SZTEM v Minister for Immigration
[2016] FCCA 499
•14 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTEM v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 499 |
| Catchwords: MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46A, 91R, 476 Australian Human Rights Commission Act 1986 (Cth), sch.2 |
| WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 Plaintiff S297 -2013 v Minister for Immigration and Border Protection [2015] HCA 3 Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 S395 /2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 MZZKS v Minister for Immigration and Border Protection [2015] FCA 916 SZSVT v Minister for Immigration & Anor [2014] FCCA 768 Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259 East African Asians v. United Kingdom 3 E.H.R.R.76 |
| Applicant: | SZTEM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1877 of 2013 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 2 February 2016 |
| Date of Last Submission: | 2 February 2016 |
| Delivered at: | Sydney |
| Delivered on: | 14 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr J F Gormly by direct access |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The name of the second respondent is amended to read “Administrative Appeals Tribunal”.
The application made on 12 August 2013 and amended on 14 November 2013 and further amended on 2 February 2016 is dismissed.
The applicant pay the first respondent’s costs as agreed or taxed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1877 of 2013
| SZTEM |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 12 August 2013, amended on 14 November 2013 and further amended on 2 February 2016, seeking review of the decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), made on 19 July 2013 which affirmed the decision of the Minister’s delegate to refuse a Protection (Class XA) visa (“the visa”) to the applicant.
Background
In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.
The applicant is a citizen of Sri Lanka who arrived in Australia on 5 June 2012 as an Irregular Maritime Arrival (CB 111). The Minister exercised his discretion to lift the “bar” pursuant to s.46A of the Act on 9 September 2012 (CB 1 to CB 2). The applicant applied for a protection visa on 9 September 2012 (CB 3 to CB 28). The applicant’s claims to protection were set out in Statutory Declaration accompanying his visa application (CB 29 to CB 33). Further documents were also provided to the department (CB 30 to CB 90). The applicant provided submissions to the Minister’s department on 18 September 2012 (CB 91 to CB 104). The applicant claimed that due to his Tamil ethnicity he was subjected to racially motivated fishing restrictions and limitations in Sri Lanka, and this had affected his ability to subsist and provide for his family (CB 29 to CB 32).
A delegate of the Minister refused the applicant a protection visa on 26 October 2012 (CB 110 to CB 122). The delegate was not satisfied that the applicant’s fear of harm was well-founded or that there was a real risk that he would suffer significant harm on return to Sri Lanka.
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 3 December 2012 (CB 125 to CB 130). The applicant and his representative attended a hearing before the Tribunal on 24 January 2013 (CB 159 to CB 161). The Tribunal affirmed the delegate’s decision on 19 July 2013 (CB 167 to CB 187). The applicant’s claims and evidence, as they were before the Tribunal, are set out in the Tribunal’s decision record ([20] at CB 170 to [92] at CB 177).
The Tribunal set out its understanding of the applicant’s claims, as ultimately before it, in the following manner ([93] at CB 177 to CB 178):
“The applicant claims protection in Australia for the following reasons:
- He is an ethnic Tamil from the north or east of Sri Lanka whose real and imputed political opinion arises from his race and former residence in a predominantly Tamil region.
- He is an ethnic Tamil from Udappu who faced constant denial of opportunities to work as a fisherman by the Sri Lankan Navy and other agencies and whose ability to fish and earn money was further restricted by the requirement for a fishing pass that was imposed on Tamils in December 2010, which meant he had to get up much earlier than previously each day to get his pass, and had to return his pass by 10 am each day which caused him to start fishing without documentation and to travel to small areas to fish where passes were not required and where fish were less abundant which has impacted on his capacity to subsist.
- On 3 April 2011 he went fishing without his pass, was stopped by three officers while at sea who took him 100 metres away from his boat, forced him into the sea and directed him to swim to shore which was a form of torture and trauma.
- He is concerned for his safety and fears harm in the future from the Sri Lankan authorities including the EPDP, SLA and Sri Lankan navy who have previously sought him, remain seeking him and his family and are suspicious of his past and will take revenge and kill him - white van incident.
- As a Tamil fisherman he is perceived to be a sympathiser of the LTTE which could result in death.
- He is a Tamil who escaped illegally by boat and is perceived as a member of a group of Tamil departees who are perceived to be sympathisers of the LTTE, and will be arrested at the airport and if he goes home he will be kidnapped.”
