SZUQE v Minister for Immigration
[2016] FCCA 2052
•11 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUQE v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2052 |
| Catchwords: MIGRATION – Application for review of decision of Tribunal – whether Tribunal failed to comply with Ministerial Direction – whether Tribunal failed to ask itself the right question – whether Tribunal failed to apply the correct test – whether Tribunal misconstrued s.91R(1)(b) or s.91R(2) of the Migration Act 1958 (Cth) – jurisdictional error found – application allowed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 91R, 476 |
| Cases cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 |
| Applicant: | SZUQE |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1834 of 2014 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 12 May 2016 |
| Date of Last Submission: | 12 May 2016 |
| Delivered at: | Sydney |
| Delivered on: | 11 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr B Mostafa |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Ms B Tronson with Mr A Edwards |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ in the nature of certiorari issue quashing the decision of the second respondent made on 17 June 2014.
A writ in the nature of mandamus issue compelling the second respondent to reconsider the application according to law.
The first respondent pay the applicant’s costs set in the amount of $12,500.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1834 of 2014
| SZUQE |
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 3 July 2014 and ultimately further amended on 21 December 2015 seeking review of the decision of the Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 17 June 2014, which affirmed the decision of the Minister’s delegate not to grant a Protection (Class XA) visa to the applicant.
In evidence before the Court is the bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”), the affidavit of Mr Farid Varess, solicitor, made on 15 December 2015 and the affidavit of Mr Farid Varess, solicitor, made on 27 April 2016.
Background
The applicant is a citizen of Sri Lanka who arrived in Australia on 20 June 2012. He arrived without authority to do so (CB 16 – “Offshore Entry Person”). He ultimately applied for a protection visa on 13 November 2012. He was assisted by a registered migration agent (CB 1 to CB 78, with annexures).
The applicant claimed to fear harm if he were to return to Sri Lanka from the Sri Lankan authorities, or its agents, because of his Tamil ethnicity, in that he would be imputed with a political opinion being a supporter of the Liberation Tigers of Tamil Eelam (“the LTTE”) and because he was a member of a particular social group, being returning failed asylum seekers who had departed Sri Lanka illegally.
The applicant’s account of past events made reference to a number of instances of past harm (see CB 29 to CB 32). These were that he had been part of government “round ups” of persons of interest to the Sri Lankan authorities in 2003, 2008 and 2009. He feared that this would occur in the future and that he would “disappear”.
The applicant also claimed that “in about” April 2009, when he was working as a fisherman in Trincomalee (in the east of Sri Lanka), he was asked by Sri Lankan Navy officers to transport injured people from a naval vessel to the mainland. He refused because the people were from an LTTE controlled area and he was concerned if he assisted them he would be perceived to be an LTTE supporter.
The applicant was subsequently approached by an international
non-government organisation to assist, and he agreed to do so given he was asked by an “international group”.
In around May 2012 he received threatening telephone calls on his mobile phone from someone who sounded like a “Sinhalese person”. The police could not assist.
The applicant was interviewed by the Minister’s delegate. The delegate refused the application for the visa on 4 February 2013 (CB 84 to CB 105). The delegate was “not satisfied that the applicant [had] provided a truthful and accurate account of his circumstances in Sri Lanka” (CB 95.5). Nor that he (CB 95.6):
“…was credible in regard to the circumstances of his departure from Sri Lanka. I consider that his journey to Australia was premeditated and not organised in one week following the alleged threatening calls. I have had regard to country information which indicated that economic factors combined with the rule of law being compromised in Sri Lanka is acting as a strong incentive for many people to leave that country in the hope of a better life abroad.”
The applicant applied for review of the delegate’s decision to the Tribunal on 12 March 2013 (CB 106 to CB 112). He continued to be assisted by a registered migration agent. The applicant’s representative made written submissions on his behalf (see Varess affidavit of 21 December 2015 at Annexure “A”). The applicant and his representative appeared at a hearing before the Tribunal on 9 May 2013 (CB 126). Through his agent, the applicant subsequently provided country information to the Tribunal (CB 132 to CB 146).
The Tribunal referred to country information before it that
“since the cessation of the war in May 2009, the UNHCR has concluded that Tamils are not imputed with a pro-LTTE political opinion in the absence of other risk factors” ([23] at CB 157 and see the footnote “UN High Commissioner for Refugees 2012, UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Sri Lanka, 21 December, at pp25-37 ‘Risk Profiles’”).
The Tribunal found that he would not suffer serious or significant harm for reason of his Tamil ethnicity or that he would be imputed with any adverse political opinion because of his Tamil ethnicity or because he came within the description of “Tamils, or young Tamil males, or even young Tamil males from the North and East (that is, former LTTE areas including Trincomalee)” ([24] at CB 157). The Tribunal found he did not come within any of the “risk profiles” ([25] at CB 157).
The Tribunal further found that the applicant would not be at risk of harm on the basis of past personal experiences, that is, in relation to the “round ups” and assistance provided to the Sri Lankan Navy. The Tribunal did not accept that he received threatening telephone calls in May 2012 ([26] – [27] at CB 158).
The Tribunal found that the applicant would not suffer serious or significant harm on his return to Sri Lanka, even in circumstances where he would be detained for a short period or subjected to other punishment for departing Sri Lanka illegally ([30] at CB 159 to [41] at CB 162).
