EAU16 v Minister for Immigration and Border Protection
[2018] FCA 318
•13 March 2018
FEDERAL COURT OF AUSTRALIA
EAU16 v Minister for Immigration and Border Protection [2018] FCA 318
Appeal from: EAU16 v Minister for Immigration and Border Protection [2017] FCCA 2196 File number: NSD 1700 of 2017 Judge: FARRELL J Date of judgment: 13 March 2018 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia – where Immigration Assessment Authority affirmed decision to refuse to grant a Safe Haven Enterprise (subclass 790) visa – whether Tribunal misconstrued ss 5J and 36(2A) of the Migration Act 1958 (Cth) – application of SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 – appeal dismissed Legislation: Migration Act 1958 (Cth) Pt 7AA, ss 5J, (5), 36(2A)
Immigrants and Emigrants Act 1949 (Sri Lanka)
Cases cited: EAU16 v Minister for Immigration and Border Protection [2017] FCCA 2196
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936
Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 14 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms N Johnson of Mills Oakley Counsel for the Second Respondent: The Second Respondent submitted save as to costs ORDERS
NSD 1700 of 2017 BETWEEN: EAU16
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
13 MARCH 2018
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant must pay the first respondent’s costs as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FARRELL J:
This is an appeal of a decision of the Federal Circuit Court of Australia (FCCA), see: EAU16 v Minister for Immigration and Border Protection [2017] FCCA 2196.
The appellant is a citizen of Sri Lanka who arrived on the Cocos Islands as an unauthorised maritime arrival on 25 September 2012. The appellant lodged an application for a Safe Haven Enterprise (subclass 790) visa on 24 November 2015 through an agent. The application included a statutory declaration dated 12 November 2015 setting out the appellant’s claims to protection. On 25 August 2016, a delegate of the Minister refused his application for the visa. The delegate’s decision was referred to the Immigration Assessment Authority (or IAA) on 29 August 2016 for review of the delegate’s decision under Pt 7AA of the Migration Act 1958 (Cth). The Authority affirmed the delegate’s decision and issued its decision record (or DR) on 16 December 2016. The primary judge dismissed the appellant’s application for judicial review of the Authority’s decision on 11 September 2017.
BACKGROUND
The statutory declaration
In his statutory declaration, the appellant made the following historical claims. He claimed to be a Tamil from the Northern Province of Sri Lanka and a Hindu. He claimed that in May 2009, during the latter stages of the Sri Lankan civil war, the Sri Lankan army rounded him up along with 50 to 60 other men. The army interrogated him about any involvement he had with the Liberation Tigers of Tamil Eelam (LTTE). He claimed that during the interrogation he was slapped and threatened with a sand-filled pipe, he was then taken to another room, blindfolded and made to kneel and then threatened with a being shot, he was then beaten with the pipe and his face was smashed against a wall; as a result, he lost the vision in one of his eyes. He lost consciousness and was taken to a military hospital and then a public hospital. He said that he was recalled to the army camp approximately 30 times between the original incident and when he left Sri Lanka in 2012, and was beaten on some occasions. During one interrogation in February 2011 he was kicked and slapped. When he was called to attend an interrogation in March 2012, he went into hiding with friends in a neighbouring village as he feared he would be bashed or even killed during one of the interrogations. During that time, the army visited his home and asked his wife where he was.
The appellant claimed that the army believes that he has connections with the LTTE or that he is associated with them. This suspicion is heightened because he is a Tamil from the Northern Province. He says that he is imputed with anti-government views because he is a Tamil who grew up in the Northern Province where the LTTE operated. He is concerned that if he returns to Sri Lanka, the authorities there would continue to interrogate him in relation to his possible involvement with the LTTE, and during an interrogation he may be tortured or even killed.
Authority’s reasons
In relation to the factual claims made by the appellant, the Authority found as follows:
16.In view of the significant changes and inconsistencies in his evidence [identified at [12]-[15]], I am satisfied that the applicant has embellished some aspects of his evidence in order to enhance his protection claims. I do not accept that the applicant was subject to any physical mistreatment, such as being kicked or slapped, when he was reporting to the SLA after his May 2009 hospitalisation or that he was in hiding before he left Sri Lanka.
