MZARJ v Minister for Immigration

[2016] FCCA 1373

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZARJ v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1373

Catchwords:
MIGRATION – Refugee Review Tribunal – protection visa – show cause hearing – whether it is arguable that the Tribunal made a jurisdictional error – applicant’s grounds unparticularised – first respondent raising potential issues as model litigant – concept of intention in the definition of significant harm – compliance with Ministerial Direction 56.

Legislation:
Migration Act 1958
Federal Circuit Court Rules 2001
Migration Regulations 1994
Immigrants and Emigrants Act 1949 (Sri Lanka)

Cases cited:
SZTAL v Minister for Immigration [2015] FCCA 64;
SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69

Applicant: MZARJ

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 205 of 2015

Judgment of: Judge Riley

Hearing date: 14 October 2015

Date of last submission: 14 October 2015

Delivered at: Melbourne

Delivered on: 9 June 2016

REPRESENTATION

Counsel for the applicant: In person

Solicitors for the applicant: None

Advocate for the first respondent: Mr Leerdam

Solicitors for the first respondent: DLA Piper Australia

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: DLA Piper Australia

ORDERS

1. The title of the proceeding be amended so that the name of the second respondent is “Administrative Appeals Tribunal”.

2. The application filed on 5 February 2015 be dismissed.

3. The applicant pay the first respondent’s costs, fixed in the sum of $3,416.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 205 of 2015

MZARJ

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First respondent

And

REFUGEE REVIEW TRIBUNAL

Second respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of the delegate not to grant the applicant a protection (Class XA) visa.

2. The matter was listed by the registrar for a show cause hearing under rule 44.12 of the Federal Circuit Court Rules 2001. Consequently, the question for the court is whether the applicant has an arguable case.

3. The applicant was unrepresented in this proceeding.

4. The decision of this court was delayed pending the decision of the Full Federal Court in SZTAL v Minister for Immigration and Border Protection [2016] FCA FC 69 (“SZTAL”).

The applicant’s claims

1. The applicant is a Hindu Tamil from Sri Lanka. He was born and lived in Udappu in the North-Western Province.  In a statutory declaration, the applicant claimed that:

   a)when he attempted to obtain a permit to enable him to work as a fisherman, he was beaten by some naval officers;

   b)he was told that he could not get a fishing pass because he was a Tamil;

   c)as a result of the beating, the applicant was treated in hospital and was not able to work for two months;

   d)in 2010, the applicant and his brother worked as fishermen although they did not have a boat pass;

   e)in October 2011, naval officers boarded the applicant and his brother’s fishing boat and asked for their passes;

   f)the naval officers beat the applicant and his brother with a bamboo pole;

   g)the applicant’s father suggested that he leave Sri Lanka for his own safety;

   h)the applicant’s brother went to Malaysia;

   i)after the applicant left Sri Lanka, two motorcycle policeman came to the family home and asked where the applicant and his brother were;

   j)about 15 days later, the police came back and the applicant’s father told them that the applicant had left for Australia; and

   k)the applicant feared that he will be arbitrarily deprived of his life, imprisoned, punished or tortured and also fears suffering degrading and inhuman treatment if he is forced to return to Sri Lanka.

The Tribunal’s reasons

1. The Tribunal accepted that, in general, the applicant gave his evidence in an open and direct manner. However, the Tribunal noted certain inconsistencies and exaggerations.

2. The Tribunal noted that, at hearing, the applicant acknowledged that his injury in 2009 did not render him unable to work for two months. The Tribunal considered, for reasons that it gave, that the applicant had been harassed by a drunk naval officer in 2009 and his ID card had been thrown into the sea. However the Tribunal did not accept that any physical harassment of the applicant resulted in him being unable to work. The Tribunal considered that this was a one-off incident and there was not a real chance of it recurring in the future.

3. The Tribunal accepted that the applicant’s boat was approached by a naval vessel or vessels in 2011. However, the Tribunal was not satisfied that the applicant was beaten by naval officers at that time. The Tribunal accepted that the Navy checked compliance with fishing licences. The Tribunal considered that, in checking for the applicant’s fishing licence, the Navy was ensuring compliance with a law of general application and did not accept that that law had been applied in a discriminatory manner. The Tribunal did not accept that the questioning of the applicant by the Navy constituted serious harm.

