Cwu17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

[2022] FedCFamC2G 408

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

CWU17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 408

File number(s):

SYG 2057 of 2017

Judgment of:

JUDGE HUMPHREYS

Date of judgment:

30 May 2022 

Catchwords:

MIGRATION – Immigration Assessment Authority – Protection visa – whether Authority incorrectly defined the term ‘intentionally inflicted’ within the definition of ‘significant harm’ – whether Authority incorrectly applied ‘real chance’ test – whether Authority failed to consider independent country information – whether Authority failed to consider claims cumulatively – whether there was actual or perceived bias – whether there is jurisdictional error – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth) ss 5, 36

Cases cited:

Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427

Minister for Immigration and Citizenship v Li (2013) 297 ALR 225

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367

Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

Division:

Division 2 General Federal Law

Number of paragraphs:

42

Date of last submission/s:

19 May 2022

Date of hearing:

19 May 2022

Place:

Parramatta

Solicitor for the Applicant:

The applicant appeared in person

Solicitor for the First Respondent:

Ms Wilford

ORDERS

SYG 2057 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

CWU17

Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	30 MAY 2022

THE COURT ORDERS THAT:

1.The name of the First Respondent be changed to ‘Minister for Immigration, Citizenship, Migrant Services an Multicultural Affairs’.

2.The application is dismissed.

3.The Applicant pay the First Respondent’s costs fixed in the sum of $6500.00.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE HUMPHREYS

INTRODUCTION

1. The applicant is a Tamil male of the Christian faith from Sri Lanka. The applicant arrived in Australia as an unauthorised maritime arrival in October 2012. On 5 February 2016, the applicant applied for a Safe Haven Enterprise (“Protection”) visa. On 18 October 2016, a delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a Protection visa.

2. The applicant was referred to the Immigration Assessment Authority (“the Authority”) for merits review. In a decision dated 5 June 2017, the Authority affirmed the delegate’s decision not to grant the applicant a Protection visa.

3. The applicant now seeks judicial review of the Authority’s decision

   THE IMMIGRATION ASSESSMENT AUTHORITY’S DECISION

4. The Authority’s decision is a detailed examination of the applicant’s claims together with an analysis of relevant country information followed by conclusions as to whether or not the applicant meets the criteria for a Protection visa.  It is not necessary to summarise completely, the Authority’s decision in order to fairly deal with the grounds of judicial review set out below. 

5. The applicant’s claims for protection are set out in paragraph 7 of the decision record.  They include that the applicant’s family had been involved in or assisted the Liberation Tigers of Tamil Elam (“LTTE”) and that his cousin was senior cadre.  The applicant volunteered to assist the LTTE and underwent training in 2006 but did not engage in combat.

6. In February 2009, the applicant and his family were captured by the Sri Lankan army. The applicant was interrogated and detained for six months before they were transferred to a different camp, interrogated further and finally released in July 2010.  After the applicant and his family returned home, the Criminal Investigation Department (“CID”) frequently visited them and monitored them.

7. In 2011, the applicant bought his cousin RR’s motorbike from a man who helped the Sri Lankan army.  The applicant was subsequently stopped by the army and asked if the motorbike belong to RR.  After the applicant admitted that it did, he was detained for one and half hours before being released.  The CID subsequently took the applicant from his home and asked him where LTTE weapons were stored.  Further, the applicant’s details were inadvertently disclosed in a February 2014 data breach by the Department.

8. The Authority accepted that a significant number of the assertions made by the applicant, including that his family provided assistance to the LTTE, that he and his family were captured by the Sri Lankan Army (“SLA”) in February 2009, that the applicant was held in various internally displaced persons camps and was interrogated during that time.  At paragraphs 20 and 21 of the decision record, the Authority found that Sri Lankan authorities did not have a particular interest in the applicant. The Authority noted that the applicant was never separated from his family and taken into formal detention, which country information indicated would have been in keeping with the normal process for a person suspected of being a member of the LTTE.  The Authority accepted as plausible that following their release, the family home was visited and on occasion the applicant was interrogated by authorities.  The Authority found that this interest was “routine”.

