SZTBW v Minister for Immigration & Border Protection

[2014] FCCA 1809

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTBW v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2014] FCCA 1809

Catchwords:
MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal failed to give adequate reasons for its conclusions – whether the Refugee Review Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave – whether Refugee Review Tribunal properly considered complementary protection – whether the Refugee Review Tribunal’s findings were irrational and illogical – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 31, 36, 65, 91R, 411, 422B, 424A, 425, 474
Migration Regulations 1994 (Cth), reg.2.01

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Prahastono v Minister for Immigration and Multicultural Affairs(1997) 77 FCR 260
Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68
Minister for Immigration and Multicultural and Indigenous Affairs v SZANZ (2005) 141 FCR 586
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSYP v Minister for Immigration and Border Protection & Anor [2014] FCCA 7
Minister for Immigration v SZMDS (2010) 240 CLR 611
Hicks v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 757
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108

Applicant: SZTBW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1657 of 2013

Judgment of: Judge Emmett

Hearing date: 15 July 2014

Date of Last Submission: 15 July 2014

Delivered at: Sydney

Delivered on: 13 August 2014

REPRESENTATION

Counsel for the Applicant Ms Eraine Grotte

Solicitor for the Applicant: Michaela Byers Solicitor

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: DLA Piper

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1657 of 2013

SZTBW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 20 June 2013, and handed down on 21 June 2013 (“the RRT”).

2. The applicant claims to be a citizen of the Sri Lanka and of Hindu faith and Tamil ethnicity, who fears harm from authorities in Sri Lanka due to his purported involvement with the Liberation Tigers of Tamil Elam, (“the LTTE”).

3. Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the applicant’s claims in support of a protection visa, a summary of the decision of a delegate of the first respondent (“the Delegate”), and a summary of the RRT’s review and decision.

Background

1. The applicant arrived in Australia on 17 May 2012 having departed illegally from Sri Lanka, without a passport.

2. On 22 August 2012, the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Citizenship (“the Department”).

3. On 9 October 2012, the Delegate refused the applicant’s application for a protection visa.

4. On 16 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

5. On 21 June 2013, the RRT affirmed the decision of the Delegate not to grant a protection visa.

6. On 19 July 2013, the applicant filed an application in this Court seeking judicial review of the RRT’s decision.

Legislative framework

1. Pursuant to s.65(1) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R of the Act expands on the notion of persecution and serious harm when considering Article 1A(2) of the Convention.

5. Section 36(2)(aa) of the Act provides that:

   “(2)  A criterion for a protection visa is that the Applicant for the visa is:

   (aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”

6. Sections 5 and 36(2A) of the Act defines “significant harm.”

7. Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.

8. Under s.474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.

9. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision. (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).

The applicant’s application for a protection visa

1. The applicant provided a statement in support of his protection visa application in which he stated:

   a)The applicant moved away from his childhood home with his family because he was accused of being a member of the LTTE.

   b)Unidentified people, claiming to be policemen, have frequently come to the applicant’s father and questioned him regarding the applicant’s whereabouts. The applicant’s father received death-threats if he did not divulge the applicant’s location.

   c)In 2005, in a nearby village, 4 or 5 people were kidnapped by people driving a white van similar to that driven by those who inquired about the applicant. Three of those kidnapped were shot.

   d)In 2010, after seeking help from a United National Party (“UNP”) Member of Parliament, the applicant started to work for him on his presidential campaign. On one occasion, the applicant was putting up campaign posters when he was pushed into a taxi by opposition party followers and told to stop putting up posters.

   e)The Member of Parliament, for whom the applicant was working, lost the election, and afterwards were assaulted by the winning member’s followers. The applicant left his job and moved to another village.

   f)On 24 October 2011, men came to the applicant’s home and questioned his wife regarding his whereabouts, on the basis that his hometown is a “LTTE control stronghold area.”

   g)On 15 February 2012, the men returned and again questioned the applicant’s wife as to the applicant’s whereabouts. She managed to call the applicant to inform him that there were men looking for him and told him not to return home.

   h)The applicant contacted his father “to make arrangements because he had heard from a friend there was a boat coming to Australia.”

   i)On 18 July 2012, the men returned to the applicant’s home, forced their way in to search the house for him, and threatened the wife and that they would capture him if he ever returned.

   j)The applicant fears harm from the “white van people” who are after him because they believe he is associated with the LTTE, is Tamil, and assisted in the election campaign of a UNP supporter.