Application Before the Court
The further amended application contains four grounds. Counsel for the applicant submitted that the applicant did not press ground three. The remaining three grounds are in the following terms:
“1. The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Act.
Particulars
a. The Tribunal failed to take into account PAM3: Refugee and humanitarian - Complementary Protection Guidelines in assessing the applicant's claim for protection under s 36(2)(aa) of the Act.
2. The Tribunal engaged in jurisdictional error by failing to ask itself the right question or apply the correct test.
Particulars
a. In relation to the complementary protection claim concerning whether the applicant faced cruel or inhuman treatment or punishment, the Tribunal was obligated to ask itself whether it had substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that the applicant would be subjected to an act or omission by which:
i. severe pain or suffering, whether physical or mental, would be intentionally inflicted on the applicant; or
ii. pain or suffering, whether physical or mental, would be intentionally inflicted on the applicant so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature.
(See ss 36(2)(aa), 36(2A)(d) and the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1));
b. The Tribunal did not apply the statutory test, as identified in paragraph (a) above. Rather, it substituted the correct test with different and more stringent tests not found in the statute, namely whether the conditions faced by the applicant were so serious to rise to the level of conduct or oppression that ‘shocks the conscience’ or ‘is an outrage on his personal dignity’.
…
4. The Tribunal misconstrued or misapplied s 91R(1)(b) and / or 91R(2) of the Act.
Particulars
a. In assessing the applicant's claim to fear harm as a result of his membership of the particular social group of ‘failed asylum seekers’, the Tribunal found that:
i. the applicant would not be arbitrarily deprived of his life, or face the death penalty on his return to Sri Lanka: [34];
ii. the applicant did not face a real risk of torture on return to Sri Lanka: [35];
iii. the applicant would not be subjected to cruel or inhuman treatment or punishment on return to Sri Lanka: [38];
iv. the applicant would not be subjected to degrading treatment or punishment on return to Sri Lanka: [40].
b. Based on these findings, the Tribunal then stated that ‘[t]herefore I am not satisfied that the treatment which the applicant may face on return (investigation, arrest, remand, bail, a fine), individually or cumulatively, involves serious harm within the meaning of the Refugees Convention or ‘significant harm’ within the meaning of the complementary protection provisions of s.36(2A) and s.5(1) of the Act’: [41].
c. There Tribunal thereby erred in conflating the meaning of ‘serious harm’ in ss 91 R(1 )(b) and 91 R(2) of the Act with ‘significant harm’ as defined in ss 36(2A) and 5(1) of the Act.”
[Errors in original.]
Consideration
Grounds one and two are concerned with the Tribunal’s consideration of the complementary protection criterion at s.36(2)(aa) of the Act. It is convenient to deal with ground two first, given the applicant’s arguments before Court in ground one, evolved from his submissions in ground two.
In his submissions, the Minister drew a distinction between the ground as pleaded and the additional matters raised by the applicant’s written submissions which the Minister said were outside the scope of the assertion of jurisdictional error in ground two.
This directs attention to what is actually asserted in ground two. Ground two asserts the Tribunal fell into jurisdictional error because, in considering the complementary protection criterion, it failed to ask the “right question” or apply the “correct test”. The particulars direct attention to the definition of “cruel or inhuman treatment or punishment” as set out in s.5(1) of the Act.
The term “cruel or inhuman treatment or punishment” is defined at s.5(1) of the Act (“the definition”) is in the following terms:
“cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.”
The term “Covenant” is defined at s.5(1) of the Act is in the following terms:
“Covenant means the International Covenant on Civil and Political Rights, a copy of the English text of which is set out in Schedule 2 to the Australian Human Rights Commission Act 1986.”
Before the Court, the applicant explained that the error alleged in ground two arises from the Tribunal’s consideration of the applicant’s claim to protection, pursuant to complementary protection, based on prison conditions in Sri Lanka.
The applicant submitted that the Tribunal accepted that “prison conditions in Sri Lanka are poor” ([30] at CB 159). The Tribunal’s error, however, is said to arise from the following ([36] at 160 to [38] at CB 161):
“[36] ‘Cruel, inhuman treatment or punishment’ is defined in section 5(1) of the Act. Do the conditions that the applicant will face while on remand for a short period constitute cruel, inhuman treatment or punishment? The international jurisprudence is summarised in the Tribunal’s Complementary Protection Training Manual:
In the Greek case, the European Commission on Human Rights established that ‘inhuman treatment’ covers ‘at least such treatment as deliberately causes severe suffering, mental or physical, which, in the particular situation, is unjustifiable’[1]It does not have to encompass actual bodily harm[2]. Treatment has been found to be ‘inhuman’, inter alia, where it was premeditated, applied for hours at a time, and caused actual bodily injury or intensive physical and mental suffering[3]. The European Court of Human Rights has also found that certain discriminatory acts may amount to inhuman or degrading treatment because they are an affront to human dignity[4].
