CSW15 v Minister for Immigration

[2016] FCCA 1124

FEDERAL CIRCUIT COURT OF AUSTRALIA

CSW15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1124

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to ask itself the correct question – whether the Tribunal misconstrued the meaning of “significant harm” – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5(1), 36(2)(a), 36(2)(aa), 476

Cases cited:

SZTEP v Minister for Immigration and Border Protection [2015] FCA 1499
AJJ15 v Minister for Immigration and Border Protection [2016] FCCA 482
SZTAL v Minister for Immigration & Border Protection & Anor [2015] FCCA 64

Applicant: CSW15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3433 of 2015

Judgment of: Judge Street

Hearing date: 11 May 2016

Date of Last Submission: 11 May 2016

Delivered at: Sydney

Delivered on: 11 May 2016

REPRESENTATION

Counsel for the Applicant: Mr B Michael

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Ms R Francois

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The applicant file and serve an amended application including the additional grounds handed up in court before close of business on 12 May 2016.

2. The amended application is dismissed.

3. The applicant pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3433 of 2015

CSW15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 12 November 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka. The applicant arrived at Christmas Island on 1 July 2012 and applied for protection on 12 November 2012. The Minister refused the application on 14 October 2013. The applicant applied for review on 19 November 2013.

2. The applicant was found to be a Tamil-speaking Muslim from Sri Lanka and his claims were assessed against that country.  The applicant’s claimed fear of harm arose from being targeted on the basis of his race, religion and in the context of him participating in demonstrations at mosques.  The applicant was invited to attend a hearing held on 14 October 2015, pursuant to a letter dated 16 September 2015.  The applicant attended on that day to give evidence and present arguments and was assisted by his legal representative.

3. Submissions were received by the Tribunal from the applicant’s legal representative prior to the hearing, including, relevantly, a submission on 30 January 2014:

   96. Notwithstanding the claims of torture and physical harm, international jurisprudence has also found that while detention in itself may not breach Article 7 of the Covenant, the conditions of detention may be. In Tshisekedi v Zaire, the author ‘was deprived of food and drink for four days after his arrest on 17 January 1988 and was subsequently kept interned under unacceptable sanitary conditions.’ The Human Rights Committee found the author’s treatment during his four days of detention amounted to inhuman treatment – an even higher threshold of harm than degrading treatment or punishment.

   97. In Portorreal v Dominican Republic, the author ‘was arrested…taken to a cell at the secret service police headquarters, from where he was transferred to another cell measuring 20 by 5 meters, where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released. At no time during his detention was he informed of the reasons for his arrest.’ The Human Rights Committee found that the author’s treatment during his 50 hours of detention amounted to both inhuman and degrading treatment.

   98. Decisions by the Human Rights Committee demonstrate that poor prison conditions which can amount to degrading treatment or punishment, include, inter alia, overcrowding; unsanitary condition; exposure to cold; inadequate ventilation or lighting; inadequate bedding; inadequate clothing; inadequate nutrition and clean drinking water; lack of opportunity for adequate exercise; and denial of medical treatment.

   99. It is therefore submitted that any level of interaction with Sri Lanka’s interrogation process and prison system will result in the Applicant experiencing significant harm in the form of:

   a.  torture: s 36(2A)(c);

   
   

   b.  cruel or inhuman treatment or punishment: s 36(2A)(d); and/or

   
   

   c.  degrading treatment or punishment: s 36(2A)(e).

   100. In addition, the Applicant also fears significant harm in Sri Lanka owing to his real and/or imputed political opinion which is corroborated by the country information outlined in this submission.

4. The Tribunal identified the applicant’s claims and evidence and made adverse findings in relation to the credibility of the applicant.  The Tribunal relevantly found that the applicant did not have well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.

5. The Tribunal also found that it did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm as a consequence or the poor conditions in the prisons during the period which he may spend in jail on remand. 

6. The Tribunal made reference to the totality of the evidence and found that it did not accept there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will be ultimately deprived of his life, that the death penalty will be carried out on him or that he will be subjected to torture, that he will be subjected to cruel or inhumane treatment or punishment or that he will be subjected to degrading treatment or punishment as defined.

7. It was in those circumstances that the Tribunal said that it did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk he will suffer significant harm as defined in s.36(2)(a) of the Migration Act 1958. The Tribunal accordingly found that the applicant did not satisfy the criteria set out under s.36(2)(a) or s.36(2)(aa) of the Migration Act 1958. 

8. The grounds of the amended application are as follows:

   1. The Tribunal engaged in jurisdictional error by misconstruing the applicable law or failed to ask the correct question.