The Delegate’s decision

1. On 28 August 2012, the applicant attended an interview with the Delegate.

2. On 9 October 2012, the Delegate refused the applicant’s application for a protection visa on the basis that the applicant is not a person to whom Australia has protection obligations under the Convention and does not meet the alternative complementary protection criterion.

The RRT’s review and decision

1. On 16 October 2012, the applicant lodged an application for review of the Delegate’s decision by the RRT.

2. On 28 November 2012, the RRT wrote to the applicant informing him that the RRT had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicant to attend a hearing to give oral evidence and present arguments.

3. On 2 January 2013, the applicant’s representative sent two further documents to the RRT, being a statement from the applicant and a written submission. Together they raised the following further claims:

   a)The applicant withheld information from his interview with the Delegate because he was threatened by the Sinhalese boat captain, who piloted the boat on which the applicant arrived in Australia.

   b)The applicant then stated things he omitted, such as, in 2003 or 2004, he was stopped and questioned for several houses at army checkpoints, in which we was questioned by plain-clothed men who he believed were police or security personnel. In the course of the interview, the applicant admitted that he had had contact with LTTE members as he had been forced to work for them in the past.

   c)In 2004, he was again arrested at an army checkpoint, questioned and released.

   d)In 2004, members of the Karuna Group detained and beat him at their camp for not consenting to become a group member.

   e)The applicant fears harm from the Sinhalese boat captain as he has now disobeyed his instructions.

   f)The applicant fears harm because of his Tamil ethnicity, imputed political opinion of either the LTTE or the UNP, and his membership of a particular social group of “failed asylum seekers”.

   g)The Sinhalese boat captain has been arrested by Australian Federal Police.

   h)Available country information supports the applicant’s claims

   i)The RRT should place little weight on independent country information supplied by the Department of Foreign Affairs and Trade as this information will be influenced by the recent cooperation between the Australian Federal Police and the Sri Lankan Navy.

4. On 9 January 2013, the applicant sent to the RRT a translated letter from the District Coordinator of the UNP, stating that the applicant had participated in the presidential campaign of 2010, had received threats from opposition parties, and had left his work because of those threats.

5. The applicant had three hearings before the RRT and gave evidence on each occasion.

6. The RRT explored the applicant’s claims with him in some detail at the hearing and put to him concerns it had about his evidence, noting his responses. The RRT put to the applicant country information for comment and identified with particularity the country information to which it had regard.

7. The applicant’s submissions, filed 1 July 2014, summarises the RRT decision, as follows:

   “8. Three hearings were held by the second respondent.  The first hearing was on 3 January 2013 by video link from Darwin.  The second on 30 January 2013, again by video link from Darwin, and the third on 2 May 2013, with the applicant, in person.

   9. The second respondent did not find the applicant to be credible and did not accept the applicant’s claims to a protection visa, but did accept at [164] (CB342) that:

   a) That the applicant is a Tamil from the north-east of Sri Lanka, and has worked as a fisherman throughout the northern part of Sri Lanka, and

   b) That, as a Tamil, living and working in northern Sri Lanka, he has, in the past, faced harassment and discrimination at the hands of the Sinhalese community in his home area, and from the Sri Lanka military and security forces.

   10. The second respondent considered the situation for failed asylum seekers returning to Sri Lanka from western countries at [181]-[183] (CB345).  It accepted that the applicant would be detained for questioning upon arrival by both the Sri Lankan immigration authorities and the Criminal Investigation Department (CID), and potentially the State Intelligence Service (SIS), because he would be identified as a failed asylum seeker returning from Australia to Sri Lanka.

   11. The second respondent considered the country information that confirmed that persons who departed Sri Lanka illegally would be arrested and charged under section 45(1)(b) of the Immigration and Emigration Act.  It identified the illegal departure law as a “law of general application”, that was neither discriminatory in intent, nor in application at [184] (CB345).

