MZAAJ v MIBP
[2015] FCCA 151
•4 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAAJ & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 151 |
| Catchwords: MIGRATION – Refugee Review Tribunal – whether errors in interpretation resulted in unfair hearing – whether Tribunal correctly considered complementary protection – whether as a necessary and foreseeable consequence of the applicant returning to Sri Lanka there was a real risk of the applicant being arbitrarily deprived of his life due to the scarcity of dialysis machines in Sri Lanka. |
| Legislation: Migration Act 1958, ss.36, 417 |
| Cases cited: SZOYU v Minister for Immigration and Citizenship [2012] FCA 936 SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; (2013) 139 ALD 436; [2013] FCAFC 142 SZSEI v Minister for Immigration and Border Protection [2014] FCA 465 |
| First Applicant: | MZAAJ |
| Second Applicant: | MZAAK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 305 of 2014 |
| Judgment of: | Judge Riley |
| Hearing dates: | 11 November and 19 December 2014 |
| Date of last submission: | 9 January 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 4 February 2015 |
REPRESENTATION
| Counsel for the first applicant: | The first applicant appeared in person |
| Solicitors for the first applicant: | The first applicant was not represented |
| Counsel for the second applicant: | The second applicant did not appear on 11 November 2014 and appeared in person on 14 December 2014 |
| Solicitors for the second applicant: | The second applicant was not represented |
| Counsel for the first respondent: | Liam Brown of Counsel on 11 November 2014 and Pip Mitchell on 14 December 2014 |
| Solicitors for the first respondent: | Clayton Utz |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Clayton Utz |
ORDERS
The application filed on 21 February 2014 be dismissed.
DIRECTION
The Registrar refer this matter to the Minister for Immigration and Border Protection for consideration under s.417 of the Migration Act 1958.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 305 of 2014
| MZAAJ |
First Applicant
| MZAAK |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Refugee Review Tribunal. The Tribunal affirmed a decision of the delegate not to grant the applicants protection visas. The first applicant (“the applicant”) is the father of the second applicant. At the time of the Tribunal’s decision, the second applicant was 17 years old. He made no claims of his own for protection.
The applicant’s claims
The applicant said in a statutory declaration made on 5 December 2012, with the assistance of a migration agent, that:
a)he was a 49 year old Sri Lankan of Tamil ethnicity and Hindu religion who was born in Vavuniya;
b)in 1990, when he was 27 years old, he fled from Sri Lanka with his wife;
c)they lived in a refugee camp in India until 2012, when he came to Australia with his son;
d)his wife remains in India, as does the applicant’s de facto wife and second son;
e)the applicant’s parents fled to India shortly after the applicant, but returned to Sri Lanka in 2000;
f)in 1987, the army kept the applicant in a bunker for six days and questioned and beat him because he had a nephew who was an LTTE member;
g)in 1987, the Sri Lankan army took him and 23 others on a bus to a disused airport where they were lined up and shot;
h)the applicant was shot in the leg, and managed to escape while the soldiers were getting tyres to burn the bodies;
i)in 1988, the soldiers on an army truck shot at the applicant and a friend;
j)the applicant was able to hide in a ditch and escaped, but his identification document (“ID”) fell out of his pocket;
k)the soldiers went to the postmaster in the applicant’s village to locate the applicant but the postmaster said he had died;
l)the applicant went to Jaffna and worked as a fisherman for a year;
m)in 1990, soldiers came to the applicant’s house and questioned and beat him as he had a nephew who was an LTTE member;
n)soldiers threw a grenade into an area where the applicant was relaxing with friends;
o)the applicant decided to flee to India because his life was in danger;
p)he was not able to get citizenship in India;
q)in 2011, “they” said it was safe to go back to India and if the applicants did not go back voluntarily they would be sent back;
r)the applicant feared returning to Sri Lanka because he is a Tamil and he will be suspected of being an LTTE member and will be arrested and beaten by the army;
s)the army had the applicant’s ID before and they will identify him;
t)they will suspect the applicant because he left the country illegally long ago and because his nephew was an LTTE member; and
u)he cannot take his son back because he is a young Tamil male and a militia group will want to recruit him.
