SZTCY v Minister for Immigration & Anor
[2015] FCCA 85
•24 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTCY v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 85 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming a fear of harm in Sri Lanka including as a returnee who had departed illegally – risk of imprisonment on return – poor prison conditions – Tribunal deciding that the poor prison conditions were not intentionally inflicted and that the harm feared was not persecution – no jurisdictional error. |
| SZTAL v Minister for Immigration [2015] FCCA 64 |
| Applicant: | SZTCY |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1725 of 2013 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 November 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr J King |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr M Smith |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application as further amended on 31 October 2014 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1725 of 2013
| SZTCY |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
I heard this matter concurrently with the matter of SZTAL v Minister for Immigration[1]. The representation of the parties was the same, the judicial review application raised the same grounds and the Tribunal decision was in relevantly identical terms made by the same member. It is common ground that the outcome in this case should be the same as in SZTAL.
[1] [2015] FCCA 64
The applicant in this case seeks review of a decision of the Refugee Review Tribunal (Tribunal) made on 24 June 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from the submissions of the parties.
The applicant is a young male national of Sri Lanka of Tamil ethnicity, who worked as a rickshaw driver and labourer[2]. He arrived in Australia in May 2012 as an offshore entry person[3].
[2] CB 240 [21]
[3] CB 240 [21]
On 19 September 2012, the applicant made an application for a protection visa[4]. The applicant claimed, amongst other things, to fear significant harm involving detention, torture and other forms of mistreatment[5].
[4] CB 16
[5] CB 71 [22]-[26]
On 23 October 2012, a delegate of the Minister decided to refuse to grant the applicant a protection visa[6].
[6] CB 120
On 26 November 2012, the applicant applied to the Tribunal for review[7].
[7] CB 122
The applicant’s case before the Tribunal included claims and evidence that:
a)by departing Sri Lanka illegally, the applicant had committed an offence in contravention of articles 34 and 35 of the Immigrants and Emigrants Act 2006, the penalty for which includes “mandatory” imprisonment for a period of between one year and five years[8];
b)the conditions in Sri Lankan prisons involve “deplorable” levels of overcrowding, poor sanitation, inadequate medical treatment, inadequate food, insufficient ventilation and sleep deprivation[9];
c)the conditions are “very poor” and “are very likely to reach the Article 3 threshold” for inhuman or degrading treatment or punishment under the European Convention on Human Rights[10]; and
d)being imprisoned in those conditions involves a real risk of cruel or inhuman treatment or punishment and/or degrading treatment or punishment[11].
[8] CB 173-174 [99]-[101]. The Tribunal referred to the legislation as the Immigrants and Emigrants Act 1945
[9] CB 178-179 [118]-[122]
[10] CB 178 [119]
[11] CB 180 [124]
On 24 June 2013, the Tribunal decided to affirm the delegate’s decision[12].
[12] CB 237
The judicial review application
These proceedings began with a judicial review application filed on 25 July 2013. The applicant now relies upon a further amended application filed on 31 October 2014. There are two grounds in that application:
1.The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.
Particulars
a. The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka: [69].
b. The Tribunal found that prison conditions in Sri Lanka:
i. “may not meet international standards”: [66];
ii. “are poor and overcrowded”: [69];
iii. have involved “instances of torture”: [66];
iv. have involved “instances of … maltreatment and violence”: [66];
v. have been reported as “likely to breach Article 3 of the European Convention on Human Rights which prohibits ‘inhuman or degrading treatment or punishment’”: [66];
vi. have been assessed by a formed UN Special Rapporteur on Torture as amounting to “degrading treatment”: [66].
c. The Tribunal found that the Sri Lankan government has “acknowledged” the poor conditions in its prisons: [70].
d. The Tribunal erred in asking itself the question whether there is “an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment” on the applicant: [70].
e. The Tribunal erred in failing to hold that:
i. the deliberate act of imprisoning the applicant in conditions that involve pain or suffering comes within the meaning of an act by which pain or suffering is “intentionally inflicted”: s.5; and
ii. pain or suffering can “reasonably be regarded as cruel or inhuman in nature” where that pain or suffering amounts to cruel or inhuman treatment or punishment at international law.
f. The Tribunal erred in holding (at [70]): “Poor prison conditions involving inadequate resources and overcrowding do not appear to give rise to significant harm under Australian law.”
2. The Tribunal erred in failing to apply the approach taken by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 in relation to the applicant’s claim to fear harm as a person who had left Sri Lanka illegally.
I have before me as evidence the court book filed on 4 September 2013. The applicant also prepared written submissions, although the argument at trial proceeded on the basis of the oral and written submissions of the parties in SZTAL.
Consideration
The first ground of the judicial review application takes issue with the Tribunal’s reasoning at [70] of its decision where the Tribunal said[13]:
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.
[13] CB 251
In SZTAL I rejected the applicant’s challenge to an identical paragraph of the Tribunal’s reasoning in that case. For the same reasons as in SZTAL, I reject Ground 1.
The second ground of the application takes issue with the Tribunal’s reasoning at [60] of its decision where the Tribunal said[14]:
The Tribunal is satisfied that the Immigrants and Emigrants Act 1945 is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of ethnicity. The Tribunal is satisfied that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason. The Tribunal finds that section 45 of the Immigrants and Emigrants Act 1945 is a law of general application and does not give rise to persecution under the Refugees Convention.
[14] CB 249
In SZTAL I rejected a challenge to an identical paragraph of the Tribunal’s decision in that case. For the same reasons as in SZTAL, I reject Ground 2 in this case.
Conclusion
The applicant has failed to demonstrate that the decision of the Tribunal is affected by jurisdictional error. The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
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: 24 February 2015
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