The Tribunal accepted that the applicant was from Udappu in the
north-western province of Sri Lanka, was a fisherman, and that he had previously worked in the UAE. The Tribunal did not accept that the applicant was from the north or east of Sri Lanka, where the civil war was fought, or his claim that his “real and imputed political opinion ar[ose] from his race and former residence in a predominately Tamil region” ([94] – [95] at CB 178).
Having regard to country information before it, and giving the applicant the “benefit of the doubt”, the Tribunal accepted that from December 2010 the applicant was required every morning to obtain a fishing pass which he had to return daily. The Tribunal did not accept that the applicant had suffered “interrogation, confiscation and bribes” in Sri Lanka in relation to the pass as he had claimed ([102] at CB 179). The Tribunal found that the applicant had never refused to give the authorities his fish when it was requested of him, and that he complied with the requirements of the pass system, except on one occasion ([103] at CB 179).
The Tribunal found that the matter of the applicant being required to give fish to the local authorities, on occasion, had had an “insignificant impact on his capacity to earn a living” ([105] at CB 179). Further, that this claim was not included in his protection visa application, and was “inconsistent” with the claim that such loss impacted on his ability to earn a living ([105] at CB 179).
The Tribunal found the applicant’s evidence “unqualified” and, due to this, was not satisfied that the “pass system” required him to fish without documentation and to travel to remote areas, which he claimed had impacted on his ability to subsist ([104] at CB 179).
The Tribunal found that the authorities in Sri Lanka may undertake the same action in the future, but was not satisfied that people were beaten or detained if they failed to give the authorities fish. The Tribunal accepted that fisherman may have difficulty in obtaining a pass. The Tribunal found that such conduct was “discriminatory”, but not “systemic”, based on the applicant’s own evidence, that he could not say how often it would happen. The Tribunal was not satisfied that the conduct amounted to serious or significant harm (s.91R(1)(c) and s.36(2A) of the Act).
The Tribunal found that the three kilometre boundary within which the applicant could fish was due to his small boat size, and not one imposed by the fishing pass ([107] at CB 180).
The Tribunal further found ([108] – [110] at CB 180):
“[108] The Tribunal accepts that in April 2011 the applicant was stopped by Sri Lankan authorities while at sea, taken 100 meters away from his boat, and forced into the sea. Giving him the benefit of the doubt, it accepts that he was able to understand Sinhalese to the extent that he understood that he was told to swim to shore. The Tribunal finds that in the circumstances, it was clear that his boat was 100 metres away and that he would swim to it rather than to the shore, if his boat were closer, which he did. That was the only action the officers took. They did not confiscate his fish, or take any action to prevent or limit his fishing thereafter. The applicant said that he tried to swim, but was very hard, he could not do it, but his boat was a short distance away and he managed to swim to it, took up his net and rowed back to shore about 10 am.
[109] The Tribunal does not accept that the applicant suffered serious or significant harm as a result of that incident. In making that finding the Tribunal has taken into account the definitions of torture and cruel or inhuman treatment or punishment in s.5(1) of the Act. The Tribunal is not satisfied that severe pain or suffering, whether physical or mental, was inflicted on the applicant. It is also not satisfied that the applicant was subjected to degrading treatment or punishment as defined in s.5(1). It is not satisfied that forcing him into sea in the circumstances already described caused or was intended to cause, extreme humiliation which was unreasonable.
[110] In making those findings the Tribunal has taken into account that the applicant had been a fisherman, rowing a small boat up to three kilometres off-shore six days a week to fish from 2002. He was very familiar with the sea and the forces it could unleash. It also takes into account that he continued fishing after the incident without further incident and did not leave Sri Lanka until more than 15 months later. It is the only such incident he has reported.”
The Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm from such an incident if he returned to Sri Lanka, or that there were substantial grounds for believing that he will suffer significant harm from such an incident in the future ([111] at CB 180). The Tribunal was also not satisfied that any authority had sought out the applicant after the time of the April 2011 incident (see [13] above), and that no such claim had been made in his application ([112] at CB 181).
The applicant claimed at the hearing before the Tribunal that after he had left detention in Australia, five people in a white van had searched for him at his home in October 2012 in Sri Lanka and asked for him using the Sinhalese language. His wife had told him this information but he was unable to explain why these people were searching for him or who they were. The Tribunal was not satisfied that such an incident had occurred ([113] – [114] at CB 181). Further, the Tribunal was not satisfied ([114] at CB 181):
“…that any authority would have been searching for him as a consequence of the incident in April 2011 or for any other reason, given that nothing had occurred from that time until he left Sri Lanka more than a year later. For those reasons, the Tribunal is also not satisfied that he will be of any interest to any authorities in Sri Lanka in the future because of the 2011 incident.”
