SZTUL v MIBP

[2014] FCCA 1985

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTUL v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1985

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.425

Applicant: SZTUL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 139 of 2014

Judgment of: Judge Driver

Hearing date: 29 August 2014

Delivered at: Sydney

Delivered on: 29 August 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Mr L d'Avigdor

Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 139 of 2014

SZTUL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 6 January 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Sri Lanka and claimed to fear harm because of an imputed political opinion in favour of the Liberation Tigers of Tamil Eelam (LTTE) and against the Sri Lankan Army (SLA).  He also claimed to fear harm as a failed Sri Lankan asylum seeker.

2. The following statement of background facts is derived from the Minister’s written submissions. 

3. The applicant departed Sri Lanka by boat in April 2012.  He arrived in Australia on 17 May 2012 without any original travel documents.

4. On 15 September 2012, the applicant applied for a protection (class XA) visa (protection visa)[1].

   [1] Court Book (CB) 22-55

5. On 4 April 2013, a delegate of the Minister (Delegate) refused the applicant's application for a protection visa[2].

   [2] CB 97-125

6. On 30 April 2013, the applicant applied to the Tribunal for review of the Delegate's decision[3]. A hearing was conducted on 28 June 2013 at which the applicant attended and gave oral evidence and addressed queries raised by the Tribunal[4].

   [3] CB 126-161

   [4] CB 225-226

7. On 6 January 2014, the Tribunal affirmed the Delegate's decision refusing the applicant's application for a protection visa[5].

   [5] CB 251-280

Applicant's claims

1. The applicant claimed that:

   a)in September 2010, his handicapped sister was sexually assaulted by an SLA officer in their family home.  The applicant attacked the SLA officer and, the following day, two SLA officers came to his home and interrogated him.  The applicant subsequently lived in fear[6];

   b)in July/August 2011, “Grease Devils” proceeded to attack the applicant's home.  It was known that they were linked to the SLA[7];

   c)in January 2012, he and a friend were intercepted by two SLA officers, one of whom was the officer who had attacked his sister.  The applicant and his friend were forced to kneel down and guns were pressed to their heads[8]; and

   d)following the attack in January 2012, the applicant lived in fear and resided at various homes of his family.  Ultimately, the applicant decided to flee Sri Lanka[9].

   [6] CB 183-184

   [7] CB 184-185

   [8] CB 185-186

   [9] CB at 186

2. Having regard to the above, the applicant claimed to fear harm as a result of his:

   a)imputed political opinion - he was perceived to be against the SLA and to be a member of the LTTE owing to the fact that he fled Sri Lanka;

   b)Tamil ethnicity; and

   c)membership of a particular social group, namely, failed Tamil asylum seekers. 

Tribunal's decision

1. On the basis of an Australian Department of Foreign Affairs and Trade (DFAT) report, the Tribunal did not accept that the applicant was telling the truth about the incidents in September 2010 and January 2012.  The applicant stated that those incidents took place at an army camp located near his village, and were perpetrated by officers of that army camp. However, the DFAT report indicated that the army camp to which the applicant referred had been withdrawn[10].

   [10] CB 267 [48] and 269 [55]

2. The Tribunal did not accept that the applicant had any problems with the SLA or with the Sri Lankan authorities before he left Sri Lanka in April 2012.  The Tribunal noted that the applicant had lived in his village for around 30 years and had been working as a fisherman for around 10 years without harm[11].

   [11] CB 269 [55]

3. The Tribunal did not accept that there was a real chance that the applicant would have any problems with the Grease Devils[12] if he returned to Sri Lanka now or in the reasonably foreseeable future.  The Tribunal referred to country information disclosing that there had been no reports of Grease Devils sightings since September 2011[13].

   [12] "Grease Devil" is a name that is used to refer to people who carry out certain crimes. In the Tribunal Decision record, the applicant states that is "well known" that Grease Devils are connected to the Sri Lankan Army at [9].

   [13] CB 269 [56]

4. The Tribunal rejected the applicant's claim, made during the course of the hearing, that the people smuggler who was in charge of the boat which brought the applicant to Australia would harm him if he were to return to Sri Lanka.  The Tribunal also rejected the applicant's claim that one of his fellow asylum seekers would harm him if he were to return to Sri Lanka or that the Sri Lankan authorities would fail to protect him.  The Tribunal likewise did not accept that the applicant faced a real chance of being persecuted because the Sri Lankan authorities would fail to protect him for reasons of his race as a Tamil or as a failed asylum seeker[14].

   [14] CB 270 [57]

5. The Tribunal did not accept that the applicant would be imputed with a political opinion as a result of his claims in relation to his conflict with the SLA officer who allegedly attacked his sister or SLA officers generally (both of which were rejected).  Nor did it accept that there was a real chance that he would be considered to be a member of the LTTE because he is a Tamil who left Sri Lanka illegally and who had applied for asylum in Australia.  The Tribunal did not accept that the applicant would suffer harm on his return to Sri Lanka as a member of the returned failed asylum seekers group.  As the Tribunal noted, DFAT had advised that it was not aware of any specific post-arrival monitoring by the Sri Lankan authorities of returned failed asylum seekers[15].

