MZARH v Minister for Immigration
[2016] FCCA 2199
•31 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZARH v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2199 |
| Catchwords: MIGRATION – Judicial review – dismissed. |
| Legislation: Migration Act 1958 (Cth) |
| Cases cited: SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121 |
| Applicant: | MZARH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | (P)MLG191 of 2015 |
| Judgment of: | Judge McGuire |
| Hearing date: | 31 March 2016 |
| Date of Last Submission: | 31 March 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 31 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms K. Grinberg |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondents: | Mr A. Aleksov |
| Solicitors for the First Respondents: | Sparke Helmore |
ORDERS
That the name of the second respondent be amended to read “Administrative Appeals Tribunal”.
That the application for judicial review be dismissed.
That the applicant pay the costs of the first respondent in the sum of $5,800.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
(P)MLG 191 of 2015
| MZARH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) (“the Tribunal”) pursuant to the Migration Act 1958 (“the Act”) where the Tribunal affirmed a determination of the Minister’s delegate not to grant the applicant a Protection (Class XA) visa (“the visa”).
The applicant is from Sri Lanka. He is of Tamil ethnicity.
The applicant entered Australia by boat on 25 July 2012. On 5 November 2012 he applied for a Protection visa supported by statements of claims dated 29 October 2012.
The delegate refused the application on 8 July 2013. On 12 July 2013 the applicant applied to the Tribunal for a review hearing. That hearing took place on 25 November 2014. The applicant made oral submissions and argument to the Tribunal. He was represented and relied upon written submissions. The Tribunal affirmed the delegates determination in written reasons of 13 January 2015.
The applicant applied for judicial review and now relies on his amended application dated 15 February 2016.
The applicant’s broad claims are that he would face a real chance of persecution if returned to Sri Lanka and summarised in his counsel’s written submissions before this court as:
i)his Tamil ethnicity;
ii)perceived and actual links to the LTTE on account of his brothers involvement with LTTE;
iii)his opposition to the government of Sri Lanka;
iv)an imputed pro-LTTE political opinion;
v)membership of the particular social group – family member of LTT Cadres; and
vi)membership of the particular social group - Failed Asylum Seekers Returning to Sri Lanka.
The applicant claimed he was arrested, interrogated and tortured by Sri Lankan authorities on two separate occasions being 21 November 2011 and May 2012. He says that he was abused as a “Tamil dog”. He says that he was ridiculed and laughed at in Sinhalese. He says that he was made to sign a statement in Sinhalese which is a language he does not understand. He was told that he had been identified as an LTTE fighter. He was accused of lying in his denials and punched. He says that he was told that if he was to be arrested again then they would claim he had weapons to fight the army and that he would be kidnapped as a terrorist meaning that he would disappear and be killed.
The applicant claimed that his brother had been forcibly conscripted into LTTE in 2007 and has not been seen since 2009. He says that his family has been contacted by CID in respect of his brother’s LTTE involvement and that his other brothers have been similarly harassed and interrogated by CID and the Sri Lankan army. Further, he says that his mother’s protest in support of Tamils has caused her to be a person of interest to the Sri Lankan army.
The Tribunal’s Decision
The Tribunal accepted the applicant as a credible witness. It accepted the fact of his two arrests and interrogation and his evidence as to the particulars of those events.
At [46] and [47] of its Reasons, the Tribunal finds:
The Tribunal does not accept that the applicant is a person of interest to the authorities. The Tribunal accepts the evidence of the applicant as provided at the hearing that the applicant has been brought in to be interviewed by the CID on two occasions, once when a flag was raised, the second time after a letter was supposedly sent about the applicant. The applicant has been consistent in his evidence regarding this aspect of his claims. The Tribunal notes that on both occasions, after he had been questioned for a short period, the applicant was released very shortly afterwards.
