SZTGF v Minister for Immigration
[2017] FCCA 2906
•8 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTGF v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2906 |
| Catchwords: MIGRATION – Protection visa application – review of Administrative Appeals Tribunal decision – whether the Tribunal failed to consider the claims of the applicant – whether the Tribunal misinterpreted the meaning of the phrases “intentionally inflicted” and “intended to cause” within s.5(1) of the Migration Act 1958 (Cth) – whether the Tribunal erred by qualitatively analysing the risk of significant harm – whether the Tribunal failed to comply with Ministerial Direction No. 56 – whether the Tribunal failed to comply with its obligation under s.424A(1) of the Migration Act 1958 (Cth) – whether the Tribunal erred in failing to inform the applicant of certificates issued under s.438 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 424A, 425, 430A, 438, 499 Ministerial Direction No. 56 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183 |
| Applicant: | SZTGF |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1944 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 21 September 2017 |
| Date of Last Submission: | 21 September 2017 |
| Delivered at: | Sydney |
| Delivered on: | 8 December 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1944 of 2016
| SZTGF |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Sri Lanka who arrived in Australia on 10 June 2012 and lodged an application for a protection visa on 8 September 2012. On 21 November 2012, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa and the applicant applied to the Refugee Review Tribunal[1] (RRT) for review of that decision. On 13 August 2013, the RRT affirmed the decision of the delegate; however, that decision was quashed by orders made in this Court on 11 September 2015. The matter was remitted to the Administrative Appeals Tribunal (Tribunal) for determination of the application for review of the delegate’s decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
On 24 June 2016, the Tribunal made a decision to affirm the decision of the delegate. The applicant now seeks judicial review of the Tribunal’s decision. In order to succeed, the applicant must establish that the Tribunal’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2.
Background
The applicant based his application for a protection visa on the following claims.
On 25 August 2011, the applicant was at home with his parents when he saw a “greaseman” trying to remove tiles from the roof of his house. The applicant along with other people in his neighbourhood chased the “greaseman” away and into a camp of the Sri Lankan Army (SLA) in Uddapu. An officer of the SLA attempted to detain the applicant, however he managed to escape. The applicant was later visited by police and asked to report to the police station the following day. When the applicant arrived at the police station, he was taken to an SLA camp where he was interrogated and assaulted.
The applicant was ordered to attend the SLA camp approximately 15 times between August 2011 and May 2012. At the SLA camp, the applicant was forced to undertake “labour work” such as cleaning toilets and buying cigarettes and alcohol for the officers. He was treated by the officers in a way which was “grossly degrading”.
On 6 May 2012, the applicant was once again ordered to do work for the SLA and buy cigarettes and alcohol for the officers. He was detained at the camp for the night when two officers attempted to rape him, however he was able to escape. The day after this incident, officers of the SLA went to the applicant’s home and questioned and beat his father after he did not divulge any information regarding the whereabouts of the applicant.
The applicant subsequently departed illegally for Australia. Since departing Sri Lanka, the SLA have threatened the applicant’s family and said to them that if he were to return that his life would be in danger.
The applicant claimed that he feared harm for the following reasons:
a)his Tamil ethnicity;
b)his “real and imputed political opinion arising from his race and his former residence in a predominantly Tamil region”; and
c)his membership of particular social groups:
i)Sri Lankan Tamils and Tamils from northern or eastern Sri Lanka;
ii)Tamils who have fled Sri Lanka illegally; and
iii)Tamils who have unsuccessfully made a claim for asylum in Australia.
On 21 November 2012, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. Essentially, the delegate did not accept that the applicant’s claims were credible and otherwise found that the applicant did not face a real chance of harm upon return to Sri Lanka.
The applicant applied to the RRT for review of the delegate’s decision. The RRT made its decision on 13 August 2013, affirming the delegate’s decision. Like the delegate before it, the RRT did not accept that the applicant was credible, rejected all of the applicant’s factual claims and was otherwise not satisfied that the applicant faced a real chance of harm upon return to Sri Lanka.
The applicant sought judicial review of the RRT’s decision. On 11 September 2015, this Court delivered judgement, making orders for the issue of writs of certiorari and mandamus. The Court found that the RRT’s decision was affected by jurisdictional error because the Tribunal’s credibility finding was based on an unreasonable failure to accept the applicant’s explanation for a discrepancy in the evidence given by him in support of his claims.