The Tribunal’s reasons
The Tribunal noted that the applicant’s claimed to fear persecution on the grounds of:
a)his Tamil race;
b)his imputed pro-LTTE opinion;
c)his membership of a particular social group consisting of returnees from a Western country; and
d)on behalf of his son, that he will face harm as a young Tamil male.
The Tribunal found the applicant to be generally credible and accepted that he had a subjective fear of returning to Sri Lanka. However, the Tribunal considered that the applicant’s past experiences and fear had lead to an exaggeration of the risk to the applicant and his son.
The Tribunal accepted that when he left Sri Lanka 25 years ago, the applicant may have had a well-founded fear of persecution based on him being a Tamil from the north. However, the Tribunal did not accept that those characteristics gave rise to a risk profile now. The Tribunal did not accept that the applicant would be imputed now with an LTTE connection based on his race, place of origin or relationship with his nephew, who died in 1987 after taking cyanide. Nor did the Tribunal accept that the fact that the applicant had left Sri Lanka illegally and lived in India for many years would lead to him having a pro-LTTE political opinion imputed to him.
The Tribunal accepted that there was discrimination against Tamils in present day Sri Lanka but did not accept that it amounted to persecution. The Tribunal accepted that it might be difficult for the applicant to re-establish himself in Sri Lanka but did not accept that those difficulties would amount to serious or significant harm.
The Tribunal did not accept that the second applicant would face serious or significant harm for any of the reasons alleged. The Tribunal accepted that the second applicant might find it difficult in Sri Lanka, as he had never lived there, but did not accept that such difficulties would constitute serious or significant harm. The Tribunal did not accept that there was a real chance that the second applicant would be targeted for recruitment by a militia group or kidnapped by the LTTE.
At the hearing before the Tribunal, the applicant raised issues relating to his health. The Tribunal accepted that the applicant had diabetes and kidney disease and would need dialysis in the next six to 24 months. The Tribunal also accepted that the applicant might need to wait a significant period of time for dialysis in Sri Lanka because of the lack of resources. The Tribunal did not accept that the applicant might have to wait for dialysis, or would be denied treatment for his diabetes or mental health issues, for reasons of his Tamil ethnicity or any other Convention ground.
The Tribunal did not accept that the lack of dialysis machines in Sri Lanka constituted cruel and inhuman or degrading treatment as defined in the Migration Act 1958 because there was no intent to inflict severe pain or suffering and no intent to cause extreme humiliation. Consequently, the Tribunal did not accept that the applicant would suffer significant harm, as defined, by reason of the limited dialysis and other medical facilities available in Sri Lanka.
The Tribunal also considered and rejected the possibility of the applicant facing serious or significant harm as a result of him departing Sri Lanka illegally or as a result of him being a failed asylum seeker.
The Tribunal concluded by recommending Ministerial intervention on the grounds that:
a)the applicant had suffered trauma, may have been a refugee at the time of his departure from Sri Lanka and is likely to suffer further trauma if returned to Sri Lanka; and
b)the applicant’s kidney problems would result in hardship and irreparable harm to him if he returned to Sri Lanka.
Ground 1: procedural fairness: interpreting
The first ground of review in the application filed on 21 February 2014 is:
The Tribunal denied me procedural fairness because they didn’t give me a fair hearing
The applicants were not represented before this court. The application did not provide any particulars of this ground. The applicants did not file any written submissions prior to the hearing. However, at the hearing, the parties were given leave to file and serve written submissions about whether the Tribunal had correctly dealt with the issue of whether the applicant faced significant harm by reason of his medical condition.
