serious harm for reasons that include his being a ‘Sri Lankan Tamil’ or a ‘Tamil’. Paragraph [80] of the reasons of the Tribunal is as follows:

    80. On the evidence before it the tribunal does not accept that the applicant faces a real chance of serious harm from the Sri Lankan authorities including the police, SLA, CID or the EPDP for reasons of his Tamil race including as a 'Sri Lankan Tamil', as a Tamil/young Tamil male from the North or formerly LTTE-controlled area, his father's past interactions with the authorities, due to his family's LTTE associations (including his brother and sister's past association) or any actual/imputed pro-LTTE or anti-government political opinion (or any combination of these grounds). For the same reasons set out above, the tribunal also does not find that the applicant faces a real risk of significant harm due to his profile as a Tamil or any variant therefore including as a young Tamil male from the North, his family members’ past LTTE associations, any other perceived LTTE association or support including due to his family members or father's interactions with authorities or any perceived anti-government views.

22. Upon consideration of paragraph [80] of the Tribunal’s reasons, I prefer the submissions made by the Minister as to the meaning of paragraph [80]. The Tribunal in paragraph [80] dealt with the risk to the Applicant arising from his Tamil race. The Tribunal did not accept that the Applicant faced a risk of harm from the authorities ‘including’ the police, SLA etc. The word ‘including’ is instructive. The Tribunal is there referring to the risks from any authority in Sri Lanka (including prison authorities), not just the named authorities. There is no reference to the risk assessment being conducted as being limited to risks the Applicant might face in the community. Rather, the better reading of the paragraph is that the Tribunal is referring to risk to the Applicant arising from his Tamil race and extraction more generally. This is significant. It is a finding that precedes the findings at [102] of the reasons.

23. There is then paragraph [101] of the Tribunal’s reasons. The following is apparent when the paragraph is considered. First, the paragraph is clearly directed to risks the Applicant would face while in prison. Second, in assessing those risks, the Tribunal has had regard to country information from the Department of Foreign Affairs and Trade (‘DFAT’) that is more recent than that which is relied on by the Applicant. Third, the Tribunal refers not only to torture by the authorities but also ‘other incidents of ill-treatment’ that have ‘been reported’ (Court Book 301). In my view, having regard to the context of the decision, the reference to ‘other incidents of ill-treatment’ ought to properly be read to include the Country Information put forward by the Applicant in his submissions. Indeed, footnote 31 refers to the UK Home Office report that the Applicant referenced in his written submissions (Court Book 268-270).

24. It is in the context of all of the above matters that paragraph [102] of the reasons of the Tribunal needs to be considered. I do not accept, as contended by the Applicant, that the opening words of paragraph [102] of the Tribunal’s reasons limit or narrow the finding contained within the paragraph. That is because the Tribunal had made an earlier finding, at least insofar as there was a risk to the Applicant as a result of his Tamil ethnicity. That, however, is not the end of the matter. Regard also needs to be had to what is found later in that paragraph. Of significance, the Tribunal records the following findings:

    Nor does the Tribunal find that he would face a real risk of significant harm for any of the reasons raised by the applicant in his claims (emphasis added). 

1. By that sentence, the Tribunal should be taken to have indicated that, having expressly identified the claims made in the Applicant’s written submissions, that it does not regard any of the claims in those submissions as giving rise to a real risk of significant harm faced by the Applicant.

2. Finally, there is a finding made by the Tribunal at paragraph [103] of its reasons. There are two things to note about paragraph [103]. The first is that the Tribunal places some significance on its finding, which was not contested, that the Applicant would spend no more than a few days in remand. The period that the Applicant would spend in prison or on remand was necessarily a short one. During the hearing before me, the Applicant accepted that a short period of incarceration would affect the level of risk the Applicant faced while in prison. The Tribunal was clearly of that view, referring to the short period of incarceration in both paragraph [101] and paragraph [103] of its reasons. The second aspect to note about paragraph [103] is the finding made by the Tribunal that:

   Given that the applicant will be on remand for no more than a few days maximum, the Tribunal finds that the risk that he would face significant harm for any reason while on remand for this short period is remote (emphasis added). 

3. In reaching that conclusion, the Tribunal has expressly stated that it has assessed that risk on the basis of ‘any’ of the reasons advanced by the Applicant.

4. Having regard to the matters above, I find as follows:

   (a)First, the Tribunal was aware of the Applicant’s claims as is evident from, inter alia, its explicit references to the Applicant’s submissions and reports of the ill-treatment that occurred within Sri Lankan prisons;

   (b)Second, the material that the Applicant points to was not probative of the question facing the Tribunal. He only placed before the Tribunal extracts of the earlier Tribunal decisions which contained conclusions and not the underlying material. It was open to the Tribunal in the present matter to reach either the same or a different conclusion to earlier Tribunal decisions. Further, the material the Applicant placed before the Tribunal was dated and the Tribunal referred to more recent country information;

   (c)Third, the Tribunal found that the Applicant did not face a real chance or risk of serious or significant harm by reason of his Tamil race. That, as I have indicated, was a general finding; one that can be read as extending to risks in prison; and

   (d)Fourth, the Tribunal found that the Applicant would not face significant harm in what would otherwise be a short period spent in prison. 

5. When the above matters are taken into account, I am satisfied that the Tribunal considered the claims that the Applicant contends were not considered.

6. There is one further matter. To the extent it might be said, contrary to what I have found above, that there was a failure to consider the excerpts of earlier Tribunal decisions, I would not regard that error as jurisdictional. Given the matters I have outlined above, including the way in which the claims were advanced, the nature of the excerpts, the failure to provide the material underlying the conclusions reached by earlier Tribunals, and the Tribunal’s reliance on more recent country information, a failure to consider excepts that were dated was not material and therefore any error was not jurisdictional. 

7. For all of the above reasons, I dismiss Ground one of the grounds of review.

8. Having regard to the concession made by the Applicant at the commencement of the hearing, it is unnecessary for me to deal in any detail with Ground two. It follows, having regard to the Applicant’s concession and my finding in relation to Ground one, that Ground two must also be dismissed. The Minister has sought costs in the amount of $5,000. I will award costs accordingly.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Blake.

Associate:

Dated:       10 March 2021