   [15] CB 270 [59]

6. The Tribunal, having rejected the applicant's claims to suffer persecution for one or more Convention reasons, went on to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would suffer significant harm. 

7. Having rejected the applicant's claims regarding the events of September 2010 and January 2012, the Tribunal did not accept that there was a real risk that he would suffer significant harm at the hands of the officer of the SLA who had attacked his sister, with the SLA generally or the Sri Lankan authorities.  The Tribunal likewise, having rejected the applicant's claims regarding the Grease Devils, did not accept that there was a real risk that he would suffer significant harm at the hands of the Grease Devils if he were to return to Sri Lanka[16].

   [16] CB 272 [65]

8. The Tribunal gave consideration as to whether the applicant would suffer significant harm as a failed asylum seeker and concluded that he would not.  The Tribunal had regard to country information indicating that failed asylum seekers are not treated differently from other returnees and that there had been no observed difference in the way Tamil returnees were treated in comparison to Sinhalese or Muslim returnees[17].

   [17] CB 273 [67]

9. The Tribunal noted that the applicant would be charged under the Immigration and Emigration Act of Sri Lanka with offences relating to his illegal departure and that:

   a)the likely penalty for this offence was a fine unless the applicant was considered to be an organiser of the irregular migration of people from Sri Lanka; and

   b)non-voluntary returnees from Australia may face up to a fortnight in jail on remand[18].

   [18] CB 274 [69]

10. However, the Tribunal did not accept that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there was a real risk that he would be arbitrarily deprived of his life, that the death penalty would be carried out on him, that he would be subjected to torture, that he would be subjected to cruel or inhumane treatment or punishment or that he would be subjected to degrading treatment or punishment as defined in the Migration Act 1958 (Cth) (Migration Act)[19].

    [19] CB 274-276 [70]-[75]

The present application

1. These proceedings began with a show cause application, filed on 20 January 2014.  That application is, on its face, deficient because it simply states the applicant’s disagreement with the Tribunal decision, and promises grounds review after the applicant obtained legal advice.  I discussed that problem with the applicant when the matter came before me for the first time on 6 March 2014. 

2. It was apparent at that time that the applicant was labouring under the misapprehension that he would receive free legal advice.  I explained to the applicant that the Court would not provide pro bono assistance unless there was some issue of substance requiring examination.  I provided the applicant the opportunity to file and serve an amended application and additional evidence.  He has not taken up that opportunity.  He explained today that he had not done so because he thought, incorrectly, that the Minister’s solicitor would be assisting him.

3. It is arguable that the application is incompetent and that the Court should not entertain it.  I have, however, decided to take a generous view and provide the applicant with the opportunity to advance arguments orally. 

4. The application is supported by a short affidavit which I received.  I also have before me, as evidence the court book filed on 24 March 2014.

5. In his oral submissions, the applicant raised several concerns.  First, he was concerned that at the Tribunal hearing his credibility was doubted, and the Tribunal suggested that he might simply be an economic migrant.  In particular, the applicant is concerned that, while the delegate accepted his credibility, the Tribunal doubted it.  However, an examination of the reasons for decision of the delegate[20] establishes that the delegate also made adverse credibility findings against the applicant.

   [20] commencing at CB 102

6. The Tribunal, in order to provide a fair hearing for the purposes of s.425 of the Migration Act, was obliged to ensure that the applicant understood the essential and significant issues on which the review would turn. For that reason, it would be unsurprising if the Tribunal, at the hearing, put to the applicant issues which were of concern to it. Apart from the Tribunal’s record of what occurred at the hearing, I have no evidence of what occurred. The applicant has not listened to the sound recording of the hearing. He explained that that was because he thought he had it but discovered he does not.

7. The applicant was also concerned that his personal information might have been disclosed by the Tribunal.  This concern was raised when the Tribunal apparently put to him at the hearing that the army camp which he alleged was the base for the soldier who harmed his sister had been withdrawn prior to the alleged events.  This was a credibility issue of substance and is dealt with by the Tribunal at [55] of its reasons[21]. 

   [21] CB 269

8. It is clear that the Tribunal was relying upon general information and not information relating specifically to the applicant.  There is nothing to suggest that the Tribunal may have disclosed the applicant’s personal information to the authorities in Sri Lanka.  To the extent that the applicant asserts pre-judgement or bias by the Tribunal, there is no evidence to support that contention.  To the extent that the Tribunal preferred certain country information over that relied upon by the applicant and his adviser, the Tribunal was entitled to do so. 

9. The Tribunal was entitled, on the material before it, to reach the conclusions it did. The Tribunal appears to have met its statutory obligations under the Migration Act.

10. In his submissions in reply, the applicant asserted that he did not have a proper opportunity to explain to the Tribunal his concerns about the risk he faces as a failed asylum seeker.  I reject that contention by reference to the Tribunal’s reasons.  The issues were dealt with at length by the Tribunal from [62] of its reasons[22]. 

