SZWBT v Minister for Immigration and Border Protection
[2015] FCA 1307
•25 November 2015
FEDERAL COURT OF AUSTRALIA
SZWBT v Minister for Immigration and Border Protection [2015] FCA 1307
Citation: SZWBT v Minister for Immigration and Border Protection [2015] FCA 1307 Appeal from: SZWBT v Minister for Immigration & Anor
[2015] FCCA 1418Parties: SZWBT v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and ADMINISTRATIVE APPEALS TRIBUNAL File number(s): NSD 675 of 2015 Judge(s): BENNETT J Date of judgment: 25 November 2015 Legislation: Migration Act 1958 (Cth) ss 5(1), 36(2)(a), 36(2)(aa), 91R(1)(c), 424AA, 424A
Immigrants and Emigrants Act 1949 (Sri Lanka)Cases cited: SZTAL v Minister for Immigration & Anor [2015] FCCA 64
SZTCY v Minister for Immigration & Anor [2015] FCCA 85
SZTGM v Minister for Immigration & Anor [2015] FCCA 87Date of hearing: 21 August 2015 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 30 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr K Eskerie of Sparke Helmore Counsel for the Second Respondent: The second respondent did not appear
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 675 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZWBT
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE OF ORDER:
25 NOVEMBER 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The name of the second respondent be changed to the “Administrative Appeals Tribunal”.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 675 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: SZWBT
AppellantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
BENNETT J
DATE:
25 NOVEMBER 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant is a citizen of Sri Lanka who arrived in Australia in 2012 as an unauthorised maritime arrival. A delegate of the Minister for Immigration and Border Protection (the Delegate) refused his application for a Protection (Class XA) visa. His application to the Refugee Review Tribunal (the Tribunal) for a review of the Delegate’s decision resulted in a hearing before the Tribunal, following which the Tribunal affirmed the Delegate’s decision.
On application to the Federal Circuit Court for judicial review of the Tribunal’s decision, the Federal Circuit Court Judge concluded that there was no jurisdictional error in the Tribunal’s decision and dismissed the application.
THE APPELLANT’S CLAIMS
The substance of the appellant’s claims, as taken from the Tribunal decision, were as follows:
·His father left the family when he was twelve. He attended school but cannot read Tamil.
·He began working as a fisherman from the age of 17.
·He left Sri Lanka because of problems caused to him by the army, including being beaten. This occurred, for example, when he refused to clean cooking pots or did not do what the army soldiers required of him. He was slapped, punched and humiliated on two occasions in 2005 and pushed against a metal fence in 2011. He was prevented from attending work as a fisherman by army personnel, who would stop him on the way to work and demand that he perform tasks for them.
·He feared that because he came to Australia illegally, he could be punished by the police; they could even think that he was a Tamil Tiger and shoot him.
THE TRIBUNAL’S DECISION
The Tribunal accepted that the appellant was Sri Lankan and a Tamil. In its findings and reasons, under a series of headings, the Tribunal considered the appellant’s claims, in particular whether he had a well-founded fear of persecution by the Sri Lankan army in Sri Lanka. The Tribunal:
·noted independent country information which indicated that there were no army camps or bases in Udappu, the town where the appellant lived and where he said the persecution took place;
·accepted that the appellant is essentially illiterate and substantially unsophisticated and that the appellant may have had considerable difficulty providing a coherent narrative of the circumstances, yet it considered that the appellant’s evidence was vague and inconsistent in key respects which it elaborated.
For detailed reasons which it gave, the Tribunal did not accept that the appellant was routinely harassed, beaten or prevented from working by soldiers at a camp or base in Udappu after the civil war in 2009. It did not accept that he was subjected to serious harm amounting to persecution after 2009. It accepted that the appellant might have experienced some minor harassment and minor physical mistreatment but concluded that this did not amount to serious harm.
The Tribunal noted that the United Nations High Commission for Refugees’ 2012 Eligibility Guide for accessing the protection needs of asylum seeks from Sri Lanka (the Guidelines) regarding Sri Lanka provided that there was no longer a presumption that Tamils required protection simply because of their ethnicity. Having regard to the Guidelines, the Tribunal found that the appellant did not fit the profile of persons who might be at risk of harm if returned to Sri Lanka as a failed asylum seeker and that there was no reason arising from credible information to suggest that there was a real chance that he would be suspected of having been involved with the LTTE and would face serious harm for that reason. The Tribunal also found that, for these reasons, there was no credible evidence before it to support a finding that failed asylum seekers (including those who are Tamil, Tamil fishermen, and Tamil fishermen from Udappu) were imputed with pro-LTTE opinions.
