SZTBH v Minister for Immigration

[2014] FCCA 8

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 8

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka – applicant leaving Sri Lanka illegally – whether the Tribunal lawfully considered Australia’s complementary protection obligations to the applicant as a person who might be remanded in prison on his return, considered.

Legislation:

Migration Act 1958 (Cth), ss.36, 425

SZSYP v Minister for Immigration & Anor [2014] FCCA 7

Applicant: SZTBH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1603 of 2013

Judgment of: Judge Driver

Hearing date: 16 December 2013

Delivered at: Sydney

Delivered on: 31 January 2014

REPRESENTATION

Counsel for the Applicant: Mr J King

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The application as amended on 9 December 2013 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1603 of 2013

SZTBH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 14 June 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The following statement of background facts is derived from the submissions of the applicant filed on 4 December 2013.

3. The applicant was a 26 year old Hindu Tamil and a national of Sri Lanka[1].  He was a fisherman in Trincomalee until he arrived in Australia on 21 May 2012.

   [1] CB170 [3]

4. On 23 September 2012, the applicant made an application for a protection visa[2].  The applicant claimed to fear, amongst other things, that he will be harmed or mistreated by the Sri Lankan Army (SLA) and the Criminal Investigation Department (CID) in Sri Lanka[3].

   [2] CB23

   [3] CB76 [9]

5. On 14 December 2012, a delegate of the Minister accepted that the applicant may be charged with the offence of departing illegally from Sri Lanka and may be remanded in custody[4], but found that the applicant will not face mistreatment amounting to serious or significant harm[5].  The delegate decided to refuse to grant the applicant a protection visa.

   [4] CB109.7

   [5] CB109.7, CB112.2

6. On 17 January 2013, the applicant applied to the Tribunal for review[6].  The applicant claimed to fear, amongst other things, “significant harm for having departed Sri Lanka illegally”[7].  He also claimed to fear harm in a Sri Lankan prison[8] on the basis that:

   a)he feared the use of torture[9];

   b)he feared cruel or inhuman treatment or punishment[10]; and

   c)he feared degrading treatment or punishment[11].

   [6] CB115

   [7] CB170 [4]

   [8] CB154 [69]

   [9] CB154-157

   [10] CB157

   [11] CB157-160

7. On 14 June 2013, the Tribunal decided to affirm the delegate’s decision[12].

   [12] CB182

The judicial review application

1. These proceedings began with a show cause application filed on 15 July 2013.  The applicant now relies upon an amended application filed on 9 December 2013.  The grounds in that application are:

   1. The Tribunal fell into jurisdictional error by misconstruing or misapplying the applicable law, or otherwise failing to ask itself the right question.

   Particulars

   a. The Tribunal accepted that “the applicant may be remanded in [Negombo] prison for a few days in conditions which are cramped, uncomfortable and unpleasant”: [47].

   b. The Tribunal found that there have been reports that Negombo prison is “overcrowded”: [42], but also found that “there have not been reports that returnees held there awaiting bail hearings have been subjected to torture or other forms of deliberate mistreatment”: [42].

   c. As a matter of law, overcrowding can amount to cruel and inhuman treatment. If that was the Tribunal’s construction of s.36(2A) of the Act, it could not have made the findings in subparagraphs (a) and (b), because they would have been inconsistent.

   d. The Tribunal went on to exclude a real risk of cruel and inhuman treatment by the following two findings:

   i.      that “the prospect of the applicant being detained for a prolonged period of time [is] remote”: [47] and probably only “a few days”: [47]; and

   ii.      bail “is routinely given”: [47], “although a family member is also required to provide surety” [42].

   e. The finding in subparagraph (d)(i) involved an error in the construction of s.36(2A) of the Act, because cruel and inhuman treatment for a period of only a few days does not on that basis cease to be cruel and inhuman treatment, and in any event the Tribunal failed to ask itself the questions required to be asked by the definition of “cruel or inhuman treatment or punishment” in s.5(1).