9. The Authority accepted that the applicant bought a motorbike that had previously belonged to his cousin RR.  However, due to inconsistencies in the applicant’s recall of events, the Authority was not satisfied that at the time he left, Sri Lankan authorities at any interest in the applicant due to the motorbike, or his cousin.  Country information indicated that under the former government, even after the war, authorities routinely harassed and monitored Tamils in the north and east of Sri Lanka.

10. At paragraphs 30 of the decision record onwards, the Authority considered the applicant’s Tamil ethnicity and imputed political opinion but was not satisfied that the applicant faced a risk of harm as a result of these characteristics.

11. The Authority accepted that the applicant had been affected by a data breach, that some of his personal information may have been inadvertently disclosed online.  The Authority found there was only remote chance the applicant’s information was accessed and that, even if it was accessed, it revealed only the applicant had sought asylum in Australia which would be apparent from his matter of re-entry into Sri Lanka.  The Authority was not satisfied that the applicant faced increased risk of harm as a result of the data breach.

12. The Authority accepted that the applicant would be likely to be found to have committed an offence under the Sri Lankan Immigrants and Emmigrants Act 1949 in that he had departed the country illegally. The Authority was not satisfied such treatment would be discriminatory in its application as the law was a generally applicable law.

13. The Authority relied on its previous findings in relation to complimentary protection criteria and was satisfied that the applicant would not face a real risk of significant harm upon return.  It The Authority conceded, however, that he the applicant may face a short period of detention prior to being placed before a magistrate in relation to his illegal departure. The Authority found that such treatment did not amount to significant harm and that the applicant was not person to whom Australia a protection obligations under either s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (”the Act”).

    GROUNDS OF JUDICIAL REVIEW

14. The application relied upon the following grounds of judicial review:

    1. The Immigration Assessment Authority (“the IAA”) found [at paragraphs 48 of its decision] that “the applicant may be detained for a number of days pending bail, and that prison conditions in Sri Lanka are poor due to old infrastructure, overcrowding and a shortage of sanitary and other basic facilities”. The IAA, in considering whether this treatment amounted to a “significant harm” in respect of the applicant’s complimentary protection assessment, continued at paragraph 55 that it was “not satisfied that the acts or omissions of the Sri Lankan officials in this process are intended to cause pain or suffering or extreme humiliation”. In the circumstances, the IAA erred in its construction of the term “intentionally inflicted” in the definition of “significant harm” in ss 5(1) and 36(2A) of the Migration Act 1958. This was a jurisdictional error.

    2.   The IAA found that the applicant was not at risk of serious harm if returned to Sri Lanka in light of events he claimed had occurred to him in Sri Lanka. The IAA fell into jurisdictional error in arriving at his finding.

    Particulars

    a)Under s 36(2A) of the Migration Act 1958 a person will suffer ‘significant harm’ if, “the person will be subject to cruel or inhuman treatment or punishment”. In s 5(1) of the Migration Act 1958, the term “cruel or inhuman treatment or punishment” is defined to mean, inter alia, “an act or omission by which “severe pain or suffering… is intentionally inflicted on a person” or “pain or suffering … is intentionally inflicted on a person so long as … the act or omission could reasonably be regarded as cruel or inhuman in nature”.

    b)The applicant contends, as was contended by the applicant in SZTAL v Minister [2016] FCAFC 69, that pain and suffering is intentionally inflicted by an act or omission where the actor knows or is aware that pain or suffering will be inflicted by the act or omission in the ordinary course of events. If his construction of the term “intentionally inflicted” in s 5(1) is correct, the IAA fell into jurisdictional error.

    c)In SZTAL v Minister for Immigration and Border Protection and Anor, the Full Court rejected this construction of the term “intentionally inflicted” advanced by the applicant. At the time of writing these submissions, the Federal Circuit Court is bound by this decision.

    d)In November 2016, the High Court granted the applicant special leave to appeal from the Full Court’s decision. The appeal was heard by the High Court on 5 April 2017, and the High Court has reserved its decision. In the event the appeal succeeds, the applicant’s ability to raise this point at a later stage is preserved.