   12. The second respondent accepted that the applicant would be arrested and charged under this law upon his return to Sri Lanka, and that he would be held in prison on remand, pending a bail hearing.  The second respondent noted that such persons were generally granted bail on their own personal recognizance, with the requirement that a family member stand as a guarantor, with no payment required, but that “bail may not be granted if the returnee is found to be a facilitator or organiser of people smuggling or to have breached bail conditions in the past or otherwise to have a criminal record in Sri Lanka, or if the offence the returnee is charged with is a non-bail-able offence”.  The second respondent did not accept that the applicant had a criminal record, or that he had participated in political activities, and there was no evidence, nor did the applicant allege, that he had facilitated or organised people smuggling.  The second respondent concluded that the applicant’s parents would be able to act as guarantor for him, and that he would be released on bail.

   13. The second respondent also considered the outcome of the charges.  It was noted that the Australian Department of Foreign Affairs and Trade (DFAT) reports stated that breaches were attracting fines and not imprisonment.  It concluded that the chance of a term of imprisonment on conviction was remote.  The applicant did not assert that he could not pay the fine, but the second respondent considered that he would be able to, because he would not be restricted from earning an income from fishing.

   14. At [189] (CB347) of the decision the second respondent considered the available country information before it which reported that Tamil prisoners, who have a political profile of opposition to the Sri Lankan government, or who are perceived to be LTTE supporters, are subjected to torture and assault.  The second respondent did not accept that the applicant had this profile, and accordingly, did not accept that he faced a real chance of serious harm while he was imprisoned or on remand.

   15. The second respondent also considered what would happen to the applicant after his release on remand on the basis of his Tamil ethnicity.  It concluded that it was only those Tamils with a particular profile (a supporter of the LTTE or opposed to the Sri Lankan government) who were of any ongoing interest to the authorities, and that accordingly, the applicant did not face a real chance of serious harm once he was released on remand.”

8. Having considered the applicant’s claims, the RRT found that there was no evidence to support a finding that the applicant would suffer harm for a Convention-related reason were he to return to Sri Lanka, that the applicant’s claimed fear of persecution in Sri Lanka was not well founded. For those reasons, the RRT concluded that the applicant was not a person to whom Australia owed protection obligations.

9. The RRT also considered whether the applicant met the alternative criterion for complementary protection under s.36(2)(aa) of the Act and concluded that he did not. The RRT found that there was no credible evidence before it that the applicant was harmed in Sri Lanka. The RRT found that there are not substantial reasons for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country, Sri Lanka, there is a real risk that the applicant would suffer significant harm.

10. Accordingly, having determined that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the RRT affirmed the decision under review.

The proceeding before this Court

1. The applicant was represented before this Court by Ms Grotte, of counsel.

2. At the commencement of today’s hearing, Ms Grotte confirmed that she relied on the grounds contained in an Amended Application filed on 10 October 2013 as follows:

   “1. The Second Respondent (the Tribunal) made legal error by relying on irrelevant material and making erroneous findings leading to mistaken conclusions, and the second respondent failed to give any, or any adequate, reasons for its conclusions at [201] (CB349-350).

   Particulars

   a)At [201] the Tribunal stated “In relation to the treatment the applicant may face while held in prison in Sri Lanka, the available country information shows that prison conditions in Sri Lanka do not meet international standards as a result of overcrowding, poor sanitary facilities, limited access to food and an absence of basic assistance mechanisms. However, on the evidence before it, the Tribunal is not satisfied that there is a real risk that being in overcrowded conditions with limited access to basic facilities for a few days while on remand would, in the applicant’s particular circumstances, cause him pain and suffering that ca be characterized as “cruel or inhuman treatment of punishment or cause him “severe pain or suffering” that could be characterized as torture or any other form of significant harm” [201].

   2. The Tribunal made a legal error in finding that the s45(1)(b) of Immigration and Emigration Act Sri Lanka is a law of general application.

   3.The Second Respondent (the Tribunal) made a legal error in failing to consider if the applicant would face serious or significant harm after being released on bail for breaching s45(1)(b) of the Immigration and Emigration Act Sri Lanka and returning to a nominated address, thereby failing to properly consider all of the applicant’s claims of persecution.