[1] Greek case, European Commission on Human Rights, Application Nos 3321/67, 3322/67, 3323/67, 3344/67 (18 November 1969), 12 Yearbook of the European Convention on Human Rights 170, 186
[2] Soering v United Kingdom (1989) 11 EHRR 439, [100]; Ireland v United Kingdom (1979–80) 2 EHRR 25, [167]
[3] Referred to in Becciev v Moldova (2008) 45 EHRR 331, [39]
[4] East African Asians v United Kingdom (1973) 3 EHRR 76
…
… In a non-asylum context, section 12 of the Canadian Charter of Rights and Freedoms provides protection against ‘cruel and unusual punishment’. The test for finding a breach of this prohibition was spelled out in Smith[5]… In that case, the Canadian Supreme Court held that:
[5] R v Smith (Edward Dewey) [1987] 1 SCR 1045
A punishment will be cruel and unusual … if it has any one or more of the following characteristics:
(1) The punishment is of such character or duration as to outrage the public conscience or be degrading to human dignity;
(2) The punishment goes beyond what is necessary for the achievement of a valid social aim, having regard to the legitimate purposes of punishment and the adequacy of possible alternatives; or
(3) The punishment is arbitrarily imposed in the sense that it is not applied on a rational basis in accordance with ascertained or ascertainable standards.
The test of being ‘so excessive as to outrage the standards of decency’ was endorsed in Australia by the ACT Bill of Rights Unit in its Guidelines for ACT Departments on the Human Rights Act 2004 (ACT)[6]. Article 3(3) of the Third Geneva Convention, concerning the treatment of prisoners of war, also refers to ‘outrages upon personal dignity, in particular, humiliating and degrading treatment’ as constituting prohibited acts against ‘persons taking no active part in the hostilities’[7]. A similar test, namely that an act ‘shocks the conscience’, has been referred to in the House of Lords[8].
[37] The international courts have found the following types of conduct to constitute cruel or inhuman treatment or punishment: threats of torture, forcible medical treatment, abuse whilst incarcerated, female genital mutilation, forced marriage, domestic violence, mob violence, blood feuds, organised criminal activity, enforced disappearances and certain breaches of
socio-economic rights[9].[38] Although the conditions the applicant will face on remand for a short period are unpleasant, and would give rise to feelings of fear and anxiety, they are not, in my view, so serious to rise to the level of conduct or oppression that ‘shocks the conscience’ or is an outrage on his personal dignity. I find the treatment or punishment the applicant faces on remand for a short period could not reasonably be regarded as cruel or inhuman treatment or punishment.”
[Footnotes renumbered]
[6] Bill of Rights Unit, Department of Justice and Community Safety, The Human Rights Act 2004, Guidelines for ACT Departments: Developing Legislation and Policy (2004), 21
[7] Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950), art 3(3)
[8] A (FC) and others (FC) v Secretary of State for the Home Department [2005] UKHL 71, [126] (Lord Hope)
[9] Tribunal’s Complementary Protection Training Manual
The applicant’s submission was that the Tribunal had regard to the tests which appeared in a Departmental manual. These were, one, an act being “so excessive as to outrage the standards of decency”, and two, an act that “shocks the conscience”. The Tribunal applied these two tests in its consideration of the applicant’s circumstances. The submission is that the Tribunal’s legal error emerges because it applied two tests that do not emanate from the Act, and do not come from a source of international law dealing with “cruel or inhuman treatment or punishment”.
Before the Court, the applicant initially submitted that the different parts of the definition of “cruel or inhuman treatment or punishment” as they appear in s.5(1) of the Act (see [19] above) are to be approached in a sequential fashion. That is an applicant meets the relevant definition if he or she is likely to be subject to an act or omission which falls within (a) or (b). The Tribunal is required to address those questions first. The exceptions to the definition, that is where an applicant falls outside the definition, are found at (c) (as relevant in this case) and (d).
In its consideration, the Tribunal made general reference to the relevant definition in s.5(1) of the Act, but made no specific reference to its constituent parts. The applicant submitted that the Tribunal appears to have focussed its consideration on (c) of the definition without making a finding on (a) or (b) of the definition.
The Minister’s submission was that there was no error in the Tribunal looking at (c) first, given that if the act or omission complained of fell into one of the exceptions to (a) or (b), then the Tribunal was entitled to explore this first.
The applicant ultimately described his submissions in this regard as a “very minor” point. Why this was the subject of submissions, therefore, was not made satisfactorily clear. I agree with the Minister that there was no error simply in the Tribunal looking at (c) of the definition before (a) or (b) of the definition (however, see further below).
The crux of the applicant’s case in ground two as explained in submissions appeared to be that the Tribunal had regard to “international law”. The applicant did not assert there was legal error in the Tribunal doing so. The applicant submitted that it was entirely proper of the Tribunal to have regard to such legal sources.
The legal error asserted by ground two however was that in having such regard, the Tribunal “picked up” the two tests now identified at particular (b) of ground two (see [15] above) and contrary to law, applied these “tests” to the applicant’s case.
The applicant submitted that this revealed a further reason as to why it cannot be inferred that the Tribunal was only considering (c) of the definition. That is, if the Tribunal was considering (c) it would have made specific reference to Article 7 of the Covenant, to determine whether the relevant “act or omission” was one that was “not inconsistent” with Article 7. There is no reference to (c) of the definition at s.5(1) or Article 7 in the Tribunal’s relevant consideration.
The applicant submitted, as referred to above, that the Tribunal did have regard to “guidelines” being the Tribunal’s “Complementary Protection Training Manual” (“the Manual”) (see [36] at CB 160). The extract relied on by the Tribunal sets out examples of prison conditions that had been held to constitute a breach of Article 7 of the Covenant.
However, instead of properly considering the examples set out in the international case law referred to in the guidelines, the Tribunal extracted the two impugned tests and purported to impermissibly apply them to the applicant’s circumstances.
