SZUQZ v Minister for Immigration & Anor
[2015] FCCA 1552
•26 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUQZ v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1552 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic, political and particular social group persecution in Sri Lanka – applicant’s claims rejected – whether the Tribunal erred in considering the risk faced by the applicant in short term detention as a returnee considered – Tribunal erred by failing to consider the potential relevance of the PAM 3 Guidelines on complementary protection. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 499 |
| Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 Conteras v Uruguay, Comm No 1139/1983, UN Doc Supp. No 40 A40/40 [17 July 1985] Mika Miha v Equatorial Guinea, Comm Np 414/1990 UN Doc CPR/C/51/D/414/1990 (8 July 1994) Minister for Immigration v MZYYL (2012) 207 FCR 211 Sino Iron Pty Ltd v Secretary for the Department of Infrastructure and Transport [2014] FCAFC 103 SZTBE v Minister for Immigration & Anor [2014] FCCA 1288 SZTEQ v Minister for Immigration [2015] FCAFC 39 SZTIB v Minister for Immigration [2015] FCAFC 40 Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; (2008) 176 FCR 153 |
| Applicant: | SZUQZ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1885 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr D Godwin |
| Counsel for the Respondents: | Mr G Johnson |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
A writ of certiorari shall issue, removing the record of the Refugee Review Tribunal decision made on 16 June 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the review application before it, according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1885 of 2014
| SZUQZ |
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). The decision was made on 16 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The applicant claimed ethnic, political and particular social group persecution in Sri Lanka. The following statement of background facts is derived from the submissions filed on behalf of the Minister on 29 May 2015.
The applicant is a citizen of Sri Lanka, who arrived in Australia by boat, from Indonesia, as an irregular maritime arrival. On 29 October 2012, the applicant lodged an application for a protection visa, with the assistance of a migration agent[1]. The applicant’s claims for protection were set out in a declaration dated 25 October 2012, which appears at CB 53-58. In summary the applicant claimed to have a fear of returning to Sri Lanka for the following reasons:
a)his Tamil ethnicity;
b)his actual or imputed political opinion, because of his political support for the United National Party (UNP) and opposition to the Sri Lankan government;
c)his membership of a particular social group, being “young Tamil men” and “people accused or suspected of supporting the LTTE”[2], “returned failed asylum seeker”.
[1] Court Book (CB) 1-31
[2] Liberation Tigers of Tamil Eelam
On 7 March 2013, the delegate refused to grant the applicant a protection visa, finding that the applicant did not have a well-founded fear of Convention-based persecution, or that he was entitled to complementary protection under the Migration Act 1958 (Migration Act)[3].
[3] CB 102-122
On 14 March 2013, the applicant applied to the Tribunal for review of the delegate’s decision[4]. The Tribunal invited the applicant to appear at a hearing, which was held on 14 May 2013. The applicant was assisted at the hearing by an interpreter in the Tamil language, and by his migration agent[5].
[4] CB 124-129
[5] CB 214-215
Tribunal decision
The Tribunal considered each of the claims advanced by the applicant, and made the following findings in determining that the applicant was not entitled to Convention-based or complementary protection:
a)it rejected the applicant’s claim that he would be imputed with a pro-LTTE political opinion on the basis of his relationship with his father, or members of his family, or for any other reason[6]. The Tribunal did not accept as true the applicant’s claims that his father was a suspected LTTE member or supporter[7];
b)it rejected the applicant’s claims that he would be targeted by the Criminal Investigation Department (CID) or opposition parties because of his association and work with the United National Party (UNP)[8]. The Tribunal found, on the basis of the applicant’s evidence of the nature of his involvement with the UNP, that the applicant did not have a profile with the UNP that would attract adverse attention, and that the applicant had fabricated claims that he had to hide in order to avoid the CID and political opponents[9]. The Tribunal also rejected as a fabrication the applicant’s claim that the CID had contacted his mother following his departure from Sri Lanka to enquire as to his whereabouts[10];
c)it rejected the applicant’s claim that he would be subjected to harm as a returned failed asylum seeker[11]. Whilst the Tribunal accepted that the Sri Lankan government has a poor human rights record and that detainees in Sri Lanka were tortured, and prison conditions were poor[12], it found that on the basis of country information that a person with the applicant’s profile and lack of past involvement with the LTTE would mean that he faced a risk of being detained for only a few days prior to a bail hearing, and that if convicted, he would be fined[13]. The Tribunal considered that the applicant’s circumstances did not come within the reported instances of persons who had been mistreated in prison on return to Sri Lanka having departed illegally, or persons who face the prospect of a lengthy prison sentence[14];
d)it rejected the applicant’s claim that he would face harm due to his Tamil ethnicity, on the basis of country information and the fact that it was not satisfied that the applicant came within any of the “risk profiles” identified in the country information as possibly giving rise to a need for protection[15].