The Tribunal had regard to country information relating to abductions and “white vans” but was not satisfied that that there was a real chance or a real risk that he would be abducted and killed in a “white van incident” in the future ([115] at CB 181 to [117] at CB 182).
The Tribunal was not satisfied that the applicant, as a Tamil fisherman, was perceived to be a sympathiser of the LTTE, as he had “fished in Udappu during the civil war….without incident”, and the pass system was introduced after the civil war. The Tribunal did not accept that the applicant’s evidence supported the submission that he faced the constant denial of opportunities to work as fisherman ([118] – [119] at CB 182).
The Tribunal concluded ([120] at CB 182):
“The Tribunal accepts that the fishing pass system caused the applicant inconvenience, frustration and was discriminatory and systematic (s91R(1)(c)). That system will have the same impact on him in the future until the fishing pass system is ended… Apart from the authorities sometimes taking his fish, the Tribunal is not satisfied that it impacted adversely on his ability to earn a living.”
The Tribunal was not satisfied that the impact of the fishing pass system involved serious or significant harm to the applicant in the past. Further, that he had continued to fish until he came to Australia and was not harmed because he was perceived to be a sympathiser of the LTTE. The Tribunal was not satisfied that he would be harmed in the future in Sri Lanka for this reason ([122] at CB 182). The Tribunal did not accept that the applicant, as a Tamil failed asylum seeker returning to Sri Lanka, would be perceived to be an LTTE sympathiser or suffer harm for that reason ([123] at CB 182 to CB 183). The Tribunal found that the Sri Lankan authorities had no suspicion that the applicant had LTTE links before leaving Sri Lanka, and there would be no suspicion arising from his activities in Australia ([126] at CB 183).
The Tribunal had regard to country information before it and found that “questioning at the airport by different agencies or visits” from the authorities did not constitute serious or significant harm. Having regard to country information before it, the Tribunal accepted that there are “official penalties for illegal departure from Sri Lanka”. Further, that the applicant, on return to Sri Lanka, may be detained in cramped and unpleasant circumstances for up to 3 nights before being released on bail, but found that such treatment would not be “serious or significant harm” ([124] at CB 182 to [129] at CB 184).
The Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa. It therefore affirmed the delegate’s decision ([130] – [137] at CB 185 to CB 187).
Application to the Court
The application to the Court, as further amended, is in the following terms:
“1. The second respondent (the Tribunal) constructively failed to exercise its jurisdiction in that it did not consider an integer of the applicant's claims for complementary protection, namely that the discrimination on the grounds of race experienced by the applicant of itself amounted to ‘degrading treatment or punishment’ as defined in s 5(1) Migration Act because this discrimination was on the basis of race and therefore and in the circumstances inherently degrading. This is to be distinguished from the differential treatment actually meted out to Tamils and to the applicant considered in isolation from its racial basis to which the Tribunal limited its review.
Particulars
a. The applicant claimed that as a Tamil he was subjected to a racially motivated fishing pass system and his experience of the pass system qualified him for complementary protection.
b. The Tribunal accepted the fishing pass system was ‘discriminatory and systematic’ within the meaning of s 91R(1)(c) though, unlike the delegate, the Tribunal did not express that the discrimination of the system was against Tamils or was racial.
c. The applicant's claims for complementary protection included an account of punishment he was subjected to because he was a Tamil and did not have his fishing pass.
d. The Tribunal limited its assessment of the claimed ‘significant harm’ to a consideration of the differential treatment of the fishing pass system and the applicant's experience of punishment in isolation from the racial basis of the pass system and its implementation by the authorities.”
Before the Court
The applicant first attended before the Court on 16 October 2013 and was assisted by an interpreter in the Tamil language. The applicant was given the opportunity, by orders made on that day, to file any further evidence by way of affidavit and any amended application.
The matter was adjourned on 17 March 2014, by orders made by consent, pending the outcome of proceedings in the matter Plaintiff S297/2013 v Minister for Immigration and Border Protection in the High Court. The matter was further adjourned, by orders made by consent on 12 December 2014, pending the High Court special leave application in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. Those two matters were handed down on 11 February 2015 and 17 June 2015 respectively (see Plaintiff S297 -2013 v Minister for Immigration and Border Protection [2015] HCA 3 and Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection [2015] HCA 22). In light of those judgments it was appropriate to proceed in this matter and this case was subsequently set down for a final hearing. Both parties have filed written submissions. Both parties were represented by counsel at the final hearing.