As the Tribunal had assumed the functions of the RRT, the Tribunal continued the conduct of the review of the delegate’s decision. On 16 June 2016, the applicant attended the hearing conducted by the Tribunal. On 24 June 2016, the Tribunal made its decision to affirm the decision of the delegate.
Tribunal’s decision
Unlike the delegate and the RRT, the Tribunal accepted that the applicant had given evidence “broadly consistent with his written claims and his previous evidence, and that his answers were reasonably spontaneous”. In light of that, the Tribunal accepted the applicant’s evidence and found that:
a)the applicant was a Hindu of Tamil ethnicity and a citizen of Sri Lanka;
b)on 25 August 2011, he saw a “greaseman” trying to remove tiles from the roof of his house. He chased the “greaseman” away and into an army camp;
c)at about 11.00pm later that day, Sri Lankan police officers visited the applicant’s house to question him about the “greaseman”. He was requested to report to the police station the following day. He did so and was transported to an SLA camp which was behind the police station. The applicant was tied up, interrogated and assaulted and was subsequently released;
d)between August 2011 and May 2012, the applicant was ordered to the army camp approximately 15 times where he was forced to do “labour work”;
e)on 6 May 2012, following a party, two drunken SLA officers attempted to assault the applicant. Although he was scared, the applicant did not suffer any harm and managed to escape;
f)shortly after, he departed Sri Lanka for Australia by boat;
g)the applicant believes he will be harmed by the SLA and other Sinhalese authorities because he escaped from the SLA camp and departed Sri Lanka illegally; and
h)the applicant does not believe he will be protected by the Sri Lankan authorities if he is to return and believes that he could not relocate within Sri Lanka because he does not have any friends or relatives elsewhere in Sri Lanka, nor is he equipped with a particular skill which would bear him capable of earning a living.
However, the Tribunal did not accept that since the applicant’s departure from Sri Lanka, his family had been harassed and threatened by SLA officers or any other persons, or that his life would be endangered if he were to return to Sri Lanka.
In respect of the applicant’s claim based upon his ethnicity, the Tribunal had regard to a report from the Department of Foreign Affairs and Trade (DFAT) dated 16 February 2015 and, together with its findings of fact, found that the applicant did not have a well-founded fear of persecution by reason of his ethnicity.
The Tribunal was also not satisfied that the applicant had a well-founded fear of persecution for reason of his imputed political opinion as a Tamil because the applicant had said that neither he, nor his family, had participated in demonstrations or protests, were involved in any way in political activities either in Sri Lanka or Australia, in connection with the Liberation Tigers of Tamil Eelam and no submissions were made by the applicant’s agent in respect of the matter.
The Tribunal also rejected the applicant’s claims based upon his membership of the particular social groups of Sri Lankan Tamils and Tamils from the north or east of Sri Lanka essentially because of its findings in respect of the applicant’s ethnicity claim and the fact that the applicant came from the western seaboard of Sri Lanka and not the north or east.
The Tribunal accepted that “failed asylum seekers” constitute a particular social group, however in light of the DFAT report, it found that the applicant had no well-founded fear of persecution either for reason of his membership of that group, or because he had left Sri Lanka illegally. Its findings in this respect were:
83.The Tribunal is satisfied on the basis of the information before it, that the applicant will be questioned at the airport, detained and investigated by Sri Lankan authorities. The Tribunal finds that in the applicant’s circumstances (including and not limited to application for asylum in Australia, and any awareness the Sri Lankan authorities have of the applicant’s presence in Australia; and assuming he has a previous record with the authorities), the Tribunal is satisfied that there is not a real chance that the applicant will be detained for longer than usual while investigations are carried out, that the applicant will be tortured or given a custodial sentence. The Tribunal finds that the applicant will receive a fine.
For all of those reasons, and the claims considered on a cumulative basis, the Tribunal was not satisfied that the applicant faced a well-founded fear of persecution for Convention purposes now, or in the reasonably foreseeable future, and so was not satisfied that the applicant was a refugee under sub-s.36(2)(a) of the Migration Act 1958 (Cth) (Act).
