CSI15 v Minister for Immigration

[2017] FCCA 1891

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSI15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1891

Catchwords:
MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the Tribunal complied with s.424A of the Migration Act 1958 (Cth) – whether the Tribunal correctly determined the applicant’s claims under the complementary protection criterion – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36, 91R, 424AA, 424A, 476

Cases cited:

SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190
Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507

SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415
SZTAL v Minister for Immigration & Anor [2015] FCCA 64
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556
SZSPE v Minister for Immigration and Border Protection [2014] FCA 267

Applicant: CSI15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3409 of 2015

Judgment of: Judge Nicholls

Hearing date: 4 August 2017

Date of Last Submission: 4 August 2017

Delivered at: Sydney

Delivered on: 11 August 2017

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: Mr A Day of  DLA Piper Australia

ORDERS

1. The application made on 16 December 2015 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $6,825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3409 of 2015

CSI15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 16 December 2015, seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”), which, on 23 November 2015, affirmed a decision of the Minister’s delegate (“the delegate”) to refuse a protection (Class XA) visa to the applicant.

2. In evidence before the Court is a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), and the affidavit of the applicant made on 15 December 2015.

Background

1. The applicant is a citizen of Sri Lanka who arrived in Australia as an “irregular maritime arrival” on 24 June 2012 (CB 1 to CB 17 and CB 32). He is of Tamil ethnicity and Hindu religion (CB 31). The applicant applied for a protection visa on 12 November 2012 (CB 18 to CB 84 with attachments). The applicant was invited to, and attended a hearing with the delegate on 15 January 2013 (CB 91 to CB 94).

2. The applicant’s claims to fear harm were contained in a Statutory Declaration attached to his protection visa application (CB 68 to CB 74). The applicant claimed to fear harm on return to Sri Lanka on the basis of his Tamil ethnicity, imputed political opinion as a supporter of the Liberation Tigers of Tamil Eelam (“LTTE”), and as a member of particular social groups, that is, as the son of a wealthy Tamil businessman, and as a failed asylum seeker.

3. The applicant claimed that he studied in the Vavuniya District of Sri Lanka, but that he would return home to Kilinochchi on his days off college. He claimed to fear harm from a man named “Suresh” who was a member of the LTTE but was now working with what he described as the Sri Lankan “Central Intelligence Division” or “CID”, and the Sri Lankan authorities. The applicant claimed that his maternal grandfather had owned a number of businesses, and upon his death, one restaurant was passed to his mother, and his father became responsible for its operation ([4] at CB 68 and [8] at CB 69).

4. The applicant claimed that in or around May 2010, Suresh demanded money from his family, particularly his father. He threatened to tell the authorities that the applicant and his brother were members of the LTTE. The applicant also claimed that he would receive phone calls from Suresh indicating that his father had been taken to the CID camp, and that his father would receive similar phone calls about the applicant ([9] - [11] at CB 69).

5. The applicant claimed that Suresh, sometimes accompanied by “Army members”, would come to the family home and demand that they hand over the business. The applicant claimed that his father was taken to a CID office in July 2010, but was later released when Suresh realised that the land upon which the restaurant business was situated, was not in his father’s name ([12] - [14] at CB 69).

6. Further, the applicant claimed that his father had tried to avail himself of police protection but that he was told that “there was no point in completing an entry against Suresh” because the applicant’s father was Tamil ([16] at CB 70).

7. The applicant claimed that he and his father were required to “sign in” at the CID camp during various periods and the applicant was unable to do this at times, as he studied in Vavuniya. The applicant also claimed that his uncle had been detained by “Suresh’s men”, taken to a camp in Colombo and beaten. The applicant claimed that once, he was taken to a CID camp and told to “wait at the front gates until the evening” as punishment for not signing in to the camp, and Suresh threatened to kill his father if he ran away. It was 9pm when the applicant was “released” ([15] at CB 69 - [29] at CB 71). The applicant claimed that Suresh made various threats to both himself and his father, and that the “continuous persecution” led to him fleeing Sri Lanka, and that as a result, his father was “no longer running the business” ([31] – [34] at CB 72).