4. The Tribunal accepted that members of the Army or Navy had taken dried fish from the applicant on two or three occasions. The Tribunal accepted that there was a racial element to this treatment.  However, the Tribunal did not accept that this conduct would be repeated in the future. In any event, the Tribunal did not accept that it constituted serious harm.

5. The Tribunal accepted that the applicant had been rounded up to undertake work in an army camp on one or two occasions in 2008 or 2009. The Tribunal accepted that there was a racial element to that treatment. However, the Tribunal did not accept that there was a real chance that this treatment, which had occurred during the civil conflict, would happen again in the future.

6. The Tribunal accepted that the applicant had been questioned during regular roundups about whether he supported the LTTE.  The Tribunal did not accept that there was any evidence to suggest that the authorities seriously suspected the applicant of being an LTTE member or supporter. The Tribunal did not consider that there was anything to suggest that that perception might change in the future.

7. The Tribunal accepted that officials visited the applicant’s home on two occasions asking for the applicant and on the second visit the applicant’s father revealed that the applicant had gone to Australia.

8. The Tribunal rejected a claim made for the first time late in the Tribunal hearing that the army or navy had frequently commandeered the applicant’s motorbike. The Tribunal considered that this may have happened on isolated occasions. The Tribunal did not accept that there was a real chance that it would happen again in the future. In any event, the Tribunal did not accept that this conduct amounted to serious harm.

9. The Tribunal considered the situation of failed Tamil asylum seekers in Sri Lanka. The Tribunal considered that there was nothing in the applicant’s profile as found by the Tribunal that would give rise to him suffering a real chance of serious harm upon his return to Sri Lanka as a result of him being a failed Tamil asylum seeker.

10. The Tribunal considered the situation of illegal emigrants returning to Sri Lanka. The Tribunal accepted that the applicant would be charged with an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka) upon his return to Sri Lanka. The Tribunal accepted that the applicant might be held on remand for several days before being given bail. The Tribunal accepted that the conditions in Sri Lankan prisons are substandard. The Tribunal considered that ultimately the applicant would be fined. The Tribunal concluded that the essential and significant reason for the penalties that the applicant would suffer was a law of general application that was not applied in a discriminatory manner. Consequently, the Tribunal did not consider that the applicant faced a real risk of Convention-based persecution as a result of his illegal departure from Sri Lanka.

11. All in all, the Tribunal did not accept that the applicant faced a real chance of serious harm in Sri Lanka for any of the reasons he claimed, or which arose on the materials, whether singly or cumulatively.

12. The Tribunal also considered whether the applicant was entitled to complementary protection. The Tribunal did not accept that:

    spending up to a fortnight in jail amounted to ‘significant harm’ or that such treatment is intentional as is required by the law in Australia.

13. The Tribunal did not accept that the overcrowding and very unpleasant conditions in Sri Lankan prisons were motivated by the requisite intention so as to constitute “extreme humiliation” or “degrading treatment or punishment” or “cruel inhuman treatment or punishment” as defined in the Migration Act 1958 (“the Act”). Consequently, the Tribunal did not accept that upon return to Sri Lanka the applicant faced a real risk of significant harm as defined in the Act.

Ground 1

1. The first ground of review in the application filed on 5 February 2015 is really two grounds, expressed as follows:

   The decision of the Tribunal:

   (a)is affected by an error of law; and

   (b)denied the applicant procedural fairness.

2. The application did not include any particulars of those grounds. The applicant did not file any written submissions, although he was required to do so by orders made by a registrar on 13 May 2015.  The applicant was unable to elaborate on his grounds of review in oral submissions to this court. His oral submissions amounted to a plea for merits review, which this court is not permitted to provide. Consequently, the applicant has given no indication of any possible error of law or any possible denial of procedural fairness in the Tribunal’s decision or decision-making process.

3. I have been unable to detect any arguable error of law in this matter.  The Tribunal invited the applicant to a hearing, which he attended.  Relevant matters appear to have been put to the applicant.  It does not appear that there has been any denial of procedural fairness in this case. The Tribunal appears to have considered all of the applicant’s claims, and does not appear to have taken into account any irrelevant considerations.