Consideration
The applicant raises two grounds in his application. As will be seen, ground 1 in fact contains a number of grounds. The applicant also raises further grounds in his written submissions.
Ground 1
The applicant contends in ground 1 that the Tribunal erred by failing to assess for the purposes of complementary protection, the consequences of his illegal departure and any detention he may be subject to. The applicant also contends that the Tribunal erred by failing to ask itself the right questions and by misconstruing the relevant statutory provisions. The ground has a number of particulars which raise different errors. The first and sixth particulars are general assertions that may be left to one side. It is necessary to deal with the other particulars in turn.
Particular (ii)
In particular (ii) the applicant asserts that the Tribunal failed to consider the mental harm he may suffer as a result of being detained upon returning to Sri Lanka.
The applicant made no claim that he would suffer mental harm. At the hearing, he told the Tribunal that he was “scared about what might happen if he was detained” and that he could not “bear torture or beatings any more.” That does not amount to a claim of mental harm. In any event, the Tribunal found that there was no real risk of torture in custody (at [83] and [91] of its reasons) and otherwise that his detention would not give rise to any serious or significant harm. The contention in the second particular is rejected.
Particular (iii)
The applicant contends that the Tribunal misinterpreted the meaning of the phrases “intentionally inflicted” and “intended to cause” within the definition of “cruel or inhuman treatment or punishment” and “degrading treatment or punishment” under s.5(1) of the Act. It appears that the applicant is essentially advancing the same argument that was considered, and rejected, in SZTAL v Minister for Immigration & Border Protection (2017) 91 ALJR 936; [2017] HCA 34 (SZTAL). That is sufficient reason to reject this ground; however, there is a more fundamental reason why the contention must fail. Unlike the Tribunal in SZTAL, the Tribunal here did not base its decision on the lack of intention in any harm that might be suffered by the applicant as a result of his illegal departure from Sri Lanka. Moreover, it found that the process of penalising the applicant upon returning to Sri Lanka did not amount to a real risk of significant harm because the risk was not exclusive to the applicant but instead “one that is faced by the population of Sri Lanka generally…” (see sub-s.36(2B)(c) of the Act).
Particular (iv)
The applicant contends that the Tribunal was wrong to consider that the duration of the applicant’s possible detention was material to the question of whether he faced a risk of significant harm.
The central tenet of this argument is incorrect. The existence of a risk of significant harm requires a qualitative analysis that can include consideration of the length of time of a possible detention: Minister for Immigration & Border Protection v WZAPN (2015) 254 CLR 610; [2015] HCA 22. This argument is rejected.
Particular (v)
Finally, the applicant asserts that the Tribunal failed to expressly consider Ministerial Direction No. 56 (Direction). Properly understood, the argument is that the Tribunal failed to comply with a direction made by the Minister pursuant to s.499 of the Act and, in particular, that it must have regard to the Procedural Advice Manual 3 (PAM3) and reports from DFAT when undertaking its review of the delegate’s decision.
The contention must fail for a number of reasons:
a)first, the Tribunal expressly acknowledges its obligation under the Direction to consider the PAM3 and any country reports prepared by DFAT;
b)secondly, the Tribunal extensively relies upon and refers to the DFAT report throughout its decision;
c)thirdly, the obligation to consider the matters in the PAM3 or DFAT report only arises in respect of what the Tribunal considers relevant: see SZTMD v Minister for Immigration & Border Protection (2015) 150 ALD 34; [2015] FCA 150 at [20] and Nigam v Minister for Immigration & Border Protection (2017) 71 AAR 369; [2017] FCA 106 at [17]; and
d)fourthly, there is nothing on the material to suggest that the Tribunal thought that any aspect of the PAM3 was relevant and yet failed to consider it.
Ground 2
In this ground the applicant contends that the Tribunal breached ss.425 and 424A of the Act by failing to put to the applicant determinative issues and therefore denied him procedural fairness. The applicant in his application does not specify what “determinative issues” were not put to him.
However, in his written submissions the applicant suggests that the Tribunal should have put to him the concerns it had over the credibility of the following claims he had advanced to the delegate and RRT:
a)that police officers had pushed him to the ground and pointed a pistol to his head; and
b)that the “greaseman” he had noticed removing tiles from the roof of his house was wearing glasses.