The first respondent filed and served written submissions on that issue on 18 November 2014 in accordance with the orders. The applicants filed written submissions on 25 November 2014 within the time permitted by the orders, but their written submissions addressed an issue not permitted by the orders, namely, alleged interpreting errors. On 4 December 2014, the applicants filed some further written submissions, without leave, but apparently with the benefit of legal assistance, addressing both the alleged interpreting errors and the medical condition issue.
The applicant’s written submissions of 4 December 2014 attached a statement of seven alleged errors in interpretation, and set out what was actually said and what should have been said. That is, the applicant did not provide a complete transcript of the Tribunal hearing but a transcript of some very brief statements made during the hearing. Consequently, it was not possible to determine whether any of the alleged errors might have been corrected at another point in the hearing. That is, it was not possible to consider the hearing as a whole, to determine whether the hearing as a whole was fair.
In any event, the matter was listed for a directions hearing on 19 December 2014. At that time, the applicants were given retrospective leave to rely on their written submissions filed on 4 December 2014 and the first respondent was given leave to file written submissions in reply by 9 January 2015.
Apart from the possible interpreting errors, no denial of natural justice was alleged and there does not appear to have been any.
The applicant’s written submissions of 25 November 2014 appear to have been overtaken by the applicant’s written submissions of 4 December 2014. In any event, there is nothing that assists the applicant in the “transcript” attached to the submissions of 25 November 2014. The alleged error concerning the administration of the oath is immaterial. The alleged error consisting of the interpreter saying that the applicant could ask the Tribunal to explain the law but the Tribunal not actually mentioning that is immaterial. In relation to the third alleged error, the Tribunal accepted that the applicant’s friend was in the LTTE (paragraph 110 of the Tribunal’s reasons for decision]. However, whatever the interpreter may have said, the Tribunal did not proceed on the basis that the applicant was in the LTTE. Consequently, any error in interpretation did not result in the Tribunal misunderstanding that aspect of the applicant’s case.
In the submissions filed on 18 November 2014, the first respondent submitted that the test concerning interpreting errors was as set out in SZOYU v Minister for Immigration and Citizenship [2012] FCA 936. However, that submission did not take into account more recent authority.
In SZRMQ v Minister for Immigration and Border Protection (2013) 219 FCR 212; (2013) 139 ALD 436; [2013] FCAFC 142, Allsop CJ said:
9. The question whether standards of interpretation have affected a hearing as an opportunity to be heard is a question of evaluation as to whether the hearing was fair. That in turn involves the recognition of the purpose of the hearing: to give the person concerned or affected by the exercise of power a real opportunity to place before the repository of the power such information as is relevant. This will require a substantially effective mechanism of communicating oral and written information, both from, and to, the person. To the extent that interpretation or translation is necessary, it must be adequate to convey the substance of what is said, to a degree that the hearing can be described both as real and fair. It will be a matter of evaluation in all the circumstances, by reference to the issues, the nature of the evidence, the character and frequency of any proven errors in interpretation, and any other factor apparently relevant to the quality of the communication, as to whether the hearing was fair. Relevant to the task will be how the decision-maker approached the resolution of the task before her or him.
10.How the decision-maker approached the matter may be critical. If an error of interpretation or translation can be seen to lead to a material and adverse finding relevant to a decision against the person, the unfairness of the hearing is self-evident. It may not be possible, however, to show how one or more inaccuracies affected the decision, since it will often be impossible to show what the decision-maker would have done with different information. This is especially so if the decision is based in part, or in whole, on credit. It is at this point that the focus upon the process becomes important. The enquiry is not to investigate, and the applicant’s burden is not to establish, a precise causal link between any irregularity and an adverse result, but to assess whether the decision-making process (including the hearing and the making of the decision) was fair. Even if one cannot show an operative causal influence of any irregularity upon the decision, it may still be that the irregularity might reasonably have had such an effect through its materiality or repetition or context. Any such conclusion may affect the legitimacy of the process in that it may not be able to be concluded that it was fair. Such may be expressed as requiring the appearance of a fair hearing… . It can, in this context of adequacy of communication through interpretation, be perhaps better expressed as requiring that the hearing be fair. How, it might be asked rhetorically, can a hearing be described as fair, when it can be shown that real and potentially material errors of substance occurred in interpreting or translating a person’s version of events to a decision-maker, being errors that may well have affected the decision in a real way, though such causal effect cannot be demonstrated one way or another?