The applicant’s attack on the Tribunal’s analysis was that neither test which the Tribunal applied purported to define, and did not come from sources, which purported to define “cruel or inhuman treatment”.
I pause here to note again the particular dispute between the parties before the Court as to the scope and extent of ground two as pleaded, and the Minister’s contention that the applicant’s submissions went beyond the ground as pleaded, and that no leave had been granted (or asked for) to further amend the ground.
The Minister’s submission was that the ground as pleaded was that the Tribunal fell into legal error because it did not apply the statutory test set out in the definition of “cruel or inhuman treatment or punishment” at paragraphs (a) and (b) of the definition in s.5(1) of the Act. Rather, and to the contrary, the Tribunal substituted two other tests for that test.
The applicant’s submissions did go, to some extent, beyond the ground as “strictly” pleaded. However, I did not understand those submissions to seek to add a separate assertion of legal error, but to seek to more fully explain what was “strictly” pleaded.
The applicant’s ground, both as actually pleaded and as it is to be understood in light of his broader submissions, directs attention to the definition of “cruel or inhuman treatment or punishment” as set out in s.5(1) of the Act. In particular, to the interaction of paragraphs (a) and (b) on the one hand and, relevantly, (c) on the other.
It is important to remember that the phrase “cruel or inhuman treatment or punishment” is one of the “types” of harm identified in s.36(2A) of the Act. That is, an applicant for a protection visa (who is also a
non-citizen) will satisfy the criterion for the visa at s.36(2)(aa) of the Act, that is, they will suffer “significant harm” if “the non-citizen will be subject to cruel or inhuman treatment or punishment” (s.36(2A)(d) of the Act).In context, that type of “significant harm” is one of five set out at s.36(2A) of the Act. For current purposes, the meaning of “cruel or inhuman treatment or punishment” is to be found in (a) or (b) (s.5 of the Act). However, that meaning does not include, relevantly, an act that is not inconsistent with the Covenant, relevantly Article 7, that is as set out at (c).
It is to be noted that Article 7 of the Covenant does not define the term “cruel or inhuman treatment or punishment”. While the Covenant prohibits such acts (or omissions), the lack of definition in relation to (c), means that there is no legal error in the Tribunal considering the state of any relevant international jurisprudence to determine whether the relevant act or omission is one that is “not inconsistent” with Article 7, such that it is not included in the relevant definition.
In the current case the applicant’s ground when plainly read, and understood in context, is that the Tribunal fell into jurisdictional error, because it did not apply the “test”, or ask itself the question, as to whether there were substantial grounds for believing that the applicant would be intentionally subjected to the matters set out at (a) or (b) of the definition. Instead the applicant says the Tribunal applied two other tests, not found in the definitions, or otherwise in the Act.
As set out above, I agree with the Minister’s submission that where a test involves more than one element, there is no legal error in the Tribunal electing to address one element first over another. This is not a case where the elements of the definition are each sequentially dependent on what precedes them. That is (c), is not dependent on (a) or (b) for meaning, or for the proper working of, and disposition of an applicant’s claims, under the relevant test at s.5(1) of the Act. That is, (c) is independent of (a) or (b).
The issue then becomes whether the Tribunal did in fact, at [36] (at CB 160) to [38] (at CB 161) purport to address the question posed at (c), and whether that can be said to have exhaustively dealt with the test at s.5(1) of the Act.
It is the case that the Tribunal did not make specific reference to (c), or (a) or (b) for that matter, of the definition in these paragraphs. The Tribunal begins at [36] (at CB 160) with a reference to the definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act, and then asks itself the question as to whether the conditions (in prison) the applicant will face on remand for a short period, come within the meaning of this term.
In answer to this question the Tribunal immediately directs attention to “international jurisprudence” which it says is summarised in the Manual ([36] at CB 160). It then refers to the types of conduct found by international courts to fall within the term ([37] at CB 161).
The basis for the applicant’s ground, as pleaded, arises and is given substance not only from the lack of reference to (c) as it appears in the relevant definition in the Tribunal’s analysis, but importantly, the specific references in the findings at [38] (at CB 161) to “shock the conscience” or “is an outrage on his personal dignity”. That is, the impugned “tests” referred to at particular (b) to ground two.
As the Minister submits, Tribunal’s decisions are not to be read “minutely and finely with an eye keenly attuned to the perception of error” (Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”) at [30]). Noting of course, that such a fair reading was not intended to mean that any “ambiguity in the Tribunal’s reasons be resolved in the Tribunal’s favour” (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26] (“SZCBT”)).
The Tribunal’s decision record would certainly have benefited from some specific reference or explanation after the first sentence at [36] (at CB 160) to (c) of the definition. A significant plank of the applicant’s ground would demonstrably not be available to him had the Tribunal made such reference.
However, even on a fair and beneficial reading, I cannot be satisfied that the Tribunal properly understood the definition, and addressed it accordingly.
As set out above, there are plainly a number of elements to the definition of “cruel or inhuman treatment or punishment” as set out at (a), (b), (c) or (d) of the definition at s.5(1) of the Act.
As also stated above, the first sentence at [36] (at CB 160) directs attention to s.5(1) as a whole. What follows is a reference to international jurisprudence summarised in the Tribunal’s relevant manual.