[6] [33]
[7] [26(a)-(b)]
[8] [36]
[9] [36]-[38]
[10] [39]
[11] [46]
[12] [41]
[13] [43]
[14] [45]
[15] [48]
The Tribunal concluded, having regard to the applicant’s claims singularly and cumulatively, that the applicant was not at risk of Convention-based persecution or significant harm[16]. The Tribunal accordingly decided to affirm the decision under review on 16 June 2014.
[16] [52]
The present proceedings
These proceedings began with a judicial review application filed on 8 July 2014. The applicant now relies upon an amended application filed on 22 May 2015. There are four grounds in that application:
1. The RRT failed to address an issue which arose on the material before it being whether the detention of the applicant on remand in Sri Lanka in the prison conditions prevalent there would be degrading treatment or punishment and cruel or inhuman treatment or punishment.
2. The RRT failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958.
Particulars
The RRT failed to take into account the PAM 3 Protection Visas [complementary] protection guidelines when it made a finding on whether the treatment that [the] applicant would face on return to Sri Lanka might constitute significant harm within the meaning of the Migration Act
3. The RRT failed to take into account a relevant consideration
Particulars
The applicant repeats the particulars to ground 2
4. The RRT erred in its understanding of the applicable law and thereby its jurisdiction when, in relation to his fear of persecution as a member of a social group of failed Tamil Asylum Seekers/illegal departees/young [T]amil males, it found that it was not satisfied that the treatment the applicant may face on return (investigation, arrest, remand, bail, a fine) individually or cumulatively involves serious harm.
In addition to the court book filed on 5 September 2014, I have before me as evidence the following exhibits:
·A1 – s499 Direction No 56
·A2 – Protection visas – Complementary Protection Guidelines
Both the applicant and the Minister made oral and written submissions.
Consideration
Ground 1 – did the Tribunal fail to address an issue which arose on the material before it, being whether the detention of the applicant on remand in Sri Lanka in the prison conditions prevalent there would be degrading treatment or punishment or cruel or inhuman treatment or punishment?
When assessing the relevance of the prison conditions the Tribunal found that the applicant’s circumstances[17]:
did not come within the reported instances of persons who had been mistreated in prison on return to Sri Lanka having departed illegally or persons who face the prospect of a lengthy period in prison.
[17] CB 232 [45]
Based on this finding the Tribunal concluded that therefore it was not satisfied the treatment the applicant may face would subject him to significant harm.
The applicant contends that the Tribunal thus limited its consideration of “significant harm” to the chance that the applicant would be mistreated in prison or would face a lengthy period in prison. The applicant contends that the Tribunal omitted to make a finding on whether the “matter of days” the applicant would spend in prison might constitute serious harm or degrading treatment or punishment by reason of the poor standard of prison conditions which it acknowledged. The applicant contends that the Tribunal did not complete its jurisdictional task.
I agree with the Minister’s submissions on this issue.
The applicant’s argument in support of the first ground relies upon an over-zealous scrutiny of the Tribunal’s reasons for decision[18]. As indicated in its finding at [46], the Tribunal was clearly directing itself to the applicable tests under the Migration Act as to whether the applicant faced either the risk of serious harm or the real chance of significant harm. The Tribunal may also be taken to have been aware of the tests by virtue of it having stipulated the tests in the attachment to its decision record[19].
[18] Minister for Immigration v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
[19] CB 235-236
The fact that in the preceding paragraph the Tribunal made reference to the “reported instances of persons who have been mistreated in prison… or persons who face the prospect of a lengthy period in prison” does not detract from the Tribunal’s appreciation and application of the applicable tests. The Tribunal was, at [45], clearly referring to recognised situations where a person may be subjected to treatment that might constitute serious or significant harm under the Migration Act. The point the Tribunal made was that the applicant’s situation, in light of his profile, did not lead to the conclusion that the applicant faced serious or significant harm.
