SZTGM v Minister for Immigration & Anor - [2015] FCCA 87

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTGM v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 87

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.

Legislation:

Migration Act 1958 (Cth), ss.36, 46A

SZTAL v Minister for Immigration & Anor [2015] FCCA 64
SZTCY v Minister for Immigration & Anor [2015] FCCA 85
WZAPN v Minister for Immigration [2014] FCA 947

Applicant:

SZTGM

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2136 of 2013

Judgment of:

Judge Driver

Hearing date:

17 November 2014

Delivered at:

Sydney

Delivered on:

24 February 2015

REPRESENTATION

Counsel for the Applicant:

Mr J King

Solicitors for the Applicant:

Fragomen

Solicitors for the Respondents:

Mr A Markus of Australian Government Solicitor

ORDERS

The application as amended on 3 November 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2136 of 2013

SZTGM

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (Tribunal) made on 8 August 2013. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The issues arising in this case are identical to those in SZTAL v Minister for Immigration & Anor[1] and SZTCY v Minister for Immigration & Anor[2]. The Tribunal decision was made in relevantly indistinguishable terms by the same Tribunal member who made the decisions in those cases. With that in mind, I informed the parties at the trial of this matter on 17 November 2014 that the outcome in this case would be likely to be the same as in SZTAL and SZTCY.
[1] [2015] FCCA 64
[2] [2015] FCCA 85
The following statement of background facts is derived from the submissions of the parties.
The applicant is a national of Sri Lanka. He is 28 years old and is of Tamil ethnicity. He arrived on Christmas Island as an unauthorised maritime arrival on 21 May 2012. On 16 September 2012, by letter dated the same day, he was advised that the Minister exercised his power under s.46A of the Migration Act 1958 (Cth) (Migration Act) in his favour[3]. Later that day, he lodged an application for a protection visa with the assistance of agents appointed under the Immigration Advice and Application Assistance Scheme[4].
[3] Relevant Documents (RD) 46
[4] RD 47-111
The applicant claimed that he faces serious and/or significant harm in Sri Lanka for reason of a suspected connection to the Liberation Tigers of Tamil Eelam (LTTE), and also for the reason of being a failed asylum seeker, a Tamil returnee, and/or as a Tamil returnee who departed from Sri Lanka illegally.
On 16 January 2013, a delegate of the Minister refused the applicant’s protection visa application[5].
[5] RD 112-145
On 17 February 2013, the applicant applied to the Tribunal for review of the delegate’s decision[6]. The applicant attended a hearing before the Tribunal on 9 May 2013.
[6] RD 146-153

The applicant’s claims

The applicant’s underlying factual claims can be summarised as follows:
The applicant’s family resided in Udappu in Puttalum district, and ran a business purchasing dry fish from Mulliatavu, packaging it and selling it in Colombo. The applicant’s step-father used to drive to Mulliatavu to buy the fish. This involved travel through LTTE controlled areas. He also worked as a bodyguard for a local Tamil politician, Thatchinamoorthy, who was a member of the Sri Lanka Freedom Party (SLFP)[7].
a)in September 2006, his step-father was taken from the family home by men dressed like members of the Sri Lankan Army (SLA) for the reason of being a suspected associate of the LTTE[8];
b)his step-father’s cousin, who also worked for Thatchinamoorthy, was taken on the same evening[9];
c)the applicant’s cousin, who drove a lorry for his family’s business, was shot and killed in his own house in 2008[10];
d)following his step-father’s disappearance, the applicant left Udappu and went to live with his grandmother[11];
e)during the period 2006 to 2008, his mother was visited on a number of occasions by the Criminal Investigation Department (CID), who had demanded money from her[12]. On these visits the CID left papers with the applicant’s mother telling the applicant to report, which he did not do;
f)in November 2011 the CID had questioned the applicant about his own support of the LTTE and also beat and mistreated him[13];
g)the applicant also claimed to fear a person named Kumar, a stand-over man from a neighbouring village, who had extorted his mother for money[14].
[7] RD 74 [4]
[8] RD 74-75 [5]-[6]
[9] RD 75 [6]
[10] RD 76 [17]
[11] RD 76 [13]
[12] RD 76 [13]
[13] RD 77 [19]-[21]
[14] RD 270 [35]