In my view, even on a fair reading there is nothing in the Tribunal’s reasoning to allow an inference that the Tribunal’s analysis was focussed only on (c) of the definition. To the contrary, the inference that reasonably arises is that the Tribunal sought to apply the international jurisprudence referred to in the Manual indistinguishably to all of the elements of definition. That is, relevantly (a), (b) and (c).
Importantly, there is no reference to the relevant Covenant or Article 7 at [36] (at CB 160) to [38] (at CB 161) or elsewhere in the Tribunal’s decision record. The Tribunal’s references to the Manual extracted a summary of international jurisprudence. What the Tribunal understood as the relevance of the jurisprudence was, on a fair reading, that that jurisprudence was relevant to the entire definition, and not just (c) of the definition.
While the “PAM3: Refugee and Humanitarian: Complementary Protection Guidelines” (“the PAM3 Guidelines”) are in evidence before the Court (see affidavit of Mr Varess of 27 April 2016), the Tribunal’s Complementary Protection Training Manual on which the Tribunal relied is not.
All that is in evidence therefore are the parts of the Manual extracted by the Tribunal. It may be that if the entire document was in evidence this may have provided some context to understand the extracts relied on by the Tribunal. For example, whether the extracts come from a part of the Manual dealing with Article 7 of the Covenant, and specifically, its relevance to (c) of the definition.
However, and for whatever reason, the Minister has not put this into evidence. What is left therefore, are the extracts in the Tribunal’s decision record. As set out above, I cannot be satisfied, as the Minister submits, that the references extracted from the Manual give rise to a reasonable and fair inference, that the Tribunal was considering only (c) of the definition. On balance, and in the circumstances presented, I find the Tribunal purported to apply these extracts to the entirety of s.5(1) of the Act. That is, to (a) and (b) and indistinguishably to (c), and then later at [39] (at CB 161) to [40] (at CB 162), to (d) of the definition.
In his submissions the Minister referred to Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 (“MZYYL”) for the proposition that a decision maker should not look to international jurisprudence when considering (a) and (b) of the definition. This is because the Australian legislature had chosen to define conduct which amounts to “cruel or inhuman treatment or punishment” in a particular way in the Act. However, the Minister submitted that this did not apply to (c) of the definition because (c) specifically requires the decision maker to look at Article 7 of the Covenant.
The Minister’s submission was that this allowed an “interpretation” of the Tribunal’s “overall approach” as being “correct”. That is, the Tribunal was not able to take international jurisprudence into account in considering (a) and (b), and therefore must be taken to have been considering (c) of the definition when it referred to, and relied on, international jurisprudence.
Although in his submissions the Minister did not especially refer to any specific part of MZYYL, in context, it appears his submissions sought to rely on what the Full Court said at [18] of that judgment:
“The Complementary Protection Regime provides criteria for the grant of a protection visa in circumstances where the Minister is not satisfied that Australia has protection obligations to that non-citizen under the Refugees Convention. The regime establishes criteria ‘that engage’ Australia’s express and implied
non-refoulement obligations under the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CROC) (collectively the International Human Rights Treaties): Commonwealth, Parliamentary Debates, House of Representatives, 24 February 2011, 1357 (Chris Bowen, Minister for Immigration and Citizenship). The Complementary Protection Regime is a code in the sense that the relevant criteria and obligations are defined in it and it contains its own definitions: see, by way of example, the definitions in s 5 of the Act of ‘torture’ and ‘cruel or inhuman treatment or punishment’. Unlike s 36(2)(a), the criteria and obligations are not defined by reference to a relevant international law. Moreover, the Complementary Protection Regime uses definitions and tests different from those referred to in the International Human Rights Treaties and the commentaries on those International Human Rights Treaties. For example, the definition of ‘torture’ in the Complementary Protection Regime is different from that in the CAT: see s 5(1) of the Act, Art 1 of the CAT and the Explanatory Memorandum in relation to the Bill at [52]. Further, the International Human Rights Treaties do not require the
non-citizen to establish that the non-citizen could not avail himself or herself of the protection of the receiving country or that the non-citizen could not relocate within that country. Sections 36(2B)(a) and (b) have adopted a different and contrary position. Sections 36(2B)(a) and (b) relieve Australia from its protection obligations in s 36(2)(aa) if those two particular circumstances are satisfied.”MZYYL involved consideration of s.36(2)(aa) of the Act (as in this case) and s.36(2B)(b) of the Act. Plainly the latter section is not relevant to the current case. However, for current purposes, I accept the Minister’s submission that what the Full Court said at [18] about s.36(2B)(a) and (b) , applies to s.36(2A)(a) and (b) of the Act given that those paragraphs of s.36(2A) rely on definitions and tests different from those in the various International Human Rights Treaties.
I also agree with the Minister’s submissions that the specific reference at (c) of the definition is to the Covenant, and relevantly Article 7. I accept that in that regard there is no error in the Tribunal taking international jurisprudence into account in order to determine whether the relevant conduct is inconsistent with Article 7 of the Covenant.
However, it must be remembered the Minister’s submission was put in support of the proposition that the Court should take a beneficial view, or reading, of the Tribunal’s decision and infer that the Tribunal acted in the proper understanding of the circumstances when it was able to have regard to international jurisprudence. That is, because it had such regard it must be reasonably inferred that it was considering (c), and not (a) or (b), which on the authority of such cases as MZYYL any such latter consideration would reveal legal error.