The applicant’s assertion that the Tribunal “limited” its consideration of significant harm in a particular way is unfounded. At the heart of the Tribunal’s consideration was the question whether the applicant, in light of his profile and past as found by the Tribunal, would result in the applicant facing harm in Sri Lanka. The Tribunal made clear references to its findings as to the applicant’s past and profile[20], references to the treatment it considered the applicant was likely to face having regard to his profile and past[21], and an assessment as to whether that treatment would be serious or significant harm[22]. There was no error in the Tribunal’s approach.
[20] [44], [45]
[21] [43], [44]
[22] [45], [46]
I reject the first ground in the amended application.
Ground 4 – did the Tribunal err in its understanding of the applicable law and thereby its jurisdiction when, in relation to his fear of persecution as a member of a social group of failed Tamil asylum seekers, it found that it was not satisfied that the treatment of the applicant may face harm on return individually or cumulatively which involved serious harm?
The Tribunal accepted that the applicant would likely be detained for a few days on return to Sri Lanka, but found that this detention would not constitute serious harm by reason of his membership of a social group “however defined: illegal departees, failed asylum seekers, young Tamil males.”[23] The reasoning of North J in WZAPNv Minister for Immigration[24] would thus have supported a finding of jurisdictional error.
[23] CB 233 [52]
[24] [2014] FCA 947
The applicant asserts that the Tribunal erred in its understanding of the law in finding that it was not satisfied that the treatment the applicant would receive on return to Sri Lanka constituted serious harm[25]. The applicant sought that the Court defer making its decision in this matter until the outcome is known of the Minister’s appeal to the High Court of the decision of the Federal Court in WZAPN[26]. In advancing this ground, the applicant was forced to seek that the Court defer its consideration of this ground until after the High Court handed down a decision in WZAPN, because, as the applicant properly conceded, the argument raised in the fourth ground must otherwise fail on the basis of binding authority[27].
[25] at [45]
[26] [24] of the applicant’s submissions
[27] BZAFM v Minister for Immigration [2015] FCAFC 41; SZTEQ v Minister for Immigration [2015] FCAFC 39; SZTIB v Minister for Immigration [2015] FCAFC 40
I declined to grant an adjournment in this matter but I agreed to reserve judgment pending the outcome of the High Court appeal in WZAPN and WZARV.
On 17 June 2015 the High Court allowed the Minister’s appeal in WZAPN and dismissed the appeal of WZARV[28]. At [5] the High Court endorsed the decision of the Full Federal Court in SZTEQ v Minister for Immigration[29].
[28] Minister for Immigration v WZAPN; WZARV v Minister for Immigration [2015] HCA 22
[29] [2015] FCAFC 39
Furthermore, the Minister submits and I accept that the Tribunal in this matter made a relevant alternative finding that the application of the relevant law upon the applicant’s return to Sri Lanka was not for any Convention reason, such a law being considered to be one of general application[30]. Therefore, this case is distinguishable from WZAPN in any event[31].
[30] see [82] of the Tribunal’s reasons
[31] see SZSXY v Minister for Immigration [2014] FCA 1183 in this regard
I reject Ground 4 in the amended application.
Grounds 2 and 3 – did the Tribunal breach s.499(2A) of the Migration Act by failing to comply with Ministerial Direction 56 or did it fail to take into account a relevant consideration for the same reason?
It is appropriate to address the second and third grounds together.
The crux of each of the second and third grounds is that the Tribunal failed to take into account the matters identified in PAM 3 Refugee and Humanitarian Complementary Protection Guidelines (Guidelines) to the extent relevant. In order to succeed on either of these two grounds the applicant needs to establish from the Tribunal’s decision record that the Tribunal was required in the circumstances of this case to take into account the Guidelines, and that in failing to do so, the Tribunal breached s.499(2A) or overlooked a relevant consideration amounting to jurisdictional error.
By s.499(1) of the Migration Act the Minister may publish directions concerning the performance of functions and the exercise of powers under the Migration Act. By s.499(2A) the Tribunal must comply with such directions.
The Minister made Direction 56 on 21 June 2013 and it was binding on the Tribunal from 22 June 2013.
Direction 56 requires that the Tribunal “take into account” the matters identified in the Guidelines to the extent that they are relevant to the decision under consideration.
