CWD16 v Minister for Immigration

[2017] FCCA 603

FEDERAL CIRCUIT COURT OF AUSTRALIA

CWD16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 603

Catchwords:
MIGRATION – Immigration Assessment Authority – Protection (Class XA) visa – whether the Authority failed to address an essential integer of the applicant’s claims – adjournment sought on the basis of a grant of special leave in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 – existence of other proceedings on appeal is not of itself a ground upon which an adjournment should automatically be granted – adjournment not warranted in the interests of the administration of justice – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 5H, 5J, 36, 473CB, 476, Part 7AA

Cases cited:

SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: CWD16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: SYG 2697 of 2016

Judgment of: Judge Street

Hearing date: 28 March 2017

Date of Last Submission: 28 March 2017

Delivered at: Sydney

Delivered on: 28 March 2017

REPRESENTATION

Solicitors for the Applicant: Mr S Tambimuttu
Stephen Hodges Solicitor

Counsel for the Respondents: Ms R Graycar

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Grant leave to the applicant to rely upon the amended application filed on 13 March 2017.

2. The amended application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2697 of 2016

CWD16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act1958 (Cth) (“the Act”) in respect of a decision of the Immigration Assessment Authority (“the Authority”) under Part 7AA of the Act made on 9 September 2016 affirming a decision of the delegate not to grant the applicant a Protection visa.

2. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The applicant is a Tamil of Hindu faith from a particular district. The applicant arrived in Australia in October 2012 as an unlawful maritime arrival.

The delegate

1. The applicant claimed to fear harm from the Sri Lankan government authorities because of his Tamil ethnicity. The applicant claimed to fear harm by reason of being imputed with a political opinion of being a member of the LTTE because his uncle was an LTTE member.  The applicant attempted to flee Sri Lanka by boat in November 2009 but was intercepted. The applicant was remanded in custody for approximately three months before being released. During his detention, the applicant was physically assaulted and accused of being associated with the LTTE. The applicant claimed that he was released on bail and was told that he should not reoffend for the next five years and that if he did, he would face serious consequences. 

2. After the applicant was released, he returned to his home village and claimed the CID began coming to his home, repeatedly asking him if he was a member of the LTTE or if the applicant had assisted the LTTE. The applicant said that he decided to leave Sri Lanka and obtained a work visa in Dubai.  The applicant claimed that he left Sri Lanka legally for Dubai in November 2011, albeit that he said he left because his life was in danger.

3. The applicant claimed he returned to Sri Lanka in 2012 after about eight months in Dubai because his mother was ill. The applicant alleged he became an active member in a sports club, which supported the TNA during the elections in September 2012, as a result of which the applicant alleged he was harassed and threatened by paramilitary groups, including the Karuna Group. The applicant alleged that he then went into hiding and fled to another location before leaving to come to Australia. The applicant claimed to fear harm from members of Tamil paramilitary groups and the Sri Lankan authorities.

4. The delegate found that the applicant exaggerated any investigations made by Sri Lankan authorities to enhance his profile. The delegate did not accept that the applicant would be pursued, harmed or threatened by paramilitary groups or Sri Lankan authorities if he was to return, given the current political and security environment in Sri Lanka. The delegate found the applicant was of no particular interest to the Sri Lankan authorities or any associated paramilitary groups or anyone else prior to his departure from Sri Lanka for Australia.

5. The delegate found the applicant had no political profile and was not connected to the LTTE. The delegate found the applicant would not be perceived as having any connection to the LTTE or as having engaged in any Tamil separatist activities on his return to Sri Lanka. The delegate did not accept that if the applicant were to return to Sri Lanka, the authorities would regard him as a supporter of the LTTE or someone with LTTE links.

6. The delegate was not satisfied the applicant would be persecuted by the Sri Lankan government authorities and associated groups or anyone else upon return to Sri Lanka in the reasonably foreseeable future on the basis of his Tamil ethnicity. The delegate found there is not a real chance that if the applicant returns to Sri Lanka, he would be persecuted on the basis of his Tamil ethnicity. The delegate found that there was not a real chance the applicant would be persecuted because of an LTTE connection, in whatever manner that association was imputed to him.