   f. Alternatively, the finding in subparagraph (d)(ii) involved an error in so far as the Tribunal failed to ask itself whether the applicant faced a real risk of significant harm if a family member was unable to or unwilling to provide the surety necessary to see the applicant released from the cruel and inhuman conditions, and insofar as the Tribunal treated the provision of surety as one of the “issues arising in relation to the decision under review” under s.425(1) without identifying that issue to the applicant: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [32], [36], [43].

   g. In view of the findings accepted by the Tribunal in subparagraphs (a), (b) and (d), the Tribunal misconstrued s.36(2A) of the Act, or failed to apply the “what if I’m wrong test”.

2. In addition to the court book filed on 2 December 2013, I have before me as evidence the affidavit of Jenny Falconer made on 20 September 2013, to which is annexed a transcript of the Tribunal hearing conducted on 5 April 2013. 

3. The parties both filed written submissions in this matter which were augmented by oral submissions made at the trial of this matter, which was heard concurrently with the trial in SZSYP v Minister for Immigration & Anor[13].

   [13] [2014] FCCA 7

Consideration

1. The grounds of review advanced in this matter are the same as the grounds advanced in SZSYP.  The reasons of the Tribunal in this case are materially the same as in SZSYP, although the decision was made a month later by the same member.

2. I reject the assertion that the Tribunal misconstrued s.36(2A) of the Migration Act in this case for the same reasons as I gave in SZSYP.

3. In relation to the alleged breach of s.425 of the Migration Act, the relevant exchange at the Tribunal hearing is recited at pages 29 and 30 of the transcript of the Tribunal hearing:

   MEMBER: Now, just on the treatment of failed asylum seekers, returned to ‘Sri Lanka’ and ‘illegal departure’.  There is an abundance of independent reporting on those issues.

   And your representative has referred to some of those sources in her written submissions.

   And while some sources, non-government organisations, human rights organisations do refer to human rights abuses and torture of some returnees to Sri Lanka…

   There are other reports which do not support that argument.

   The Tribunal needs to carefully assess that information to identify the extent to which it is helpful in assessing what treatment you may face on your return to Sri Lanka.

   But from the Department of Foreign Affairs perspective, they have not identified any reports of torture or human rights abuses for Tamil failed asylum seekers returned to Sri Lanka as such.

   It is known that there are laws in Sri Lanka that attract penalties for illegal departure from Sri Lanka.

   Which, from the information available, appears to have two parts, leaving from a place other than a designated port of departure…

   Or leaving without the appropriate documentation, such as a passport.

   And the report suggests that people who are identified as having breached those laws regarding lawful departure of Sri Lanka are questioned at the airport.

   And they may be held for a day or two in remand until they appear before a court to be bailed.

   And there are some reports of a fine being issued.

   And that while the law itself allows for custodial sentences, so terms of imprisonment…

   The Department of Foreign Affairs information suggests that will only be used in relation to organisers and people smugglers.

   But some careful assessment of that information needs to take place in order to assess the risk if any of serious or significant harm to you in the reasonably foreseeable future.

   Do you feel like you have discussed all of the reasons you were afraid to return to Sri Lanka?

   INTERPRETER: Yes.

4. In my view, this exchange adequately alerted the applicant, and his representative, of the essential issue upon which this aspect of the review would turn, namely the Tribunal’s view, drawn from country information, that failed Tamil asylum seekers who had left the country illegally would not face torture or human rights abuses on return and that, if they were detained at all on return to Sri Lanka, they would only be detained for a short time in remand until being granted bail, and that they would not be subject to a custodial sentence for the offence of leaving Sri Lanka unlawfully.

Conclusion

1. I conclude that the applicant has failed to establish that the Tribunal fell into jurisdictional error in this case.  The Tribunal decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will hear the parties as to costs.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  31 January 2014