11.That rhetorical question should not be taken as intended to encapsulate any complete evaluative principle. Fairness of the process will fall to be judged by reference to the particular circumstances. In some circumstances, the interpretation may be so inadequate as to deny the fact of any hearing. In such circumstances, it may not even be necessary to show that the errors may well have affected the decision in a real way, because there has been no hearing, to which the person was entitled.
Allsop CJ reviewed the authorities and then considered the particular passages that the appellant in SZRMQ said had been misinterpreted. His Honour said, at [27]:
For the reasons given by Robertson J, I do not consider that, taken individually or together, such misinterpretation as has been proven to occur so impeded the consideration as to render the hearing unfair. I agree that the first asserted mistranslation was minor and immaterial. The second asserted misinterpretation was cleared up and nothing of substance turned on it. The third asserted misinterpretation involved long passages about the passport and the circumstances of its obtaining. Whilst there was undoubtedly a degree of confusion in the passages, I agree with the judge of the Federal Circuit Court that the substance of what was sought to be conveyed was communicated to the reviewer. What was said to be the fourth misinterpretation involved evidence that was adequately conveyed. The fifth asserted misrepresentation did involve a failure to translate for the applicant the reviewer’s view that he (the applicant) was evading discussion on the topic of travel abroad. It was clear, however, from the discussion that the reviewer was not satisfied with answers being given and that he persisted in asking questions. Looked at in the totality of the exchanges, there was no unfairness in any lack of appreciation as to the information required by or attitude of the reviewer. The sixth asserted misinterpretation did involve errors in the translation of questions. Accepting that it is not determinative that the error did not find its way into the reasoning of the reviewer, the matters of misinterpretation are not of a character, in light of the other evidence, to be material to either the process or the outcome. Such confusion as there was in the seventh asserted misrepresentation was cleared up in the course of the hearing. The eighth asserted misinterpretation involved the failure to interpret the UNHCR guidelines as they were put to the applicant by the reviewer. That error, real though it was, did not prevent the applicant from putting any part of his case or claims to the reviewer. No unfairness, in substance, arose.
In SZSEI v Minister for Immigration and Border Protection [2014] FCA 465, Griffiths J applied the decision in SZRMQ in the context of a Tribunal decision, where the requirements of procedural fairness are affected by the terms of the Act. His Honour said:
72.In my view, subject to some important observations which I will make shortly, the approach to be taken in a case such as this which raises the application of s 425 of the Act is essentially that which was applied in cases such as Perera, SZOYU, Appellant P119 and WALN. In WALN, Ryan J (with whom Tamberlin and Middleton JJ agreed) set out the relevant approach relating to alleged errors in translation in a s 425 context in the following terms at [29]:
To succeed on this ground the appellant must establish that he was effectively prevented from giving his evidence; see Perera (supra) at [38]-[41]. Alternatively, he must establish that errors had occurred in translation which were so material as to cause the decision-making process to miscarry...
73.In SZRMQ at [22] and [23], the Chief Justice highlighted the need for passages such as the one set out immediately above from WALN to be read with care. That is for two reasons. First, it is clear that there is no requirement to demonstrate that there was a complete incapacity to interpret such that the applicant is prevented from giving any evidence. As the Chief Justice stated in [22], Kenny J in Perera at [45]-[46], “was referring to matters of significance involving important issues, not to a complete incapacity to interpret”. The Chief Justice also highlighted the undesirability of overly defining the relevant tests in circumstances where what is involved “is a more easily expressed and broader requirement: a fair hearing”. In my view, there is considerable force and attraction in expressing the matter that way, while giving effect in a relevant case such as here to the statutory text not only of s 425 of the Act but also other relevant provisions, such as ss 414 and 422B (noting the exhortatory command in s 422B(3) that, in applying Div 4, the Tribunal must act a way that is fair and just and see also the observations of the Full Court on that provision in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 at [15] and [18]).