The Argument
By his further amended application, the applicant puts forward one ground of review. The ground is said to arise from the Tribunal’s consideration and findings in relation to the complementary protection criterion for the grant of the protection visa (s.36(2)(aa) of the Act).
The ground directs attention to the concept of “degrading treatment or punishment” as it relevantly appeared in the Act. In this light the following is relevant:
1)Section 36(2)(aa) of the Act:
“36 Protection visas—criteria provided for by this Act
(2) A criterion for a protection visa is that the applicant for the visa is:
…
(aa) a non‑citizen in Australia (other than a non‑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; or”
2)Section 36(2A)(e) of the Act:
“(2A) A non‑citizen will suffer significant harm if:
…
(c) the non‑citizen will be subjected to torture; or…”
3)Section 5 of the Act:
“(1) In this Act, unless the contrary intention appears:
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
The jurisdictional error asserted by the applicant’s ground is that the Tribunal failed to consider an integer of the applicant’s claims. If made out, such an assertion would reveal jurisdictional error (NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1 (“NABE (No.2)”), WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 (“WAEE”), Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 (“Htun”) and Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 (“Dranichnikov”)).
The ground contends that there is a distinction between the differential treatment afforded to the applicant, by the Sri Lankan authorities, as a Tamil fisherman and the treatment afforded to others. The basis for that different treatment was said to be his Tamil ethnicity (“race”).
The applicant’s ground, and arguments before the Court, are said to arise from the applicant’s claim, ultimately before the Tribunal, that he did suffer and would suffer “significant harm” arising from a fishing pass system imposed by the Sri Lankan authorities in December 2010 on Tamil fishermen in his home district.
The specific integer of his claim, that the applicant submitted the Tribunal did not consider, was explained before the Court as being that the racial basis of the fishing pass system in Sri Lanka, and its enforcement against the applicant, rendered the 2011 incident (see the Tribunal’s decision record at [108] at CB 180 and [13] above) to be degrading treatment or punishment for the purposes of the Act.
That is, in particular, that the applicant had suffered humiliation because of his race, when thrown into the water while out at sea. The Tribunal dealt with the 2011 incident as a matter of discrimination pursuant to s.91R of the Act. It did not consider the 2011 incident in the context of “racial humiliation”.
The applicant concedes that the Tribunal understood that race was an element in the consideration of the fishing pass system, but dealt with it as a matter of discrimination. When it came to consider the complementary protection criterion, it did not consider the applicant’s claim to have been racially humiliated. That is, that the treatment was not only discriminatory (which he says the Tribunal considered) but it was humiliating for reason of race (which he says it did not).
The questions posed by the applicant’s ground in the circumstances presented are as follows. One, was the claim of “racial humiliation” expressly made by the applicant or clearly arising from the circumstances presented (NABE (No 2), WAEE, Htun and Dranichnikov). Before the Court the applicant submitted that this was a relevant question in the context of whether the claim was “sufficiently” made such as to engage the Tribunal’s review obligations. Two, if the claim was made such as to engage the Tribunal’s obligation in the review, did the Tribunal consider and deal with it.
In relation to the first question, I understood the applicant’s position ultimately, to be that the “racial humiliation” aspect of the claim may “possibly” not have been expressly raised, but it was “sufficiently” raised such as the Tribunal was obliged to deal with it in the context referred to above. The applicant relied on SGBB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364.
In short, I understood the applicant to argue that even if the claim was not expressly advanced by the applicant, nonetheless, the obligation of the Tribunal in the conduct of the review is engaged if the claim was apparent on the face of the material before it (NABE (No 2) at [58]).
This immediately directs attention to the circumstances presented to the Tribunal. On the evidence before the Court, the applicant’s claims to fear harm if he were to return to Sri Lanka were ultimately put before the Tribunal in a variety of ways:
1)The application for the protection visa (CB 3 to CB 90).
2)An email in relation to, relevantly, complementary protection from the applicant’s representatives (a registered migration agent who appears to have been employed by a firm of solicitors) (CB 91 to CB 103) which was attached to the submissions (reproduced at CB 101.4 to CB 102.5).
3)At an interview with the Minister’s delegate (CB 113 to CB 114).
4)At the hearing with the Tribunal. No transcript is in evidence before the Court. However, the Tribunal’s account of the hearing is set out at [45] (at CB 173) to [92] (at CB 177) of its decision record.