17.Based on country information discussed above, and those aspects of his evidence that I consider to be generally free of exaggeration or embellishment, I accept that he lived in the same village in [named] district, except for the period from 2006 to 2007 when he lived and worked in Qatar; that his village in [named district] was at times during the war controlled by the LTTE; that he was picked up by the SLA in May 2009, towards the end of the war, during a round up and detained, questioned and beaten; that as a result of his beating he lost his sight in one eye; that he was required to report from time to time to the SLA camp for further questioning, he reported on 30 or so occasions from 2009 and this continued until he failed to report in March 2012; and that the SLA enquired about his failure to report in March 2012 with his wife.
18.The applicant has not claimed that the authorities have made any further enquiries about him or his whereabouts after the initial visit(s) to his wife shortly after he failed to report in March 2012 either while he remained in Sri Lanka until September 2012 or since he left Sri Lanka. In the absence of any evidence to the contrary, I accept that the authorities have made no enquiries about the applicant after approximately March 2012.
The Authority considered a report issued by the Department of Foreign Affairs and Trade (DFAT) in relation to Sri Lanka dated 18 December 2015 and “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka” dated 21 December 2012. Having regard to this information and the Authority’s factual findings:
(1)After noting that the appellant had not claimed to suffer societal discrimination, the Authority did not accept that as a Tamil male form the north he faced societal discrimination amounting to serious harm: DR[27]-[28]
(2)The Authority did not accept that the appellant would be imputed with LTTE links or that he was of adverse interest to authorities beyond routine monitoring in common with many Tamils in the north and east of Sri Lanka or that he would face a real chance of harm due to suspected LTTE links: DR[34], [37].
(3)The Authority did not accept that he had a heightened risk profile because he had been monitored or because he departed while he was monitored. The Authority was satisfied that the chance of any other action being taken against the appellant by current Sri Lankan authorities, except in relation to his return as a person who departed illegally, was remote: DR[35].
(4)The Authority did not consider that monitoring and reporting requirements would constitute the necessary level of threat to the appellant’s life or liberty, or to significant physical harassment or ill treatment under s 5J(5) of the Migration Act or otherwise amount to serious harm: DR[36].
(5)The Authority accepted that, upon his return to Sri Lanka with temporary travel documents, the appellant would be considered by the Sri Lankan authorities to be a failed asylum seeker who departed Sri Lanka illegally and that he would face action under the Immigrants and Emigrants Act 1949 of Sri Lanka: DR[19], [38], [46].
(6)The Authority found that upon his return to Sri Lanka, the appellant may be detained and questioned, he may be fined and face a short period of imprisonment depending on the availability of a magistrate but it did not accept that any of those things amounted to serious harm. It noted that DFAT rates general prison conditions in Sri Lanka as not meeting international standards because of a lack of resources, overcrowding and poor sanitary conditions. It found that the Immigrants and Emigrants Act was not discriminatory in its terms and it is a law of general application: DR[41], [46], [48], [50], [51].
(7)At DR[59], the Authority noted that DFAT had assessed the risk of torture or mistreatment of people suspected of offences under the Immigrants and Emigrants Act and went on to find at [60] as follows:
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 fine imposed.
Application to the FCCA
The sole ground of the amended application to the FCCA was (as written):
Ground of Appeal
The IAA misconstrued or misapplied ss5j and S36(2A) of the Migration Act 1958 (Cth) (the Act) and erred in holding that the applicant being held in poor prison conditions for a brief time did not amount to significant harm for the purpose of the Act.
Particulars
a)The IAA found that the applicant could be subject to imprisonment upon his return to Sri Lanka [42]; [60].
b)The IAA noted that general prison conditions in Sri Lanka;
a. do not meet international standard; (42];
b. have been reported as not meeting these standards because of a lack of resources, overcrowding and poor sanitary conditions; (42]; (60].
c. The IAA found based on that evidence, there was no intention to inflict pain and suffering, severe pain and suffering or extreme humiliation as a result of any brief detention (among other things); 60],
d. The IAA should have held that pain or suffering is intentionally inflicted by the act or omission of a person where a person does an act or omission knowing it is possible that pain or suffering will result
A hearing was conducted on 11 September 2017 at which the appellant was not legally represented. Judgment was delivered ex tempore. The primary judge set out the factual background to the application and summarised the Authority’s decision. After setting out the sole ground of review, the primary judge summarised the appellant’s oral submissions. The primary judge characterised those submissions as an invitation to the Court to “engage in an impermissible merits review” and found that the oral submissions did not identify any jurisdictional error by the Authority: J[24]-[25]. In relation to the sole ground of review, the primary judge found as follows:
26. The sole ground raised in the amended application in respect of which the applicant filed submissions in support was in substance to seek to raise an SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 ground. The High Court of Australia delivered its decision dismissing the appeal from the decision of the Full Court of the Federal Court. Accordingly, there is no basis to find in the present case that the Authority misconstrued or misapplied s.5J and s.36(2A) of the Migration Act.