The Tribunal considers that if the authorities genuinely had concerns about the activities of the applicant he would not have been released in the manner that he had been, and that the authorities have had the opportunity to detain him, mistreat him and send him off to rehabilitation camps, or other forms of detention, should they have chosen to do so. The authorities have chosen not to do so, despite all the information that they have from the applicant, given his statement that he was open and honest with them about his and his family’s history. The Tribunal considers that the authorities, who have assessed the circumstances of the applicant at times when there were questions or allegations as to his activities, and determined that there was nothing in such matters, releasing the applicant after a short period. The Tribunal accepts that the authorities may have been rough with the applicant at the time, in the form of man-handling and abuse of the applicant, considers that this treatment does not constitute serious or significant harm, during the questioning by the authorities. The Tribunal finds that the applicant was not seriously or significantly harmed during the times when he was previously interviewed or questioned by the authorities.
The Tribunal considered the applicant’s claim in respect of his Tamil ethnicity and deals with this claim in its reasons at [62] thus:
The Tribunal does not accept the applicant’s claim that all Tamils in Sri Lanka face harm because of their race. The country information shows that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles and responsibilities that they may have with the LTTE, or relationship to someone with such a role or responsibility, or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm. The UNHCR does state that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka, through their past or present activities. The Tribunal does not accept that this applies in the circumstances of this applicant, a fisherman from the northern area of Sri Lanka.
At [64] the Tribunal considers the treatment of the applicant during the two periods of detention and interrogation as follows:
Despite the authority’s opportunity to seek to harm the applicant in the times they have questioned him, given his background as a Tamil, a Tamil from the north of Sri Lanka, an imputed or actual opinion against the authorities and his links to the LTTE, the authorities did not take action against him, they did not detain him, they did not send him to any form of rehabilitation, they may have manhandled and abused him, but as found above, they did not seriously or significantly harm the applicant in those events. The Tribunal considers that the applicant was released very shortly after the authorities had required the applicant to attend them, and that such questioning in itself does not constitute serious or significant harm. The Tribunal considers that even given his race, background as a Tamil form the north, with a family member as an LTTE member and an imputed anti-government opinion, the authorities have pointedly shown that they have had no interest in seeking to harm the applicant, despite the opportunity. This is directly form the evidence of the applicant himself.
At [66] the Tribunal reaches conclusions in respect of the applicant’s claims as follows:
The Tribunal does not accept that the authorities would have any further interest in the applicant after his departure and absence from the country. The authorities had limited interest in the applicant in the past, and his being away from the country will not change that. As is discussed below, the authorities will know that he has left the country illegally, and may determine or assume that he has sort asylum, which will mean that the authorities will may some attention to the applicant on his return. However the Tribunal does not accept that this will mean that they will seek to harm the applicant for the very attributes that he has had prior to leaving which did not concern the authorities in the past.
At [67] the Tribunal considered the applicant’s claim of Tamils facing discrimination. The Tribunal considered the applicant’s family’s particular circumstances together with country information noting some discrimination between Singhalese and Tamil communities but concluded:
However the Tribunal considers that in the predominately Tamil location where the applicant comes from, the applicant will not be seriously or significantly harmed due to any such differential or discriminatory treatment.
At [72] and following the Tribunal considered the applicant’s claim as a failed asylum seeker/illegal departee. The Tribunal took into account country information and concluded at [84]:
For the reasons stated, the Tribunal finds the applicant faces no real chance of serious harm as a returning failed asylum seeker from Australia (or the west or overseas) – regardless of whether seeking asylum is conceived of either as an imputed political opinion, or as an identifying characteristic of any particular social group, in any combination with other characteristics of being a man of Tamil ethnicity from or returning to the north, adverse political opinion or imputed LTTE connection, illegal departure or his brothers involvement with the LTTE.
The application to this Court
The amended application sets out 4 grounds of complaint. A further and 5th ground was argued with leave at the hearing before this Court.
