SZSSC v Minister for Immigration

[2015] FCCA 3341

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSSC v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3341

Catchwords:
MIGRATION – Review of decision of Refugee Review Tribunal – written direction under section 499 of Migration Act 1958 (Cth) – Direction No.56 – whether the Tribunal properly applied Direction – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 499

SZSSC v Minister for Immigration & Border Protection [2014] FCA 863; 317 ALR 365
Tuitaalili v Minister for Immigration & Citizenship [2012] FCAFC 24; 126 ALD 48

Applicant: SZSSC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 592 of 2015

Judgment of: Judge Smith

Hearing date: 13 October 2015

Date of Last Submission: 13 October 2015

Delivered at: Sydney

Delivered on: 21 December 2015

REPRESENTATION

Counsel for the Applicant: Mr P. Bodisco

Solicitors for the Applicant: Michaela Byers, Solicitor

Counsel for the First Respondent: Mr M. Smith

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 592 of 2015

SZSSC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Sri Lanka who is seeking asylum in Australia. It is accepted that if he returns to Sri Lanka he is likely to be prosecuted for having left his country unlawfully and detained for a brief period. The Refugee Review Tribunal[1] was required to consider whether such prosecution and detention might amount to “significant harm” within the meaning of sub-s.36(2A) of the Migration Act1958 (Cth). The applicant contends that in order for it to fulfil that task properly, the Tribunal had to take into account the applicant’s mental health and in particular the diagnosis of him having generalised anxiety disorder. He argues that the Tribunal failed to do this and so fell into jurisdictional error.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

2. For the reasons that follow, each of the applicant’s contentions is incorrect and the application must be dismissed.

Background and claims

1. In light of the narrow scope of the issues in these proceedings it is only necessary to give a brief outline of the facts.

2. The applicant applied for a protection visa on 17 September 2012. He claimed that he was an ethnic Tamil and faced persecution for that reason as well as because he was young and single and perceived to be a wealthy land owner. He also claimed that he would face harm as a failed asylum seeker. In addition to those claims, he claimed that there had been a bomb blast near his house in September 2006 after which he had helped several of his neighbours. As a consequence of that, he was forced to pay a bribe to a policeman on the threat that he would be exposed as being responsible for the blast. He claimed that he was subsequently abducted and beaten by the policeman and was constantly harassed for money by him.

3. A delegate of the Minister made a decision on 9 November 2012 to refuse to grant the applicant a protection visa and the applicant applied to the Tribunal for review of that decision.

4. The applicant was represented by a law firm for the purposes of the review. On 1 February 2013 the applicant’s representatives sent lengthy written submissions to the Tribunal in support of the application for review. The submission included a detailed outline of the applicant’s factual claims and argument about the issues that arose on the application, including submissions of law and references to various independent material concerning the circumstances in Sri Lanka as they relate to Tamils. Amongst the issues dealt with in the submission was the impact of the Sri Lankan Immigrants and Emigrants Act.

5. The applicant attended a hearing conducted by the Tribunal together with his representative on 6 February 2013. At the hearing the applicant gave to the Tribunal a letter from a registered psychologist dated 29 January 2013 which, omitting formalities, stated:

   …

   [The applicant] has begun counselling in order to process the trauma and other related issues he had experienced whilst living in Sri Lanka. At present he appears to be suffering from Generalised Anxiety Disorder. His current symptoms are being exacerbated by the uncertainty of his future. Specifically in regards to whether he would continue to remain in Australia. [The applicant’s] symptoms will deteriorate in situations he perceives as stressful.

   …

6. There was no transcript of the first hearing in evidence before me but the Tribunal gave a description of what occurred at the hearing in its statement of reasons. It said, in respect of the psychologist’s letter:

   [57]The applicant stated that if the Tribunal was intending to send him back to Sri Lanka, it was preferable that he be killed in Australia. He submitted a letter from a psychologist, dated 29 January 2013, which indicated that the applicant was suffering from a “generalised anxiety disorder” which was exacerbated by “the uncertainty of his future”. The Tribunal asked the applicant why he was submitting the document. He did not provide a response. The applicant was asked if he was taking any medication. He stated that he was not taking medication.

7. The applicant’s representatives made further written submissions to the Tribunal after the hearing. Those submissions did not address the psychologist’s letter referred to above.