   Particulars

   a. In rejecting the applicant’s claim for complementary protection under s 36(2)(aa) of the Act, the Tribunal adopted an erroneous view of the applicable legislation; namely that the intentional placement of the applicant in a Sri Lankan jail did not satisfy the element of ‘intent’ found in the statutory definition of the types of harm amounting to ‘significant harm’.

   b. Contrary to the interpretation of the legislation adopted by the Tribunal, the intentional placement of the applicant in a Sri Lankan jail was capable of satisfying the element of ‘intent’ found in the statutory definition of the types of harm amounting to ‘significant harm’.

   c. Contrary to the interpretation of s 5(1) of the Act adopted by the Tribunal, the element of intention in the definition of cruel or inhuman treatment and degrading treatment extends to acts done by a person who is aware that the act will in the ordinary course of events inflict pain or suffering, or cause extreme humiliation, even though the act is not done for that purpose.

   d. The Tribunal ought to have considered whether the placement of the applicant in detention in a Sri Lankan prison fell within the definition of significant harm in accordance with the correct interpretation of s 5(1) of the Act in paragraph (1)(b) and (c) above.

9. Mr Michael, on behalf of the applicant, first made an application for an adjournment on the basis that the Full Court of the Federal Court of Australia was currently reserved in relation to a case in which the issue of the meaning of cruel or inhumane treatment and degrading treatment within s.5(1) of the Migration Act 1958 was currently reserved.  Mr Michael, on behalf of the applicant, advanced that the application should await the outcome of that decision as the applicant’s argument appeared, in substance, to reflect the substance of the issues argued before the Full Court.

10. Attention was drawn by the Court to the formulation of the grounds of the application in comparison to the issue that appeared to have been formulated from the Full Court of the Federal Court of Australia hearing.  Leave was granted to the applicant to amend the application to add additional grounds seeking to make clear that the argument in relation to the definitions of cruel or humane treatment and degrading treatment, as raised in the Full Court, were raised in the present case.  The adjournment application was opposed.  In opposing the adjournment application counsel for the respondent drew attention to the decision of Gilmour J in SZTEP v Minister for Immigration and Border Protection [2015] FCA 1499, relevantly, at 24 to 25 and also to the reasoning of Judge Smith in AJJ15 v Minister for Immigration and Border Protection [2016] FCCA 482 at 52 to 54.

11. This was a case where the Tribunal made detailed findings in relation to the application of the Immigrants and Emigrants Act (Sri Lanka) in relation to the applicant having illegally left Sri Lanka.  The Tribunal relevantly found that the applicant did not face a real risk of being singled out or treated differently for a Convention reason from anyone else who may have breached the law by departing Sri Lanka illegally.  The Tribunal indicated that it took the view that the charging of the applicant was a result of the enforcement of a law which applies to everyone in Sri Lanka and that it does not have the necessary connection with one or more of the five reasons in the Refugees Convention.  It was in those circumstances that the Tribunal turned to the issue of complementary protection and relevantly found:

    73. Having regard to my findings of fact above I do not accept that there are substantial grounds for believing that, as a necessary  and foreseeable consequence of [X] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm because he will be returning to Sri Lanka as a failed asylum-seeker. As I indicated to him I accept that he will also be charged with offences under the Immigrants and Emigrants Act of Sri Lanka because he left Sri Lanka illegally. In their submission dated 30 January 2014 [X] representatives referred to the penalties for illegal departure and they submitted that in the process of prosecution he would be detained by the security forces which would lead to significant harm. They referred to information concerning the use of torture in Sri Lanka and also to poor prison conditions. They referred in this context to international jurisprudence in relation to the interpretation of Article 7 of the International Covenant on Civil and Political Rights but, as the Full Court of the Federal Court (Lander, Jessup and Gordon JJ) emphasised in Minister for Immigration and Citizenship v MZYYL & Anor (2012) 207 FCR 211 at [18], the complementary protection regime uses definitions and tests different from those referred to in international human rights treaties.

    74. As I put to [X], the information available to me suggests that he will only be held at the Negombo Prison for a brief period, for example because a magistrate is not available due to a weekend or a public holiday. The Australian Department of Foreign Affairs and Trade has advised that allegations of mistreatment of returnees have not been substantiated and it has said that it is not aware of allegations of mistreatment of returnees while on remand. I consider on the basis of this evidence that there is only a remote chance that [X] will have to spend any longer than a fortnight in a gaol on remand. Having regard to the advice of the Australian Departments of Foreign Affairs and Trade I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [X] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm or specifically that he will experience torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment, during any period which he may spend in gaol on remand.