The Tribunal’s decision

The Tribunal made its decision on 8 August 2013, and the applicant was notified of that decision by letter dated 9 August 2013[15].
[15] RD 262-280
The Tribunal was prepared to accept that:
a)the applicant’s step-father was taken by the SLA, or persons associated with it, in 2006 and had not been seen since. However, the Tribunal did not accept this was because his step-father worked for Thatchinamoorthy, as Thatchinamoorthy himself had not been arrested and continued to be politically involved in Udappu[16];
b)it was possible the applicant’s cousin had been shot and killed. However, the Tribunal did not accept that this happened because he drove a lorry for the family business, as the applicant’s own evidence was that his family had stopped sourcing dried fish from Mullitavu in 2006. The Tribunal also considered that, if the applicant’s cousin had been suspected of supporting the LTTE, he would have been taken at the same time as the applicant’s step-father in 2006[17];
c)the CID visited the applicant’s mother between 2006 – 2008 in relation to her husband’s disappearance, and that the CID or other authorities may have extorted money from her, possibly because she was perceived as having money as a business owner[18];
d)the applicant’s mother may have been extorted by Kumar. However, the Tribunal noted the applicant had no direct involvement with Kumar and found that Kumar’s conduct did not appear to be anything other than criminal in nature and unconnected to paramilitary groups[19].
[16] RD 267 [18]
[17] RD 268 [26]
[18] RD 268-9 [27]
[19] RD 270 [36]
The Tribunal found the applicant was not suspected of involvement with the LTTE, has not been imputed with a pro-LTTE opinion and is not wanted by the Sri Lankan authorities. It reached this view on the basis that, if the authorities had suspected him of being an LTTE supporter they would have located him for questioning in 2006. The Tribunal did not accept the applicant had been interrogated or beaten in 2011 by the CID, when it had not interrogated him in 2006 when his step-father disappeared[20].
[20] RD 269-270 [28]-[34]
On this basis, the Tribunal found that:
a)the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future in Sri Lanka because of his political opinion or his membership of a particular social group; ie his stepfather’s family; and
b)there are no substantial grounds for believing that the applicant faces a real risk of significant harm on return to Sri Lanka arising out of his stepfather’s disappearance in 2006, or because he is suspected of being a supporter of the LTTE, or from a standover man called Kumar[21].
[21] RD 270-271 [37]
The Tribunal then considered whether the applicant had a well-founded fear of persecution for a Convention reason, or was entitled to complementary protection, as a returnee and/or a person who has left Sri Lanka illegally.
On the basis of country information, put to the applicant at hearing, that indicated that the procedures which apply to returnees to Sri Lanka are “standardised”, and are administered in all cases regardless of ethnicity or whether the person is a voluntary or involuntary returnee, the Tribunal found the applicant does not face a real chance of serious harm now or in the reasonably foreseeable future in Sri Lanka as a failed asylum seeker or Tamil returnee, and that there are not substantial grounds for believing he faces a real risk of harm upon being returned to Sri Lanka for these reasons[22].
[22] RD 274 [46]
The Tribunal noted that illegal departure is an offence under article 45 of the Immigrants and Emigrants Act 1945[23] (Immigrants and Emigrants Act). It also noted that, whilst that Act provides for a penalty of imprisonment, the courts have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction[24].
[23] RD 274 [47]
[24] RD275 [51]
On the basis of country information, also discussed with the applicant, the Tribunal found that the applicant may be held in remand for a short period if he is charged with an offence under the Immigrants and Emigrants Act for his illegal departure from Sri Lanka, and if convicted may be issued with a fine[25]. In this context, the Tribunal noted that the applicant had family in Sri Lanka who could guarantee his bail.
[25] RD 274 [49] and 276 [55]
On the basis of the country information, the Tribunal also concluded that the Immigrants and Emigrants Act is being applied to all persons who have departed or attempted to depart Sri Lanka illegally, regardless of ethnicity. The Tribunal found that the relevant provision does not have a discriminatory intent or impact, and that it is not being applied selectively or in a discriminatory manner for a Convention reason. It concluded that article 45 of the Immigrants and Emigrants Act is a law of general application, and does not give rise to persecution under the Refugees Convention[26].
[26] RD 276 [54]
The Tribunal nevertheless also considered whether the applicant faces a real chance of serious harm for a Convention reason whilst in prison on remand for a short period of time, but concluded that the applicant would not be targeted or harmed because of his ethnicity or membership of a particular social group, or for any other Convention reason, while on remand[27].
[27] RD 276 [56]
Finally, the Tribunal also considered whether there is a real risk the applicant will suffer significant harm whilst in prison on remand for a short period of time, or following any conviction for illegal departure, and concluded that there was no such real risk.
In the context of the first issue, the Tribunal noted country information to the effect that prison conditions in Sri Lanka may not meet international standards, and that concerns have been expressed in relation to overcrowding, poor sanitary facilities, limited access to food. The absence of basic assistance mechanisms, etc[28]. The Tribunal also noted that Sri Lankan authorities have acknowledged the poor prison conditions, have announced plans to address these concerns, but lack of space and resources has inhibited reform[29].
[28] RD 277 [61]
[29] RD 278 [63]
In the circumstances, the Tribunal accepted that, as a consequence of the poor prison conditions, the applicant “may suffer anxiety and discomfort during a period of remand in prison”. The Tribunal went on to state, however, that it did not accept that[30]:
a)“a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant”; or
b)“amounts to an act which could reasonably be regarded as cruel or inhuman”; or
c)“amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable”.
[30] RD 278 [64]
The Tribunal went on to explain part of its reason for these findings by reference to the fact that “cruel or inhuman treatment or punishment” must be intentionally inflicted, and “degrading treatment or punishment” must be intended to cause extreme humiliation, while on the evidence it found that the poor prison conditions in Sri Lanka were due to lack of resources, rather than an intention by the Sri Lankan government to inflict cruel or inhuman treatment or punishment, or to cause extreme humiliation[31].
[31] RD 278 [65]
In the circumstances, the Tribunal concluded that a short period in remand on return to Sri Lanka did not give rise to substantial grounds for believing the applicant faces a real risk of significant harm[32].
[32] RD 278 [66]–[67]
The Tribunal also did not accept the imposition of a fine will give rise to a real risk of significant harm, finding the applicant had the resources to pay the fine likely to be imposed[33].
[33] RD 279 [70]
Having considered the evidence and the applicant’s claims singly and cumulatively, the Tribunal found he did not have a well-founded fear of persecution for any reason under the Refugees Convention, and did not satisfy s.36(2)(a) of the Migration Act[34]. The Tribunal also found the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(aa) of the Migration Act[35].
[34] [72] and [74]
[35] [73] and [75]