The Tribunal then turned to consider the appellant’s fear of persecution as a failed asylum seeker involuntarily returning to Sri Lanka. Importantly, the Tribunal found that there was nothing in the appellant’s background which might lead to him being imputed with an LTTE profile, including his status as a failed asylum seeker.
The Tribunal considered, in some detail, the claims and country information arising from the appellant’s illegal departure from Sri Lanka and his return as a failed asylum seeker. It found that upon return to Sri Lanka, the appellant would be detained for questioning, held in remand and charged with an offence under Sri Lanka’s Immigrants and Emigrants Act 1949 (Sri Lanka) (I&E Act) for departing illegally. It found that any period of detention would be short and that the appellant would be released on bail. Further, it found that, if convicted, the appellant would almost certainly be fined. The Tribunal was not satisfied that any of this would amount to persecution for a Convention reason and was, in particular, not satisfied that it would amount to systematic and discriminatory conduct as required by s 91R(1)(c) of the Migration Act 1958 (Cth) (the Act).
Considering the appellant’s claims individually and cumulatively, the Tribunal found that he was not owed protection obligations under s 36(2)(a) of the Act.
The Tribunal proceeded to make separate findings in respect of complementary protection under s 36(2)(aa) of the Act based on its anterior factual findings. It was not satisfied that there were substantial grounds for believing that there was a real risk that the appellant would suffer significant harm as a necessary and foreseeable consequence of his return to Sri Lanka. Notably, it did not consider that any pain or suffering caused to the appellant by overcrowding and poor and insanitary conditions in prison or remand, for the purpose of prosecution under the I&E Act, would be intentionally inflicted, and would therefore amount to “cruel or inhuman treatment or punishment” or “degrading treatment or punishment” as defined in s 5(1) of the Act.
THE FEDERAL CIRCUIT COURT
In the Federal Circuit Court, the appellant’s grounds for judicial review were as follows:
Ground One
The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.Particulars
The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reason but as inhumane.
Ground Two
The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA.Particulars
The Respondent did not raise/or put to me in writing part or parts of the adverse decision for me to comment in writing.Ground 1
Section 36(2) of the Act provides:
A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non‑citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non‑citizen being removed from Australia to a receiving country, there is a real risk that the non‑citizen will suffer significant harm; or
(b)a non-citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)a non‑citizen in Australia who is a member of the same family unit as a non‑citizen who:
(i) is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
As to Ground 1, the Federal Circuit Judge found that the Tribunal did not fall into the error asserted. His Honour concluded that, although the Tribunal did consider whether or not there was a Convention nexus to the harm that might be suffered by the appellant upon return to Sri Lanka for reasons of his having departed illegally and/or being a failed asylum seeker, it did so in connection with consideration of the criterion in s 36(2)(a) of the Act and did not do so in its consideration of the complementary provision, s 36(2)(aa). His Honour noted (at [13]) that the Tribunal did specifically consider s 36(2)(aa) and focussed on the potential for the appellant to be interrogated and detained briefly upon return to Sri Lanka. His Honour noted that the Tribunal accepted that the conditions in prison or detention may be poor but said that the evidence did not suggest that they would pose a real risk to the appellant’s life.
Accordingly, the Federal Circuit Court Judge concluded that the ground must fail.
Ground 2
Section 424AA and s 424A of the Act provide:
424AA Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so—the Tribunal must:
(i)ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)orally invite the applicant to comment on or respond to the information; and
(iii)advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)if the applicant seeks additional time to comment on or respond to the information—adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c)invite the applicant to comment on or respond to it.
...
(3) This section does not apply to information:
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
…
The Federal Circuit Court Judge dealt with this ground in the absence of assistance by way of submissions from the appellant. His Honour observed that, put simply, the issue in Ground 2 was that the obligation on the part of the Tribunal under s 424A of the Act arises only in respect of “information” as specified and not what the Tribunal thinks about that information. His Honour concluded that there was no obligation on the part of the Tribunal to disclose any part of its adverse decision. The only information that the Tribunal appeared to have considered to be part of its reasons for decision was contained in what might be loosely called country information. As such information was not specifically about the appellant, it was excluded from the operation of s 424A(1) by reason of s 424A(3)(a) of the Act. Accordingly, his Honour said, there was no requirement to follow the procedure set out in s 424AA of the Act.
His Honour rejected the second ground.
NOTICE OF APPEAL
In his notice of appeal, the appellant stated that he would rely on the arguments, grounds and particulars that were provided in the Federal Circuit Court application. At the hearing, the appellant confirmed that that remained the case and that he did not advance any further grounds.
Consideration of Ground 1: did the Tribunal fail to consider complementary protection obligations?