The Guidelines contain matters that are potentially relevant to the decision the Tribunal was considering
The Guidelines provide extensive guidance on the topic of prison conditions. The Tribunal was required by s.499(2A) to take this guidance into account if it was relevant to the matter before it.
Examples given in the Guidelines of poor prison conditions which can amount to cruel or inhuman or degrading treatment or punishment, include, among other things, overcrowding[32]; unsanitary conditions[33]; exposure to cold[34]; inadequate ventilation or lighting[35]; inadequate bedding, inadequate clothing, inadequate nutrition and clean drinking water, lack of opportunity for adequate exercise[36]; and denial of medical treatment[37].
[32] Guidelines [29] fn 62
[33] ibid
[34] Guidelines [29] fn 63 Human Rights Committee Conteras v Uruguay, Comm No 1139/1983, UN Doc Supp. No 40 A40/40 [17 July 1985]
[35] Guidelines [29] fn 64Human Rights Committee Brown v Jamaica, Comm No 775/1997, UN Doc CCPR/C/65/D/
·775/1997 (23 March 1999)
[36] Guidelines [29] fn 65 Tshiskedi (supra); Human Rights Committee Mukong v Cameroon, Comm no 458/1991, UN Doc CCPR/C/51/D/458/1991 (21 July 1994); Mika Miha v Equatorial Guinea, Comm Np 414/1990 UN Doc CCPR/C/51/D/414/1990 (8 July 1994)
[37] Guidelines [29] fn 67 Human Rights Committee Brown v Jamaica, Comm No 775/1997, UN Doc CCPR/C/65/D/ 775/1997 (23 March 1999)
The Tribunal accepted that the applicant would be detained in prison for a matter of days because of his illegal departure[38].
[38] CB 232 [44]
The Tribunal accepted the conditions in Sri Lankan prisons were poor and torture of detainees is commonplace[39].
[39] CB 231 [41]
These factual findings triggered the obligation to take into account the Guidelines in the assessment of whether the conditions of imprisonment the applicant might face met the definitions of significant harm s.36(aa) and s.5 of the Migration Act.
Accordingly, the applicant contends that the Tribunal was required to give weight to them “as a fundamental element in making his determination”[40].
[40] In Sino Iron Pty Ltd v Secretary for the Department of Infrastructure and Transport [2014] FCAFC 103 at [124] Perry J observed that where there is an obligation to take something into account this means that the decision maker must give weight to them “as a fundamental element in making his determination”: R v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32; (1979) 180 CLR 322 at 329 (Mason J (Gibbs J agreeing at 324)). In other words, when required to consider material, the process of consideration must involve “‘an active intellectual process’ directed at the nominated subject-matter”: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; (2008) 176 FCR 153 at 182 (Rares J, citing Black CJ in Tickner v Chapman [1995] FCA 1726; (1995) 57 FCR 451) (approved in Telstra Corporation Ltd v
Australian Competition Tribunal [2009] FCAFC 23; (2009) 175 FCR 201 at 242 [267] (the Court)).
The applicant also points out that the Guidelines also provide that the statutory definition of cruel and inhuman treatment and punishment is informed by Australia's international obligations under the Convention Against Torture and the International Covenant on Civil and Political Rights (ICCPR) and the Tribunal is to turn its mind to relevant international jurisprudence[41]:
The terms “torture”, “cruel or inhuman treatment and punishment” and “degrading treatment or punishment” are defined in s.5(1) of the Migration Act. The definitions derive from, and require decision makers to turn their mind to, international jurisprudence[42].
Decision makers should interpret this part of the definition by reference to the international jurisprudence on the meaning of cruel or inhuman treatment or punishment in the context of Article 7 of the ICCPR[43].
It is intended that the meaning of the term “extreme humiliation” will be informed by international jurisprudence considering when treatment would constitute degrading treatment or punishment in breach of Article 7 of the ICCPR[44].