8. The delegate refused the application on 8 July 2013, and the applicant was notified by letter sent to his representative authorised for this purpose (CB 96 to CB 122). The applicant applied for review to the Tribunal on 9 August 2013 (CB 123 to CB 159, with attachments). The applicant’s representative provided written submissions prior to the hearing, on 12 November 2013 (CB 165 to CB 213). The applicant appeared before the Tribunal to give evidence and present arguments on 12 February 2015 (CB 214 to CB 238). Following the hearing, the applicant provided further written submissions and evidence to the Tribunal through his representative on 19 February 2015 (CB 241 to CB 274) and 6 March 2015 (CB 275 to CB 293), including photographs of an “army base” he claimed, for the first time at the Tribunal hearing, was being built on his parent’s land.

9. The Tribunal affirmed the delegate’s decision on 23 November 2015. The applicant was notified by letter faxed to his representative on 24 November 2015 (CB 294 to CB 315). In all, the Tribunal “did not find the applicant to be a truthful and credible witness” ([16] at CB 304).

10. In the context of the applicant’s experiences before he left Sri Lanka, the Tribunal noted at the hearing, that although the applicant and his father did not comply with Suresh’s demands, “[n]one of Suresh’s threats ever eventuated and he was never physically harmed” ([18] at CB 305). Further, that given the “power” the applicant claimed that Suresh and the CID wielded, the Tribunal did not find it “plausible” that if they were “seriously targeting the applicant’s family” they would hesitate in carrying out their threats. When this was put to the applicant, his response to the Tribunal was found to be “speculative and somewhat circular” ([19] at CB 305).

11. The Tribunal indicated that the applicant raised the issue of the “army base” being built on his parent’s land for the first time at the hearing, and had regard to the photographs provided by the applicant. However, the Tribunal found that it could not be satisfied “as to whom the structure belong[ed], what function it [served] or its location” ([20] at CB 305).

12. Further, the Tribunal was “concerned” that the applicant introduced new evidence at the hearing on four other issues central to his claims. This included evidence about his father’s involvement with the LTTE, scans of handwritten cheques the applicant claimed his father paid Suresh, a claim that the applicant was a joint signatory on most of his father’s accounts, and that the applicant had the rights to the subject property ([21] at CB 305 - [26] at CB 306). The Tribunal was also “concerned about inconsistencies” on several issues arising out of the

    
    

    pre-hearing written submissions provided by the applicant to the Tribunal, and his subsequent oral evidence to it ([27] at CB 306 - [28] at CB 307).

13. The Tribunal was not satisfied that the applicant was “truthful or credible” and did not consider that “any of his evidence [could] be relied upon”. The Tribunal found that the applicant had “fabricated his account of his experiences in Sri Lanka in order to achieve a migration outcome” ([29] – [30] at CB 307).

14. In relation to the applicant’s claim to fear harm on the basis of his Tamil ethnicity, the Tribunal noted that country information indicated that since the end of the civil war in 2009, the risk of harm to Sri Lankan citizens on the basis of their Tamil ethnicity had “substantially reduced” ([32] at CB 307 - [33] at CB 307 to CB 308). Further, country information indicated that it was only Tamils with a particular profile that were at risk of harm, and the applicant did not have such a profile ([34] – [36] at CB 308).

15. The applicant also claimed to be at risk of harm on return to Sri Lanka as a failed asylum seeker, as he would be “detained and interrogated” because he left Sri Lanka illegally. The applicant further claimed that this risk “may be elevated” for a number of reasons

    
    

    ([37] at CB 308 - [38] at CB 309). The Tribunal had regard to relevant submissions from the applicant and country information. The Tribunal accepted that there was evidence that returnees suffered such harm, but that “[t]he weight of the evidence” indicated that “such cases usually involve persons who have had, or [were] suspected of having, links with the LTTE” ([39] at CB 309). The Tribunal did not accept that the applicant had the necessary profile and therefore would not attract adverse attention on return to Sri Lanka.