7. The delegate found the applicant does not face a real chance of persecution in the reasonably foreseeable future and found that the applicant's fear of persecution was not well-founded.

8. The delegate found there is not a real chance of persecution of the applicant for one or more of the reasons mentioned in s.5J(1)(a) of the Act. The delegate found that the applicant was not a refugee within the meaning of s.5H of the Act and found that the applicant failed to meet the criterion under s.36(2)(a) of the Act.

9. The delegate was not satisfied 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 the applicant will suffer significant harm as defined in s.36(2A) of the Act. The delegate found the applicant was not a person in respect of whom Australia had protection obligations and that the applicant failed to meet the criterion under s.36(2)(aa) of the Act.

The Authority

1. On 21 July 2016 the Authority wrote to the applicant indicating that the matter had been referred to the Authority for review. The Authority identified that it had been provided with all the documents that the Department considered relevant to the applicant's case and that that included the material the applicant had provided to the Department before the delegate decided to refuse the protection visa.

2. The letter indicated that the Authority will proceed to make a decision on the applicant's case based on the information sent to the Authority by the Department unless the Authority decided to consider new information. The letter identified that there were only limited circumstances in which the Authority could receive new information and provided a factsheet in that regard, as well as a practice direction and an opportunity to provide submissions and new information. 

Information before the Authority

1. A report by a Dr Hughes dated 9 August 2016 was provided to the Authority as well as submissions from the applicant’s migration agent dated 10 August 2016. The Authority in its reasons, identified the applicant's claims and background. The Authority identified that it had regard to the information referred under s.473CB of the Act.

2. The Authority noted that submissions had been provided, making arguments on behalf of the applicant which the Authority had regard to. The Authority also referred to the doctor's report and the scarring and concluded that that was not new information, given the issues raised before the delegate and had regard to that report.

3. The Authority set out the applicant's claims and set out the relevant law. The Authority referred to the incident in 2009 and accepted that the applicant was detained following a naval interception of the boat upon which the applicant was travelling illegally.

Assessment of refugee criterion

Consideration of the applicant’s imputed political opinion

1. The Authority identified that if the Sri Lankan authorities had any remaining suspicions as to the applicant having LTTE connections, the applicant would likely not have been released from detention following the first illegal departure and would not have been able to freely travel, as the applicant did in 2011 and 2012 to Dubai.

2. The Authority did not consider it plausible that the applicant would have been the subject of ongoing interest from the Sri Lankan authorities including the CID, following his release from the three months detention resulting from his first attempted illegal departure. The Authority did not accept that the applicant was taken to the CID offices in Colombo or that he was visited by the CID in relation to any ongoing concern that the applicant had LTTE links.

3. The Authority was not satisfied that the applicant would be identified as an LTTE combatant now simply because he has scarring or that he faces a real chance of serious harm on that basis alone, or in conjunction with his previous detention or departure from Sri Lanka. The Authority considered that the applicant's Tamil ethnicity or race would not contribute to the applicant facing serious harm upon his return to Sri Lanka.

4. The Authority was not satisfied that the applicant faces a real chance of persecution now or in the reasonably foreseeable future because of his race, or because he will be imputed with a pro-LTTE political opinion. 

Consideration of the applicant and the Tamil National Alliance

1. The Authority did not accept that the applicant's involvement in the 2012 election would form the basis for any real chance of the applicant facing serious harm upon a return to Sri Lanka now or in the reasonably foreseeable future. 

Consideration of the applicant as a failed asylum seeker/illegal departee

1. The Authority referred to the applicant's claimed fear as a failed asylum seeker and an illegal departee. The Authority made express reference to the applicant having departed Sri Lanka illegally twice and that the occasion in November 2009 was thwarted following interception. The Authority referred to the DFAT information that once a person is found to have departed illegally they will be arrested by the police at the airport, have their fingerprints and be photographed.

