SZTEP v Minister for Immigration - [2015] FCCA 1213

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTEP v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1213

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – application for adjournment – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5, 36(2A), 91R

BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41
SZSPE v Minister for Immigration and Border Protection [2014] FCA 267
SZTALv Minister for Immigration & Anor [2015] FCCA 64
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
SZTCY v Minister for Immigration & Anor [2015] FCCA 85
SZTGMv Minister for Immigration & Anor [2015] FCCA 87
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
SZUQU v Minister for Immigration & Anor (2014) 144 ALD 82; [2015] FCCA 771
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
WZARV v Minister for Immigration and Border Protection [2014] FCA 894

Applicant:

SZTEP

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1886 of 2013

Judgment of:

Judge Barnes

Hearing date:

23 April 2015

Delivered at:

Sydney

Delivered on:

23 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr Bodisco

Solicitors for the Applicant:

Westside Legal

Counsel for the First Respondent:

Ms Francois

Solicitors for the First Respondent:

Sparke Helmore

ORDERS

The application for an adjournment is refused.

IT IS FURTHER ORDERED THAT:

The application is dismissed.
The Applicant pay the costs of the First Respondent fixed in the sum of $5,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1886 of 2013

SZTEP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application, made on the day of the hearing, for an adjournment of the hearing of an application for review of a decision of the Refugee Review Tribunal affirming a decision not to grant the Applicant a protection visa. The prospect of an application for an adjournment was first raised in written submissions for the Applicant dated 11 April 2015 and filed on 14 April 2015.
At that stage, the foreshadowed application for an adjournment was put on two bases, relevant to each of the grounds in a proposed Further Amended Application. I gave leave to the Applicant to rely on such Further Amended Application.
The first ground was said by the Applicant to be the same as a ground considered, but rejected, by Judge Driver in SZTALv Minister for Immigration & Anor [2015] FCCA 64, SZTCY v Minister for Immigration & Anor [2015] FCCA 85, and SZTGMv Minister for Immigration & Anor [2015] FCCA 87 on 24 February 2015. It is as follows:
The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.
a. The Tribunal accepted that the Applicant will be imprisoned upon his return to Sri Lanka: [138] and [150].
i. The Tribunal accepted that there are “reputable reports of Sri Lankan authorities using torture as a means of extracting information from those held in places of detention”: [78];
ii. The Tribunal accepted “that conditions of detention the applicant will face whilst detained will be crowded, cramped and unpleasant”; [87]
b. The Tribunal erred in holding that poor prison conditions involving overcrowding for four days do not give rise to significant harm under Australian law.
An adjournment was sought on the basis that the judgments of Judge Driver were currently the subject of appeals to the Federal Court.
A number of difficulties face the adjournment application. Insofar as the Applicant relied on the fact that there are appeals pending from the decisions of Judge Driver in relation to his consideration of a ground equivalent to Ground One, there is no suggestion that I should find that Judge Driver was clearly wrong. It was acknowledged by the Applicant that the decisions of Judge Driver were in point and that the approach taken in those cases would mean that the Applicant in these proceedings could not succeed on this ground. Nonetheless, despite the absence of a consideration of the merits of Judge Driver’s decisions or the prospects of successful appeals, it was submitted that the Court should await appellate reconsideration of issues relating to the construction and the application of the complementary protection criterion in the Migration Act 1958 (Cth) (the Act).
There are two aspects to Ground One relied on in support of the adjournment application. The first is that the Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act in that it accepted that the Applicant would be “imprisoned” on return to Sri Lanka and that the Tribunal accepted “(at [78])” that there were reputable reports of Sri Lankan authorities using torture as a means of extracting information from those held in places of detention. In oral submissions it was explained that this part of ground one should have referred to the Applicant being detained rather than imprisoned. It was also conceded that the reference to paragraph [78] of the Tribunal decision was incorrect and should have been a reference to paragraph [153]. It appears to be contended that the Tribunal should have considered the risk that the Applicant would be tortured while detained for a few days pending a bail hearing, but that it did not do so.
Such contention fails to take into account the fact that while the Tribunal accepted that there were reputable reports of torture of suspects in detention, it went on to find (at [153] and [154] of its decision) that notwithstanding such reports of torture, having regard to the profile of this particular Applicant, it was not satisfied that the country information supported the conclusion that there was a real risk that as a Tamil returnee he would experience such torture or otherwise be subjected to physical mistreatment upon return and that the country information did not suggest that all Tamil returnees were at risk of torture. This led to the Tribunal’s conclusion that it was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of his return to Si Lanka, there was a real risk that the Applicant would suffer torture or otherwise be subject to mistreatment amounting to “significant harm” if he was remanded in custody for a short period upon his return.