Ground 1 - That the applicant failed to consider and integer of the applicant’s claim in that the CID threatened him that next time he was arrested he would be accused of being a member of the LTTE, kidnapped and treated differently.
This claim is expressly made by the applicant in his Statement of Claims dated 29 October 2012. At [22] of that statement he says:
The soldiers that were interrogating me told me that if I were arrested again that they would claim that I had weapons to fight the army and I would be kidnapped for being a terrorist. I knew this meant that I would disappear and be killed.
This claim is repeated at [24] and [33] of the Statement of Claims.
Similarly, the same claim is made by the applicant in his biodata interview of 15 September 2012 where the applicant says:
The last few words that they told me was that they would give there arms to me and they can kill me and say that I was a member of the movement and that they could kill me.
This claim was made and noted before the delegate.
The applicant concedes that the claim is referenced in the Tribunal’s reasons by way of a restatement of his Statement of Claim which says that the mere recording of a submission or claim does not amount to its consideration or engagement.[1]
[1] MXYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [19] and [22]
The applicant refers me to [64] of the Tribunals reasons and relies on this as evidence that it did not engage and consider the integer. Specifically, the applicant’s counsel refers to the following:
“…the authorities have pointedly shown that they have had no interest in seeking to harm the applicant despite the opportunity. This is directly from the applicant himself.”
Counsel for the applicant refers the Court to a decision of the Full Court in SZTQP v Minister for Immigration and Border Protection[2] where at [32] the Court says in respect of an accepted fact:
The Tribunal was required to consider these claims. In these circumstances this obliged the Tribunal to determine whether or not it is accepted that the threatening phone calls had been made and, if it was found that they had, to proceed to determine whether it accepted the applicant’s claims that he was threatened in those calls that he would disappear, and that such threats were made because of his association with the general.
[2] [2015] FCAFC 121
Likewise here the applicant argues that the Tribunal failed to deal with the applicant’s claim of fear of the threats, which were accepted as a matter of credit being carried out and to address whether those threats might be carried out.
Counsel for the first respondent conceded the general principle from Minister for Immigration and Citizenship v SZRKT[3] that where evidence of critical importance is before the Tribunal but not referenced in its reasons then a court of judicial review might infer that the Tribunal did not consider that evidence.
[3] (2013) 212 FCR 99
Counsel emphasised, however, that the inference is not necessarily available by the mere fact of the Tribunal not referring to the evidence so long as it has identified the issue at some point and has otherwise given detailed and comprehensive reasons.[4]
[4] WAEE v Minister for Immigration [2003] FCAFC 184
In the matter now before me the Tribunal specifically noted the applicant’s claims at [19] in restating his statement of claims.
The lack of particular reasons addressing this claim must be seen against and within context of the Tribunal’s findings generally. They include at [43] that the applicant was arrested and interrogated twice but released on both occasions and in particular at [64] where the Tribunal finds that “…the authorities have pointedly shown they have no interest in seeking to harm the applicant, despite the opportunity…”
The respondent says that the Tribunal’s finding at [47] therefore is of such generality that it deals with the specific claim of harm from future arrest. The reasons at [47] state:
The Tribunal considers that if the authorities genuinely had concerns about the activities of the applicant he would not have been released in the manner that he had been, and that the authorities have had the opportunity to detain him, mistreat him and send him off to rehabilitation camps or other forms of detention, should they have chosen to do so. The authorities have chosen not to do so, despite all the information that they have from the applicant, given his statement that he was open and honest with them about his and his family’s history. The Tribunal considers that the authorities, who have assessed the circumstances of the applicant at times when there were questions or allegations over his activities, and determined that there was nothing in such matters, releasing the applicant after a short period. The Tribunal accepts that the authorities may have been rough with the applicant at the time, in the form of manhandling and abuse of the applicant, but considers that this treatment does not constitute serious or significant harm, during the questioning by the authorities. The Tribunal finds that the applicant was not seriously or significantly harmed during the times when he was previously interviewed or questioned by the authorities.
