SZWBR v Minister for Immigration

[2016] FCCA 2621

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZWBR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2621

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migrants & Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account Ministerial Direction – whether the Tribunal failed to take into account relevant considerations – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476, 499

Immigrants and Emigrants Act (“the I & E Act”) (SL), s.41(1)(b)

Cases cited:

SZUQZ v The Minister for Immigration & Anor [2015] FCCA 1152

Applicant: SZWBR

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 295 of 2015

Judgment of: Judge Street

Hearing date: 11 October 2016

Date of Last Submission: 11 October 2016

Delivered at: Sydney

Delivered on: 11 October 2016

REPRESENTATION

Counsel for the Applicant: Mr B Mostafa of Counsel

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Ms R Francois of Counsel

Solicitors for the Respondents: Minter Ellison Lawyers

ORDERS

1. Leave is granted for the Applicant to rely upon the amended application filed 24 February 2016.

2. The amended application is dismissed.

3. The Applicant pay the costs of the First Respondent fixed in the amount of $7,206.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 295 of 2015

SZWBR

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court's jurisdiction under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 9 January 2015, affirming the decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The applicant was found to be a citizen of Sri Lanka, and his claims were assessed against that country. The applicant lived at a particular place where he was born until his departure from Sri Lanka on 31 May 2012. The applicant departed illegally by boat, and on 20 June 2012 the applicant was transferred to Christmas Island.

3. The applicant claimed to fear harm in Sri Lanka by reason of his political activities on behalf of the Tamil National Alliance (“TNA”), his maternal uncle's political activities, his Tamil race, and also on the basis of his illegal departure from Sri Lanka and his status as a failed asylum seeker.

The Delegate’s Decision

1. On 1 July 2013, the delegate found that the applicant's fear of persecution as defined under the Refugees Convention was not well‑founded, and the delegate was not satisfied the applicant has a real chance of being persecuted for a Refugees Convention reason. The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk the applicant would suffer significant harm. The delegate found that the applicant did not meet the criteria under s.36(2) of Act.

The Tribunal’s Decision

1. The applicant applied for review of the delegate’s decision on 1 August 2013. By letter dated 22 October 2014, the applicant was invited to attend a hearing on 23 December 2014. The applicant appeared on that date to give evidence and present arguments. The applicant was represented by his registered migration agent.

2. The Tribunal found that the applicant had departed Sri Lanka illegally. The Tribunal made reference to the country information that referred to the application of the Immigrants and Emigrants Act (“the I & E Act”) (SL) and the offence in respect of departing the country without an official port of entry or exit pursuant to s.45(1)(b) of the I & E Act. Pursuant to that Act, the returnees are generally considered to have committed an offence under the I & E Act if they depart Sri Lanka irregularly by boat.

3. The Tribunal made reference to the country information that identified that in the Magistrates Court in Colombo, typically fines of around 5000 Sri Lankan rupees for persons attempting to leave Sri Lanka illegally by boats are imposed. Further, that in most cases returnees have been granted bail on their personal reconnaissance, and sometimes they are required to obtain a family member to act as guarantor, and have to wait until the family member comes to collect them from Court.

4. The Tribunal made reference to the country information referring to the thousands of asylum seekers returned to Sri Lanka since 2009. In particular, the Tribunal made reference to the Department of Foreign Affairs and Trade (“DFAT”) assessment that the risk of torture, or mistreatment for the great majority of returnees is low, including those suspected of offences under the I & E Act. The country information to which the Tribunal referred, included reference to the risk of torture, or mistreatment for returnees being greater for those who are suspected of committing serious offences, including people smuggling or terrorism offences.

5. The Tribunal identified that it had raised with the applicant the monitoring of persons returned to Sri Lanka, and made reference to the non‑discriminatory application of the law of general application not constituting persecution. The Tribunal referred to the fact that the country information indicates that departure from Sri Lanka, without more, could not result in discriminatory treatment of a person for a Refugees Convention reason. The Tribunal found that it was not satisfied that an essential and significant reason for any prosecution of the applicant for having breached the Sri Lanka’s departure law is for a Refugees Convention reason.

6. The Tribunal then made reference to further country information in relation to detention. This included a reference to the prison population reflecting the country's overall ethnic and religious composition. In general, prison conditions in Sri Lanka do not meet international standards because of a lack of resources, overcrowding and poor sanitary conditions.

7. The Tribunal found that the prison population was broadly representative of the country's overall ethnic and religious composition, and found that the conditions in the Sri Lankan prisons are poor. The Tribunal found that it was not satisfied there is a real chance the applicant would be subject to a custodial sentence in Sri Lanka for having exited unlawfully. The Tribunal was not satisfied the applicant falls within any risk profile, and was not satisfied that his situation would be exacerbated on return for reason of any of his accepted claims.