74.Secondly, I respectfully agree with the Chief Justice’s observations in SZRMQ concerning the need to focus on the process which is afforded to an applicant to enable him or her to give evidence and present arguments relating to the issues arising in relation to the decision under review, as required by s 425(1) of the Act. This means that there need not necessarily be a proved causal connection between a mistranslation and the Tribunal’s reasons for decision because “the misinterpretation may be of such a character or frequency as to deny any conclusion that the hearing was fair or was a proper opportunity to be heard” (see SZRMQ at [25] per Allsop CJ). To similar effect, in SZRMQ at [68] Robertson J emphasised that “the process is central”. His Honour reinforced the point at [85] when he posed the relevant question as whether a mistranslation “affected or could have affected the quality of the hearing or the findings and reasons”. The Minister did not contest the correctness of those observations, nor their application to a s 425 case.
75.Nor did the Minister contest the following observations of Allsop CJ in SZRMQ at [17]-[18]:
In Soltanyzand v Minister for Immigration and Multicultural Affairs [2001] FCA 1168, the Full Court (Spender, Lee and Tamberlin JJ) at [18] referred to the need to place evidence before the Court “that material errors occurred in the interpreting of the appellant's statements and, therefore, that miscarriage in the decision-making process had occurred”. That expression of principle, correctly, with respect, places emphasis on the importance of the process. The decision-making process is not limited to the articulation of reasons by the Tribunal. It extends to the process granted to the person to place such material before the Tribunal as she or he desires.
In W284 v Minister for Immigration and Multicultural Affairs [2001] FCA 1788, French J referred to Perera and found various errors going to matters of significance. His Honour then said at [35] in relation to the reasons for decision:
It is plain that there was a variety of factors operating upon the Tribunal's determination that the second applicant was not to be believed. It may be that without the interpreter errors the Tribunal would have come to the same conclusion. However, I cannot exclude the possibility that had the accepted defects in translation to which [the applicant] deposes not existed, the Tribunal might have come to a different decision. That goes to the utility of the grant of relief.
76.In SZRMQ, Robertson J agreed with the Chief Justice’s view that there is no requirement, at least for the purposes of procedural unfairness, to establish a causal connection between a mistranslation and the decision-maker’s ultimate conclusion. At [67]-[69], Robertson J said:
Attention must be given to the course the hearing took as well as to the ultimate reasoning of the decision-maker. A causative impact on the decision-maker’s ultimate conclusion would usually be sufficient to establish a lack of procedural fairness, but may not be necessary. Even where a causative impact is being examined, the court on judicial review should consider whether the mistranslation or non-translation had or could have had significance if the applicant’s words had not been mistranslated or, in the case of a non-translation, had been translated. (emphasis in SZSEI)
The significance of the error or errors is not to be assessed by reference only to the reasoning in fact used by the decision-maker because the decision-maker was, by definition, unaware of the mistranslation or non-translation, singular or plural and because the process is central.
If a mistranslation or non-translation could have affected the outcome then, depending on the circumstances, that may be sufficient to establish denial of procedural fairness. (Emphasis added).
77.I respectfully agree with those observations, which were not challenged by the Minister here. I consider that they apply equally to a complaint that there has been non-compliance with the requirements of s 425.
78.In my opinion, Robertson J provided further useful guidance in SZRMQ. For example, his Honour emphasised the importance of distinguishing between a case where the mistranslation or non-translation is frequent or continuous, as opposed to a case where the errors are intermittent (see SZRMQ at [70]). His Honour also drew attention, correctly in my view, to:
(a) the importance of keeping separate questions of mistranslation and non-translation, as opposed to mere errors of fact (see SZRMQ at [73]); and
(b)the distinction to be drawn between a mistranslation and a lack of detail in the relevant question the subject of translation (SZRMQ at [114]).