16. Further, relevant country information indicated that “standardised procedures apply to all cases, regardless of a person’s ethnicity or circumstances in which they left the country” ([41] at CB 309). This included being arrested at the airport, brought before a Court and charged under the relevant Act for illegal departure. The country information also indicated that the most likely penalty for leaving Sri Lanka illegally would be a fine, and there was no indication of differential treatment in the application of the fine ([44] at CB 310).

17. Therefore, the Tribunal accepted that the applicant would be questioned at the airport on return to Sri Lanka, and that he might be detained for a “limited period” while waiting for bail. The Tribunal also accepted that the conditions in remand have been described as “overcrowded and unsanitary”, but that the weight of evidence indicated that returnees are likely to only be held for a short period. Further, it was not satisfied that returnees held in remand whilst awaiting bail hearings, “have been subject to torture or other forms of deliberate mistreatment” ([42] – [43] at CB 310).

18. The Tribunal was not satisfied that the applicant had any adverse political profile before he left Sri Lanka, and was not satisfied that he would be imputed with such opinion on return, because he left Sri Lanka illegally, or because he applied for asylum overseas. The Tribunal found that the processes and procedures that the applicant may be exposed to on return, did not amount to “systematic and discriminatory conduct” as required by s.91R(1)(c) of the Act, as they apply to the “general population” ([46] at CB 310 - CB 311 to [47] at CB 311).

19. In relation to the complementary protection criterion of the Act, the Tribunal accepted that the applicant departed the country illegally, and that on return, the applicant “may spend up to a fortnight in jail on remand”, in conditions that were “cramped, uncomfortable and unsanitary” ([52] at CB 311 to CB 312). However, the Tribunal was not satisfied that this amounted to “significant harm” as defined in s.36(2A) of the Act.

20. The Tribunal did not accept that the applicant would be subjected to “torture” while held on remand, and in taking into account the PAM3 guidelines, also did not accept that the “pain or suffering” caused by the overcrowding, and other problems in Sri Lankan prisons, were “intentionally inflicted” as required by the definition of “cruel or inhuman treatment or punishment” (in s.5(1) of the Act), or were “intended to cause” extreme humiliation as required by the definition of “degrading treatment or punishment” (in s.5(1) of the Act)

    
    

    ([54] - [55] at CB 312).

21. The Tribunal found that the applicant did not meet either s.36(2)(a) or s.36(2)(aa) of the Act for the grant of the visa.

The Application to the Court

1. The application to the Court is in the following terms (the grounds have been numbered for convenience):

   “[1] The RRT did not comply with section 424AA and it has breached its statutory duty imposed by section 424A of the Act as well. The RRT has failed to put me adequately the concerns and adverse information which arose during the RRT hearing and in writing the concerns and adverse information which arose in my review (reasons for refusing my review). It has failed to invite me for my comments, after the hearing, before it made its decision.

   I will provide further details of this ground and any other ground in my written submission before a hearing of my matter after I have listened to my RRT hearing CDs.

   [2] The RRT made the following jurisdictional error, in the context of my claim for complementary protection pursuant to section 36(2) (aa) of the Migration Act 1958 (Cth). The RRT fell into jurisdictional error in failing to consider whether there was a real risk that I would suffer ‘significant harm’ if I were to return Sri Lanka by reason of the enactment of the Immigrants and Emigrants Act (the I&E Act). As defined in s36(2A), ‘significant harm’ includes ‘degrading treatment or punishment’ which in turn, includes acts that cause, and are intended to cause, ‘extreme humiliation which is unreasonable’. I contend that the I&E Act causes, and was intended to cause, extreme and unreasonable humiliation in making it an offence punishable by imprisonment of 1-5 years and a fine to depart Sri Lanka otherwise than from an approved port of departure and/or without valid documents.”

   [Errors in original.]

