MZZQE v Minister for Immigration
[2014] FCCA 1642
•19 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZQE v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1642 |
| Catchwords: MIGRATION – Application for judicial review of Refugee Review Tribunal decision – applicant alleging failure by the Tribunal properly to consider and determine claim for complementary protection – claim only advanced as part of claim to fear persecution as failed asylum seeker – claim nonetheless free – standing and clearly articulated – claim not properly addressed – extension of time granted – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2A) |
| Applicant: | MZZQE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1231 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 29 May 2014 |
| Date of Last Submission: | 29 May 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 19 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Robinson |
| Solicitors for the Applicant: | Maddocks Lawyers |
| Counsel for the First Respondent: | Mr Priest |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
THAT time for the application to be made be extended under s.477 of the Migration Act 1958.
A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent dated 12 April 2013.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review.
The first respondent pay the applicant’s costs fixed in the sum of $6,646.
| FEDERAL CIRCUIT COURT AT MELBOURNE |
MLG 1231 of 2013
| MZZQE |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
By an amended application filed 15 May 2014 the applicant seeks an extension of time in which to apply to this Court to review a decision of the Refugee Review Tribunal dated 12 April 2013. The application was originally filed on 7 August 2013, approximately four months out of time. The amended application raises only one ground, which essentially relates to whether or not the Tribunal failed properly to consider the applicant’s claim pursuant to the Complementary Protection regime described in s.36(2)(aa) of the Migration Act 1958 (“the Act”). For the reasons that follow, I think that the applicant ought to be granted an extension of time, and his application should be upheld.
The Grounds of Application
The grounds of application are:
1. The second respondent fell into jurisdictional error and failed to arrive at its decision according to law, namely by failing to fully consider the applicant’s claim and/or failing to apply the correct legal test to the applicant’s claim for complementary protection.
Particulars
(a)the second respondent failed to consider the applicant’s claim relating to general prison conditions and treatment in detention against the complementary protection criteria. The applicant’s submission raised a detailed claim for complementary protection on account of the harmful conditions and treatment that he would be at risk of being subjected to in prison upon return to Sri Lanka. The second respondent failed to make a separate assessment of the applicant’s claim relating to general prison conditions and treatment in detention also against the complementary protection criteria, opting only to incorporate by reference the ‘findings of fact above’ to its conclusion on complementary protection with no further elaboration or distinction.
(b)The second respondent failed to consider whether the prison conditions the applicant would be exposed to on return to Sri Lanka were such as to amount to torture or cruel, inhuman or degrading treatment or punishment within the meaning of section 36(2)(aa) of the Migration Act. The second respondent failed to assess the significance of those matters against the test in section 36(2)(aa) of the Migration Act and the PAM3 ‘Complementary Protection Guidelines’.
The Applicant’s Claims and What Happened to Them
The applicant arrived unlawfully by sea in Australia. In his arrival interview, Court Book (“CB”) 10, he gave details of the persecution that he said he had faced. Essentially, this amounted to a fear of harm at the hands of the CID, following an incident where he had actually hit a CID officer. At CB15, in response to a question as to “what do you think will happen to you if you return to your country of nationality (residence)?” he said, “If I go they will be questioning me, why I left, if I don’t tell they will beat me up. People who returned, after they left the airport, they are missing.” He went on to assert further likely ill-treatment on the part of the CID.
These matters were set out further in the applicant’s Statutory Declaration at CB43-48. While giving more detail, it added little to what the applicant had already said, save that he gave further details of alleged harassment of his family by the CID.
At paragraphs 32 and 33 of the Statutory Declaration, the applicant said:
“32. If I am forced to return to Sri Lanka I will be persecuted because of my ethnicity: an ethnic Tamil.
33. If I am forced to return to Sri Lanka I will be persecuted because I belong to a particular social group: Failed Tamil asylum seekers.”