The applicant’s claim relates to fear of harm from the threat of future of arrest. In my view, the finding the Tribunal in respect of opportunity for a persecution and release of the applicant on two separate occasions adequately and properly responds and addresses in a generalised way the speculative claim of harm from further arrest. In the sense contemplated by the Court in WAEE (supra) as such the SZRKT inference should not be drawn here. It follows that I find no merit in ground 1 of the applicant’s complaint.
Ground 2 - The Tribunal failed to consider an integer of the applicant’s claim that he feared being abducted by the Tamil Tigers.
This claim is noted in the delegates reasons.
The applicant says that the Tribunal’s reasons, unlike ground 1, do not acknowledge that this claim was made.
The respondent says again that the Tribunal deals with the claim without specific reference but at a higher level of generality with reference to country information including that persons of certain profiles are in need of protection and that the applicant did not fit any such profiles.
The Tribunal’s reasons at [58] and following deal with profiles with reference to UNHCR Eligibility Guidelines and the UK case of GJ & Ors Post-Civil War; (returnees) Sri Lanka CG [2013] UKUT 00319 (IAC). Significantly this country information does not claim to be exhaustive in its profiles being a point raised by the applicant’s counsel in countering the “generality argument” of the respondent. Nevertheless the Tribunal’s reasons [62] do in my view make findings of generality so as to address the claim of the applicant without further or specific reference and therefore again does not, in my view, draw the SZRKT inference. The Tribunal says at [62]:
The Tribunal does not accept the applicant’s claim that all Tamils in Sri Lanka face harm because of their race. The country information shows that there certain types of people of Tamil and other backgrounds who have a profile that raises the risk of being harmed in Sri Lanka. Tamils who are perceived to be a threat because of roles or responsibilities that they may have had in the LTTE or relationship to someone with such a role or responsibility, or Tamils who may have been considered to be a present threat to the single state of Sri Lanka are considered to be at risk of harm. The UNHCR does state that Tamils are reportedly more often subjected to arbitrary detention, abductions or forced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity to the state of Sri Lanka through their past or present activities. The Tribunal does not accept that this applies in the circumstances of the applicant, a fisherman from the northern area of Sri Lanka.
Consequently I find not merit in ground 2 of the compliant.
Grounds 3 & 4 - (These grounds are argued in the alternative).
Firstly it is argued that the Tribunal misconstrued or misapplied the legal principles regarding what constitutes significant harm under the Act, or failed to form the state of satisfaction required for the purposes of the review or, alternatively, failed to consider an integer of the applicant’s claim that he was:
i)called a “Tamil dog”;
ii)laughed at in a ridiculing way;
iii)punched and hit all over his body; and
iv)made to sign a statement in Singhalese that he did not understand.
The applicant says that the Tribunal made no negative credibility findings against him but failed to address the substance or significance of the claims as to how he was treated. In this sense the applicant refers to s36(2A) of the Act as then applicable in what amounts to “significant harm” including what amounts to “cruel and inhuman treatment or punishment” or “degrading treatment or punishment”. The applicant says simply that the Tribunal failed to apply the correct legal test but, rather, characterised these acts as manhandling and abuse but not constituting serious or significant harm. That is, the Tribunal failed to engage with the particulars of the applicant’s claims under the complementary protection provisions of the Act. The applicant’s written submissions complain that the Tribunal’s reasoning is “glib and conflates two different legal tests for serious and significant harm”.
The applicant concedes that the Tribunal referenced in its reasons the policy guidelines PAM3:
“Cruel or inhuman treatment or punishment may be an act or omission that intentionally inflicts pain or suffering (but does not meet the threshold of severity to amount to torture) so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel and inhuman in nature.”
The applicant says, however, that the Tribunal has failed to engage the particulars of the applicant’s claim in the context of the correct legal test for complementary protection.
The Tribunal clearly references the complementary protection guidelines at PAM3 at [18] of its reasons.