The applicant’s written submissions before the Court provide the following explanation of the applicant’s position ([40] – [41] of the applicant’s written submissions):
“[40] As a Tamil the applicant claimed to have been denied his personal rights and entitlements in Sri Lanka throughout his life: RRT (29]. He wanted to live in safe country ‘where he could live like a human, free, person,’ RRT [33]. The applicant claimed that the fishing pass system was racially motivated against Tamils and that Sinhalese fishermen in nearby areas were not subject to the same requirement: CB 114, 174 from RRT [59].
[41] If the Court does not accept that such statements are a sufficient articulation of the claim, it remains that it was the very racial basis of both the fishing pass system and the applicant's experience of its enforcement which rendered the differential treatment as degrading. The applicant's account of the pass system as racially discriminatory implicitly included the integer that the racial basis of the system rendered it and its enforcement to be degrading.”
Before the Court the applicant referred to:
1)The delegate’s decision record:
a)At CB 114.2:
“…Asked whether the pass system threatened his capacity to subsist, the applicant stated that the pass system only applies to Tamils. He stated that Sinhalese fishermen in nearby areas are not subject to the same requirement. He also stated that he is very restricted in the amount of time that he can fish, and that amount of time is not sufficient to catch sufficient fish…”
b)At CB 114.9:
“…The applicant claims that he has been subjected to racially motivated fishing restrictions and limitations that have impacted on his ability to subsist. I accept that the essential and significant reason which he fears harm is his Tamil race…”
2)The representative’s submissions to the Tribunal (see [36](2) above).
3)The Tribunal’s decision record at [83] (at CB 176):
“Complementary protection is satisfied by his being forced to leave his boat in middle of the ocean. He feared for his life. It was degrading punishment.”
The applicant argued before the Court that his case was “assisted” by the Tribunal finding, albeit in the context of its consideration of the Refugees Convention, that the fishing pass system was discriminatory. That meant that the Tribunal accepted that the existence of the fishing pass system, and its enforcement, had a racial element. Given this, the Tribunal should have, but did not consider, the question of “racial humiliation” that arises in the circumstances.
The applicant’s submission was that in its consideration the Tribunal dealt with the 2011 incident devoid of any consideration of the racial element. The applicant made reference to a case from the European Commission and Court of Human Rights (East African Asians v. United Kingdom 3 E.H.R.R.76 (“East African Asians”)) to explain that the Tribunal focussed, in its relevant analysis, on the physical harm that befell the applicant when he was thrown into the sea, rather than the moral element which was an affront to his human dignity.
The applicant submitted that (applicant’s submissions at [21]):
“The ground of review is derived from the decision of the (former) European Commission of Human Rights in the East African Asians case which concluded that discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the European Convention on Human Rights. The Commission there said at [207]:
... a special importance should be attached to discrimination based on race; that publicity to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity; and that differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question.”
[Footnotes omitted.]
The Minister’s response has a number of related parts. First, that on the material before the Court there is no basis to find that the “exquisitely nuanced claim” now made by the applicant was squarely or sufficiently raised on the material before the Tribunal (with reference to NABE (No 2) at [62] and S395 /2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; 216 CLR 473 at [1] per Gleeson CJ).
Second, that, in any event, the Tribunal’s findings of fact sufficiently dealt with the issue of race (and with reference to MZZKS v Minister for Immigration and Border Protection [2015] FCA 916 (“MZZKS”)).
Third, that East Africa Asians, which gave rise to the proposition now relied on by the applicant, provides relevant context within which to understand the applicant’s argument, but does not assist in making out his case in the circumstances.
Consideration
It is convenient to deal with the Minister’s “contextual” submission first. The Minister submitted that the applicant’s proposition may be available within the definition of “degrading treatment or punishment” in certain cases.
I relevantly note the following. Section 5 of the Act makes reference to Article 7 of the International Covenant on Civil and Political Rights (“the ICCPR”) (see the definition of “Covenant”, and as set out in Sch.2 to the Australian Human Rights Commission Act 1986 (Cth)). The applicant submitted before the Court that the explanatory memorandum to the Migration Amendment (Complementary Protection) Bill 2011, which introduced the definition to the Act (at item 3) makes clear that “degrading treatment” is defined in the Act with reference to Article 7 of the ICCPR (see also s.15AB(1)(b)(i) of the Acts Interpretation Act 1901 (Cth)).