Before the Court

1. Before the Court, the applicant appeared in person. He was assisted by an interpreter in the Tamil language.

2. The applicant submitted that he had “problems” in his home country where his life had been threatened. He complained that the Minister’s department said there were “no problems” for him. Further, he stated that he wanted the Court to give him a visa. He had nothing to say about the grounds of the application, but did explain that his brother had helped him in drafting them.

3. After hearing the Minister’s oral submissions, the applicant also submitted that on return to Sri Lanka he would not be held just for a two week period in remand, but would be detained for five years. He claimed that as a Tamil, he would be treated differently in detention and therefore he would have “greater problems”. He also claimed that he had lived in an area which had been under LTTE control, and therefore, the threat of being held in gaol for a long period increased for that reason. That is, that the applicant would be perceived to be a supporter of the LTTE.

The Application to the Court

1. Ground one asserts that the Tribunal failed to comply with its obligation under s.424A of the Act. The applicant has not provided any particulars. The ground states that he would “provide further details” after listening to the RRT hearing recording.

2. The applicant appeared before a Registrar of the Court on 18 February 2016. He was given the opportunity to file any evidence by way of affidavit, and any amended application, on or before 14 April 2016. He did not do so. Nor has he filed anything since that time.

3. In his affidavit made on 15 December 2015, and filed with his application to the Court, the applicant complains that in the context of s.424A and s.424AA of the Act, the Tribunal failed to put to him the “concerns and adverse information” arising in the review, and failed to do so in writing after the hearing.

4. The Tribunal’s reasoning, including its adverse views of the applicant’s evidence, does not engage the obligation in s.424A of the Act because it is not “information” for the purposes of that section (SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 and Minister for Immigration and Citizenship v SZLFX [2009] HCA 31; (2009) 238 CLR 507).

5. Further, the Tribunal did invite the applicant to comment on inconsistencies in his evidence pursuant to s.424AA of the Act (see [12](o) (CB 303) and [23] (CB 305 to CB 306)) of its decision record. However, as the Minister submits, such inconsistencies are not “information” for the purposes of s.424A of the Act ([15.1] of the Minister’s written submissions filed on 27 July 2017):

   “The Tribunal invited the applicant to comment on inconsistencies in his evidence, pursuant to section 424AA of the Act (see [12(o)] and [23]). These inconsistencies did not, in their terms, contain a rejection, denial or undermining of the applicant’s refugee claims (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [17]; SZTGV v Minister for Immigration and Border Protection [2015] FCAFC at [18]). As held by the majority in SZBYR at [18], ‘[h]owever broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence.’”

6. In any event, no legal error is revealed by the Tribunal putting such matters to the applicant, in circumstances where the obligation in s.424A of the Act was not enlivened.

7. I also note that s.424AA of the Act does not create any independent obligation on the Tribunal, but is a mechanism by which the Tribunal may orally discharge any obligation under s.424A of the Act at the hearing (SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; (2009) 174 FCR 415). In all, ground one is not made out.

8. Ground two asserts that the Tribunal fell into jurisdictional error in the context of considering his claims under the complementary protection criterion. The applicant’s ground, and as reflected in his affidavit, contends that the Sri Lankan “Immigrants and Emigrants Act”

   
   

   (“I&E Act”) causes, and was intended to cause, extreme “humiliation which [was] unreasonable”. This is because the I&E Act makes departing Sri Lanka illegally an offence punishable by imprisonment of between 1 and 5 years.

9. In short, the applicant’s ground seeks to take issue with the Tribunal’s analysis and findings at [52] (at CB 311 to CB 312) to [55] (at CB 312). That is, the ground seeks impermissible merits review in merely seeking to take issue with the Tribunal’s findings of fact on complementary protection.

10. In his submissions, the Minister did draw the Court’s attention to what was said in SZTAL v Minister for Immigration & Anor [2015] FCCA 64 (“SZTAL FCCA”) and on appeal in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69; (2016) 243 FCR 556 (“SZTAL”). Judge Driver at first instance held that the “intention” required by the statutory definition of “significant harm”, is the existence of “an actual, subjective, intention on the part of a person to bring about the suffering by his or her conduct” (SZTAL FCCA at [49] and see His Honour’s reference to SZSPE v Minister for Immigration and Border Protection [2014] FCA 267).