79.A further relevant principle is that in assessing whether or not one or more mistranslations or non-translations give rise to jurisdictional error, it is necessary to bear firmly in mind that interpretation or translation is not a perfect science and, having regard to the difficulties which are inherent in the process, perfection cannot reasonably be expected (see generally the observations of Kenny J in Perera at [29]-[31]). It may well be enough that the translation is sufficiently accurate so as to convey the idea or concept being communicated (WACO at [66]).
80.Furthermore, it is necessary to consider not only alleged mistranslations or non-translations individually with a view to assessing their relevance to the fairness of the overall process, but also to have regard to their cumulative effect. As Robertson J said in SZRMQ at [116]:
I turn finally to consider whether, in the aggregate, the mistranslations constituted a denial of procedural fairness. In my view, in the circumstances of this case, they did not. While care must be taken to examine whether errors in translation may have contributed to adverse findings or otherwise have been of significance to the process and thereby to a lack of procedural fairness, in the present appeal the sum of the mistranslations did not rise to that level. The errors of translation were intermittent rather than continuous and did not have a cumulative effect.
81.Finally, as noted above I did not understand the Minister to contest the proposition as stated by Jagot J in SZHEW v Minister for Immigration and Citizenship [2009] FCA 783 at [52] that the question whether inadequate interpretation has deprived an applicant of the opportunity given by s 425 of the Act “involves a qualitative assessment of the conduct of the hearing before the Tribunal as a whole”.
First alleged error: 3.29: why the Tribunal reconvened
The first alleged error concerned a passage in which the Tribunal explained why it had reconvened for a second hearing. There is no material distinction between what the Tribunal and the interpreter are alleged to have said.
Second alleged error: 11.14: asking for explanations
The second alleged error concerned the Tribunal’s invitation to the applicant to ask the Tribunal to explain anything that he did not understand. In circumstances where the applicants were represented by a solicitor and migration agent, and in circumstances where the applicant was given an opportunity to lodge post-hearing submissions, I do not accept that any alleged error in this regard could have resulted in a denial of procedural fairness.
The applicant’s question with the time 11.25 seems to be part of the same point. However, the applicant has not provided the answer to his question at 11.25. I assume that the question was brought to the court’s attention to demonstrate the applicant’s misunderstanding of the passage referred to in the previous paragraph. However, without the context, it is not possible to conclude that there was any denial of procedural fairness in relation to the question. Presumably, it was answered, and any confusion overcome.
Third alleged error: 27.42: length of stay in prison
The third alleged error concerned a passage in which the Tribunal put it to the applicant that, if he were imprisoned in Sri Lanka as a result of his illegal departure, it would only be for a few days. There were some differences between what the Tribunal said and what the interpreter said. However, the differences concerned peripheral matters. The essence of the Tribunal’s statement, concerning the possible length of the prison stay, was adequately interpreted.
Fourth alleged error: 40:40: the second applicant and militias
The fourth alleged error concerned the applicant’s claim that his son would be at risk from militias such as the LTTE, the EPDP and Karuna and that his life in Sri Lanka would not be good. The interpreter used somewhat different words, but conveyed the essence of the applicant’s claims.
Fifth alleged error: 44.15: risk from LTTE minimal
The fifth alleged error concerned the Tribunal’s statement that the LTTE was no longer operational, so the risk from it was minimal. Again, the interpreter used somewhat different words but conveyed the essence of what the Tribunal said.
Sixth alleged error: 47:21: whether fears justified
The sixth alleged error concerned the Tribunal’s statement that it accepted that the applicant had a subjective fear, but had to consider whether the fear was justified. The interpreter said that the Tribunal had no difficulty accepting that the applicant felt fear, but had to work out whether he was within the boundaries of the law. There is a difference between the Tribunal considering whether the applicant’s fears were justified and the Tribunal considering whether the applicant was within the boundaries of the law.