8. The Tribunal made a decision on 26 February 2013 affirming the decision of the delegate. That decision was set aside on appeal to the Federal Court from a decision of this Court and an order in the nature of mandamus was made requiring the Tribunal to determine the application for review of the delegate’s decision according to law: see SZSSC v Minister for Immigration & Border Protection [2014] FCA 863; 317 ALR 365.

9. On 28 January 2015 the applicant attended a further hearing conducted by the Tribunal constituted by a different member. Once again, there is no transcript of the second Tribunal hearing in evidence although it appears from the Tribunal’s statement of reasons dated 12 February 2015 that nothing was said about the psychologist’s letter at that hearing.

10. The applicant’s representatives made written submissions to the Tribunal after the hearing but did not mention the psychologist’s letter. The Tribunal made its decision on 12 February 2015.

Tribunal’s decision

1. The Tribunal found that the applicant’s claims concerning the policeman had been fabricated. It also rejected the applicant’s claims based upon his ethnicity and membership of a particular social group. The Tribunal then turned to consider whether he might face harm on account of being a failed Tamil asylum seeker who left Sri Lanka illegally.

2. In this respect the Tribunal accepted that the applicant had breached the Immigrants and Emigrants Act. It accepted that he would be questioned, arrested and charged by police and detained at the airport for up to 24 hours or if the magistrate at Negombo was not available, transported to prison and held there for a maximum of a few days until a magistrate was available. It found that the Immigrants and Emigrants Act was a law of general application that was not discriminatory in its terms, intention or impact and that it was not enforced in a discriminatory manner. For that reason it concluded that any conduct under the act, including detention, was not persecution.

3. That finding meant that the applicant had not satisfied the criterion for the grant of a protection visa found in sub-s.36(2)(a). The Tribunal then went on to consider whether the fact that the applicant would be likely to be questioned, arrested and charged upon return to Sri Lanka might bring him within the complementary protection criterion in sub-s.36(2)(aa). In its reasons, the Tribunal made the following findings:

   [105]The Tribunal does not consider that the procedures followed on the applicant’s return, including detention at the airport or in the prison, would constitute a real risk of significant harm to the applicant. In making that finding, the Tribunal has taken into account the country information provided about conditions in places of police or military detention and prison conditions, including claims of torture and cruel, inhuman or degrading treatment. However, in the applicant’s circumstances, the Tribunal does not accept that there is a real risk of significant harm because of detention or imprisonment for a short period.

   [106]The Tribunal does not accept that the conditions while detained at the airport or at the prison for a maximum of three days are serious harm or significant harm. In making the latter finding, the Tribunal has considered the definitions in s.36(2A) and the regulation.

4. The Tribunal went on to conclude that the applicant did not satisfy the criterion in sub-s.36(2)(aa) of the Act and so affirmed the decision of the delegate.

Consideration

1. The applicant relies on one ground, namely that the Tribunal failed to comply with Ministerial Direction No.56 (“Direction”) in contravention of sub-s.499(2A) of the Act. That Direction was made by the then Minister for Immigration and Citizenship on 21 June 2013 and relevantly provides:

   2.In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.

   ‘PAM 3: Refugee and humanitarian - Complementary Protection Guidelines’

   ‘Pam 3: Refugee and humanitarian - Refugee Law Guidelines’

2. The first of the guidelines referred to in the Direction is relevant to these proceedings. In that guideline there is a section dealing with imprisonment and prison conditions which includes the following paragraph:

   As with all types of torture and cruel, inhuman or degrading treatment or punishment, a minimum level of severity is necessary in order to breach Article 7. The assessment of this minimum depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical or mental effects and, in some instances, the sex, age, state of health or other status of the victim.

3. The applicant argues that in considering the question of complementary protection in relation to the probable detention of the applicant under the Immigrants and Emigrants Act, the Tribunal confined itself to consideration of the country information and did not have regard to the psychologist’s letter. He argues that this amounted to jurisdictional error because that letter indicated that the applicant had a diagnosis of Generalised Anxiety Disorder and that, contrary to the passage from the PAM 3 Guideline set out at [17] above, the Tribunal failed to consider the impact that being held on remand could have on a person, such as the applicant, with such a disorder.