In other words, the Tribunal made findings which would appear to distinguish this case from the principle on which Mr Bodisco seeks to rely to suggest that the Tribunal misconstrued or misapplied ss.5 and 36(2A) in the way that was considered (but rejected) by Judge Driver.
The second aspect of Ground One said to warrant an adjournment until the Federal Court has dealt with the appeals from Judge Driver’s decisions is the contention that, as was unsuccessfully argued in SZTAL (and see SZSPE v Minister for Immigration and Border Protection [2014] FCA 267), the Tribunal erred because it considered only whether there was an actual subjective intent to cause harm to the Applicant and because it failed to clarify relevant acts or omissions in relation to intention (where the Applicant had not done so).
Counsel for the Applicant appeared to suggest that the reason the matter should be adjourned related to whether it was an error for the Tribunal to consider intention in the way that it did. In this case the Tribunal considered a number of issues in relation to the definitions of the concepts that amount to significant harm as follows (at [156] – [157]:
While I accept, based on the available media reports, that the conditions of detention the applicant will face whilst detained will be crowded, cramped and unpleasant, I do not accept that, having regard to my findings about the circumstances and duration of the detention the applicant will face, there is a real risk that the applicant will be subjected to pain and suffering that could reasonably be characterised as ‘cruel or inhuman treatment or punishment’ or that he would be intentionally subjected to treatment or punishment that would amount to ‘degrading treatment or punishment’ within the meaning of subsection 5(1) of the Act. I find that the conditions the applicant would face will not cause extreme humiliation which is unreasonable and that the treatment or punishment he would face on remand for a short period could not reasonably be regarded as degrading treatment or punishment.
I find, on the basis my assessment of the applicant’s evidence and profile and the available country information, that there are not substantial grounds for believing that there is a real risk the applicant will face ‘significant harm’ either during the processing at the airport or while he is detained on remand or after the applicant returns to Udappu for reasons relating to his status as a failed asylum seeker and/or his illegal departure from Sri Lanka. (Footnotes omitted).
In other words, there was an omnibus finding in relation to a number of issues but including the issue of intention. The findings of the Tribunal in this case were not limited to the question of intention, but extended to various aspects of the definitions of significant harm, having regard to the nature of what would be experienced by the Applicant on remand.
Moreover, there is authority of the Federal Court in relation to the need for actual, subjective intent (see SZSPE). As a general principle, where there is authority of the Federal Court on an issue, in my view it is appropriate to proceed to hear the matter on that basis.
Insofar as the Applicant intended to contend that the Tribunal erred because it failed to identify relevant acts or omissions, there is nothing in the circumstances of this case to indicate that the Applicant sought to identify any such acts or omissions. It is, (as Judge Driver pointed out in SZTAL at [53], for an Applicant to make out his or her case. It has not been suggested that Judge Driver was wrong in this respect. The prospect of a successful appeal has not been addressed.
In all the circumstances, I am not persuaded that the fact that there are appeals on foot from the decisions of Judge Driver relevant to ground one is such as to warrant adjourning the matter until the Federal Court has dealt with such appeals. I am not satisfied it would be in the interests of the parties and the administration of justice to adjourn on the basis contended for by the Applicant. I note in that respect that insofar as it is suggested that the Full Court would “deal with the matter to finality”, the decision of the Full Court would not necessarily deal with the matter to finality given the possibility of an application for special leave to appeal to the High Court.
The Applicant also sought an adjournment having regard to the issues raised in Ground Two. The second ground is expressed to rely on the approach taken by North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 (at [30] and [45]). It is as follows:
The RRT applied the incorrect test pursuant to section 91R(2)(a) of the Migration Act 1958 (Cth) and/or asked itself the wrong question.
Particulars
By making a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the RRT in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect (sic) & Another [2014] FCA 947 at [30] and [45]
It was contended in written submissions that as WZAPN was presently before the High Court (argument having been heard) the Court should grant an adjournment until the High Court made its decision, notwithstanding that it was conceded that the authority of WZAPN was no longer good law, having regard to the decisions of the Full Court of the Federal Court in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41.
Insofar as that contention is maintained, there are very clear decisions of the Full Court of Federal Court which, in effect, overturn the authority of WZAPN. This is not a case in which it would be in the interests of the parties or in the administration of justice that there be an adjournment while the matter of WZAPN itself remains the subject of appeal to the High Court. The prospects of success were not addressed. Having regard to the arguments accepted by the Federal Court in SZTEQ it has not been established that there are reasonable or arguable prospects of success in relation to WZAPN.