This same argument has been previously raised in the Federal Circuit Court of Australia (SZSVT v Minister for Immigration & Anor [2014] FCCA 768 (“SZSVT”) per Judge Barnes). Relevantly, Her Honour in SZSVT, observed as follows, but did not determine the question (at [62]):
“Degrading treatment and punishment is defined in s5(1) of the Act as ‘[a]n act or omission that [causes], and is intended to cause, extreme humiliation which is unreasonable’. The exclusions (which directly incorporate reference to the ICCPR) are not in issue in these proceedings. In my view, as a matter of statutory construction (bearing in mind the principles in Maloney and Plaintiff M70/2011 as well as MZYYL), whether or not regard is had to international jurisprudence such as the East African Asians case, in my view the s.5(1) definition could encompass differential treatment of a kind that caused and was intended to cause extreme humiliation because of the racial basis for that treatment, even if the same treatment on some other ground would not satisfy the definition. However it is not necessary in these proceedings to determine whether, and if so the extent to which, it is to be accepted as a legal principle that the racial nature of differential treatment would render that treatment degrading in certain circumstances. It is not contended that all racial discrimination of itself amounts to degrading treatment or that all claims of racial discrimination necessarily include, as an integer of the claims, a claim to that effect. The difficulty that faces the Applicant is that it has not been established that the asserted claim was raised squarely or clearly on the material before the Tribunal.”
It must be said that the definition of “degrading treatment or punishment” as it appears in s.5 of the Act and in particular the use of the “double negative” in the context of “not include”, and “not inconsistent with Article 7” of the ICCPR, as the applicant noted in his submissions, does require recourse to extrinsic material to assist in discerning proper meaning.
However, as in SZSVT, it is not necessary in the current case to determine the availability in Australia of the proposition put by the applicant. That is because, for the reasons that follow, I agree with the Minister that the “claim” now raised by the applicant before the Court was not “squarely or sufficiently” raised on the material before the Tribunal.
Having regard to the matters relied on by the applicant, I note the following. In his statement accompanying his protection visa application, the applicant relevantly claimed that he was an “ethnic Tamil” ([2] at CB 29) and that “throughout my life as a Tamil I have suffered and denied my personal rights and entitlements” ([8] at CB 29).
The Tribunal recorded this claim ([29] at CB 171):
“In his statutory declaration sworn on 9 September 2012 at Scherger, the applicant made the following claims. He remains very worried for his family's safety. As a Tamil, he has suffered. He has been denied his personal rights and entitlements in Sri Lanka throughout his life.”
Further, in the another statement, the applicant stated ([29] at CB 31)
“I then decided that I sought a place where I could live like a human free person. I then sought the assistance of a smuggler named Sinnathamby.”
The Tribunal recorded this claim ([33] at CB 172):
“The applicant was concerned for his safety and further potential harm from the Sri Lankan authorities led him to decide and discuss his fears with his wife and family, who supported his decision to leave and seek a safe country for himself where he could live like a human, free, person. He sought the assistance of a smuggler”
The third part of the Tribunal’s decision record relied on by the applicant now is at [59] (at CB 174):
“He went to sea one day without taking his pass. Around 6 am after laying the net, he was waiting for fish to come. Three people in a navy boat asked for his pass. He told them he did not have it. They asked him to get into their boat. He cannot argue. They are Sinhalese. They took him 100 metres further and asked him to jump into the sea and told him to swim to shore and left. He tried to swim. It was very hard. He could not do it. But his boat was a short distance away and he managed to swim to it. He took up the net and rowed back to shore about 10 am. He was really scared after that. This type of torture was very hard. He does not want to go through this torture. The Sinhalese on either side of his village do not have a pass system. It is only for his small village. They cannot argue with them. They will shoot ‘us’.”
The applicant’s submission now is that he told the Tribunal that the fishing pass system was “racially motivated” (see applicant’s submissions at [40]). That phrase was not recorded by the Tribunal in its decision record. There is no other evidence before the Court that the applicant, or his representative before the Tribunal, used that phrase.
In any event, the basis for what the Tribunal recorded at [59] appears to be (and the applicant’s submissions now support this view) what was set out in the delegate’s report of the interview with the applicant (see CB 114 and as extracted above at [38](1)(a)).