27. Further, it is apparent that the Authority took into account the present conditions and made findings that were open to the Authority on the material before the Authority. On the face of the material before the Court, the Authority complied with its statutory obligations in the conduct of the review under Part 7AA.
28. On the face of the material before the Court, the Authority complied with its obligations of procedural fairness in the conduct of the review under Part 7AA by giving the applicant an opportunity to put on submissions and new information and by taking into account the submissions made. The amended application fails to make out any jurisdictional error. Accordingly, the amended application is dismissed.
Appeal to this Court
The appellant filed a notice of appeal in this Court on 28 September 2017. The grounds of appeal were stated as follows (as written):
Grounds of appeal
The Federal Circuit court failed to find, in respect of the IAA (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application. The SZTAL was before the High Court but my application was dismissed on 11 September 2017 without waiting for the outcome of the SZTAL.
Ground one-
The IAA misconstrued or misapplied ss5j and S36(2A) of the Migration Act 1958 (Cth) (the Act) and erred in holding that the applicant being held in poor prison conditions for a brief time did not amount to significant harm for the purpose of the Act.
Particulars
a)The IAA found that the applicant could be subject to imprisonment upon his return to Sri Lanka.
b)The IAA noted that general prison conditions in Sri Lanka;
a. do not meet international standard;
b. have been reported as not meeting these standards because of a lack of resources, overcrowding and poor sanitary conditions;
c. The IAA found based on that evidence, there was no intention to inflict pain and suffering, severe pain and suffering or extreme humiliation as a result of any brief detention (among other things);
d. The IAA should have held that pain or suffering is intentionally inflicted by the act or omission of a person where a person does an act or omission knowing it is possible that pain or suffering will result.
In addition to the above grounds, I still rely on the grounds and the particulars for judicial review with the Federal Court of Australia.
I have no lawyer to represent me in this Court.
SUBMISSIONS
The Minister’s representative submitted that the ground of appeal was factually wrong in that the High Court’s decision in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 91 ALJR 936 was delivered on 6 September 2017, which was before the hearing of the appellant’s application to the FCCA on 11 September 2017. The Minister further submitted that the ground discloses no error by the primary judge because the High Court’s decision in SZTAL was binding on the primary judge, as it is on this Court.
The Minister submitted that the primary judge was correct to find (at J[26]) that the Authority did not misconstrue s 5J of the Migration Act (the meaning of “well-founded fear of persecution”) or s 36(2A) (the meaning of “significant harm”). As held by the Full Court in SZTAL, the Authority made no error in relying on the construction of any of the forms of significant harm contemplated in s 36(2A) as requiring an actual, subjective intention, to bring about those forms of significant harm. That finding was upheld by the High Court. Accordingly, the Authority made no jurisdictional error in DR[60] by finding that the appellant did not face a real risk of significant harm and that his claims did not meet the requirements of s 36(2A).
In his oral submissions, which were made with the assistance of an interpreter, the appellant said that if he goes back to Sri Lanka and to his village he will end up in gaol. He sees many reports of harm to returnees to Sri Lanka on Facebook and on Twitter. As he has already had problems with the authorities, he will face danger. He does not know what to do and he would prefer to stay in Australia in gaol than to return to Sri Lanka.
CONSIDERATION
The submissions of the appellant and his grounds for review to the FCCA and appeal to this Court dispute factual findings made by the Authority and, although they appeared to be heartfelt, they disclose no jurisdictional error by the Authority or appellable error by the primary judge. The Authority considered the historical factual claims made by the appellant and largely accepted them. However, based on country information, it rejected his claims that he would suffer serious or significant harm upon his return to Sri Lanka as a failed asylum seeker with the known history of interaction with the Sri Lankan army. The findings were open to the Authority for the reasons that it gave. As submitted by the Minister, both the primary judge and this Court are bound by the High Court’s decision in SZTAL and the appellant’s grounds do not provide a basis for distinguishing that decision.
CONCLUSION
For these reasons, the appeal must be dismissed and the appellant must pay the first respondent’s costs as agreed or taxed.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 16 March 2018
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