At [47] of its reasons the Tribunal states:
The Tribunal accepts that the authorities may have been rough with the applicant at the time, in the form of manhandling and abuse of the applicant, it considers that this treatment does not constitute serious or significant harm, during the questioning of the authorities. The Tribunal finds that the applicant was not seriously or significantly harmed during the time when he was previously interviewed or questioned by the authorities.
The Tribunal here does not adopt the language of the applicant. It refers to the applicant as being “treated roughly” [43] and “in the form of manhandling and abuse of the applicant” [47] but engages and concludes as to the claim that “this treatment does not constitute serious or significant harm during the questioning by the authorities.” The Tribunal finds that the applicant was not seriously or significantly harmed during the times of the two interviews. These reasons are brief but this does not make them necessarily “glib” or in any way render them insufficient in the sense of conflating there engagement with the legal tests. I am satisfied that the Tribunal did engage the particulars of the claim albeit by use of synonym and I reject any necessary connection between brevity of written reasons with a misunderstanding or misapplication of the law.
Secondly as to this ground, I am satisfied that the integers of the applicant’s claims have been engaged as set out above and the Tribunal concluded that the applicant will not attract the interest of the authorities in the future [48]. Consequently I find no merit as to grounds 3 & 4 of the complaint.
Ground 5 - That the Tribunal failed to take into account policy guidelines prepared by the Department of Immigration and, in particular, Ministerial Direction 56 made under s499 of the Act.
The Tribunal acknowledges its obligation in this regard at [18] of the reasons. The applicant says that a mere recitation of the guidelines is not sufficient evidence of engagement and consideration. Counsel for the applicant acknowledges that the Tribunal is not required in all cases to reference the guidelines but only in circumstances where the Tribunal considers that the guidelines are relevant and it is only upon that finding that there therefore arises an obligation to take them into account.[5]
[5]SZUQZ v Minister for Immigration & Anor [2015] FCCA 1552
The applicant here argues that the findings relevant to activating the mandatory consideration of the guidelines are the applicant’s treatment upon his two occasions of arrest. Again, the Tribunal generally accepted the credibility of the applicant and, on the argument of the applicant’s counsel, the Tribunal was therefore mandated to consider the issue of cruel and inhuman treatment or punishment. Again, the applicant claims to have been abused as “Tamil dog”, hit to his body; ridiculed; and forced to sign a document which he could not understand.
The relevant guidelines note:
In determining whether the treatment is unreasonable the decision maker should apply the principle of proportionality in light of the specific circumstances of the case. Although the use of force may be justified or necessary in connection with an arrest or breaking up a violent demonstration, even the use of mild force such as slapping may constitute degrading treating when this contradicts the principle of proportionality in light of the specific circumstances of the case.
The applicant asks this Court to draw an inference that the lack of express reference to the considerations of the guidelines in its reasons means that the Tribunal did not engage and consider the claim or, in this case, the mandatory consideration.
The respondent emphasises that unless a specific finding is pointed to which elevates the circumstances of a case to the stage of mandatory consideration then the fact of something not being mentioned in a Tribunal reasons leads to a proper inference that the Tribunal found it not to be material.
I accept the submissions of counsel for the respondent that it is permissible for the Tribunal to reference and consider the guidelines and to find them not to be material.[6]
[6] SZTMD v Minister for Immigration and Border Protection [2015] FCA 150
Whereas His Honour in SZUQZ (supra) had an express finding of the Tribunal which would activate a mandatory engagement with the guidelines, I am not satisfied such a finding or findings are apparent here. Acceptance of the applicant’s credit as to his relaying of the facts does not amount to a finding such as to activate a consideration of PAM3 in respect of the complementary protection criteria. As such, I find no merit in ground 5 of the complaint.
Conclusion
There being no merit to any of the grounds in the complaint, the application is dismissed with an order for costs.
I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Date: 31 August 2016
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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