The Tribunal made two relevant factual findings:
·the appellant is a Tamil; and
·he would not be accused of any association with the LTTE.
The Tribunal accepted that on his return to Sri Lanka, the appellant would be detained for questioning and security and character checks and that he would be remanded and charged with an offence under the I&E Act because he departed Sri Lanka illegally. The Tribunal found that the appellant would be released on bail with a family member surety and would face court at a future date. The Tribunal accepted that the appellant may be detained for a short period, either at the airport or at Negombo prison, while waiting to be brought before a magistrate and that this period of detention would normally be 24 hours but may be up to four days because of a weekend or public holiday. The Tribunal did not accept that any particular aspect of the appellant’s profile would result in his being detained for a longer period or being subjected to more intensive interrogation.
Having separately considered the Convention nexus, the Tribunal turned to consider whether the appellant’s experience of poor prison conditions in Sri Lanka would constitute severe hardship for the purpose of s 36(2)(aa) of the Act. The Tribunal’s finding that it was not satisfied that there was a real chance of the appellant facing inhumane treatment or degrading punishment, including as a result of the conditions he might face in custody, were open to the Tribunal for the reasons set out in its decision.
The Tribunal accepted that conditions in the prison or detention may be poor but said that the evidence did not suggest that they would pose a real risk to the appellant’s life. It was not satisfied that any pain or suffering caused to the appellant by overcrowding and poor and unsanitary conditions in prison or on remand ‘would be intentionally inflicted, as required’. The Tribunal did not accept that severe overcrowding and poor conditions were intended to cause extreme humiliation.
This latter aspect of the Tribunal’s reasoning was based upon the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1) of the Act which, the Tribunal said, requires that the pain or suffering be intentionally inflicted upon a person, consistently with the decisions of the Federal Circuit Court in SZTAL v Minister for Immigration & Anor [2015] FCCA 64, SZTGM v Minister for Immigration & Anor [2015] FCCA 87 and SZTCY v Minister for Immigration & Anor [2015] FCCA 85. At the conclusion of the hearing, counsel for the Minister informed me that those Federal Circuit Court decisions are subject to an appeal to the Full Court, which has reserved its decision. However, this matter was not argued before me.
Consideration of Ground 2: was the Tribunal obliged to comply with s 424AA of the Act?
As the Federal Circuit Court Judge pointed out, ss 424AA and 424A of the Act do not require that the Tribunal put its “adverse decision” to the appellant. The appellant has not identified the particularisation of any information that he says he was not given at the hearing. It is apparent from the Tribunal’s reasons that it discussed his claims with him in detail, including the independent country information available to the Tribunal. In particular, the Tribunal specified that it discussed with him the independent country information which indicated that there were no army camps or bases in Udappu and that there were no independent reports of soldiers forcing Tamils or Tamil fishermen in Udappu to work for them. The Tribunal noted that it discussed with the appellant recent country information about what happens to returned asylum seekers and that it discussed with him the information about what was likely to happen to him if he returned as an asylum seeker who departed illegally. The Tribunal also noted the submissions from the appellant’s adviser in response to the country information referred to at the hearing before the Tribunal.
When the appellant was asked if he could give any further elaboration of any parts of the decision that had not been raised with him or put to him by the Tribunal, he did not elaborate or specify any matter. That is, the appellant was unable to refer to any information that could be said to trigger the obligation in s 424AA or s 424A of the Act.
The appellant has not shown that the Federal Circuit Court Judge was in error in the way his Honour analysed the Tribunal’s decision relevant to this ground.
Additional matters raised by the appellant
At the hearing, the appellant was asked for further detail concerning his grounds of appeal. He said that the Tribunal did not question him properly and had not asked him some of the questions relevant to his case. Further, he said that the Tribunal did not ‘accept my terms’. He stated, by way of further clarification, that the Tribunal did not accept that he would be put in goal and did not accept that the conditions in the gaol were inhumane. He said that the Tribunal should have discussed the matters with him.
I note from the Tribunal’s decision that those matters were discussed in some detail and that the appellant’s adviser made submissions on those precise questions as raised by the appellant at the hearing.
The appellant did not identify any matters that the Tribunal failed to discuss with him or further questions that should have been asked. He has not shown why the Tribunal was obliged to ask any further questions. Otherwise, the appellant seeks inappropriately to raise a review on the merits, in that the Tribunal did not believe him.
The appellant has not established jurisdictional error on the part of the Tribunal or error on the part of the Federal Circuit Court Judge. It follows that the appeal should be dismissed and the appellant pay the first respondent’s costs of the appeal.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate:
Dated: 25 November 2015
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