[41] which is consistent with the decisions in SZSYP v Minister for Immigration & Anor [2014] FCCA 7 at [15]-[19] SZTAL v Minister for Immigration & Anor [2015] FCCA 64 at [29] and [51] and Minister for Immigration v Anochie [2012] FCA 1440 per Perram J at [40]-[50]
[42] PAM 3 at [14]
[43] PAM 2 at [22]
[44] PAM 3 at [25]
This does not mean that the Tribunal had to assess whether or not the treatment that the applicant might endure on his return to Sri Lanka would breach Article 7 of the ICCPR. The Full Federal Court has made it clear that this is not the task of the Tribunal[45]. Direction 56 was made eight months after the Full Court's decision. What the Tribunal was directed to do by force of s.499(2A) of the Migration Act was to take into consideration the international jurisprudence when applying the terms of s.36(2aa) and the definitions in s.5 to the treatment the Tribunal found that the applicant may have to endure on return to Sri Lanka. In SZTAL at [51] I found that the international jurisprudence is not excluded from the Tribunal’s consideration by the decision in MZZYL.
[45] Minister for Immigration v MZYYL (2012) 207 FCR 211 at [18]-[20] and see SZSPE v Minister for Immigration [2014] FCA 267 [40]-[43]
The Guidelines refer to numerous decisions of the Human Rights Committee regarding prison conditions. The fact that the imprisonment is of a short duration is not determinative. For example in Portorreal v Dominican Republic, the person at risk[46]:
was arrested...taken to a cell at the secret service police headquarters from where he was transferred to another cell measuring 20 by 5 metres where approximately 125 persons accused of common crimes were being held, and where, owing to lack of space, some detainees had to sit on excrement. He received no food or water until the following day. On 16 June 1984, after 50 hours of detention, he was released. At no time during his detention was he informed of the reasons for his arrest.
[46] Ramon B Martinez Portorreal v Dominican Republic Communication 188/1984 U.N. Doc. Supp No. 40 (A/ 43/40) at 207 (1988) at [9.2] see Guidelines [29] fn 62
The Human Rights Committee found that that treatment during 50 hours of detention amounted to both inhuman and degrading treatment[47].
[47] Ibid at [11]
Further the UK Home office has advised that in Sri Lanka[48]:
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 and the grant of humanitarian protection may be appropriate.
[48] UK Home Office, Operational Guidance Note: Sri Lanka, dated April 2012, as referred to by Judge Emmett in SZTBE v Minister for Immigration & Anor [2014] FCCA 1288 at [65] and my judgment in SZSYP v Minister for Immigration & Anor [2014] FCCA 7 at [41]
The applicant contends that the Tribunal’s acceptance that prison conditions in Sri Lanka were poor and that torture of detainees was commonplace, and that the applicant was likely to be detained for several days in prison on remand meant that the Guidelines were relevant to the consideration of the applicant's case.
Did the Tribunal take into account the Guidelines as an element of its decision making?
The Tribunal made express reference to the Guidelines in the attachment section of its decision record[49]. However, outside of this reference, the Tribunal does not expressly mention the Guidelines. The Tribunal is not required in all cases to make reference to the contents of the Guidelines. It would only be in circumstances where the Tribunal considered that the Guidelines were relevant that it would be directed by the Ministerial Direction to take the Guidelines into account.
[49] see CB 236
I conclude that the Tribunal must have been aware of the Guidelines. The Tribunal identifies the material it has taken into account pursuant to Direction 56 as being “the contents of the Department of Foreign Affairs and Trade Country Information report: Sri Lanka 31 July 2013[50]. This does not include the Guidelines. There is no other express reference to the Guidelines in name or in substance in the Tribunal's decision. Accordingly, in my opinion, it should be inferred that the Guidelines were either not taken into account or not considered relevant[51].
[50] CB 236. In the present case the Tribunal has taken into account the contents the contents of the Department of Foreign Affairs and Trade Country Information Report: Sri Lanka 31 July 2013 cited in this decision
[51] Minister for Immigration v MZYTS [2014] FCAFC 114 at [39]-[49]
The applicant contends that once the Tribunal made factual findings which engaged the Guidelines then their guidance became fundamental to its consideration and some analysis in its reasons of how it applied that guidance sufficient to demonstrate active intellectual engagement with it as required by Direction 56 was mandated by s.499(2A) of the Migration Act.
In Lafu v Minister for Immigration[52] the Full Federal Court considered the applicable legal principles in the context of s.499(2A):
[52] (2009) 112 ALD 1; [2009] FCAFC 140
The Minister accepted that jurisdictional error would be established if the AAT did not genuinely take into account the question of general deterrence as required by Direction 21: see the primary Judge's decision at [21]; and the discussion by Rares J in Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 1 76 FCR 153 at 181-182 [105]-[107], and by the Full Court in Telstra Corporation Ltd v Australian Competition Tribunal (2009) 175 FCR 201 at 242 [267].
