Det17 v Minister for Immigration

[2019] FCCA 307

FEDERAL CIRCUIT COURT OF AUSTRALIA

DET17 v  MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 307

Catchwords:
MIGRATION – Application for review of a decision of the Immigration Assessment Authority – safe haven enterprise visa – where Applicant suffers from a mental health condition – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.65, 473BC, 473CC, 473DC; Div 3 Pt. 7AA.

Cases cited:

Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287

 NABE v Minister for Immigration and Multicultural and Indigenous Affairs  (No .2) (2004) 144 FCR 1

 S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

Applicant: DET17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECION

Second Respondent: IMMIGRATION ASSESSMENT AUTHORITY

File Number: MLG 1523 of 2017

Judgment of: Judge Hartnett

Hearing date: 30 October 2018

Delivered at: Melbourne

Delivered on: 15 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Zhou

Solicitors for the Applicant: Carina Ford Immigration Lawyers

Counsel for the First Respondent: Mr Maloney

Solicitors for the First Respondent: The Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1523 of 2017

DET17

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECION

First Respondent

IMMIGRATION ASSESSMENT AUTHORITY

Second Respondent

REASONS FOR JUDGMENT

1. The Applicant proceeds on three grounds of judicial review as set out in the amended application filed 11 October 2018.

2. The grounds on which the Applicant alleges jurisdictional error in the decision of the Second Respondent (‘the Authority’) dated 30 June 2017 are as follows:-

   “1. The IAA exercised its discretion under section 473DC of the Migration Act 1958 (Cth) (the Act) unreasonably, by failing to make inquiries and/or seek information about a centrally relevant matter, being whether the 2016 summons is a genuine document.

   2. The IAA failed to carry out its statutory task by failing to consider relevant information in finding that the Applicant would spend no more than a short period of time in detention after being charged under the Immigrants and Emigrants Act 1949 (Sri Lanka) upon his return to Sri Lanka.

   3. The IAA failed to carry out its statutory task or failed to ask itself the right questions with respect to the application of s 36(2A) of the Act.

3. By Ground 1 the Applicant contends that the failure of the Authority to exercise its discretion to get new information under s.473DC of the Migration Act 1958 (Cth) (‘the Act’) was legally unreasonable. The ground arises from the Authority's decision to place no weight on the summons. The Applicant contends that, rather than placing no weight on the summons, the Authority should have exercised its discretion to get new information about it from the Applicant.

4. Alternatively, the Applicant contends that the Authority's failure to make an obvious inquiry constituted a failure to conduct its review under s.473CC of the Act; and as a further alternative, that the Authority had no evidence for its conclusion that the reference number on the summons related to a date in 2006.

5. In respect of the Applicant’s second ground of judicial review, it was submitted by the Applicant that:-

   a.the Authority did not have regard to the possibility that the Applicant may be held in detention for a longer period, due to a delay in being brought before the Magistrate or due to bail not being granted;

   b.the Authority did not have regard to the travel time from Australia to Sri Lanka in considering the impact of a few days of detention on the Applicant's mental health;

   c.the Authority did not have regard to the impact of the Applicant's mental health on his ability to cope with prison conditions; and

   d.the Authority failed to consider a 2016 United States Department of State report.

6. By its third ground, the Applicant contends that the Authority failed to carry out its statutory task or ask itself the right questions in determining whether the Applicant's exposure to poor prison conditions, even for a short period of time, may amount to cruel, inhuman or degrading treatment or punishment.

7. The First Respondent submits that no jurisdictional error attends the decision of the Authority and that the application should be dismissed with costs.

Background

1. The Applicant was born on 27 September 1980 in Trincomalee Province, Sri Lanka. He is a Sri Lankan citizen, and arrived in Australia on 9 September 2012.

2. The Applicant applied for a Safe Haven Enterprise Visa (‘SHEV’) on 14 May 2016. He claimed to fear harm due to his ethnicity, imputed political opinion and social group. His claims for protection were as follows:-

   a.the Applicant is a Tamil from Trincomalee, in the Eastern Province of Sri Lanka where the Liberation Tigers of Tamil Eelam (‘LTTE’) were active during the civil war;

   b.during the civil war, the LTTE forcibly recruited young men like the Applicant;

   c.in 2007, the Applicant was detained by the Sri Lankan Army for two months and physically (he was a slave) and psychologically abused. As a result of this treatment he developed schizophrenia. The Sri Lankan Army accused the Applicant of being involved with the LTTE. His captors said “they would capture [him] again”;