8. The Tribunal made express reference to the applicant being potentially the subject of a brief period of detention, and that the Tribunal was not satisfied on the evidence that an essential and significant reason for any harm to which he may then be subject, would include at least one of the Refugees Convention grounds. The Tribunal was not satisfied that the applicant's Tamil race, even considered cumulatively with his other accepted claims, would mean that he has a real chance of suffering persecution on return to Sri Lanka. The Tribunal took into account the claim in relation to the applicant being a failed asylum seeker.

9. The Tribunal also made reference to country information and identified in relation to illegal departure, that the majority of returned failed asylum seekers are processed relatively quickly, and with no difficulty beyond some possible harassment. The Tribunal made reference to having discussed the applicant's illegal departure from Sri Lanka, and noted that the main focus of the Sri Lankan authorities upon return appears to be, whether a person is suspected of being an ongoing threat to the Sri Lankan regime.

10. Given the Tribunal's finding as to the applicant's lack of any profile, the Tribunal was not satisfied the applicant has a real chance of being suspected of being an ongoing threat. The Tribunal was not satisfied the applicant has a real chance of being persecuted should he be returned to Sri Lanka as a failed asylum seeker.

11. Having considered the applicant's claims cumulatively, the Tribunal was not satisfied the applicant was a person in respect of whom Australia had a protection obligation. The Tribunal found that the applicant did not satisfy the criterion under s.36(2)(a) of the Act, and turned to the issue of complementary protection.

12. The Tribunal again made reference to country information concerning the prison conditions in relation to complementary protection. This included a reference relevantly to the conditions in prisons and detention centres remaining poor, and referred to the levels of overcrowding and the sanitary conditions, lack of food and incidents of ill‑treatment, and made reference to Article 3 of the European Convention on Human Rights.

13. The Tribunal also referred to further country information in relation to deaths in custody, and in particular deaths in custody as generally unrelated and isolated in nature. The Tribunal found, based on the country information, that harm to which prisoners may be subject appears to be random, and there does not appear to be material evidence in support of a finding that the material harm is intentionally inflicted on a person. The Tribunal was not satisfied there is a real chance the applicant would be subject to a custodial sentence in Sri Lanka for having exited unlawfully.

14. The Tribunal found that it was not satisfied the applicant has a real risk of suffering degrading treatment or punishment arising from an act or omission that causes or is intended to cause extreme humiliation which is unreasonable, should the applicant return to Sri Lanka. The Tribunal found that if the applicant was subject to harm on return, the Tribunal was not satisfied that there was a real risk it would be more than some possible harassment.

15. The Tribunal was not satisfied the applicant has a real risk of relevant harm that is intentionally inflicted on him, cruel or inhumane treatment or punishment. The Tribunal found that if the applicant was the subject of harm on return, the Tribunal was not satisfied there was a real risk it would be more than some possible harassment.

16. The Tribunal was not satisfied the applicant has a real risk of suffering relevant harm that is intentionally inflicted on him. The Tribunal found that none of the country information satisfied the Tribunal that the applicant has a real risk of suffering arbitrary deprivation of life in Sri Lanka. The Tribunal found that it was not satisfied there was a real risk of the applicant suffering significant harm if returned to Sri Lanka.

17. It was in these circumstances that the Tribunal affirmed the decision of the delegate and found that the criteria under s.36(2) of the Act were not satisfied.

Proceedings Before this Court

1. The grounds of the amended application in this Court are as follows:-

   2. The Tribunal erred in law in failing to respond to the applicant’s claim to fear significant harm in Sri Lanka prisons by reason of being imprisoned on pre-trial remand for up to two weeks.

   Particulars

   a. The Tribunal accepted that departing Sri Lanka illegally is an offence, and that the applicant departed Sri Lanka illegally: [61].

   b. The applicant claimed that, if returned to Sri Lanka, he would be interrogated, detained, and imprisoned on pre-trial remand for up to two weeks while awaiting a bail hearing.

   c. The applicant claimed that he faced a real risk of significant harm (including torture, cruel or inhuman treatment, and degrading treatment) while imprisoned on pre-trial remand.

   d. The Tribunal did not make any finding about whether the applicant would be imprisoned on pre-trial remand, the duration of any imprisonment, or whether he faces a real risk of harm while being held on remand.

   e. The Tribunal’s failure to deal with or respond to the applicant’s claim involved a constructive failure to exercise jurisdiction and a denial of procedural fairness: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90]; Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24], [95].

   3. The Tribunal failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958.

   Particulars

   a. The Tribunal failed to take into account PAM3: Refugee and humanitarian – Complementary Protection Guidelines.

   (All errors in the original)

2. Mr Mostafa of Counsel on behalf of the applicant confirmed that Ground 1 was no longer pressed. Mr Mostafa of Counsel conceded that Ground 2 could not succeed unless Ground 3 succeeded.