    3.   The IAA reasoned that because the situation for Tamils has improved, the applicant does not have a well-founded fear of persecution, this being an erroneous application of the “real chance” test. The IAA ought to have considered the possibility that allegations of torture and mistreatment suffered by the other returnees were true. Its failure to do so involved a misapprehension of the “real chance” test which is a jurisdictional error.

    4.   The IAA alleged in general terms, the situation for Tamils in Sri Lanka in relation to their civil and human rights has improved contrary to the overwhelming independent country information on human rights in Sri Lanka. However, the DFAT reports do not follow that the situation will continue to improve or satisfactory.

    Particulars

    a)Where the political situation in a country is “fluid”, political developments concerning human rights and civil rights can move in different direction, including backwards (by deteriorating)-of the political situation in Hungary and Poland in recent years.

    b)It is reported in the Colombo Telegraph November, 16, 2016 that the Executive Director of the International Truth and Justice Project, Yasmin Sooka said, “It requires political will and a commitment on the party of the government of Sri Lanka to carry put a comprehensive security reform programme which is sadly missing in Sri Lanka.”

    c)Citing the report “Silenced: survivors of torture and sexual violence in 2015 of the International Truth and Justice Project Sri Lanka January 2016”, “Intelligence and security operatives continue to target Tails for illegal detention in secret sites and inflict on them horrific torture and sexual violence with impunity, despite the change of government in January 2-15,” the Executive Director of International Truth and Justice Project, Yasmin Sooka who also said:

    “Torture and abduction are so systematic and entrenched in the DNA of the security forces that even realignment of political parties in parliament and the new government under President Srisena are not able to stop these crimes. It requires political will and a commitment on the part of the government of Sri Lanka to carry out a comprehensive security programme which is sadly missing in Sri Lanka.”

    THE APPLICANT’S SUBMISSIONS

15. The applicant appeared before the Court unrepresented. The applicant was assisted by a Tamil Interpreter.  Prior to the hearing commencing, the Court ensured that the applicant was in possession of a copy of the relevant Court Books, and that the first respondent’s written submissions had been interpreted to him.  The Court also ensured that the applicant had access to a pen and paper so that he could take notes during the course of the hearing should he wish to.

16. At the commencement of the hearing, the Court explained that it was undertaking judicial review, not merits review, and the difference between the two types of review.  The Court also explained the procedure by which the hearing would be conducted.

17. Notwithstanding Court orders, no written submissions or other material was filed with the Court in support of the applicant’s case.  The applicant told the Court that he had mentioned the problem with his cousin and the motorbike but the Authority did not accept this. It was after the applicant purchased the motorbike that his problems became worse. The applicant was interrogated as they thought he had information given to him by his cousin

18. At the conclusion of the first respondent’s oral submissions, the applicant was asked if he wished to say anything in reply. The applicant stated “No”.

    THE FIRST RESPONDENT’S SUBMISSIONS

19. After setting out the background, the legal representative for the Minister of Immigration noted that there were six unparticularised grounds of judicial review.

20. In relation to Grounds one and two, the first respondent understood these complaints to be that the Authority erred in finding that any treatment the applicant would be subject to by Sri Lankan officials upon return would not constitute significant harm because it would not be intentionally inflicted.

21. The Authority’s finding in this regard is contained at paragraph 55 of the decision record and reads as follows:

    “… To the extent that he may be detained and subjected to poor conditions during any possible brief period on remand, the country information referred to above confirms that the overcrowding and generally poor conditions to which you may be subject, arise from the application of Sri Lankan law… I am not satisfied that these acts or omissions of  Sri Lankan officials in the process are intended to cause pain or suffering or extreme humiliation.’