    75. I accept that prison conditions in Sri Lanka are poor but I do not accept that spending up to a fortnight in such a gaol amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such a treatment is intentional as is required by the law in Australia. For the reasons given in the previous paragraph I do not accept that there is a real risk that [X] will be subjected to ‘torture’ as defined while he is on remand for what I find on the evidence before me will be a period of up to a fortnight. Even taking into account the evidence regarding conditions in prisons in Sri Lanka, I do not accept that spending a brief period in such a prison on remand amounts to ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and that the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

    76. I consider it clear from the relevant statutory provisions that mere negligence or indifference in not sufficient: what is required is an intention to inflict pain or suffering or to cause extreme humiliation. I have taken into account the fact that the ‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’ state that in certain circumstances it may be appropriate to infer an intention to inflict pain or suffering or to cause extreme humiliation if it is evident that pain or suffering or extreme humiliation was or may be knowingly inflicted. I do not consider that it is appropriate on the evidence before me to draw this inference in the circumstances of the present case. I do not accept on the evidence before me that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act, nor do I accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. I do not accept, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [X] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prisons during any period which he may spend in gaol on remand

12. In the present circumstances, given the findings made by the Tribunal in this case and the authorities referred to by the First Respondent, I was not satisfied that it was appropriate to adjourn the matter. I was not satisfied that the interest of the administration of justice warranted an adjournment. Further, an adjournment in the circumstances would only have been likely to add to the costs of the parties and utilise limited Court time.  Notwithstanding Mr Michael’s submissions that the Court should treat what was said by Gilmour J in SZTEP v Minister for Immigration and Border Protection [2015] FCA 1499, tab 24 and 25 as obiter, I regard this Court as bound by what was said by the Court in SZTEP v Minister for Immigration and Border Protection [2015] FCA 1499 at 24 to 25. Further, I am not persuaded that the construction of the definitions in s.5 as identified in the decision of SZTEP supra is wrong.

13. The Court explored with counsel for the applicant whether the relevant intention was said to be attributed to the Parliament or some other authority. Counsel for the applicant properly conceded that the mere passing of the law by the Parliament could not be said to give rise to any application of the definition.  The argument developed by counsel for the applicant was to the effect that it was the prison officials giving effect to the enforcement of the law that gave rise to the potential application of the definition.  The argument depended upon a finding that those officials had a state of mind of the kind asserted by the applicant of being persons who were aware that their enforcement of the law upon the applicant will in the ordinary course of events inflict pain or suffering or cause extreme humiliation upon the applicant. 

14. The enforcement of a law that is found to be of general application by its officials, given the finding made in the present case, is not one that would be consistent with the assertion of a state of mind that the person was aware that the act of enforcement of the law in the ordinary course of events would inflict pain or suffering or cause extreme humiliation.  Giving effect to a law of general application is entirely consistent with the application of the rule of law. Officials are ordinarily bound to comply with the application of legislation lawfully passed and binding upon them.  No submission was advanced to the Tribunal in relation to the definition that there was a person who the Tribunal should find was aware that acts done by that person would, in the ordinary course of events, inflict pain or suffering or cause extreme humiliation. 

15. The want of a factual foundation for the application of the applicant’s argument by the Tribunal or a submission to support such a finding is a further reason why the Court was of the view that an adjournment was not appropriate in the present case.  Mr Michael of counsel did seek to advance that the Court should not follow the decision of Judge Smith in AJJ15 v Minister for Immigration and Border Protection at 52 to 54. Mr Michael of counsel drew attention to the fact that he sought to argue that the decision was wrong in relation to SZTAL v Minister for Immigration & Border Protection & Anor [2015] FCCA 64. I reject that submission. Mr Michael submitted that the decision of Gilmour J in SZTEP v Minister for Immigration and Border Protection could be distinguished and treated as obiter. 

16. For the reasons given, I regard that was said by Judge Smith as correct in saying that this Court was bound by what was said by Gilmour J in SZTEP v Minister for Immigration and Border Protection.  I am far from satisfied that it could be said the decision of Judge Smithwas plainly wrong.  As a matter of comity, this Court should follow decisions on a matter of principle made by another Judge in this Court unless satisfied that it is plainly wrong. As indicated, I consider Judge Smith was correct in the application of SZTEP v Minister for Immigration and Border Protection.

17. In those circumstances, there was no error by the Tribunal in its application of the definitions of cruel and degrading treatment in s.5(1) of the Migration Act 1958 in the present case.

1. No jurisdictional error of the kind alleged in the amended application is made out. The amended application is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 17 May 2016