2. The Authority noted that after an investigation has been completed, a person suspected of illegal departure will be transported to the closest Magistrates Court at the first available opportunity, after which custody and responsibility will shift to the Court or prison services and at this point the Court will determine the next step in the individual case.

3. The Authority referred to the DFAT information indicating that a person arrested may remain in police custody at the CID Airport for up to 24 hours and that in the event a magistrate is not available before this time, due to the weekend or a public holiday, those charged may be held at a nearby prison. The Authority referred to the unsatisfactory conditions at those prisons. The Authority referred to the country information that persons who are not people smugglers had not been given custodial sentences for departing Sri Lanka illegally.

4. The Authority referred to the applicant having been released on bail around three months after his first illegal attempt to depart Sri Lanka in November 2009, on condition that he not reoffend for five years. The Authority accepted that the applicant's subsequent illegal departure in late 2012 occurred within the original five year period.

5. The Authority did not accept that the penalties that the applicant may face under the Sri Lankan Immigrants and Emigrants Act will amount to serious harm in the context of the applicant's prior offence or breach of condition in relation to reoffending. The Authority accepted that the applicant on return would be charged under the Immigrants and Emigrants Act and that if the applicant arrives over the weekend or long weekend there is a chance the applicant will be held for some time at a nearby prison until he appears before the magistrate.

6. The Authority found that the application of the Immigrants and Emigrants Act was a law that was not discriminatory on its terms and that the evidence did not support that the law was applied selectively or in a discriminatory manner. The Authority found that the investigation, prosecution and punishment of the applicant for his illegal departure under the Immigrants and Emigrants Act would be the result of a law of general application and does not amount to persecution for the purpose of s.5H(1) and s.5J(1) of the Act.

7. The Authority referred to the poor conditions to which the applicant may be exposed and found that the brief period of detention to which the applicant may be subject would not constitute the level of threat to his life or liberty or to significant physical harassment or ill-treatment under s.5J(5) of the Act or otherwise amount to serious harm.

8. On the basis of the DFAT country information, the Authority found that it was most likely the applicant would be issued with a fine and be released or if he pleads not guilty, he will be released on his own personal surety. The Authority referred to the fact that the applicant does not have a serious criminal record. The Authority referred to the fact that the applicant was a passenger on a people-smuggling vessel who departed illegally and is not claimed to have been involved in or organising or facilitating people smuggling.

9. The Authority found in those circumstances the applicant would not be subject to any custodial sentence but that he would be fined for his illegal departure which the Authority found, does not amount to serious harm.  The Authority was not satisfied the applicant faces a real chance of persecution on the basis of being a Tamil asylum seeker who twice departed Sri Lanka illegally, now or in the reasonably foreseeable future.

10. The Authority referred to having considered the applicant's circumstances cumulatively, including that he was a Tamil from the Eastern Province who departed Sri Lanka illegally on two occasions and will be returning to Sri Lanka as a failed asylum seeker and who had previously provided low-level support to the TNA. The Authority, having considered the claims cumulatively, was not satisfied that there is a real chance the applicant will face persecution on return to Sri Lanka now or in the reasonably foreseeable future.

11. The Authority found that the applicant does not meet the requirements of the definition of a refugee in s.5H(1) of the Act. The Authority found that the applicant did not meet the criterion under s.36(2)(a) of the Act.

Assessment of complementary protection criterion

1. The Authority referred to the applicant's claims in relation to complementary protection. The Authority referred to the poor prison conditions to which the applicant may be exposed during a short detention. The Authority was not satisfied on the evidence that there is an intention to inflict pain or suffering or extreme humiliation. The Authority found that such circumstances do not amount to the death penalty or torture or arbitrary deprivation of life. The Authority was not satisfied that being arrested, fingerprinted and photographed, or the poor prison conditions to which the applicant may be briefly subjected of themselves constitute significant harm as defined under s.36(2A) and s.5 of the Act. The Authority was not satisfied the applicant will face a real risk of significant harm during any brief time spent in detention.