The ground is based on the assertion that the Tribunal made adverse findings on these issues. It did not. Rather, although it had some doubt about the credibility of these claims, it gave the applicant the benefit of the doubt and accepted them: [47] – [48]. For that reason, the ground is rejected.
Additional grounds
In addition to the grounds in his application, the applicant advances further grounds in his written submissions. The applicant contends that the Tribunal failed to consider:
a)his claim that he had been forced to partake in homosexual acts with SLA officers and the consequences upon his return to Sri Lanka; and
b)whether he had the capacity to pay money for bail in order to be released from prison.
Although the applicant claimed in his entry interview that the officers “forced me to have sex with them”, he later changed that claim and said that “they tried to rape me. I was able to escape before they did it”. The Tribunal ultimately accepted the later claim: [49]. Given the inconsistency between that claim and the earlier claim, the acceptance of that claim effectively dealt with the earlier claim.
The applicant’s contention that the Tribunal failed to consider the issue of bail money must also fail. The Tribunal did not make any finding that the applicant would be able to leave police custody by paying bail. For that reason, the question of his ability to pay money to obtain bail never arose.
Certificates issued under s.438 of the Act
The applicant also argues that he was denied procedural fairness by the Tribunal by its failure to disclose to him a certificate provided by a delegate of the Minister under s.438 of the Act. There were in fact two certificates purportedly given under s.438.
The first certificate was issued on 21 November 2012. It referred to folios 92-95 of the file number CLF2012/193387. It is not entirely clear whether this certificate was validly issued; however, regardless of its validity the more pertinent question of whether the certificate and its contents might have affected the Tribunal’s decision must still be answered.
If it is found that the documents subject to the certificate could have had an effect on the decision of the Tribunal, then its non-disclosure would amount to a failure to afford the applicant procedural fairness: see Minister for Immigration & Border Protection v Singh (2016) 244 FCR 305; [2016] FCAFC 183. Unlike in that case, the documents subject to the certificates were in evidence before the Court and their relevance to the Tribunal’s decision was contested.
The first certificate concerns a ‘Finger Print Match Report’ of the applicant which is a document generated by the Department. The report reveals that the fingerprint of the applicant was recorded in Chennai, India on 11 May 2011. A photograph of the applicant and his passport is also contained within the report and is noted as being obtained in Chennai on 7 July 2011 when he was refused a visa. Both the date of the fingerprint and photographs occur before the beginning of the timeline of the applicant’s claims for protection. In light of that, I do not consider that the first certificate could have affected the Tribunal’s decision.
The second certificate was dated 30 September 2015 and referred to folios 1A-1C, 71-84, 119-120 and 139-144 of file number CLF2012/193387. The certificate stated that disclosure of the information in the specified folios would be contrary to the public interest because it contained information “relating to an internal working document and business affairs”.
The Minister conceded that the second certificate was invalid because an “internal working document” does not provide sufficient basis for public interest immunity: see MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081 at [37].
The second certificate concerns the following documents:
a)the applicant’s ‘Irregular Maritime Arrival Entry Interview’ dated 24 July 2012;
b)the first certificate dated 21 November 2012;
c)a ‘Disclosure Decision Checklist’ dated 21 November 2012;
d)a number of internal records of the Department regarding this Court’s decision including its orders to quash the decision of the RRT; and
e)a letter from the RRT to the Department dated 13 August 2013 enclosing a copy of the RRT’s reasons in accordance with s.430A of the Act.
It is evident from the Tribunal’s reasons that, of these, the only document the Tribunal had regard to was the ‘Irregular Maritime Arrival Entry Interview’. The Tribunal accepted what the applicant had claimed in the interview and in any event, a copy of the entry interview was sent by the applicant’s agent to the Tribunal. As a consequence, there was no practical injustice in the Tribunal’s failure to disclose either that document or the certificate.
The other documents which were subject to the second certificate did not contain any relevant, credible or significant information which could have affected the Tribunal’s decision. As a result I can see no practical injustice in respect of them either. The argument is rejected.
Conclusion
There is no jurisdictional error in the Tribunal’s decision. The application must be dismissed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 8 December 2017
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