   d.in 2012, the Applicant was again arrested, slapped across the face by police three or four times, and held by the police for ten days on suspicion of being a former member of the LTTE;

   e.the Applicant's schizophrenia brought him to the adverse attention of authorities, who presumed his mental health condition was due to the trauma of having been in the civil war as a LTTE member;

   f.the authorities hold a file on the Applicant which identifies him as a suspected LTTE member;

   g.the Applicant had no objective evidence to prove to the Sri Lankan authorities that he was not recruited to the LTTE as he had no employment history or identifiable routine from 1997 to 2007;

   h.the Applicant's illegal departure from Sri Lanka and his residency outside Sri Lanka for four years would add weight to suspicion that the Applicant was in fact an LTTE member; and

   i.the Applicant faces real risk of significant harm as a failed asylum seeker returning to Sri Lanka from a western country after leaving illegally.

3. On 21 October 2016, a delegate of the Minister refused the application under s.65 of the Act. On 28 October 2016, the matter was referred to the Authority.

4. On 7 February 2017, the Applicant provided a copy of a “summons notice to an accused person” to the Authority. The summons stated that the Applicant was summonsed to appear before Court in January 2017 in relation to charges that he is a member of the LTTE. The summons contained the reference number ‘BR/349/06’.

5. On 9 May 2017, the Authority by email invited the Applicant to comment on a Department of Foreign Affairs and Trade (‘DFAT’) report on Sri Lanka of January 2017 which it indicated “may be the reason, or part of the reason for affirming the decision of the Delegate.”[1] It drew attention in particular to improvements in the political environment and security situation in Sri Lanka, to a decline in homicide, abduction and disappearance, to a reduction in torture and, relevantly, to the reports conclusion, expressed in the DFAT report that:-

   “Persons who depart Sri Lanka illegally may, on return, be subject to questioning, a fine (payable by instalments), and possibly brief detention if a magistrate is unavailable or a family member is required to be a bail guarantor. There is no evidence that this treatment is discriminatory. If detained a returnee will be subject to conditions that do not meet international standards, however, the prison conditions are because of a lack of resources, overcrowding and poor sanitary conditions. The Sri Lankan Government is working on the prison issues in conjunction with the International Committee of the Red Cross.” [2]

   The 9 May 2017 correspondence from the Authority to the Applicant then attached relevant extracts from the DFAT report. As referred to by the First Respondent, the following extracted paragraphs are notable:-

   a.paragraphs 4.21 and 4.22, in which DFAT concluded that it was aware of a “small number of allegations of torture or mistreatment raised by asylum seekers who have been returned to Sri Lanka but cannot verify these reports”, and that “DFAT assesses that the risk of torture or mistreatment for the majority of returnees is low and continues to reduce, including for those suspected of offences under the Immigrants and Emigrants Act 1949 (Sri Lanka)”;

   b.paragraphs 5.20 to 5.22, in which DFAT concluded that individuals suspected of breaching the Immigrants and Emigrants Act 1949 (Sri Lanka) may be questioned, arrested, charged, photographed and fingerprinted, and briefly detained before being presented to the Magistrates’ Court, where they may be bailed if they plead not guilty, or fined if they plead guilty. Specifically, DFAT considered that those arrested in line with this process may be held for “up to 24 hours” before being presented to the Magistrate or held for a confined period (for example, because of a weekend or public holiday) until a Magistrate is available.

   [1] Court Book, 204.

   [2] Court Book, 205.

6. The Applicant did not respond to the invitation to comment before the Authority’s decision was made.

The findings of the Authority

1. Relevantly, the Authority made the following findings:-

   a.the Applicant is a citizen of Sri Lanka and of Tamil ethnicity;

   b.the Authority noted that the summons dated 5 December 2006, appeared to have been written after the date of the delegate’s decision by a Sri Lankan court in relation to an offence. As such, it was new information. Other new information before the Authority was country information regarding conditions in Sri Lanka from DFAT entitled DFAT “Sri-Lanka-Country Information Report”, 24 January 2017. The Authority was satisfied there were exceptional circumstances to justify it considering both those pieces of new information;

   c.the  Authority generally accepted the Applicant’s claims save:-

   i)the Authority did not accept the summons was a genuine document. The Authority said, at paragraph 16 of the Decision and Reasons (‘the Decision Record’) the following in respect thereto:-