There is a certain circularity to the Minister’s submission, which in my view reveals its weakness. In essence, the Minister’s submission when reduced to its core, is that the Tribunal did not fall into legal error, and should not be understood to have done so, because if the Tribunal’s decision were to be read otherwise, it would reveal legal error.
In my view the question as to whether the Tribunal understood the relevant law and applied it properly can only be answered by having regard to the evidence before the Court. In this case, the relevant evidence is the Tribunal’s own decision record.
As set out above, the Tribunal made no distinction, nor is there anything in its decision record to indicate that it had made any distinction, between (a) and (b) of the definition on the one hand and (c) of the definition on the other.
Plainly, as stated above, Tribunal decisions are to be read fairly and beneficially. However, as was made clear in SZCBT at [26], a “beneficial” approach to the Tribunal’s reasons does not require this Court to assume that a “vital issue was addressed when there is no evidence of this and indeed, the general thrust of the Tribunal’s comments suggest that the issue was overlooked”.
In applying this is to the current circumstances, the Minister is asking this Court to assume that the Tribunal understood the relevant law, and properly applied it, when there is no evidence of this and the Tribunal’s actual decision record not only indicates, but shows that the Tribunal made no distinction between (a) and (b) of the definition on the one hand and (c) of the definition on the other.
Some short explanation or reference to the constituent parts of the definition in s.5(1) of the Act, say, after the first sentence of [36] (at CB 160), or even anywhere else in the decision record, may have allowed the reading the Minister now urges. Even on a beneficial and fair reading there is in my view, no reasonable basis on the Tribunal’s own presentation to say it understood the relevant law and properly applied it to the applicant’s circumstances.
That conclusion is not dependent on, but is reinforced by, the following. What is set out at [36] (at CB 160) appears to be a “cut and paste” of various extracts from the Manual. As stated above, the Minister has not put the Manual into evidence in these proceedings. The PAM3 document annexed to the affidavit of Mr Varess, which the applicant has put before the Court, while apparently dealing with the same broad subject matter of complementary protection cannot be said to be the same document to which the Tribunal referred.
While the Tribunal’s decision record at [36] (at CB 160) contains footnote references, these are plainly footnotes taken from the Manual. As stated above, there is nothing in the Tribunal’s decision record to indicate where in the Manual the Tribunal extracted what it records at [36] (at CB 160).
As stated above, it may well be that the broader context within which these extracts appear in the Manual may have indicated that the extracts apply only to (c) of the definition. However, there is no evidence of that before the Court now, and certainly no such evidence in the Tribunal’s decision record.
It is also instructive to note how the Tribunal has approached the consideration relevant to the definition of “cruel or inhuman treatment or punishment” as it appears in the definition.
At [36] (at CB 160), the Tribunal makes reference to the definition in s.5(1) of the Act in bare terms. It then extracts various parts of the Manual without any comment, let alone analysis, as to how this applies to the applicant’s actual circumstances.
Paragraph 37 (at CB 161) of its decision record merely purports to repeat what types of conduct the Manual states international courts have found to constitute “cruel or inhuman treatment or punishment”.
Paragraph 38 (at CB 161) makes some comment about the applicant being held on remand for a short period. However, there is nothing to explain how what is set out at [36] (at CB 160) to [37] (at CB 161) and the first sentence of [38] (at CB 161) leads to, or explains, the findings, in the second, and last, sentences of [38] (at CB 161). The Tribunal appears to have taken a similar approach with “degrading treatment or punishment” ([39] at CB 161 to [40] at CB 162).
The applicant’s ground raises no complaint that the Tribunal’s analysis lacked any such relevant explanation or reasoning. However, the lack of relevant explanation or reasoning referred to immediately above, does support the central thrust of the applicant’s ground as pleaded. That is, the lack of relevant analysis supports the contention that the Tribunal failed to apply the correct test.
The only “tests” referred to in the Tribunal’s relevant analysis, and indeed in the entire decision record, are those taken from the extract from the Manual referring to Article 3(3), the “Third Geneva Convention”. I note, as the applicant correctly observes, that that Convention does not have an “Article 3(3)”.
On a fair reading of the Tribunal’s decision I find that the Tribunal did not apply the relevant statutory test to this part of its consideration of the complementary protection criterion. The Minister’s case depends on a particular reading of the Tribunal’s decision record which for the reasons set out above, is not available, even on a beneficial or fair reading. This is sufficient to find ground two is made out.
There is no reason not to grant the relief the applicant seeks given he has made out ground two. However, given the applicant pressed, and the parties argued, grounds one and four, it is appropriate to set out the following.
Ground one asserts that the Tribunal failed to take the PAM3 Guidelines into account. The consequence of that failure is said to be a failure to comply with Direction No 56 – “Consideration of Protection Visa applications” (“the CP Guidelines” and “the Direction”) and therefore a failure to comply with s.499(2A) of the Act.
The applicant’s argument is that the Direction was made pursuant to s.499(2A) of the Act. It therefore required the Tribunal “to take account of” the CP Guidelines “to the extent that they are relevant” to the decision under review.
The applicant submitted that certain aspects of the Guidelines were relevant and the Tribunal failed to take them into account. In essence, these were those parts of the Guidelines dealing with prison conditions and whether they may amount to cruel, inhuman or degrading treatment or punishment and with reference to Article 7 of the Convention.