22. It was submitted that the definition of “cruel or inhuman treatment or punishment” at s 5(1) of the Migration Act1958 (Cth) (“the Act”) required there be an “intention to inflict” harm (whether by act or omission) which is a subjective intention on the part of a person to bring about suffering by his or her own conduct: (see; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [28] (“SZTAL”)). It was submitted that the findings of the Authority regarding the acts or omissions of Sri Lankan officials did not involve the misconstruction of s 5(1) of the Act.

23. Grounds three and four contend that the Authority erred in its assessment of the country information, which led it to incorrectly find that the situation for Tamils had improved.  Particular (f) to ground four further contends that it was unreasonable for the Authority to prefer DFAT country information without explaining the basis on which it did so.  The balance of the particulars to ground for simply extract pieces of country information that were not before the Authority.

24. It is well established that the choice an assessment of country information is a factual matter for the merits review are: (see; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]). The Authority had regard to a variety of sources in making its decision including country information provided by the applicant. On the basis of its assessment of that country information, and its earlier factual findings in respect of the applicant’s lack of profile with authorities, the Authority found the applicant did not have a particular risk of harm. The Authority formed a view as to the situation “on the ground” in Sri Lanka and then assessed the applicant’s claims against that factual matrix. It cannot be said that the Authority’s findings lack a logical connection with the evidence or are otherwise illogical or unreasonable: (see; Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 at [51]). Otherwise, ground three and four do no more than invite impermissible merits review.

25. In ground five, the applicant contends that the Authority fell into error by failing to assess his claims for protection cumulatively.  It is not clear in what way the applicant contends the Authority was led into jurisdictional error as a result.  In any event, the Authority found that whilst the applicant may have had some involvement with the LTTE, he was not a person of interest to authorities when he left Sri Lanka.

26. Ground six is a general allegation of impartiality or bias by the Authority.  It was submitted that bias is a serious allegation which must be firmly and distinctly made and clearly proven: (see; Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 531). Moreover, the Authority’s statement of reasons alone cannot be relied upon to support a finding of apprehension of bias: (see; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427 at [33], [67]). Significantly, there was nothing before the Court to suggest that the Authority did not bring an open mind to the applicant’s matter.

27. If anything, ground six appears to do no more than express the applicant’s “emphatic disagreement” with the Authority’s findings: (see; Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, 165).

28. In relation to the applicant’s oral submissions it was submitted they only went to the merits of the decision and did not address any jurisdictional error on the part of the Authority.

    CONSIDERATION

29. The grounds of judicial review, such as they are, contain what appears to be both grounds of review, particulars, submissions and evidence.  This has complicated the task of both the Court and the first respondent in identifying and then properly addressing each of those grounds.  After considering the matters, the Court proposes to adopt same grouping of the grounds as set out in the respondent’s submissions.

30. Grounds one and two appear to be complaints that the Authority erred in making findings that the applicant would not be subject to treatment by Sri Lankan officials upon return that would constitute significant harm because it would not be intentionally inflicted.  The applicant argues that the fact he may be detained for a number of days pending bail in conditions in prison that are poor due to old infrastructure, overcrowding and unsanitary such that he faces significant harm.  The Court notes that at the time the grounds of judicial review were formulated, the High Court decision in SZTAL had not been handed down. That decision affirmed that there needed to be a subjective intention on the part of the person to bring about suffering by his or own conduct in order for there to be an intention to inflict harm as required by s 5(1) of the Act.

1. In this matter, the Authority specifically found that it was not satisfied that any acts or omissions of Sri Lankan officials in relation to the holding of the applicant for a period of time in poor prison conditions would be as a result of an intent to cause pain or suffering or extreme humiliation.  The applicant would be held in detention for a relatively short period of time until he was brought before a Magistrate.  If the applicant pleaded guilty he would be fined and released.  If the applicant pleaded not guilty, he would most likely be released on his own recognizance. A fair reading of the Authority’s decision record reveals no error as alleged.  Grounds one and two have no merit.