With respect, we consider that her Honour misapplied the statement made by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [19961 HCA 6; C1996) 1 85 CLR 259 at 272 in inferring from other parts of the AAT's reasons that [124]-[127] were to be read as an engagement by the AAT in an “active intellectual process” (Tickner v Chapman ( 1995) 57 FCR 451 at 462). The High Court said at the passage referred to (and quoted by her Honour at [22]):
... reasons of an administrative decision-maker are meant to inform and [are] not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.
When the allowances called for by this passage are made, we remain of the view that the AAT's reasons for decision fall on the wrong side of the line: they do not show an active intellectual engagement with the question how the factor or consideration of general deterrence was taken into account, and therefore whether it was taken into account at all, in the exercise of a discretion to cancel. Mr Lafu would be left to guess what role, if any, the issue of general deterrence had played. Yet it will be recalled (see [32] above) that Mr Lafu had expressly submitted that “[g]iven the lack of publicity about the matter, and the lack of any gang involvement, cancelling the applicant's visa would have no deterrent value”.
We do not think that the structure of the AAT's reasons for decision is to be ignored . It was at [124]-[127] that the AAT deliberately turned its attention to the requirement that it consider a question of general deterrence, yet we find in those paragraphs no engagement with the question how the AAT considered the way, if any, that the issue of general deterrence related to the facts of Mr Lafu's case.
The Minister submits that [127] is a statement to the effect that, on the facts, general deterrence is a factor that must be given little weight. We do not accept the submission. At that paragraph the AAT was still stating the general position in relation to general deterrence. In Filipo, the comparable paragraph ([86]) authored by the same member was:
While deterrence cannot be a decisive, or even a substantial factor in the exercise of the discretion, it should be taken into account, especially in the case of serious gang violence such as occurred here. [emphasis added]
The words emphasised in the passage quoted show some application of the member’s mind to the question whether, on the facts of Filipo, the particular case, the matter of general deterrence told in favour of a cancellation. Comparable words do not appear in the AAT’s reasons for decision in the present case.
Arguably, the words “must be taken into account” in [127] of the AAT’s reasons in Mr Lafu’s case and the words “should be taken into account” in Filipo, mean that the AAT is required as a matter of law to take into account general deterrence as a factor telling against the individual in all cases. It can be accepted that in virtually all cases there would be at least one person other than the visa holder who will learn of a cancellation, so that, at least theoretically, general deterrence will always have some role, even if a miniscule one. We do not think, however, that a bland statement that as a matter of conceptual analysis, general deterrence must always tell in favour of cancellation, without any reference to how and to what extent it does so on the facts of the particular case, meets the requirements of paras 2.5(c) and 2.11 of Direction 21 set out earlier. Paragraph 2.11 states that general deterrence “may be relevant in a number of ways” and requires a decision-maker to consider and identify whether, and if so, the way in which, it is relevant on the facts of the particular case
We are not persuaded that the passage from WAEE set out at [45] above signifies that the AAT was relieved from giving reasons as to the actual relevance general deterrence had to its decision to affirm the cancellation of Mr Lafu’s visa. In the present case the AAT did expressly refer to the issue of general deterrence in the statement of its reasons. The problem is that [124]–[127] where the AAT did so, turn out, upon analysis, not to expose a consideration of the question of general deterrence as it relates to the facts of the present case at all.
The Minister submits that, as Perram J found in SZTMD v Minister for Immigration[53], the question of the determination of the relevance of the guidelines or country information specified in clauses 2 and 3 of Ministerial Direction 56 is not a jurisdictional fact, and is for the Tribunal to determine. Not only is it not for the Court to substitute its own view as to the relevance of the Guidelines for that of the Tribunal’s, but the Tribunal’s determination as to relevance is not a matter that arises for consideration in an application for judicial review[54].
[53] [2015] FCA 150 at [20]
[54] Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466-468
Perram J also accepted in SZTMD that an inference was available in that case, on the authority of Minister for Immigration v Yusuf[55], that the absence of express reference by the Tribunal in its reasons to a particular matter meant that the Tribunal did not consider that matter to be material to its decision. I do not accept that such an inference should be drawn in the present matter. The factual findings made by the Tribunal in this case are a distinguishing feature. The facts of each case will determine whether silence in the Tribunal's reasons can properly base the inference that the direction was considered and found not to be applicable as was the case in SZTMD v Minister for Immigration[56].