3. In substance, Ground 2 sought to advance an argument that the Tribunal had directed itself to a custodial sentence, and not taken into account the applicant's claims in respect of detention whilst he was in remand.

4. On a fair reading of the Tribunal's reasons, it is apparent that the Tribunal took into account the detention to which the applicant may be exposed as a result of having illegally departed Sri Lanka. Ground 2 fails to make out the jurisdictional error.

5. In relation to Ground 3, the Tribunal in its reasons expressly referred to the Ministerial Direction No.56, made under s.499 of the Act. The Tribunal noted that it is required to take account of the policy guidelines by the Department of Immigration identified in the PAM3: Refugee and Humanitarian – Complementary Protection Guidelines (“PAM3 Guidelines”), and any country information assessment prepared by DFAT for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

6. Mr Mostafa of Counsel took the Court to certain sections of the PAM3 Guidelines. This included para.14 of the PAM3 Guidelines, the paragraphs under topic heading, “Torture, Cruel or Inhumane Treatment or Punishment and Degrading Treatment or Punishment.” This referred to the concepts being derived from and requiring decision‑makers to turn their minds to international jurisprudence.

7. Reference was also made to particular paragraphs in the PAM3 Guidelines under the heading, “Pain or Suffering and ‘reasonably be regarded as cruel or inhuman in nature’” in para.22, as well as under the heading, “Intentionally Inflicted Pain or Suffering” in para.23 of the PAM3 Guidelines. Reference was also made by Mr Mostafa of Counsel in relation to the topic heading “Degrading Treatment or Punishment” in para. 25, as to whether treatment is degrading. There was also a reference to extreme humiliation, and a reference in para.25 to intention, including that in certain circumstances it may be appropriate to infer an intention to inflict extreme humiliation and a reference to imprisonment and prison conditions.

8. Mr Mostafa of Counsel submitted that there was no reference to any international jurisprudence in the footnotes to the Tribunal's decision nor in the body of the reasons. Mr Mostafa of Counsel submitted that beyond the paragraph referring to Ministerial Direction No.53 under s.499 of the Act, there was no further reference to any paragraph from the guidelines.

9. Mr Mostafa of Counsel said it should be inferred that the Tribunal had failed to comply with its statutory obligation to have regard to the PAM3 Guidelines. Mr Mostafa of Counsel relied upon a decision of Judge Driver in SZUQZ v The Minister for Immigration & Anor [2015] FCCA 1152. The Court was taken, in particular, to paragraphs [32] – [34], [38] – [39], [42] – [43], and [53] – [54]. Mr Mostafa of Counsel submitted that the facts in that case were essentially the same facts as in the present case, and that this was a decision which this Court was bound to follow unless clearly satisfied that it was wrong.

10. The decision in SZUQZ v The Minister for Immigration & Anor [2015] FCCA 1152 does not in my opinion, identify any principle of law binding upon this Court, but rather reflects a particular factual finding in the context of a particular case. The facts in that case are different in a number of respects, not just in relation to the reasoning of the Tribunal, but also in relation to the information and country information to which it has referred.

11. Where the Tribunal has expressly referred to its obligations in relation to s.499, and has expressly referred to the PAM3 Guidelines, there must be demonstrated a proper basis for the finding that the Tribunal has not taken into account a document that in its reasons it has acknowledged that it must take into account. The reasons of the Tribunal in the present case, whilst making no reference to the PAM3 Guidelines, are consistent with the Tribunal having taken into account the PAM3 Guidelines in the adverse findings made in respect of the applicant's claims, and in particular in relation to the consequences of illegal departure.

12. It is apparent that the Tribunal complied with the Ministerial Direction No.56 insofar as the express reference was made to the DFAT reports. That is also a relevant consideration in determining whether or not an adverse inference should be drawn merely because of the omission of further reference to the guidelines. Taking into account the Tribunal's reference consistent with the direction to the DFAT reports, as well as the topics addressed by the Tribunal in relation to illegal departure and detention, I am satisfied that the Tribunal in its reasons has demonstrated that it performed the statutory task of reviewing the delegate's decision in accordance with the law, and then the Tribunal took into account, where relevant, the PAM3 Guidelines in the assessment of whether Australia owed protection obligations to the applicant. Ground 3 fails to make out any jurisdictional error.

13. I should add that it is not necessary for the Tribunal to pepper its decision with footnotes or references to the material that it has taken into account. Nor is it necessary for the Tribunal to make express reference to international jurisprudence. This is not a case where it can be inferred that the Tribunal failed to have an active intellectual engagement with the PAM3 Guidelines in the conduct of its review. Ground 3 fails to make out any jurisdictional error.

14. The amended application is dismissed.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Street

Date:  28 October 2016