1. On appeal, the Full Federal Court in SZTAL generally endorsed those conclusions. In essence, the Tribunal in that case, had not misapplied s.5(1) in s.36(2)(aa) of the Act, in asking whether the Sri Lankan authorities had the requisite “intention” to inflict cruel, inhuman or degrading treatment or punishment.

2. The Minister also submits that the Full Federal Court in SZTAL concluded ([20.1] – [20.3] of the Minister’s written submissions):

   “[20.1] That the meaning given to ‘intentionally inflicted’ was not altered by the lack of reference to ‘purpose’ or ‘reason’ in the respective definitions of cruel, inhuman or degrading treatment found in section 5(1) of the Act, at [43].

   [20.2] That international jurisprudence relating to these definitions did not supplant or otherwise override section 5(1) of the Act which ‘exhaustively defined’ these terms, at [64].

   [20.3] That this approach to the construction of section 5(1) of the Act was consistent with the reasoning of the Full Court in Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211, which considered the standard of protection required by section 36(2B)(b) of the Act.”

   [Footnotes omitted.]

3. The applicant in SZTAL sought leave to appeal to the High Court. That matter is currently before the High Court.

4. For current purposes however, plainly, this Court is bound by what was said by the Full Federal Court in SZTAL.

5. At [47] (at CB 311), the Tribunal found that the circumstances faced by the applicant on remand for a “short period” were factors that apply to the “general population”. This was consistent with the Tribunal’s finding that the I&E Act was a law of general application ([41] at CB 309 to CB 310).

6. I also agree with the Minister that when read fairly, the Tribunal’s analysis here, was focused on the matter of “serious”, and not “significant” harm.

7. The analysis relevant to s.36(2)(aa) of the Act which is the subject of the complaint in ground two, is set out at [50] (at CB 311) to [57] (at CB 312) of the Tribunal’s decision record. The Tribunal found that there was not a “real risk” that the applicant would suffer significant harm on return because of his illegal departure, when questioned at the airport, or during any period he may spend on remand awaiting bail.

8. However, the Tribunal found that spending up to a fortnight in “cramped, uncomfortable and unsanitary” conditions were factors which applied to the “general population”, and would not, in any event, amount to “significant” harm as that term is defined in s.36(2A) of the Act (see in particular [52] (at CB 311) – [53] (at CB 312)).

9. The Tribunal found separately, that the pain and suffering caused by the conditions in detention was not “intentionally inflicted” in prisons in Sri Lanka, and in particular, was not “intentionally inflicted” on prisoners as required by the relevant definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act ([55] at CB 312). The Tribunal also did not accept that the overcrowding and other problems were “intended to cause” extreme humiliation as required by the definition of “degrading treatment or punishment” in s.5(1) of the Act ([55] at CB 312). The Tribunal reached this conclusion having regard to the evidence before it, and in the circumstances presented by the case before it.

10. The Tribunal’s approach is consistent, or at least is not inconsistent, with the reasoning in SZTAL. The Tribunal did not fall into error in asking itself whether the Sri Lankan authorities had the requisite “intention” to inflict “cruel or inhuman” or “degrading” “treatment or punishment”. Ground two is not made out.

11. The applicant’s submissions at the hearing before the Court do not rise above a disagreement with factual findings made by the Tribunal. The submissions reflect, in part, the applicant’s claims and submissions that were before the Tribunal. The Court cannot intervene to substitute its own findings of fact for the Tribunal. The Tribunal’s findings complained of now by the applicant, and in his oral submissions before the Court, were all reasonably open to the Tribunal to make on what was before it. Ground two is not made out.

Conclusion

1. In all, there is no jurisdictional error in the Tribunal’s decision. The application to the Court is to be dismissed. I will make that order.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date:  11 August 2017