   Particulars

   a) At [190] the Second Respondent (the Tribunal_ concluded, “Further, in light of its finding that the available country information shows that it is only Tamils who are otherwise identified as supporting the LTTE, or being opposed to the current Sri Lanka government who are of ongoing concern or interest to the Sri Lankan government and security forces, the Tribunal does not accept that the applicant faces a real chance of being monitored or otherwise targeted by the Sri Lankan government and security forces after his release from remand.”

   4. The Second Respondent’s (the Tribunal) decision that the applicant did not face a real chance of serious harm while detained in prison in Sri Lanka was “irrational and illogical”, in that it was not open to the Second Respondent to so find. No decision maker, acting reasonably, would have made that finding on the basis of the evidence that was before the Second Respondent (the Tribunal).

   Particulars

   (a) At [189] the Tribunal stated “The Tribunal has considered the available country information set out above (see [129],[142] above) in relation to the circumstances of individuals who are held in prison in Sri Lanka. The Tribunal notes the reports of torture and assault of Tamil prisoners who otherwise have a profile of being supporters of the LTTE or otherwise opposed to the current Sri Lankan government who are targeted in this way. The Tribunal does not accept that the applicant faces a real chance of being seriously harmed because he is Tamil, or of being treated in worse ways while in prison than non-Tamil prisoners, while he is imprisoned on remand for a few days after his return to Sri Lanka.”.

   5. The Second Respondent (the Tribunal) made a legal error by misconstruing the statutory test in respect of what constitutes serious and significant harm. The Second Respondent’s (the Tribunal) decision that the treatment the applicant might face in prison in Sri Lanka did not amount to serious or significant harm was “irrational and illogical”, in that it was not open to the Second Respondent (the Tribunal) to so find. No decision-maker, acting reasonably, would have made that finding on the basis of the evidence that was before the Second Respondent (the Tribunal) set out in its decision at [139]-[142] [129]-[138] (CB330-333).”

Ground 1

1. At the heart of ground 1, is a complaint that the RRT’s finding that for the applicant to be held for a few days on remand in Sri Lanka, would not amount to him suffering “significant harm” as defined in ss.5 and 36(2A) of the Act. The applicant submitted that such a finding was not open to the RRT on the evidence and material before it and that it therefore failed to give any adequate reasons for concluding that the applicant did not meet the complementary protection criterion.

2. The particular RRT finding about which the applicant complains in ground 1 is as follows:

   “In relation to the treatment the applicant may face while held in prison in Sri Lanka, the available country information shows that prison conditions in Sri Lanka do not meet international standards as a result of overcrowding, poor sanitary facilities, limited access to food and an absence of basic assistance mechanisms.  However, on the evidence before it, the Tribunal is not satisfied that there is a real risk that being in overcrowded conditions with limited access to basic facilities for a few days while on remand would, in the applicant’s circumstances, cause him pain and suffering that can be characterized as “cruel or inhuman treatment or punishment”, or cause him extreme humiliation that constitutes “degrading treatment or punishment” or cause him “severe pain or suffering” that could be characterized as torture or any other form of significant harm.”  (Emphasis added)

3. Counsel for the applicant submitted that there was no explanation or reasons given for this conclusion and that, whilst referring to the applicant’s “particular circumstances”, the RRT did not identify what those particular circumstances are. Counsel for the applicant submitted that if the reference to the applicant’s “particular circumstances” is meant to be a reference to the fact that the applicant did not have the profile of a suspected LTTE supporter, that was not stated and is not relevant to the prison conditions to which the applicant would be subjected, even if just for a few days.

4. Counsel for the applicant submitted that the RRT failed to expose its path of reasoning in reaching its conclusion and in doing so reached a mistaken conclusion, thereby committing jurisdictional error.

5. The RRT’s decision record makes clear that it gave careful and thoughtful consideration as to whether the applicant met the complementary protection criterion. The reference to the applicant’s “particular circumstances” is clearly intended to be those referred to in its decision record in the context of considering whether the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason. They included that the applicant was a thirty-three year old male who has not experienced harm in Sri Lanka in the past and does not appear to have any particular health problems.

6. It was a matter for the RRT whether the brief period of remand in prison in Sri Lanka, which it found the applicant would experience, falls within the definition of “significant harm” as identified in ss.5 and 36(2A) of the Act. The RRT remains the final arbiter in the assessment of evidence where there is a matter of fact and degree involved (see Prahastono v Minister for Immigration and Multicultural Affairs(1997) 77 FCR 260 at 271 per Hill J).