Although not referred to in the applicant’s submissions to the Court, that is consistent with the representative’s submissions to the delegate (CB 91):
“…The introduction of the required Fish pass in December 2010 for Tamil fisherman with small boats has further encroached his capacity to work and subsist to provide sustenance for his family…”
It is important to note that in her decision record, the delegate set out findings based on country information relating to the existence of restrictions on fisherman of Tamil ethnicity (CB 116 to CB 118). She found (CB 118):
“…I accept on the basis of this country information that fishermen from the Udappu region were subject to administrative restrictions on their fishing activities during the wartime, resulting in economic hardship. I also accept that some restrictions continue to be in place, including a pass system. However, the recent sources of country information cited above suggest that the remaining restrictions are imposed on all fishermen, regardless of their race, and that they are being progressively reduced. Further, despite the report of September 2012 cited above implying that applying for a results in economic hardship for fishermen, the applicant gave evidence that he was not required to pay any fee or bribe in order to obtain his fishing permit. He was issued a pass upon presentation of his national identity card. The September report refers to the possibility of the cancellation of permits if the restrictions are not adhered to, however, despite the applicant being caught without a fishing permit on one occasion, his permit was not cancelled. I accept that he was forced to swim 100 metres back to his boat; however he has not been subjected to the same punishment since that occasion as he has consistently been able to obtain a pass for fishing purposes. He gave evidence that he was consistently punctual in returning his pass. Further, the applicant has been able to subsist from fishing for the past ten years, there being restrictions on when he could fish or how far he could travel to fish…”
The applicant was represented before the Tribunal (see [11] at CB 127). The representative was present at the hearing (CB 159). There is no evidence before the Court that the applicant, or his representative, addressed this country information which would have been known to them given what the delegate stated.
The Tribunal’s record of the hearing records the evidence given by the applicant in setting out his claims, and matters, in support of those claims. There is nothing in this report, or otherwise before the Court, to say that the applicant or his representative took issue with the delegate’s use of the country information.
In his oral submissions before the Court, the applicant pressed that the claim sufficiently arose from what the applicant’s representative is reported to have told the Tribunal (at [82] at CB 176). However, [83] of the Tribunal’s decision record (at CB 176) should be read in context with [82] (at CB 176):
“[82] Anecdotally, the representative was on a task force and went to detention to facilities. Nearly everyone feels oppressed in that environment of discrimination or persecution. The applicant fears being thrown off his boat and losing his life every time he goes out to fish. There has been an attack on his ability to earn a living, getting up early to get the pass which Sinhalese people do not have to get. There is Convention nexus.
[83] Complementary protection is satisfied by his being forced to leave his boat in middle of the ocean. He feared for his life. It was degrading punishment.”
It is clear, certainly on a fair reading, and in the absence of a transcript of the hearing, that what the applicant’s representative was submitting was that a fear of being thrown off his boat and losing his life every time he goes out to fish was the essence of the applicant’s relevant claim to fear harm.
It was “persecutory harm” because a nexus with the Refugees Convention was supplied by the fact that the applicant, as a Tamil, was required to obtain a fishing pass, and Sinhalese fisherman did not ([82] at CB 176). It was “significant harm” because being forced to leave his boat while at sea and fearing for his life was “degrading punishment”.
The applicant’s argument before the Court was that the representative’s reference to “degrading punishment” should be understood as being that the representative was saying that the incident was “degrading punishment” because of the applicant’s ethnicity, and that the incident arose out of circumstances relevant to that ethnicity.
As referred to above, the applicant has not put evidence before the Court of what occurred at the Tribunal hearing. The only evidence of what occurred that is before the Court is what the Tribunal has reported. That report, given that it is a part of the Tribunal’s decision record, is to be read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).
On such a reading, if not on a reading dependent on the plain language used by the Tribunal, it cannot be said that the representative meant to include, and in fact stated or even sufficiently implied, that it was degrading punishment because of the applicant’s ethnicity.
Rather, what is reported is that the representative was saying that being forced to leave the boat in the middle of the ocean meant the applicant became fearful for his life, and that was what amounted to degrading punishment.
I do not agree with the applicant’s contention now that the representative was asserting (at [82] and particularly [83] at CB 176) that the applicant was thrown into the sea because of his race, and that this was humiliating, and constitutes degrading punishment. That reading of [82] – [83] (at CB 176) is not available. Rather, the degrading punishment is put as a description of being forced to leave his boat out at sea and fearing for his life.
The Tribunal did understand, in the totality of its analysis, that race was an element in the applicant’s case. That is, he claimed he was targeted by the authorities (Sinhalese) in part, by having to obtain a fishing pass, because of his Tamil ethnicity (see further below).
However, the applicant’s reliance on what was said by the representative at [83] (at CB 176) to [84] (at CB 177), even when regard is had to the context, still does not rise to a claim, sufficiently made, that the degrading punishment was his being humiliated because he was a Tamil.
In the current case, on at least a fair reading of the Tribunal’s decision record, the Tribunal dealt with the claims as expressly or sufficiently raised from what was put before it. This included the matter of “race” (ethnicity).
