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[2015] FCA 1181
Federal Court of Australia
2015-11-04
Mr J, Perry J
Original judgment source is linked above.
Solicitor for the Appellant: Michaela Byers
Solicitor for the First Respondent: Minter Ellison
Counsel for the Second Respondent: The second respondent entered a submitting appearance, save as to costs
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 746 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
JUDGE: PERRY J DATE OF ORDER: 4 NOVEMBER 2015 WHERE MADE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 746 of 2015
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
JUDGE: PERRY J DATE: 4 November 2015 PLACE: SYDNEY
REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 Relevant provisions of the Migration Act [4] 3 BACKGROUND [14] 3.1 The appellant's application for a protection visa and the delegate's decision [14] 3.2 The decision of the Tribunal [18] 3.3 The decision of the Federal Circuit Court [25] 4 CONSIDERATION [29] 4.1 The issues [29] 4.2 Ground 1: Failure to consider whether the I&E Act was an "act" within the meaning of degrading treatment and punishment [31] 4.3 Grounds 2 and 3 [41] 5 CONCLUSION [44]
3.1 The appellant's application for a protection visa and the delegate's decision 14 The appellant is a 34-year-old citizen of Sri Lanka. He arrived in the Cocos Islands as an unauthorised maritime arrival on 12 August 2012. 15 The appellant applied for a protection visa on 13 December 2012, claiming that: (1) he was mistreated as a child by his stepfather, which caused him to leave and take on work as an unpaid houseboy in Colombo, where he was also mistreated due to his Tamil ethnicity; (2) despite taking odd jobs in Negombo, he became homeless; (3) he then became a self-employed fish seller, but after falling into debt, was attacked with a knife by a supplier and separately, was threatened with death; and (4) he fears for his life from the Sinhalese to whom he owes money, and believes that the government are not interested in protecting Tamils. 16 In an interview for the appellant's protection visa application on 18 June 2013, the appellant raised the further claim that he feared persecution if returned to Sri Lanka on the basis of an imputed political opinion of supporting the LTTE because he is a failed asylum seeker. He also said in his application that if he were to return to Sri Lanka, he would be put in gaol by the authorities who are always looking for people who leave the country illegally, and he did not know how long he would be detained. No claim for complementary protection under s 36(2)(aa) of the Act was made to the delegate based upon the enactment of the I&E Act. 17 On 17 July 2013, the delegate refused to grant the appellant a protection visa.
3.2 The decision of the Tribunal 18 The appellant applied to the Tribunal for review of the delegate's decision on 25 July 2013. He appeared before the Tribunal on 8 January 2015 to give evidence and present arguments with his migration agent and received the assistance of an interpreter in the Tamil and English languages. 19 Relevantly, the appellant claimed before the Tribunal that, as a Tamil who had left Sri Lanka illegally, he would be jailed and while in prison, subjected to disproportionate harm. With respect to this claim, the Tribunal put to the appellant country information indicating that under the I&E Act, those believed to have left unlawfully are arrested, taken to the magistrates court for a bail hearing, provided bail, and, if convicted, fined. It was also put that arrival on a weekend or public holiday may mean that an accused is held briefly in the remand centre of the Negombo prison while awaiting a bail hearing. In response, the appellant said that he did not believe he would be released from prison, nobody would monitor him, and even if he was released, the trouble would start again four or five months later. He also expressed concern that he had been questioned by the authorities some 20 years earlier, notwithstanding that the authorities had not really suspected him of having LTTE links in the past. 20 On 17 February 2015, the Tribunal affirmed the delegate's decision not to grant the appellant a protection visa. In its reasons, the Tribunal accepted that the appellant is a citizen of Sri Lanka, he is ethnically Tamil and his religion is Hindu. 21 The Tribunal first addressed the appellant's claims to fear persecution for a Refugee Convention reason. In this context, in considering his claims to fear harm as a failed asylum seeker and for leaving Sri Lanka illegally, the Tribunal accepted that the appellant would be subjected to certain standardised procedures at the airport on return to Sri Lanka. However, the Tribunal held that these applied to all returnees regardless of their ethnicity, and that the appellant would not be singled out or targeted in a discriminatory fashion because of his Tamil ethnicity or for any other reason. Nor was the Tribunal satisfied that the fact of the appellant being questioned at the airport, even for an extended period, could in itself reasonably be characterised as harm or that he would be subjected to any other form of mistreatment there. The Tribunal further found that the appellant might be visited at his home or monitored by Sri Lankan authorities after departing the airport but that this would not constitute harm. 22 The Tribunal accepted that the appellant could be detained, charged in relation to his breach of the I&E Act, and held on remand at a Negombo prison in overcrowded and unsanitary conditions awaiting a bail hearing possibly for some days if returned on a weekend or public holiday. However, it found that there was no evidence to indicate that returnees held while awaiting bail hearings on charges of the I&E Act have been subjected to torture or other forms of deliberate mistreatment. Importantly, the Tribunal found at [46]: Although the Immigrants and Emigrants Act provides for penalties of both imprisonment and fines on conviction for illegal departure, the information before the Tribunal indicates that magistrates and judges have discretion in imposing penalties, and that in practice those who have simply breached the terms of the Act by departing through a point other than an official port of entry or exit are only fined. 