4. Sub-section 499(1) of the Act provides that the Minister may give written directions to a personal body having functions or powers under the Act. Sub-section 499(2A) requires a personal body to comply with a direction made under sub-s.499(1). There is no dispute that the Tribunal has functions and powers under the Act and that Ministerial Direction No.56 was made in accordance with sub-s.499(1) of the Act. Thus, if the Tribunal fails to comply with that Direction it may fall into jurisdictional error.

5. The question is whether the Tribunal failed to comply with the Direction.

6. The first point to note is that cl.2 of the Direction only requires the Tribunal to “take account of” the relevant guideline. It does not require the Tribunal to follow the guideline slavishly as though it were a statement of law. In this case, the Tribunal stated, at [10] of its reasons that it was required to take the guideline into account. In light of that, it is clear that the Tribunal was at least cognisant of its obligation under s.499 of the Act. Further, in my view, in order to succeed, the applicant must show from the balance of the Tribunal’s reasons that in spite of this cognizance the Tribunal failed to have any regard to the guidelines.

7. The second point to note is that the particular paragraph in the guideline relied upon by the applicant is very general in nature and application. It only suggested that “in some instances” the sex, age, state of health or other status of the victim might form part of the circumstances relevant to whether treatment constitutes significant harm. The generality of that statement means that the fact that an applicant has a particular disorder does not require the Tribunal as a matter of law, to assess whether that disorder will affect the likelihood of treatment constituting significant harm within the meaning of the Act. Whether the Tribunal must do so must turn on the circumstances of each case.

8. In this case, the psychologist’s letter states two relevant matters: first, that as at the date of the letter the applicant “appears to be suffering from Generalised Anxiety Disorder”; and secondly, that “his symptoms would deteriorate in situations he perceives as stressful”. There is nothing in the letter itself to indicate that being questioned, arrested and charged or even briefly detained would lead to a deterioration of the applicant’s condition. Further, and critically, it was not the applicant’s case before the Tribunal that his health condition would impact upon the level of harm suffered by him upon return to Sri Lanka.

9. It will be recalled that when the first Tribunal asked the applicant about the psychologist’s letter and why he was submitting it, he did not respond: see [8] above. Further, none of the applicant’s written submissions or oral submissions to either Tribunal mentioned the psychologist’s letter at all, let alone in connection with the complementary protection criterion. That was in spite of the fact that the applicant’s submissions addressed that criterion in detail and at length.

10. Further still, even though the first Tribunal had not taken the applicant’s condition into account in determining whether the complementary protection criterion was satisfied, no mention was made of it to the second Tribunal.

11. In those circumstances, it is hardly surprising that the Tribunal did not expressly mention the psychologist’s letter or the condition referred to in it in connection with its consideration of the complementary protection criterion. It simply was not part of the applicant’s case and on any view of the evidence, did not squarely arise on the material before the Tribunal: cf. Tuitaalili v Minister for Immigration & Citizenship [2012] FCAFC 24; 126 ALD 48 at [24] – [26] (Flick and Jagot JJ). The fact that the health of a victim of torture and other inhuman or degrading treatment is mentioned in the relevant guideline does not change that fact. As I have noted, that guideline is of such a general nature that its application must turn on the circumstances of each case. The circumstances here were that the health condition of the applicant was not of any direct or obvious relevance to the level of harm that might befall the applicant illegally.

12. In those circumstances, I conclude that the Tribunal was not required to take into account the applicant’s diagnosis referred to in the psychologist’s letter in determining whether the applicant has satisfied the complementary protection criterion in sub-s.36(2)(aa). That conclusion is sufficient to dispose of this application. However, even if I were wrong in that conclusion I consider that the Tribunal did take into account the applicant’s condition in assessing the complementary protection criterion.

13. First, the Tribunal says at [90] that it has taken into account the psychologist’s letter. Secondly, when dealing with the impact on the applicant of the likely detention and other treatment of the applicant under the Immigrants and Emigrants Act, the Tribunal specifically addressed the question on the basis of “the applicant’s circumstances”. I infer that the circumstances referred to by the Tribunal in its statement of reasons included all of the applicant’s circumstances including those referred to in the psychologist’s letter. For that additional reason, the application must be dismissed.

Conclusion

1. For those reasons I conclude that there is no jurisdictional error in the Tribunal’s decision and the application must be dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date: 21 December 2015