[55] (2001) 206 CLR 323
[56] at [15]-[21]
The Minister submits that the Court should infer, from a fair reading of the Tribunal’s reasons, that the Tribunal did not determine that the Guidelines, or any part of them, were relevant to the question it had to determine, which was, relevantly, whether the particular circumstances of the applicant’s claims came within s.36(2)(aa) of the Migration Act. The applicant seeks to overcome this hurdle by suggesting that in making particular findings of fact, the Tribunal thereby “triggered” or “engaged” the Guidelines[57]. However, there is no authority for such a proposition. In my opinion, it is preferable to take a position between those submissions.
[57] [10] and [17] of the applicant’s submissions
Further, the Minister submits that the applicant’s reliance on Lafu is misplaced as that case concerned a Ministerial Direction made under s.499 that was couched in mandatory language[58]. That submission needs to be considered in the context of the terms of the Direction.
[58] see [16], [19] and [20] of Lafu
The issue was considered very recently by this Court in SZTCV v Minister for Immigration[59]. At the trial of this matter counsel for the applicant drew my attention to the fact that he had addressed the same argument in SZTCV as in this case, and I stated that I would take the decision into account when available.
[59] [2015] FCCA 1677
In SZTCV at [68]-[72] Judge Lloyd-Jones stated:
68.Direction 56 issued under s.499 on 21 June 2013 relevantly states:
1.This Direction applies to a decision-maker performing function or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.
2.In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.
‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’
‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’
3.Where the Department of Foreign Affairs and Trade has prepared a country information assessment expressly for protection status determination purposes, and that assessment is available to the decision maker, the decision maker must take into account that assessment, where relevant, in making their decision. The decision maker is not precluded from considering other relevant information about the country.
69. At [11] of the Decision Record the Tribunal stated:
11. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian – Complementary Protection Guidelines and PAM3: Refugee and humanitarian – Refugee Law Guidelines – to the extent that they are relevant to the decision under consideration. I have done so.
70.Pursuant to s.499(2), Direction 56 cannot be inconsistent with the Migration Act. I accept the Minister’s submission that the construction of the complementary protection provisions in MZYYL (supra) and SZSPE (supra) cannot have been altered by Direction 56. Further, the decision of the UN Human Rights Committee cited by the applicant do not concern prison conditions in Sri Lanka, rather, at their highest they indicate that prison conditions in Sri Lanka could amount to “significant harm” as defined in ss.5(1) and 36(2)(aa) of the Migration Act.
71.The Tribunal, at [69]-[73] of its Decision Record, rather, was not satisfied on the evidence before it that the conditions in prison in Sri Lanka, in respect of which there was a real risk the applicant would experience, could be said to involve a level of pain or suffering that could be regarded as cruel or inhuman in nature, or be intended to cause “extreme humiliation which is unreasonable”, to fall within the definition of significant harm.
72.The Tribunal’s conclusions were factual in nature and open to it to make on the material before it and for the reasons it gave. The applicant has, therefore, failed to establish the Tribunal failed to take account of the PAM 3 Guidelines. Rather, on a fair reading, I accept the Tribunal has taken account of the Guidelines. This ground should be dismissed.
In my opinion, that decision is clearly distinguishable from this case because of the express reasoning of the Tribunal referred to at [69]. There was no such reasoning in this case.
In my opinion, the decision in Lafu supports the proposition that consideration of the Guidelines is mandatory once the Tribunal determines that they are relevant to a particular case. The decision in SZTMD establishes that the relevance of the Guidelines is for the Tribunal to determine.
The Tribunal, however, cannot simply avoid that determination by silence. Neither, in this case can that determination be inferred. The Guidelines in this case were no less relevant than they were in SZTCV, where they were expressly considered. In this case they were not considered at all. The factual findings made by the Tribunal rendered the Guidelines at least potentially relevant and some engagement with the question of their relevance was necessary for the Tribunal to complete the review. The conclusion I draw is that the Tribunal failed to consider the potential relevance of the Guidelines which, if relevant, were mandatory, and hence the Tribunal overlooked a relevant consideration.
Conclusion
The applicant has established that the Tribunal decision is affected by jurisdictional error. I will grant the relief sought in the application.
I will hear the parties as to costs.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 26 June 2015
23
26
2