The delegate’s decision is at CB85-93. Despite finding the applicant “to be a reasonably credible witness” the delegate concluded, for reasons not now directly pertinent, that he was not a person to whom Australia had either Convention or Complementary Protection obligations. I note that the delegate did not say that the applicant’s claimed particular social group of young Tamil men returning to Sri Lanka as failed asylum seekers was in fact a particular social group within the meaning of the Convention.
The applicant sent very extensive and detailed written submissions through his lawyers, Fragomen, in support of his application to the Tribunal (CB114-137). In the light of the ultimate outcome before the Tribunal much of this is not relevant. The submissions canvas the question of the applicant’s Tamil ethnicity and the likely imputation to him of being a supporter of the LTTE. They also dealt in some detail with membership of a particular social group at CB125-127. The relevance of this part of the submission was the assertion that the applicant faced a risk of serious harm on return to Sri Lanka as a result of his membership of the group, unsuccessful asylum seeker returnees. Reference was made at paragraph 46, CB125, to:
“Tamils travelling from overseas are being systematically targeted and put through extensive interrogative processes for several hours … According to information, the TID officials armed with airline passenger lists single out individuals and then into custody. Some of them are held at the airport for several hours and interrogated whilst some are taken away in unmarked white vans to unknown destinations.”
Later on the same page, the submission reads:
“With regard to security procedures at the Colombo airport for failed Tamil refugee claimants … [i]mmigration authorities are alerted about the impending arrival of those who are deported or who are ‘returned’ as a result of failed asylum processes. They are also identifiable by the fact that the travel on temporary travel documents. These individuals are taken out of immigration queues and subjected to special questioning by the Police, and by members of the Terrorist Investigation Department [TID]. They are almost always detained, sometimes for a few hours, and sometimes for months, until a security clearance is obtained.”
The submission also dealt with the Complementary Protection regime in some detail, CB127-135. Essentially, the applicant was submitting that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia there was a real risk he would suffer significant harm. Substantial amounts of country information were put forward, suggesting that failed asylum seekers would be likely to be detained, and at CB133-135 the written submissions referred in detail to prison conditions in Sri Lanka. The submission set out the definition of significant harm in s.36(2A) of the Act and asserted at paragraph 80:
“The above information indicates that, in the case of the Applicant, there are substantial grounds for believing that if he is returned to Sri Lanka, he will be subjected to the types of harm described in s 36(2A)(c), (d), and (e).”
It should be noted that the issue of prison conditions was only one subset of the ground relating to the risk of harm as a failed asylum seeker, but it is equally clear that the question of prison conditions was put as being something that might give rise to substantial grounds for believing the applicant was at risk of significant harm as defined.
The Tribunal’s Decision
It is not necessary to deal in great detail with the decision. Most of the applicant’s claims were simply not believed, and his Convention Protection application was rejected accordingly. The Tribunal said at paragraph 28, CB156:
“The submission asserted the applicant feared persecution because of his Tamil race, his political opinion as an imputed LTTE supporter, and as a member of a particular social group being an “unsuccessful asylum seeker returnee”. It also asserted he was “entitled to complementary protection”. The submission referred to country information on several issues, including treatment of Tamils, human rights, and returned asylum seekers, and in particular developments in the latter part of 2012. The submission also addressed aspects of the complementary protection regime. The Tribunal had regard to that submission.”
The Tribunal dealt at some length with what might be described as competing aspects of country information about the treatment of failed asylum seekers.
The Tribunal had significant concerns about the applicant’s credibility, and essentially did not believe what he had claimed about being the subject of adverse treatment by the CID. The Tribunal was not satisfied that the applicant would be imputed with a political opinion opposing the government of Sri Lanka. At CB174-175, the Tribunal then dealt with the separate issue of fear of harm as an unsuccessful asylum seeker returnee, or for leaving Sri Lanka illegally.