The judicial review application

These proceedings began with a judicial review application filed on 11 September 2013. The applicant now relies upon an amended application filed on 3 November 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: [64].
b. The Tribunal found that prison conditions in Sri Lanka:
i.      “may not meet international standards”: [61];
ii.      “are poor and overcrowded”: [64];
iii.     have involved “instances of torture”: [61];
iv.      have involved “instances of … maltreatment and violence”: [61];
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’”: [61];
vi.     have been assessed by a formed UN Special Rapporteur on Torture as amounting to “degrading treatment”: [61].
c. The Tribunal found that the Sri Lankan government has “acknowledged” the poor conditions in its prisons: [63] and [65].
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: [65].
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 [80]): “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 book of relevant documents filed on 3 October 2013. The applicant also sought to rely upon the affidavit of his solicitor Andrew Hatte made on 31 October 2014, to which is annexed a transcript of the hearing conducted by the Tribunal on 9 May 2013. I agreed to receive that affidavit subject to relevance. As matters transpired, the transcript has no relevance.

Consideration

The first ground in the application takes issue with [65] of the Tribunal’s reasons where the Tribunal said:
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.
In SZTAL I rejected an identical ground challenging an identically worded paragraph of the Tribunal decision in that case. For the same reasons, I reject Ground 1 in this case.
The second ground in the application takes issue with [54] of the Tribunal’s reasons[36] on the basis of the decision by North J in WZAPN v Minister for Immigration[37]. The Tribunal stated:
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.
[36] CB 276
[37] [2014] FCA 947
In SZTAL I rejected an identical challenge to an identically worded paragraph of the Tribunal decision at issue in that case. For the same reasons, I reject Ground 2 in this case.

Conclusion

The applicant has failed to demonstrate any jurisdictional error in the decision of the Tribunal. 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 thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 24 February 2015