Insofar as there was some suggestion by Counsel for the Applicant that an adjournment until final consideration of the issue in WZAPN by the High Court would be consistent with the approach adopted by Judge Driver in SZUQU v Minister for Immigration & Anor [2015] FCCA 771, it appears that SZUQU was dismissed on 8 April 2015 when a proposed application was not filed.
It emerged in oral submissions today that the application for an adjournment in relation to the claims put in the second ground was now maintained on the basis of an argument made to the High Court in relation to WZARV v Minister for Immigration and Border Protection (2014) 144 ALD 82; [2014] FCA 894, which was apparently heard at the same time as WZAPN.
It was asserted that the determination of WZARV by the High Court would be relevant in the present proceeding. I was not provided with a copy of the decision in WZARV at first instance or a transcript of the hearing before the High Court in the matter of WZARV. According to Mr Bodisco, WZARV is relevant because in that case, as in this case, an issue was said to arise as to whether or not the Tribunal fell into error in failing to assess whether there was a threat to a Sri Lankan applicant’s life and liberty such as to fall within the definition of persecution in s.91R of the Act by failing to consider whether the detention of the applicant at the airport on return to Sri Lanka for questioning constituted a threat to his liberty consistent with the approach taken by North J in WZAPN. It was contended that this issue could be determinative of the present case insofar as the Tribunal had accepted that the Applicant would be questioned at the airport as well as being held on remand for a few days (the type of “detention” considered in WZAPN). It was also submitted that it was relevant that there was an alternative basis for the finding in WZAPN, but no alternative basis for the finding in WZARV in relation to persecution within s.91R(2) of the Act.
Initially I saw some prospect that an argument based on a novel issue might persuade me that it may be appropriate to adjourn so that such an issue could be considered. However the issue in question was considered by the Federal Court in SZTEQ. The ground of appeal considered in SZTEQ included not only whether the Tribunal erred in failing to consider whether detention on remand involved a deprivation of liberty but also whether the fact that the appellant would be questioned and arrested at the airport involved the possibility of a deprivation of liberty while being questioned and investigated by the authorities. The particulars set out in SZTEQ (at [8]) reflect those issues now said to be relevant in this case. In SZTEQ it was also contended on appeal that the Tribunal had applied the wrong test by making a qualitative assessment of the nature and degree of the harm experienced by the appellant when being questioned and investigated by the authorities at the airport and detained on remand for his illegal departure.
In other words, the grounds of appeal considered by the Full Court of the Federal Court encompassed the issue that the Applicant now says was raised before the High Court in WZARV. The Federal Court set out, in some detail, its reasoning in relation to the issue of deprivation of liberty and whether it was appropriate to engage in a qualitative assessment. The Court referred to the fact that the text of s.91R of the Act was intended to reflect the Convention concept of persecution (see SZTEQ at [61], and in particular [66], [69], [71], [74] and [76]). In that context, their Honours made general findings based on the construction of the Act, not limited to the particular circumstances of detention on remand.
In these circumstances, where there is clear authority of the Full Court of the Federal Court relevant to the issue that the Applicant now wishes to raise in Ground Two, in my view it is appropriate that this Court follow the authority of the Federal Court rather than adjourn the matter further while the issue is determined in the High Court.
The question of an adjournment to await a decision of the Federal Court or the High Court comes up on many occasions. I understand that Mr Bodisco suggested that there were aspects of the decision in WZARV that meant that there was some novelty (in part because there was no alternative basis for the Tribunal’s finding in relation to s.91R). However I am satisfied that there is clear authority in SZTEQ addressing a ground of appeal which clearly encompassed the issue of whether there was a deprivation of liberty in detention while being questioned and investigated by authorities at an airport. This Court is bound by the authority of the Federal Court. There is nothing in what has been said to the Court to indicate the strength of the prospects of success on appeal in WZARV (or for the visa applicant in WZAPN). Whether or not there was another basis for the Tribunal’s consideration of the definition of persecution in s.91R of the Act, I am not satisfied that the circumstances warrant an adjournment in the interests of the parties and the administration of justice.
What I say in this case in no way indicates that it would never be appropriate for there to be an adjournment where there was a matter before the Federal Court or the High Court. However in the particular circumstances of this case I am not persuaded that an appeal would be in the interests of the parties and the administration of justice. The application for an adjournment is refused.
Mr Bodisco conceded that on this basis the application for judicial review could not succeed. Such concession was appropriately made. Accordingly the application should be dismissed with costs.
The First Respondent seeks costs in the sum of $5,800. No issue was taken with that amount. It is less than the amount provided for in the Rules. I consider it is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate:

Date: 11 May 2015