7. A qualitative assessment of the harm that the RRT accepted the applicant would suffer is a question of fact (see Minister for Immigration and Multicultural and Indigenous Affairs v Kord (2002) 125 FCR 68 at [3]). As Weinberg, Jacobson and Lander JJ stated in Minister for Immigration and Multicultural and Indigenous Affairs v SZANZ (2005) 141 FCR 586 at [51]:

   “51 Where the question is whether the material which was before the Tribunal reasonably admits of different conclusions as to whether it falls within the ordinary meaning of a statute, the question is one of fact; see Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 8; Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24] – [27].”

8. Otherwise, to cavil with the findings of fact of the RRT that were open to it invites merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).

9. In considering whether the applicant met the complementary protection criterion, the RRT was entitled to have regard to findings it had made in considering whether the applicant had a well-founded fear of persecution in Sri Lanka for a Convention reason. (see SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774 at [57] per Robertson J (“SZSGA”)).

10. The RRT’s decision record makes clear that the RRT considered the applicant’s claims in significant detail and explored those claims with the applicant at three hearings. The RRT also had regard to a substantial amount of country information, which it also discussed with the applicant. The RRT identified inconsistencies which led it to have serious doubts about the credibility of the applicant’s claims and to have serious doubts about his credibility generally. The RRT found that the claim made by the applicant at the third hearing that he had been arrested as a result of political speeches was a deliberate fabrication.

11. In light of its serious concerns about the applicant’s credibility, the RRT concluded that the applicant had “deliberately fabricated” his claims and found that he was not generally a witness of truth in relation to his reasons for seeking protection in Australia. The RRT then rejected the applicant’s claims to have suffered harm in Sri Lanka for the reasons claimed, other than harassment and discrimination at the hands of the Sinhalese community before the end of the civil war with the LTTE in 2009. The RRT did not accept that the applicant had ever been detained or harmed by the Karuna Group or the TMVP in the past, nor did it accept that the applicant would be perceived by the TMVP and/or the Karuna Group as a political opponent.

12. The RRT made detailed findings in respect of all of the applicant’s claims to fear harm if returned to Sri Lanka, and concluded that the applicant is not a person to whom Australia has protection obligations under the Refugees Convention.

13. Each case must depend on its own facts and on what the decision maker’s reasoning in fact was (see SZSGA at [57] per Robertson J). In the present case, the RRT specifically addressed the complementary protection claim by reference to the language of the statute and made findings of fact which led to the conclusion that it did not accept that the applicant was at risk of ‘significant harm’ as defined by ss.5 and 36(2A) of the Act, if returned to Sri Lanka.

14. The RRT made clear that its consideration of the complementary protection criterion was considered in light of its findings in relation to the applicant’s claims set out in its decision record relating to whether the applicant had a well-founded fear for a Convention reason.

15. In considering a similar factual situation, Judge Driver in SZSYP v Minister for Immigration and Border Protection & Anor [2014] FCCA 7 (“SZSYP”) at [15] to [19] summarised complementary protection in Australian law as follows:

    “Complementary protection in Australian law

    [15] Section 36(2)(aa) of the Migration Act commenced on 24 March 2012. As recognised by four members of the Full Federal Court in Minister for Immigration v SZQRB (SZQRB), the complementary protection regime seeks to give effect to Australia’s international obligations under international agreements that complement the Refugees Convention:

    “It recognises that a non-citizen, who is not entitled to a protection visa because the non-citizen cannot satisfy the criteria in Article 1A(2) of the Refugees Convention, may be entitled to a protection visa because of Australia’s other protection obligations under the CAT or the ICCPR.[12]

    ...

    Australia also owes protection obligations by reason of the embodiment in ss 36(2)(aa), (2A), (2B) and (2C) of the Migration Act of aspects of the CAT and the ICCPR.”

    [16] The “CAT” and the “ICCPR” refer to the Convention Against Torture and the International Covenant on Civil and Political Rights respectively.