2. Grounds three and four consist of allegations of failing to properly take account of relevant country information and in so doing the Authority misapplied the real chance test.  It was submitted that the Authority should have considered the possibility that the allegations of torture and mistreatment were in fact true.  As pointed out by the first respondent’s legal representative, it is well-settled that country information to which the Authority has regard and the weight it gives to such information is a matter for the Authority.  No error arises because the Authority prefers one set of country information to another. 

3. Particular (f) alleges that the process of the Authority was unreasonable in that the Authority failed to explain why preferred DFAT reports to other country information that was provided to it.  The test for legal unreasonableness is “stringent” and will only arise in rare cases.  Unreasonableness is not a means for challenging a decision on the basis that the Court disagrees with the consideration of matters or the evaluative judgements made by the decision-maker: (see; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [30], [113]). The Court is not satisfied that the Authority’s findings lack a logical connection with the evidence or are otherwise illogical, irrational or unreasonable. These grounds simply invite the Court to undertake impermissible merits review. Grounds three and four have no merit.

4. Ground five as an allegation that the Authority did not consider the applicant’s claims cumulatively.  The Authority undertook a detailed analysis of the applicant’s claims and was not satisfied as to the majority of them. It accepted, however, certain aspects of the applicant’s claims, including that the applicant’s father provide assistance to the LTTE. It also accepted that RR, the applicant’s cousin, was a member of the LTTE who went missing during the final stages of the war.  The Authority also accepted that the applicant and his family were captured by the Sri Lankan army in 2009 and that he was kicked and beaten.  The Authority accepted that the applicant was detained and interrogated and he and his family were transferred to a camp prior to release in July 2010.  The Authority accepted the applicant was interrogated a number of occasions whilst in internally displaced persons (“IDP”) camps including about his cousin, RR.

5. Noting that the applicant had been released from detention, the Authority found that the subsequent interest by Sri Lankan authorities in the applicant was nothing more than routine in relation to a person who had been detained at an IDP camp.  The Authority also accepted the applicant had been affected by a Departmental data breach.  It accepted that the applicant would be likely to be found to have left Sri Lanka illegally and may be detained and placed before a Magistrate in relation to this matter upon return.  However, the Authority was not satisfied that the applicant had an adverse profile with Sri Lankan authorities. 

6. The Court is satisfied that the Authority gave careful consideration to each of the applicant’s claims but properly found that none of them gave rise to a situation where the applicant was entitled to either refugee protection or protection under the complimentary protection criteria. 

7. The Court is satisfied that in so doing, the Authority did consider the applicant’s claims in a cumulative manner although it did not expressly make this finding.  The Court is conscious that the Authority’s reasons should not be read with ‘an eye finely attuned to error”.  Any failure to refer to a cumulative consideration of the applicant’s claims does not amount to jurisdictional error.  Ground five has no merit

8. Ground six is an allegation of bias.  The applicant claims that the particular Authority reviewer, who is named, affirmed decisions in the same period of time as this decision in relation to the applicant and several other Sri Lankan Tamils.  The ground then consists of a bland assertion that this is evidence that the reviewer’s mind was so committed to a conclusion already formed as to be incapable of alteration.

9. No transcript of the hearing has been provided to the Court as evidence of bias.  As submitted by the respondent, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision.  The mere fact that an Authority makes adverse findings in respect of the applicant, or indeed other applicants does not give rise to an inference of bias or, by itself, suggest the decision-maker approached its task other than with mind open to persuasion: (see; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).

10. A fair reading of the Authority’s decision does not disclose, in the Courts view, any prejudgement on the part of the Authority such that it would support a finding of actual or apprehended bias.  There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Authority might reasonably apprehend the Authority may not import an impartial mind to determining the application for review.  Ground six has no merit.

    CONCLUSION

11. As the applicant was unrepresented, the Court has perused the decision record of the Authority but is unable to find any unarticulated jurisdictional error.

12. The application is dismissed.

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate: Caelan Shaw

Dated:       30 May 2022