The applicant relied on authorities of this Court to support the argument he raised (ARS15 v Minister for Immigration and Border Protection [2015] FCCA 2135, AUE15 v Minister for Immigration and Border Protection [2015] FCCA 2452 and SZUQZ v Minister for Immigration and Border Protection [2015] FCCA 1552).
However, the applicant’s ground is to be determined with reference to AUE15 v Minister for Immigration and Border Protection [2016] FCA 331 (“AUE15”) per Rares J, a matter on appeal from this Court and therefore binding on this Court.
In that case Rares J set out the manner in which, relevantly, the Tribunal must take into account a requirement prescribed as a mandatory consideration by the Act (see AUE15 at [33] – [36]).
In short, I agree with the Minister’s submission, as it derives from AUE15, that whether or not the Tribunal has made specific reference to the PAM3 Guidelines is not the issue. What is at issue is whether the Tribunal has demonstrated an active engagement with the factors set out in the PAM3 Guidelines. I also agree with the Minister that a fair reading of the relevant parts of the Tribunal’s decision record demonstrate that it did attempt such active engagement. In all, ground one is not made out.
Ground four of the further amended application asserts jurisdictional error in that the Tribunal conflated the test of “serious harm” as it was understood in light of s.91R of the Act, with the meaning of “significant harm” in s.36(2A) of the Act.
The applicant’s argument is as follows. The Tribunal understood that the applicant claimed to fear harm, amongst other things, because he was a member of a particular social group of failed asylum seekers.
The applicant’s ground directs attention to [30] (at CB 159) to [40] (at CB 162) of the Tribunal’s decision record under the heading of “Membership of a particular social group: Findings”.
In essence, the applicant’s submission was that the Tribunal accepted that the applicant may be arrested at the airport on return, that charges may be brought against him, that he may be detained on remand for a few days pending a bail hearing, and that prison conditions in Sri Lanka are poor (see [32] and [30] at CB 159).
The Tribunal then made a number of findings at [34] (at CB 159), [35] (at CB 159 to CB 160), [38] (at CB 161) and [40] (at CB 162) that in essence followed the text of s.36(2A) of the Act. That is with reference to the test for “significant”, and not “serious”, harm.
The core of the applicant’s assertion of error is that in following this approach, the Tribunal did not answer the question of whether the applicant faced “serious harm”. Specifically, the question of whether his time in remand involved a risk of serious harm was only considered in the context of the items set out at s.36(2A) of the Act.
The Minister relied on various authorities of this Court to argue that the following propositions, when applied to the Tribunal’s decision record, reveal that the Tribunal did not fall into jurisdictional error as the applicant’s ground contends.
First, the structure of the Tribunal’s reasons can be used to interpret those reasons (SZSUA v Minister for Immigration [2015] FCCA 3345 (“SZSUA”) at [32] – [33]). Second, the reliance on SZSUA is explained as follows in the Minister’s written submissions (at [63]):
“… where the Tribunal had engaged in a consideration of ‘serious harm’ and ‘significant harm’ together, that did not amount to jurisdictional error by way of a failure to apply the correct test in circumstances where the language used by the Tribunal, read as a whole, indicated it had appreciated the distinction between the ‘serious harm’ test required pursuant to s 36(2)(a) of the Act and the ‘significant harm’ test required pursuant to s 36(2)(aa) of the Act.”
The Minister argued that this assists in reading the Tribunal’s reasons as follows. First, the Tribunal used the language of each of the relevant tests, therefore, there is a “primary” presumption that it did identify that “serious harm” and “significant harm” are distinct.
Second, that interpretation reveals that it did not fall into jurisdictional error as alleged. That is, the Minister says that the Tribunal made findings about detainees in a general way (at [30] at CB 159). It then made findings about the likely treatment of the applicant (at [31] at CB 159). It then found that the Refugees Convention nexus which the applicant claimed (“adverse political profile”) did not apply (at [32] – [33] at CB 159).
Therefore, considering what the Minister characterises as an assessment of “serious harm”, the Tribunal then went on to consider whether the harm feared might constitute “significant harm” and that this was considered at [34] (at CB 159) to [40] (at CB 162).
The Tribunal is said to have then summarised its findings in relation to the harm that the applicant claimed he might face (at [41] at CB 162):
“Therefore I am not satisfied that the treatment which the applicant may face on return (investigation, arrest, remand, bail, a fine), individually or cumulatively, involves serious harm within the meaning of the Refugees Convention or ‘significant harm’ within the meaning of the complementary protection provisions of s.36(2A) and s.5(1) of the Act.”
The Minister submitted that the Tribunal here made explicit findings in relation to “serious harm within the meaning of the Refugees Convention” and in relation to “‘significant harm’ within the meaning of the complementary provisions”. That is, the language used demonstrates a separate consideration of each of those tests.
The Minister submitted that the Tribunal made “clear” findings in relation to the risk of persecution on the basis of the lack of a Convention nexus (at [42] at CB 163), and that it then expressed its lack of satisfaction that the “applicant has a well-founded fear of persecution for a Convention reason” (at [43]). In short the Tribunal made, by the use of this language, specific reference to the test at s.91R of the Act.
The Minister relied on the approach and reasoning taken by this Court in SZSUA, SZURK v Minister for Immigration [2015] FCCA 472 and SZRZN v Minister for Immigration [2013] FCCA 510 (“SZRZN”), which are said to also be relevant to the circumstances in this case. That is, the language used by the Tribunal made it clear that it identified the distinction between the two tests, and this can be seen by a fair consideration of the structure and totality of the Tribunal’s reasons.