However, the delegate, at CB214, clearly distinguished the ideas of subjective and objective fear. The applicant can therefore be taken to have been aware of that distinction. The applicants also were represented by a solicitor and migration agent, who presumably explained to them the basic requirements for the grant of a protection visa. In all the circumstances, I do not accept that the misinterpretation in relation to this point resulted in a denial of procedural fairness.
Seventh alleged error: 49.30: kidney function
The seventh alleged error concerns the applicant’s statement that he had 18% kidney function at that time, and if it went down to 10%, he would have to have dialysis. The interpreter said that the applicant had 20% kidney function at that time, and if it went down to 10% he would have to have dialysis. The Tribunal noted at paragraph 93 of its reasons for decision that the applicant had said that he had 20% kidney function.
However, at paragraph 129 of its reasons for decision, the Tribunal accepted written medical evidence, submitted post-hearing, that the applicant had between 15 and 20% kidney function and would probably require dialysis within six months to two years. Consequently, the error in interpretation was overtaken by later evidence and was consequently immaterial.
Cumulative effect of errors
Although there were some minor errors in interpretation, they do not, taken either singly or taken all together, indicate that the applicant was not given a fair hearing. This ground is not made out.
Ground 2
The second ground of review in the application filed on 21 February 2014 is:
The Refugee Review Tribunal applied the wrong legal test
In their written submissions dated 4 December 2014, the applicants argued that the Tribunal applied the wrong legal test in relation complementary protection in respect of the applicant’s medical issues in that the Tribunal considered whether medical treatment would be denied for a discriminatory or Convention reason. The applicants submitted that that was not the correct test when considering complementary protection.
I accept that the Tribunal would have erred if it had assessed complementary protection on the basis of whether the significant harm was inflicted for a discriminatory or Convention reason. However, that is not what the Tribunal did in this case. The Tribunal said at paragraphs 138 and 139 of its reasons for decision:
138.On the basis of the evidence before it, the Tribunal does not accept that the first-named applicant would be denied treatment, including dialysis, for his kidney disease due to his Tamil ethnicity or for any other Convention ground. The Tribunal further does not accept on the evidence before it that the first-named applicant would be denied treatment for his diabetes or in relation to mental health issues due to his ethnicity or for any other Convention ground. The Tribunal finds that the evidence before it indicates that the Sri Lankan government appears to be taking steps to improve access to resources and treatment.
139.On the evidence before it, the Tribunal also does not accept the lack of dialysis machines or any lack of access to medical treatment in Sri Lanka constitutes significant harm as defined by s 36(2A). While it may be argued that lack of adequate medical treatment constitutes cruel and inhuman treatment or degrading treatment, the evidence before the Tribunal does not indicate that there is an intent to inflict severe pain or suffering (in the case of cruel and inhuman treatment) or an intent to cause extreme humiliation (in the case of degrading treatment) as required by s 36(2A). Again, the Tribunal notes that the information before it appears to indicate that the Sri Lankan government is attempting to improve access to medical treatment. Accordingly, the Tribunal does not accept that the first-named applicant will suffer significant harm as a result of the limited medical facilities providing dialysis or other treatment in Sri Lanka.
Paragraph 138 concerns the question of whether the applicant faced serious harm. Consequently, the Tribunal correctly referred to discrimination and Convention grounds. Paragraph 139 concerned complementary protection. The Tribunal correctly did not refer in that paragraph to discrimination or Convention grounds. I do not accept that the Tribunal made the error alleged.
In their written submissions dated 4 December 2014, the applicants argued that the Tribunal, in considering the issue of complementary protection, failed to consider whether the applicant would be arbitrarily deprived of his life as a necessary and foreseeable consequence of being returned to Sri Lanka.