At paragraphs 96-100 (CB174-175), the Tribunal said the following:
“96. The applicant claims to fear persecution because he illegally departed Sri Lanka, and because he would be returning as a failed asylum seeker. He also claimed if he was returned, he would be detained and would “go missing at the airport”. The Tribunal rejects those assertions. The Tribunal accepts he left Sri Lanka in May 2012 and did so in a manner that was not in accordance with Sri Lankan law governing departures. It also accepts if he was returned, he would be likely to be identified as a person who had unsuccessfully claimed asylum overseas. Having regard to the country information above (for example, see the UNHCR report of December 2012) the Tribunal also accepts returnees who depart unlawfully face questioning on return, and that the applicant may face such questioning. The Tribunal does not however accept such questioning amounts to the “serious harm” required to constitute persecution under Australian law. The Tribunal is also not satisfied there is anything beyond his own generalised assertion that he would “go missing” after arriving in Sri Lanka.
97. Whilst the law relating to illegal departures from Sri Lanka may not have been previously actively enforced (see the 22 October 2012 DFAT report, above) the Tribunal accepts more recently, returned asylum seekers from Australia have been charged, and faced court under Sri Lankan law, (see the country information provided by the applicant) and have been detained for periods of time. As such the Tribunal accepts in addition to questioning, the applicant could face prosecution under that law, which may also result in him being detained for a period of time. The Tribunal does not however accept such questioning, prosecution detention or penalty amounts to “serious harm” required to constitute persecution and is satisfied any such actions, or the penalty to which he may ultimately face on conviction arises under a law of general application, and that this law would not be applied in a discriminatory way because of his ethnicity or any other Conventions reason. As such the Tribunal is not satisfied any investigation, detention, prosecution or penalty on conviction amounts to persecution under the Convention.
98. Country information above (see above) refers to instances of persons returned to Sri Lanka who claim to have experienced mistreatment on return (See the Edmund Rice Centre report and the Amnesty International report of 17 June 2011) and the UNHCR continues to recognise several categories of persons whose profile may place them in need of international protection. The Tribunal recognises there are conflicting reports about the treatment of returnees who departed illegally on return to Sri Lanka. In this case however, after considering the country information available, including information referred to submissions on behalf of the applicant, the Tribunal does not accept this applicant, in the absence of other risk creating factors, faces a real chance of serious harm if returned to Sri Lanka now or in the reasonably foreseeable future because he is a Tamil, an unsuccessful asylum seeker returnee, or a person who left Sri Lanka illegally. As such it finds his fear of persecution in Sri Lanka for such reasons is not well founded.
99. Having considered the claims of the applicant both individually and cumulatively, the Tribunal is not satisfied he has a well-founded fear of persecution for reason of his own (actual or imputed) political opinion, his Tamil ethnicity, membership of a particular social group, or any other Convention reason if returned to Sri Lanka now or in the reasonably foreseeable future. It is therefore not satisfied he is a person to whom Australia owes protection obligations under the Refugees Convention. This means he does not satisfy the refugee criterion in s.36(2)(a).
Complementary Protection
100. Having found the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal considered the alternative criterion in s.36(2)(aa). Having regard to its findings of fact above in respect to the specific claims by the applicant as to the basis on which he claimed to fear harm, and its findings as to his credibility, the Tribunal does not accept there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly the Tribunal does not accept 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 he will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal is therefore not satisfied he is a person to whom Australia has protection obligations under s.36(2)(aa).”
The Application for an Extension of Time
The grounds of the application for extension of time are set out in his amended application as follows:
“1. The applicant does not speak English and has no understanding of the Australian legal system.
2. The applicant did not secure any legal representation until 6 August 2013 when he attended the Asylum Seeker Resource Centre (ASRC). Upon obtaining this assistance he filed the original application on the same day.
3. Through no fault of the applicant, the matter was not referred to Maddocks until 2 May 2014.
4. The delay is not excessive (at just under four months).
5. There is no prejudice to any third party granting an extension of time.
6. It is in the interests of justice that the applicant’s matter is heard.
The first respondent does not assert that there is any specific prejudice arising out of the delay. The first respondent points rather to what is said to be a lack of acceptable explanation for the delay and further the lack of merit in the claim.