    [17] Having considered those and other amendments to the Migration Act, all five members of the Full Federal Court continued to apply the longstanding approach taken and repeated by the High Court in NAGV and NAGW of 2002 v Minister for Immigration, Plaintiff M61/2010E v Commonwealth and later decisions, to the effect that the Migration Act:

    “proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia’s international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason.”

    [18] The proper construction of s.36(2)(aa) of the Migration Act, and the provisions which give content to the expression “significant harm” appearing in that paragraph, are thus informed by Australia’s international obligations under the CAT and the ICCPR. To say that the text of the statute ultimately controls its construction is not to deny that the meaning of the text may legitimately be informed by the international obligations to which it seeks to give effect.

    [19] The expression “significant harm” is defined by s.36(2A) to refer to five categories of harm, which relevantly for the purposes of this case include cruel or inhuman treatment or punishment and degrading treatment or punishment.

16. The Refugee Review Tribunal in SZSYP made similar findings about the nature of the conditions in prison as in the case before this Court. The Refugee Review Tribunal in SZSYP also found that the applicant before it did not have an adverse profile in Sri Lanka, although had departed illegally, and for that reason, would be questioned by Sri Lankan authorities at the airport and may be remanded in prison for a few days in conditions which offend Article 7 of the Convention. The Refugee Review Tribunal went on to find that the prospect of the applicant being detained for a long period of time was remote.

17. These findings by the Refugee Review Tribunal in SZSYP followed its conclusion that the applicant is not a refugee under s.36(2)(a) of the Act. Judge Driver expressed his findings as follows:

    “In my view, the Tribunal reasoned that the applicant would not be subjected to cruel and inhuman treatment or degrading treatment because first, the risk of detention only arose on a weekend or public holiday, and secondly, the likely period of his detention in prison would only be for a few days. It was in my view a necessary part of that reasoning that the conditions in prison were not so bad that a detention for a brief period would amount to cruel and inhuman or degrading treatment and that the chance of the applicant being detained for a prolonged period of time was remote. I accept the Minister’s submission that the Tribunal was aware of the definitions of “cruel and inhuman treatment or punishment”, “degrading treatment or punishment” and “torture” in s.5(1) of the Migration Act. The Tribunal’s conclusion was a “rolled up one” at [52] and [53] of its reasons. Those reasons are not amenable to deconstruction in order to determine whether the Tribunal placed any significance on the question of whether, for example, intentional conduct was involved. In my view, the Tribunal reasoned that the likely period of time that the applicant would be held in prison, if at all, and the known conditions of that detention, were not such as to satisfy the test for significant harm (whether that harm would be inflicted intentionally or otherwise).”

18. Judge Driver also referred to a different Refugee Review Tribunal (Case 1301683) which found that detention of the applicant before it, even for a short time, would give rise to a real risk of degrading treatment or punishment because of the applicant’s particular characteristics. That Refugee Review Tribunal found those characteristics rendered the applicant “so vulnerable that the conduct, punishment or treatment he faces whilst he remains on remand even for a short period would give rise to a level of degrading treatment. These characteristics are his youth, innocence, impressionability, immaturity, lack of worldly experience together with has appearance and slight physical stature. In simple terms, while he may now have turned [age] he was still effectively a child in terms of my assessment of his particular vulnerability.”

19. Judge Driver went on to state that each case must depend on its own facts and found that case to be distinguishable from the one before him. Judge Driver found that in the case before him, the Refugee Review Tribunal’s consideration of the issues was much briefer. Nevertheless, Judge Driver was not willing to infer that the Refugee Review Tribunal had failed to “grapple with the considerations dealt with so comprehensively in Case 1301683.” Judge Driver went on to state that whilst the reasons for the Refugee Review Tribunal rejecting the applicant’s claimed complementary protection on the basis of his feared detention in Sri Lanka upon return could have been more fulsomely expressed, he was unwilling to draw the inference that would be necessary to support a finding of jurisdictional error.

20. In the case before this Court, in considering the complementary protection criterion, the RRT stated that it considered whether, in the light of its findings in relation to the applicant’s claims for protection, 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. The test for complementary protection was therefore correctly expressed by the RRT.