Section 36 of the Act provides, in relation to complementary protection, that:
(2)A criterion for a protection visa is that the applicant for the visa is:
…
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm;
…
(2A) A non-citizen will suffer significant harm if:
(a)the non-citizen will be arbitrarily deprived of his or her life; or
(b)the death penalty will be carried out on the non-citizen; or
(c)the non-citizen will be subjected to torture; or
(d)the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)the non-citizen will be subjected to degrading treatment or punishment.
In the present case, the Tribunal was aware that the definition of significant harm included the arbitrary deprivation of life as the Tribunal set out that aspect of the definition in paragraph 15 of its reasons for decision. The Tribunal discussed in its reasons for decision the possibility of the applicant facing cruel or inhuman treatment or punishment and degrading treatment or punishment. However, the Tribunal did not discuss in its reasons the possibility of the applicant facing arbitrary deprivation of life.
That would seem to be because the Tribunal did not consider that the prospect of the applicant dying as a result of being unable to access dialysis in Sri Lanka would fall within the concept of the arbitrary deprivation of life. It seems to me that the Tribunal was correct in so concluding.
The concept of arbitrary deprivation of life concerns such things as extrajudicial killing and the excessive use of police force. It does not concern the consequences of scarce medical resources in developing countries.
This ground is not made out.
Conclusion
As neither of the applicants’ grounds has been made out, the application must be dismissed. I will hear the parties on the question of costs.
Ministerial intervention
The Tribunal said at paragraphs 171 to 175 of its reasons for decision:
171.The Tribunal accepts that at the time that the first-named applicant fled Sri Lanka in 1990 he may have faced a well-founded fear of persecution on the basis of his profile as a Tamil from the North, in light of the situation in Sri Lanka at the time. The Tribunal accepts that the first-named applicant faced serious harm in the past including physical beatings and trauma, such as when he was detained in relation to his nephew and when the first-named applicant and other Tamils were rounded up by bus, taken to a disused airport and shot. The Tribunal further accepts that the first-named applicant suffered from other harm including being present when his friend was shot by the SLA while he managed to escape and was present when a grenade exploded near him in Jaffna.
172.While the Tribunal does not accept that the first-named applicant would face a real chance of serious harm or a real risk of significant harm if he returned to Sri Lanka now, the Tribunal accepts that the first-named applicant continues to have a subjective fear of returning, which has been informed by his past experiences in Sri Lanka.
173.Furthermore, as noted above, the first-named applicant has provided evidence, which the Tribunal accepts, indicating that he is suffering from various medical ailments including chronic kidney disease and low kidney function and that he will likely require dialysis in the next two years. The Tribunal accepts information before it that dialysis machines are very limited in number in Sri Lanka, are not located in the first-named applicant’s home region and are not sufficient to cope with the large number of Sri Lankans requiring treatment for kidney disease. The Tribunal is of the view that in light of the first-named applicant’s health problems, these circumstances may be likely to lead to hardship and irreparable harm for the first-named applicant.
174.It therefore appears that the applicants’ circumstances fall within the following categories identified in the Ministerial guidelines as relevant to the exercise of the Minister’s discretion:
·particular circumstances or personal characteristics of a person which provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity should they return to their country of origin. This may include:
o […]
o persons who may have been refugees at time of departure from their country of origin, but due to changes in their country, are not now refugees, and it would be inhumane to return them to their country of origin because of their subjective fear. For example, a person who has experienced torture or trauma and who is likely to experience further trauma if returned to their country.
·compassionate circumstances regarding the age and/or health and/or psychological state of the person such that a failure to recognise them would result in irreparable harm and continuing hardship to the person.
175.Having regard to the applicant’s circumstances, in particular those outlined above and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417, set out in PAM3 ‘Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
The court was not advised whether the Minister had declined to intervene or whether the Minister had not yet made a decision.
However, in my view, this case warrants consideration by the Minister. I will direct the Registrar to refer the matter to the Minister under s.417 of the Act.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Riley
Associate:
Date: 4 February 2015
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