It is true that the applicant has not gone on affidavit to make good the assertions set out in the grounds of application for extension of time, but equally the first respondent has not sought that he do so, nor sought that he attend to be cross-examined. In these circumstances, it seems to me that I should accept that the assertions made as to fact in the grounds are true.
While I accept as the first respondent’s written submissions assert one might have expected a person such as the applicant to be more alert to his circumstances, a lack of command of English and the generally difficult circumstances of being in an illegal arrival person in a foreign country in my view would reasonably be taken to justify the course of events.
As is so often the case in these extension of time matters, perhaps the most important question in these particular circumstances is the merits of the application.
The Merits of the Application Itself
It is important to note that the amended application stresses, in the ultimate, the asserted failure of the Tribunal properly to evaluate and deal with the applicant’s articulated claim under the Complementary Protection criterion.
It is a fact that the written submission which raised this issue treated prison conditions on one view merely as a subset of the overarching claim that the applicant would be harmed as a failed returned asylum seeker. From the Tribunal’s reasons, it would not seem this sub-aspect of the claim was pressed in any discrete or significant way at the Tribunal hearing, at which the applicant was legally represented.
One would have therefore considerable sympathy with the Tribunal facing a criticism of this sort.
Nonetheless, when analysed objectively, the fact is that at least in part the applicant was clearly saying in his written submissions that one of the things that might happen to him if he was returned to Sri Lanka would be that he would be imprisoned and face conditions which were susceptible of meeting the definitions of significant harm.
The Tribunal clearly accepted that there was a risk that the applicant might be detained. In paragraph 97, it said: “in addition to questioning, the applicant could face prosecution under that law, which may also result in him being detained for a period of time.”
The Tribunal went on, however, to find that such harm was not Convention-related because it arose out of a law of general application. That finding, in my view, was well open to the Tribunal to make.
The difficulty however is that having made credit findings, arising from factual findings adverse to the applicant, clearly open on the materials, the Tribunal did not in my view turn its mind to whether the imprisonment which it had found perfectly likely to occur would indeed constitute significant harm within the meaning of the Complementary Protection provision.
It is true, of course, that the Tribunal did purport to make an express finding that the applicant would not be arbitrarily deprived of his life, would not have the death penalty carried out on him, would not be subjected to torture or cruel and inhuman treatment or punishment or subjected to degrading treatment or punishment as defined.
Nonetheless, in my view, when read fairly that passage in the Tribunal’s reasoning does not disclose any engagement with the material that the applicant had forwarded. There was uncontradicted evidence as it seems to me to the effect that imprisonment in Sri Lanka would indeed meet the definitions of significant harm that the applicant had raised. It would appear that the PAM3 guideline (which formed only a minor part of the applicant’s case and indeed achieved little significant attention in the applicant’s written or oral submissions) would tend to the same effect.
Conclusion
Whether a Tribunal such as the Refugee Review Tribunal has properly exercised its jurisdiction is often a difficult matter to calibrate in circumstances such as these. The Tribunal is after all entitled to make errors within jurisdiction including errors of fact. Whether or not the Tribunal has fallen into error by failing to consider a matter it was required to consider is a matter of fine judgment.
In the particular circumstances of this case, and notwithstanding the sympathy for the Tribunal that I have already expressed, I think the Tribunal fell into jurisdictional error by failing adequately, or indeed at all, to deal with a clearly articulated claim. The applicant had inter alia clearly asserted that were he to be returned to Sri Lanka he would be jailed and that the conditions in jail generally, which did not depend in this instance upon Convention-related matters, were sufficient to be significant harm within the meaning of the Act.
In these circumstances, I think it is clear that I should extend time since the application in my view has substantial merit. The extension of time and the merit issue are of course in these circumstances considerably interrelated.
I will order that the applicant receive the extension of time he requires to bring his application, and I will make the necessary orders to quash the decision of the Tribunal and return the matter for further deliberation.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 19 August 2014
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