4. The first respondent, as model litigant, drew the court’s attention to the issue of intention in relation to complementary protection. The first respondent relied on the decision of this court in SZTAL v Minister for Immigration [2015] FCCA 64, where Judge Driver held at [49] that the intention required by the definition of significant harm in the Act is the existence of:

   an actual, subjective intention on the part of [the actor] to bring about suffering …

5. The first respondent pointed out that the decision of this court in SZTAL was under appeal to the Full Court of the Federal Court. The first respondent submitted that, if the court considered that the present case was relevantly indistinguishable from SZTAL, then this decision should be reserved until the judgement of the Full Court was handed down. I did form the view that the present case was relevantly indistinguishable from SZTAL, and consequently reserved this decision pending the outcome of that appeal.

6. The decision on appeal has now been handed down in SZTAL v Minister for Immigration and Border Protection [2016] FCAFC 69. The Full Court upheld the decision of this court in SZTAL, holding at [68] that it was not persuaded that the primary judge had relevantly erred in construing the notion of intention in the definition of significant harm in the Act.

7. In the present case, the Tribunal said the following:

   In terms of the applicant’s treatment in detention, the Tribunal accepts that prison conditions are poor, particularly in terms of overcrowding, and the Tribunal noted the applicant’s adviser’s submissions in this respect. The Tribunal does not accept that spending up to a fortnight in jail amounts to ‘significant harm’ or that such treatment is intentional as is required by the law in Australia. The Tribunal does not accept that there is a real risk the applicant will be subject to ‘torture’ as defined, while he is on remand. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Migration Act requires that the pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. The Tribunal does not consider that overcrowding, and very unpleasant conditions, which are a product of the general state of the system and negligence and indifference, have the requisite intention required in the definitions of ‘cruel inhuman treatment or punishment’ and ‘degrading treatment or punishment’. The Tribunal does not accept therefore that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prison due to overcrowding.

8. Clearly, the Tribunal considered that the substandard prison conditions in Sri Lanka were the result of “the general state of the system and negligence and indifference” rather than an intention to cause harm.  That is essentially the same reasoning as the Tribunal relied upon in SZTAL.  In that case, the Tribunal said, at paragraph 80 of its reasons for decision, which are set out in paragraph 14 of the reasons for decision of this court:

   Under Australian law, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. The country information above indicates that the poor prison conditions in Sri Lanka are due to a lack of resources which the government appears to have acknowledged and is taking steps to improve, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment or cause extreme humiliation. Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.

9. There is no material difference between the Tribunal’s reasoning in SZTAL, which has been upheld by the Full Court of the Federal Court, and the Tribunal’s reasoning in this case. Consequently, I do not consider that it is arguable that there was any error in the Tribunal’s decision in this case in so far as it relates to the interpretation of intention in the definition of significant harm in the Act.

10. The first respondent also, as model litigant, raised the question of whether the Tribunal had failed to have regard to Ministerial Direction 56 as required by s.499 of the Act. The Tribunal in the present case noted at paragraph 9 of its reasons for decision that it was obliged by Ministerial Direction 56 to take into account certain guidelines and assessments, to the extent that they were relevant. Otherwise, the Tribunal in this case did not refer to those guidelines or assessments.

11. It is well established that if the Tribunal refers to the correct test at one point in its reasons for decision, it should not lightly be concluded that the Tribunal has failed to apply that test.  A similar point may be made in relation to the matters that the Tribunal was required to consider under Ministerial Direction 56.  That is, having referred expressly to Ministerial Direction 56, the court should not lightly conclude that the Tribunal did not consider the required matters. 

12. In the present case, nothing has been raised that suggests that the Tribunal did not fulfil its obligations in this regard.  Obviously, the Tribunal was required to consider the relevant matters, not slavishly set them all out under particular headings.  It does not appear to be arguable that the Tribunal made a jurisdictional error in relation to Ministerial Direction 56.

13. All in all, for the reasons given above, I do not consider that ground 1 is arguable.

Ground 2

1. The second ground of review in the application filed on 5 February 2015 is:

   The Applicant is making an application to Victoria Legal Aid and is still awaiting the outcome of the application.

2. The matter did not come on for final hearing until 14 October 2015, a little over eight months after the application was filed. At the final hearing, there was no indication that Victoria Legal Aid had formed an intention to act for the applicant. The applicant did not ask for an adjournment of the hearing on 14 October 2015 or in any way indicate that he saw any benefit in an adjournment. I can only assume that the applicant’s application to Victoria Legal Aid had been unsuccessful. In any event, this is not a ground of review.

Conclusion

1. I am not persuaded that there is any arguable jurisdictional error in the Tribunal’s reasons for decision or decision-making process.  Consequently, the application must be dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 9 June 2016