21. Further, the RRT accepted that the applicant, as a Tamil failed asylum seeker, may be subjected to questioning by the Sri Lankan authorities immediately upon his return to Sri Lanka, before considering whether the treatment the applicant may face whilst held in prison in Sri Lanka for a few days could be characterised as “significant harm” and the impact of detention on the applicant even for just a few days.

22. As in SZSYP, the RRT’s reasons could have been more fulsomely expressed. However, I am satisfied that the reference to the applicant’s particular circumstances by the RRT is intended to be those circumstances found by the RRT to exist in relation to the applicant. In particular, those characteristics about the applicant referred to by the first respondent in their written submissions as a thirty-three year old man who has not experienced harm in Sri Lanka in the past, and does not appear to have claimed any particular health problems.

23. Accordingly, the allegations in ground 1 that the RRT made erroneous findings leading to mistaken conclusions and did not provide reasons for those conclusions is not made out. The RRT was simply not satisfied that the experience of the applicant being on remand for a few days amounts to “significant harm” as defined in ss.5(1) and 36(2A) of the Act. It is a finding of fact and degree for the RRT whether, for a brief period on remand in prison in Sri Lanka in the conditions as found, such experience falls within the forms of harm in the definition of “significant harm.”

24. The fact that a different decision maker may have come to a different conclusion does not establish that the findings and conclusions of this RRT were not open to it on the evidence and material before it and for the reasons it gave as Heydon J stated in Minister for Immigration v SZMDS (2010) 240 CLR 611 (“SZMDS”) at 632:

    “The issue was one on which minds might differ. The Federal Court evidently operated on one assumption or conclusion about that issue. The Tribunal operated on another. The difference was one of degree, impression and empirical judgment. It did not stem from an error in logic by the Tribunal member. The difference could not be said to reveal an absence of any basis whatsoever for her conclusion.”

25. The decision of Judge Driver in SZSYP is not clearly wrong and in the interests of comity I propose to follow it (see Hicks v Minister for Immigration, Multicultural and Indigenous Affairs [2003] FCA 757 at [74-76]).

26. Further, as was stated by Kenny J in Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108 (“SZLSP”) the Court’s function is to review decisions for jurisdictional error and not to review reasons. Her Honour stated as follows:

    “[54] The Court’s function is, of course, to review decisions for jurisdictional error, and not to review reasons. There may be cases where what appears on the face of the Tribunal’s reasons to be a jurisdictional error is shown by the record before the reviewing court to be merely a failure to comply with s 430. Such a failure does not constitute jurisdictional error. In the case of a failure to comply with s 430, the appropriate course for an aggrieved applicant is to seek an order compelling the Tribunal to comply with its obligations under s 430. The ensuing written statement may or may not reveal jurisdictional error: cf Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212 (‘Ex parte Palme’) at 224-25 [41]-[46] per Gleeson CJ, Gummow and Heydon JJ; and Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 at 435 [70] per Tracey J.”

27. Accordingly, ground 1 is not made out.

Ground 5

1. At the heart of ground 5 is a complaint that the RRT’s finding that the treatment the applicant may face in prison in Sri Lanka did not amount to significant harm was irrational and illogical.

2. However, as stated above, the RRT correctly referred to the statutory test.

3. As stated above, in my view, the question whether the applicant being held in remand in prison in Sri Lanka in unacceptable conditions for a few days amounts to significant harm is not open to only one conclusion. In my view, reasonable minds could differ about the issue, as Judge Driver did in SZSYP. (see SZMDS at 632; SZLSP at 647-8).

4. As stated above, the RRT’s findings and conclusions were open to it on the evidence and material before it and for the reasons it gave.

5. In the circumstances, the RRT’s decision is not illogical or irrational in the sense that no rational decision maker could have made it.

6. Accordingly, Ground 5 is not made out.

Conclusion

1. A fair reading of the RRT’s decision record makes clear that the RRT understood the claims being made by the applicant; explored those claims with the applicant at three hearings; and, had regard to all material provided in support. The RRT put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The RRT identified independent country information to which it had regard. The RRT also put to the applicant independent country information before it and invited the applicant to comment upon it.

2. The RRT then made findings based on the evidence and material before it. Those findings of fact were open to the RRT on the evidence and material before it and for the reasons it gave. A fair reading of the RRT’s decision record makes clear that the RRT reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the RRT complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The RRT’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

1. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  13 August 2014