The Minister drew the Court’s attention to SZRZN at [27]:
“…Whilst I agree with Judge Driver [in SZSFK v Minister for Immigration & Citizenship [2013] FCCA 7] that more should be done by these Tribunals to indicate they have clearly made a determination upon the evidence in relation to s 36(2)(aa) by reference to that sub-section’s specific tests, I believe that in this case the failure is more one of form than one of substance…”
As stated above, it is the case that Tribunal decisions are to be read fairly (Wu Shan Liang). As also stated above, of course that does not mean that any “ambiguity in the Tribunal’s reasons to be in the Tribunal’s reasons be resolved in the Tribunal’s favour” (SZCBT at [16]).
The difficulty for the Tribunal, and now the Minister in the current proceedings, is that the Tribunal would have benefitted if it had heeded the direction provided by the High Court in such cases as Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 (“Guo”) as to how to approach its task of considering the relevant test (now tests) and expressing that consideration in its decision record (Guo at 575 – 576):
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not ‘differentially at risk for a Convention reason.’ Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.
In the present case, Einfeld J was critical of the tribunal for making findings before it evaluated whether there was a real chance of persecution for a Convention reason. Thus, his Honour said [29]:
‘As it appears to me, the tribunal has thus been concerned to make findings and determinations in relation to each piece of evidence. It evaluated the credibility of Mr Guo and employed a continuous weighing-up process. It also engaged in a deductive reasoning process to justify some of its balance of probabilities findings. Clearly great weight was placed upon these findings when considering the ultimate question. Only after it had weighed the evidence and made its findings did the tribunal engage in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded. However, no consideration was given by the tribunal to the possibility that any of its findings were inaccurate, and that there was in fact a possibility that the prior punishment had been Convention-related.’
With respect to his Honour, this criticism of the tribunal's reasons is wrong. For the reasons that we have given, the tribunal was entitled to weigh the material before it and make findings before it engaged ‘in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded.’ Moreover, given the strength of some of the tribunal's findings — for example, ‘the treatment the applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials’, ‘the applicant's illegal departure in 1993 will not result in an imputed political profile’, ‘these matters will not result in persecution to the applicant for Convention reasons if returned to China’ — the tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention based.”
[Emphasis added.]
In short, what I respectfully, and relevantly, draw from this is that the Tribunal should make findings of fact on the evidence and circumstances presented, and then apply them to each of the relevant criteria to see if the requisite level of satisfaction is reached.
In my view, the Tribunal’s reasoning on the question of the membership of a particular social group suffers from a similar characteristic as found in relation to ground two. That is, even on a fair reading, it is not possible to reasonably say that it expressed itself with sufficient clarity as to have demonstrated it applied the two separate tests as required by s.36(2)(a) and (aa) of the Act.
While I respectfully agree with Judge Raphael that there is a distinction, at least at the conceptual level, between a failure of “form” and a failure of “substance”, in the current case that distinction is not available in the circumstances presented.
In an “Attachment” to its decision record the Tribunal set out the relevant law in unexceptional terms, often seen as “formulaic” attachments in matters of this type. The distinction between “serious harm” and “significant harm” is apparent. However, this is insufficient to show that the Tribunal understood the relevant law and properly applied it to the applicant’s circumstances.
The Tribunal itself describes at [30] (at CB 159) to [41] (at CB 162) as its findings of the issue of “membership of a particular social group”.
At [30] to [33] (at CB 159) the Tribunal sets out findings on the applicant’s relevant claims in light of country information which it said it considered. A further finding at [34] (at CB 159) is, given the language used, directed to complementary protection.
At [35] (at CB 159 to CB 160) the Tribunal makes references to UNHCR guidelines. I note that the UNHCR is the High Commissioner for “Refugees”. Nonetheless the conclusion reached by the Tribunal is again said to be relevant to complementary protection (“substantial grounds for believing that, as a necessary and foreseeable consequence…”). The Tribunal’s decision at [36] (at CB 160) to [40] (at CB 162) is plainly directed to elements relevant to complementary protection.
As stated above, the Minister directed attention to [41] (at CB 162) which contained a reference to “serious harm” and the Refugees Convention, and a reference to “significant harm”, which he said revealed that the Tribunal understood the differences between the two tests.
The difficulty for the Minister is that there is nothing in what precedes [41] in that section of the Tribunal’s analysis to show that it arrived at the conclusion expressed there, after having considered elements relevant to both “serious harm” and “significant harm”.
The Tribunal cannot be said to have properly arrived at the conclusion relevant to serious harm when all the relevant preceding paragraphs make findings of fact and then consider them only in light of “significant harm”. The word “Therefore” as it appears at the beginning of [41] (at CB 162) only serves to emphasise that the reading I have given to the Tribunal’s analysis is a fair reading.
What follows and appears at [42] – [44] (at CB 163) are formulaically expressed conclusions that can only derive any meaning of substance from what precedes them. In relation to complementary protection the Tribunal’s concluding finding is reasonably open to it on what precedes it. The same cannot be said in relation to “serious harm”. In this light the applicant’s ground four is made out.
This is another basis on which to grant the relief the applicant seeks. As there is no reason not to do, so I will make the orders the applicant seeks.
I certify that the preceding one hundred and fifteen (115) are a true copy of the reasons for judgment of Judge Nicholls
Date: 11 August 2016
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