   “The applicant provided pictures of a two page document to the IAA. The applicant did not provide any explanation as to how he obtained the document or any further information about it. On its face, the document indicates that the applicant was summonsed in December 2016 to appear in Court in January 2017 in relation to charges that he is a member of the LTTE following a complaint from the Trincomalee police. However, there are a number of discrepancies between the summons and the applicant’s other evidence. The applicant confirmed at the SHEV interview that he did not have any further issues with the SLA after 2007, he never attended court or was issued with court papers following his June 2012 arrest, the last time the police visited his home in Sri Lanka was around May 2013 and that the police knew he was in Australia. He provided with his SHEV application a document, albeit in Sinhala and untranslated, that he says supports his claim that in June 2012 he was arrested by the police in Trincomalee and that document has a 2012 reference number. The summons has a different reference number to the police document. The reference number on the summons is a 2006 reference number but the applicant doesn’t claim to have had any issues with the Sri Lanka authorities except in 2007 with the SLA and in 2012 with the police. Given these discrepancies, and noting the prevalence of document fraud in Sri Lanka, I am not satisfied that the summons is a genuine document issued in respect of the applicant and I attach no weight to it.”

   d.in relation to the Applicant's claims for protection, the Authority did not accept that there was a real chance that the Applicant will, as a person suffering from a mental health condition, face treatment that would amount to serious harm upon his return to Sri Lanka. It was also not satisfied the Applicant's schizophrenia and lack of employment history would increase his profile with the Sri Lankan authorities.

2. Otherwise, the Authority largely accepted the Applicant’s claims as to his history. However, in accordance with its earlier correspondence to the Applicant, it went on to refer to country information indicating substantial improvements in the political and security situation in Sri Lanka, including for Tamils from former LTTE controlled areas. It had regard also to the fact that the Sri Lankan Army had apparently released the Applicant in 2007 without charge, and shown no further interest in him; and that the police had released him without charge in 2012 and had not attempted to seek him out thereafter for some eight months, and not at all since May 2013. Further, the evidence did not establish that the police were looking for the Applicant because he had been specifically targeted, rather than for some more benign reason.

3. The Authority relevantly noted that there was a public health care system in Sri Lanka, and laws in place prohibiting discrimination including on grounds of mental health disability. It accepted that the Applicant may face some discrimination due to his mental health problems, but noted that he had been supported (including financially) by his sister in the past, and had not claimed that he had been unable to access medical treatment or medication for his illness in Sri Lanka. The Authority was also not satisfied that the Applicant’s mental illness would lead to him being targeted by authorities.

4. The Authority concluded that if returned as an illegal emigrant who had claimed asylum in Australia, the Applicant was likely to be questioned, arrested, charged, fingerprinted, photographed, transferred to the courts and ultimately fined or bailed pursuant to the Immigrants and Emigrants Act 1949 (Sri Lanka) (in line with the DFAT report discussed above). The Authority was not satisfied that the Applicant would be denied access to medication while undergoing these procedures (including during any short period in custody) or that his mental illness would otherwise mean that the application of these procedures to him would give rise to serious or significant harm. Significantly, it was satisfied that the application of these processes to the Applicant would be a function of a law of general application, and would not arise from any intention on the part of the authorities.

5. The Authority was not satisfied that the Applicant faced a real chance or risk of serious or significant harm on these or the other claimed bases.

Ground One

1. Section 473BC of the Act provides a broad discretion to the Authority. It is as follows:-

   “The Minister may, by legislative instrument, determine that a specified fast track decision, or a specified class of fast track decisions, in relation to an excluded fast track review applicant should be reviewed under this Part.”

2. The Authority must exercise its discretion reasonably. Its statutory context is within Div. 3 of Pt. 7AA of the Act.

3. As submitted by the First Respondent, mere speculation that further information, if elicited, might have favourably altered the complexion of the evidence before the Authority cannot support the contention that the Authority was obliged to elicit any such information, or that in failing to do so it failed to perform its statutory task on review.