    [22] CB 272

11. The Tribunal dealt in particular with the risk that the applicant, on return, might be subject to a criminal penalty and short term detention in jail[23]:

    As I put to [the applicant], the information available to me indicates that he will be charged under the Immigration and Emigration Act of Sri Lanka with offences relating to his illegal departure and that the likely penalty is a fine unless a person is considered to be an organiser of the irregular migration of people from Sri Lanka.[24]  His representative at the hearing before me submitted that there was no guarantee that [the applicant’s] family would be in a position to act as guarantors nor that the court would assess his family as having the capacity to act as guarantors.  He submitted that in these circumstances [the applicant] would face being detained for years before a trial.  With all due respect to his representative, this submission appears to be entirely speculative.  There is no suggestion in the evidence before me that returnees in circumstances analogous to those in which [the applicant] will find himself have been refused bail and I do not accept on the evidence before me that there is a real risk that this will occur nor that, as a result, [the applicant] will face being detained for years before a trial.

    [23] CB 274 [69]

    [24] DFAT, ‘Sri Lanka: RRT Country Information Request – LKA40999’, 19 October 2012, CX297471; DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT Report 1478, dated 28 February 2013; DFAT Report 1479, dated 4 March 2013.

12. The Tribunal considered the applicant’s fear as a returnee, both in relation to the refugee criterion and the complementary protection criterion. The Tribunal’s assessment of the applicant’s claims against the complementary protection criterion are especially noteworthy. That is because the Tribunal engaged in detail with the language of the Migration Act bearing upon complementary protection[25]:

    In their submission dated 9 July 2013 [the applicant’s] representatives quoted from the UK Home Office Operational Guidance Note in relation to Sri Lanka (April 2012) which stated at paragraph 3.9.11 that: ‘Conditions in prisons and police custody are very poor and taking into account the levels of overcrowding, unsanitary conditions, lack of food and the incidence of torture, are likely to reach the Article 3 threshold’.  As they noted this refers to Article 3 of the European Convention on Human Rights which states that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’  However, as the Full Court of the Federal Court (Lander, Jessup and Gordon JJ) said in Minister for Immigration and Citizenship v MZYYL & Anor [2012] FCAFC 147 at [29], the starting point in the present context must be the words of the Migration Act 1958.  As they noted at [18], the complementary protection regime uses definitions and tests different from those referred to in the international human rights treaties.  As they said at [20], it is therefore neither necessary nor useful to ask how the Convention Against Torture or any of the other international human rights treaties would apply to the circumstances of the case.

    In their submission [the applicant’s] representatives did not address the specific and separate definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ in subsection 5(1) of the Migration Act. They treated torture and cruel or inhuman treatment or punishment together, submitting that the June 2012 report by ACAT-France in collaboration with the Asian Legal Resource Centre, When Arbitrariness Prevails - A Study of the Phenomenon of Torture in Sri Lanka, demonstrated that the use of torture and cruel and inhuman treatment or punishment during imprisonment and interrogation processes in Sri Lanka was systematic, common and carried out intentionally.  They submitted with reference to the same report and a Human Rights Watch report published in February 2013 regarding the use of sexual violence by the Sri Lankan security forces against Tamils that degrading treatment or punishment during interrogation and imprisonment processes in Sri Lanka was part of a systematic effort to humiliate and degrade individuals in detention.

    As I put to [the applicant] in the course of the hearing before me, however, the Australian Department of Foreign Affairs and Trade has said that it is not aware of allegations of mistreatment of returnees while on remand.[26]  As I indicated, I accept that prison conditions in Sri Lanka are poor, due to overcrowding, but I do not accept on the basis of the advice of the Australian Department of Foreign Affairs and Trade that there is a real risk that [the applicant] will be subject to ‘torture’ as defined while he is on remand for what I find on the evidence before me will be a period of up to a fortnight.  I do not accept on the evidence before me that there is a real risk that during this brief period on remand [the applicant] will suffer the more extreme forms of ill-treatment referred to in his representatives’ submissions.  As I have indicated above, I do not accept that the intention required by the definitions of ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ can be inferred from the mere fact that prison conditions in Sri Lanka are poor, due to overcrowding.  I consider it clear from the relevant statutory provisions that mere negligence or indifference is not sufficient: what is required is an intention to inflict pain or suffering or to cause extreme humiliation.  I do not accept on the evidence before me that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Act, nor do I accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. 

    [25] CB 275-276 [72]-[74]

    [26] DFAT Country Information Report No. 12/67, dated 29 November 2012, CX299951; DFAT Report 1489, dated 29 March 2013.

13. In my view, the Tribunal’s interpretation was not only open to it, but was correct. 

14. I conclude that the applicant has failed to establish an arguable case of jurisdictional error by the Tribunal. 

15. I will order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

1. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The applicant indicated he may require time to pay but did not oppose an order for costs.

2. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  4 September 2014