2. The Authority accepted the applicant would be charged with an offence and that he would not face a custodial sentence and found that he would be fined for his illegal departure. The Authority found that the imposition of a fine does not amount to significant harm under the definition in s.36(2A) and s.5 of the Act. The Authority found that there is no real risk that the applicant would face any significant harm by reason of being a failed asylum seeker who departed illegally, or by reason of being a suspected LTTE supporter, or that he would be considered to have committed serious criminal offences. The Authority was not satisfied that there is a real risk the applicant faces significant harm on return to Sri Lanka.

3. The Authority found there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being returned from Australia to Sri Lanka, there is a real risk that the applicant would suffer significant harm. The Authority found the applicant did not meet the criterion under s.36(2)(aa) of the Act and affirmed the decision of the delegate.

Before this Court

1. Grounds 1, 2 and 4 of the application are as follows:-

   Ground 1

   The assessor committed error in failing to consider an integer of the applicant's claim.

   PARTICULARS

   1. The applicant claims that he attempted to flee Sri Lanka by boat in November 2009, but was intercepted by Sri Lankan Navy, and that, as a result he was detained in prisons for approximately three months, where he was physically assaulted and accused of being associated with the LTTE, before being released on bail, on the condition that the applicant not re-offend for five-year period: [9].

   ii. The assessor at various points accepted the applicant's claim that he previously attempted to depart Sri Lanka illegally, was detained, questioned, tortured and released on bail: [16], [18], [19], [28], [30], [31], [59].

   iii. The assessor twice stated that it was a condition of the applicant's bail that he not re-offend within a five-year period of his first attempted escape from Sri Lanka: [34], [59].

   iv. The applicant left for Australia in September 2012, which is within that five-year period, and so the applicant has breached his bail.

   v. The assessor stated many times that the applicant departed Sri Lanka illegally for Australia: [28], [30], [31], [34],[35], [38], [51], [59].

   vi. The assessor failed to consider this integer of the applicant's claim, that he has breached bail by illegally departing Sri Lanka for Australia.

   Ground 2

   The assessor failed to give reasons for a particular finding.

   PARTICULARS

   i. The assessor accepted that the applicant's illegal departure in 2012 occurred within the five-year period in which it was a condition of the applicant's bail that he not re-offend: [34].

   ii. The assessor then made the following finding at [34]: “However, I do not accept that the penalties that the applicant may face under the I & E Act will amount to serious harm even in the context of the applicant's prior offence breach of condition in relation to reoffending".

   iii. The assessor failed to give reasons for this finding, as he did not give reasons why the applicant's breach of his bail condition did not impact upon the assessor's consideration of the serious harm the applicant may face in Sri Lanka.

   iv. The assessor acknowledged that the applicant had previously departed Sri Lanka illegally and breached his bail condition in departing for Australia, but did not consider or explain the potential effect of those circumstances, specifically regarding whether there is a real chance that the applicant would suffer serious harm if returned to Sri Lanka.

   Ground 4

   The AAT's findings at [CB 487 Paragraph 83] is consistent with legal errors alleged by the applicants in SZTAL. This matter would be heard in the High Court as special leave has been granted by the HCA for the appeal to proceed. The outcome of the matter to be heard by the HCA could affect the applicant's case.

   PARTICULARS

   1. At [CB 237, Paragraph 60] the AAT states “While the applicant may be subjected to poor prison conditions during his short detention, country information indicates this is due to overcrowding, poor sanitation and lack of resources. I am not satisfied, on the evidence, that there is an intention to inflict pain or suffering or extreme humiliation … I am not satisfied that being arrested, finger printed and photographed or the poor prison conditions to which the applicant may be briefly subjected, of themselves constitute significant harm ...”

   ii. The IAA accepted that the applicant would be subjected to poor prison conditions during his short detention.

   iii. The IAA appears to have accepted that being subjected to poor prison conditions amounts to pain or suffering or extreme humiliation, however as no “intention” to inflict pain or suffering exists the IAA was of the view that this does not constitute significant harm.

   iv. The outcome of SZTAL would determine if the AAT was correct in stating that “intention” needs to exist in order that any pain or suffering or extreme humiliation that the applicant may experience during any period of detention amounts to significant harm.

   v. (iii) The applicant's case must be adjourned until a decision is made by the HCA on SZTAL.