4. The Authority determined not to give the summons any weight. This was a finding clearly supported on the material before it. As submitted by the First Respondent, which is accepted by the Court, that determination followed from an orthodox instance of reasoning and logical analysis. The Authority considered that the Applicant had not provided any account of where the summons came from. It noted that the summons was dated December 2016, yet the authorities by then knew that the Applicant was in Australia, and had not shown any interest in him for over three and a half years. It noted that when the Applicant had been arrested in 2012, that had not entailed any court attendances or court documents in the nature of a summons. It noted that the summons did not correspond with the untranslated document previously provided by the Applicant as evidence of his 2012 arrest; and that where that document had a ‘2012 reference number’—i.e., ‘TC/EP/512/12’—corresponding with the year of the arrest, the summons has a ‘2006 reference number’—i.e, 13R/349/06—not corresponding with any claimed interactions with the authorities. Finally, having regard to country information, it noted the prevalence of document fraud in Sri Lanka. In view of these matters, the Authority was not satisfied that the summons was a genuine document.

5. The Authority was entitled to draw the inferences that it did and the findings of the Authority were clearly open to it on the evidence before it.

6. It cannot be said that the Authority acted unreasonably in failing to obtain further new information. This ground must fail as must the alternative contentions put forward by the Applicant.

Ground Two

1. There is no merit in this ground of judicial review for the reasons which follow.

2. The Authority clearly considered the Applicant’s claims and integers thereof as the Applicant presented them. The Authority was required to consider those claims expressly raised by an Applicant, as well as those which squarely arose on the material before it. It was not obliged however to make out the Applicant’s case for him. Nor was it obliged to expose claims by “constructive or creative activity”[3]; nor conduct an independent appraisal of the material in order to discern and assess claims which might have been, but were not, made. It was, moreover, and as submitted by the First Respondent, obliged to deal with the Applicant’s case “in light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process”.[4] Additionally, the selection of and weight given to country information are, as is often said, matters for the Authority.

   [3] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No .2) (2004) 144 FCR 1, 58.

   [4] NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No .2) (2004) 144 FCR 1, 62. citing S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, 1; see also Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287.

3. The Authority had regard to the effect of a short period of imprisonment upon the Applicant given the vulnerabilities arising from his mental health, and his need for medication including while in detention. The Authority’s reasons also expressly incorporated reference to the United States Department of State report the subject of the Applicant's complaint. It did not fail to consider those claims as put by the Applicant.

Ground Three

1. This ground must also fail for the reasons which follow.

2. In paragraphs 61 and 62 of the Decision Record the Authority said as follows:-

   “61. The applicant may be subjected to questioning, arrest, fingerprinting and being photographed on his arrival at the airport, poor prison conditions during any brief detention, a bail surety and a fine under the IE Act. Country information indicates that the poor prison conditions are 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, severe pain or suffering or extreme humiliation in any questioning, arrest, fingerprinting, photographing, brief detention, bail surety or fine imposed under the IE Act. These circumstances do not amount to the death penalty, an arbitrary deprivation of life or torture. I am not satisfied that being questioned, arrested, finger printed and photographed, any bail surety imposed, any fine imposed, and the poor prison conditions, to which the applicant may be briefly subjected, of themselves or in combination constitute significant harm as defined under s.36(2A) of the Act. For these reasons, I am not satisfied the applicant will face a real risk of significant harm during any processing at the airport, from any brief period of detention, any bail surety or any fine imposed.

   62. The applicant submitted that because of his fragile mental state and the likely severe psychological deterioration he will suffer upon encountering the Sri Lankan authorities, if returned, he will be so vulnerable that any punishment and treatment he faces in prison will rise to the level of degrading treatment. There is no evidence before me to suggest that the applicant will be denied access to his medication if he is held on remand. As discussed above, processing at the airport can take up to 24 hours and if he is required to wait for a Magistrate and/or a family member to guarantee his bail surety he will be detained for up to a few days. Based on that country information I am satisfied that overall any processing time at the airport and any period of detention would be for less than a week. The applicant’s evidence is that his symptoms return after about a week without taking his medication. Therefore, I do not accept that his schizophrenia symptoms would return or impact on his behaviour or treatment during any processing at the airport or subsequent period on remand. I am not satisfied that there is a real risk that he would suffer degrading treatment or punishment or other kinds of significant harm on these bases.”

1. The Authority, on the evidence before it, and in findings open to it on that evidence, was not satisfied that the Applicant would be denied access to medication on remand. Further, as submitted by the First Respondent, the Authority reached the view that the conditions the Applicant would face in prison in Sri Lanka would not be a function of any intention to harm him, but would be a function of, inter alia, infrastructural problems and a lack of resources. On that basis, the Authority concluded that the Applicant would not face a real risk of significant harm. That conclusion was entirely open to it on the evidence before the Authority.

2. The application will be dismissed with costs.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 15 February 2019