The applicant claimed that he was required to obtain a fishing pass and that this requirement was imposed on Tamils and not Sinhalese. The applicant also gave evidence of certain difficulties he encountered from the Sri Lankan authorities as a Tamil fisherman. These were that, on occasion, the authorities would “confiscate” some of his catch, he was forced to fish in a particular area making a “three kilometre boundary”, and on one morning in April 2011, he was stopped by the authorities when he was at sea and forced into the water.
The Tribunal dealt with each of these aspects of the applicant’s claims. It found he was required to obtain a fishing pass on a daily basis, but that he never had difficulty in obtaining a pass, although he had to get up earlier than when there was no pass requirement ([100] – [102] at CB 179). Further, that he complied with the requirement except on one occasion in April 2011 ([103] at CB 179).
The Tribunal found that the pass system, and its consequences, had an insignificant impact on his capacity to earn a living. Where it found that the conduct of the authorities was discriminatory, it did not rise to, relevantly, the level of significant harm ([106] at CB 180).
It is clear that in making this finding, the Tribunal considered the applicant’s claimed difficulties in obtaining the pass and the claimed limitations imposed on him as a result of the pass system ([106] at CB 180).
It is also clear that these findings were made in the context of the applicant’s claim that he faced these difficulties because he was a Tamil fisherman (with reference to [93] at CB 177 to CB 178). Further, that he was a fisherman from “an enclave of Tamils” (Udappu) ([95] at CB 178). It also understood that the claimed conduct of the authorities was said to emanate from Singhalese speakers (see [108] at CB 180), and that it had an impact on the applicant who was a Tamil fisherman.
The Tribunal accepted that the incident of April 2011 had occurred ([108] at CB 180). However, the Tribunal gave reasons as to why this did not rise to, relevantly, significant harm. This included specific references to the relevant definition in s.5 of the Act ([109] – [110] at CB 180).
I should also note that in submissions, the Minister made reference to MZZKS per Tracey J. In that case, relevantly, the applicant before the Federal Court claimed (MZZKS at [14]):
“… that there were two integers of the appellant’s complementary protection claim. The first integer comprised claims that the appellant would suffer ‘degrading treatment’ through the denial of social and economic rights. The second integer was that the racial basis of the discrimination of itself rendered it ‘degrading treatment or punishment’. Reliance was placed on the decision of the European Commission on Human Rights in East African Asians v United Kingdom (1973) 3 EHRR 76.”
In that case, the applicant had made written submissions to the Tribunal where he had expressly, with reference to country information, “made his East African Asians based claim” (MZZKS at [23], at dot
points 3-5). The Tribunal did not expressly deal with what the Court described as the “second integer” of the claim.
In dismissing the applicant’s application in MZZKS, the Court said (at [28] and [30]):
“[28] Whilst it is true that the Tribunal did not expressly refer to both aspects of this claim there is, in my view, no basis for inferring that the second integer was ignored. Although the claim had been made, based on the East African Asians decision, the appellant’s written submissions to the Tribunal did not refer to any particular experiences of the appellant which might bring him within the principles expounded in that case. As the written submissions acknowledged, not all discriminatory treatment is to be regarded as inherently degrading. The principle relied on was that ‘publicly to single out a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity’, which may ‘therefore be capable of constituting degrading treatment.’ Clearly matters of fact and degree are involved in the assessment of conduct which is alleged to be degrading. This is reinforced by the definition of ‘degrading treatment or punishment’ in s 5 of the Act. What is required is ‘an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable ...’ (Emphasis added).
…
[30] The Tribunal made it plain (at [71]) that it had taken account of ‘the applicant’s circumstances’ when determining his complementary protection claim. Those are the circumstances outlined by him in his written submissions and during the oral hearing. Had the appellant provided the Tribunal with evidence which related exclusively to the second integer of his complementary protection claim and the Tribunal had failed to give separate treatment to that integer, the allegation of error, which he presently makes would have had stronger prospects of success. On the material before it, however, there was no occasion for the Tribunal, in its reasons, to distinguish between the two integers of the claim. The evidence, such as it was, was relevant to both claims and both integers of the complementary protection claim.”
I agree with the Minister that in this case, the applicant’s claim of, relevantly, significant harm based on discrimination was not accepted. In this circumstance, and for the reasons set out above, there is no basis on the material presented, for the Tribunal to have separately considered if the now claimed racial aspect of the discrimination caused the conduct of the authorities in the 2011 incident.
Conclusion
The sole ground of the application, as further amended and explained before the Court, is not made out. It is appropriate to dismiss the application. I will make an order accordingly.
I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 14 March 2016
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