Consideration

1. Mr Tambimuttu of Counsel who appeared for the applicant, confirmed that ground 3 was abandoned. 

Ground 1

1. In relation to ground 1, it was submitted that the Authority had failed to address an essential integer of the applicant's claims, being the applicant’s breach of bail by departing Sri Lanka illegally. I accept the first respondent's submission that that issue was raised in the context of the applicant being an illegal departee and a failed asylum seeker returning from a Western country and that there was no separate independent claim to fear harm because he breached his bail conditions. Nor does any such claim arise on the material before the Authority.

2. On a fair reading of the Authority's reasons it is apparent that the Authority took into account the breach of the bail condition by the applicant within the five years in his second illegal departure from Sri Lanka.

3. Ground 1 is in substance an invitation to this Court to engage in an impermissible merits review. There was no failure by the Tribunal to address an essential integer of the applicant's claims. Ground 1 fails to make out any jurisdictional error.

Ground 2

1. In relation to ground 2, Mr Tambimuttu of counsel took the Court to paragraph 34 of the Authority’s reasons and advanced the submission that there were no reasons to support the finding that the applicant would not face serious harm, even in the circumstances of breach of the condition imposed on him in relation to reoffending.

2. The Authority gave reasons identifying the circumstances from the DFAT country information in which custodial sentences are imposed. The Authority's reasons are to be read as a whole. The Authority identified that the applicant was only a passenger and was not a smuggler in relation to whom a custodial sentence would be likely to be imposed. The Authority also identified the object of the Immigrants and Emigrants Act.

3. The Authority's finding identified in paragraph 34 was based on the reasons earlier identified in the Authority's decision and that finding cannot be said to lack an evident and intelligible justification. This is not a case where there was any material finding in respect of which there was a failure to give adequate reasons. No jurisdictional error is made out by ground 2.

Ground 4

1. In relation to ground 4, Mr Tambimuttu of counsel sought an adjournment on the basis of a grant of special leave to appeal to the High Court of Australia in the matter of SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. Mr Tambimuttu of counsel took the Court to the finding of the Authority in paragraph 60 of the Authority’s reasons. Mr Tambimuttu also took the Court to another decision in respect of which it was said that there were similar findings and that matter had been adjourned pending the determination of the matter in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. The adjournment application was opposed by the first respondent.

2. The existence of other proceedings on appeal in the Full Court of the Federal Court or the High Court of Australia is not of itself a ground upon which an adjournment should automatically be granted. This Court is currently bound by the decision of the Full Court in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.

3. Mr Tambimuttu contended that because the case was likely to be heard very shortly an adjournment would only be for a short period of time.  That proposition does not necessarily follow. Further, the issue in relation to SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 has squarely been raised by ground 4 of the applicant's application and if ultimately a successful outcome is obtained upon which the applicant can rely, the applicant would be able to raise that issue.

4. Further, although Mr Tambimuttu submitted that an adjournment would not be of any inconvenience to the parties, I do not accept that submission.  An adjournment will add to the costs of the parties as well as further utilising limited Court time. I am not satisfied that an adjournment is warranted in the interests of the administration of justice. In relation to the substance of ground 4, Mr Tambimuttu of counsel accepted that this Court was bound by SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69.

5. Mr Tambimuttu of counsel pressed the proposition that if there was an error of the kind identified in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69, this was subject to the successful application of special leave to the High Court. This Court is bound by the decision in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69 of the Full Court of the Federal Court.

6. In the present case, the Authority made express findings in relation to the want of any intention to impute serious harm by reason of the poor prison conditions. I do not accept that there was any error in the Authority's finding in that regard. No jurisdictional error is made out by ground 4.

Conclusion

1. The amended application is dismissed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 20 April 2017