23 On the issue of the applicant's unlawful departure in the context of his claims to fear persecution for a Refugee Convention reason, the Tribunal concluded that: 48. Having considered the relevant country information I am satisfied that Sri Lanka's law regarding unlawful departure is a law of general application which is appropriate and adapted to meet a legitimate national interest in regulating the security of the country's borders. I am also satisfied that the law, which provides for penalties including fines and imprisonment and which involves suspects being arrested and possibly held in remand awaiting a bail hearing, is not selectively enforced or enforced in a discriminatory way on the basis of a Convention reason, but is instead applied to all Sri Lankans found to have departed illegally, regardless of their race or other personal circumstances. 49. Further, on the basis of the available information concerning the enforcement of this law I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would face more than questioning at the airport on arrival, detention for a brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined. I am not satisfied this treatment could reasonably be seen as constituting serious harm for him. 24 With respect to the appellant's alternate claim for complementary protection, the Tribunal was not satisfied that there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal to Sri Lanka, there is a real risk that the appellant would suffer "significant harm" as defined in s 36(2A) of the Act. Specifically, at [52] the Tribunal found that: As noted, I am not satisfied that the Applicant would suffer serious harm on return to Sri Lanka because he could not repay money to his creditors or for reasons of his Tamil ethnicity, his political opinion, his status as a returned asylum seeker or the fact that he left Sri Lanka unlawfully. Nor, having considered the information available to the Tribunal, am I satisfied he would be at risk of significant harm, as provided in s.36(2A) and further defined in s.5(1) of the Act, for these reasons. While I accept he would face arrest on charges of illegal departure, that he could be held in remand for a relatively brief period while awaiting a bail hearing and that he would later be fined if found guilty I am not satisfied this treatment could reasonably be seen as amounting to significant harm in terms of the complementary protection provisions of the Act. He has not identified any additional matters which could be relevant to an assessment of Australia's complementary protection obligations in his case.
3.3 The decision of the Federal Circuit Court 25 On 23 March 2015 the appellant applied for judicial review of the Tribunal's decision in the Federal Circuit Court pursuant to s 476 of the Act. That application was dismissed on 11 June 2015. 26 There were two grounds of review raised. First, the appellant contended that any period of detention, however isolated or short, necessarily constituted persecution and there was no room for a qualitative assessment of that detention. The primary judge rejected that proposition holding (at [31]) that the Tribunal was entitled, if not required, to engage in a qualitative assessment of the possible detention that the appellant faced if returned to Sri Lanka in line with recent decisions of the Full Court in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39; (2015) 229 FCR 497; SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40; (2015) 321 ALR 81; and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41; (2015) 321 ALR 117. There is no appeal from this ground of review. 27 Secondly, the appellant contended that the Tribunal erred by applying the wrong test as to what constituted significant harm by failing to consider whether the enactment of the I&E Act by the Sri Lankan Parliament constituted an "act" for the purposes of the definition of "degrading punishment or treatment". In this regard, the appellant's counsel accepted in the Federal Circuit Court that: …in order for there to have been jurisdictional error in the Tribunal's decision, there had to have been some obligation upon [the Tribunal] to consider whether the enactment by the Sri Lankan Parliament of the Immigrants and Emigrants Act could have fallen within the description of degrading treatment or punishment mainly, and perhaps more particularly, that the Sri Lankan Parliament intended to cause extreme humiliation which was unreasonable, by enacting that Act. (Reasons below at [44].) 28 The primary judge dismissed this ground on the basis that the argument was never raised before the Tribunal even in the most obscure way (at [52]). Furthermore, the primary judge found (at [54]) that the ground was inconsistent with the Tribunal's finding at [48] of its reasons that the I&E Act was appropriate and adapted to meet a legitimate national interest in regulating and securing the country's borders. The primary judge also considered that the finding by the Tribunal that, at most, the applicant would only be fined and detained briefly while awaiting a bail hearing, told against the proposition not only that the Parliament intended there be extreme humiliation in the operation of the Act, but that it caused such extreme humiliation (reasons below at [56]).
4.1 The issues 29 Leave was granted to the appellant to further amend the amended notice of appeal without objection at the hearing of the appeal in line with the draft further amended notice of appeal appended to the appellant's written submissions. The further amended notice of appeal raises three grounds: 1. Ground 1. His Honour erred in not finding that the Tribunal applied the wrong test as to what constitutes significant harm. Particulars a) The Tribunal accepted the Appellant would be subject to the operation of the Sri Lankan Immigrants and Emigrants Act in relation to the Appellant's claim under s 36(2)(aa) of the Migration Act 1958 (Cth) [52] b) The Tribunal failed to consider whether the enactment of the Sri Lankan Immigrants and Emigrants Act was an act within the meaning of degrading treatment or punishment 2. Ground 2. At [54]-[55] his Honour erred by finding that a law which is appropriate and adapted to meet a legitimate national interest for the purposes of s 36(2)(a) of the Migration Act 1958 (Cth) ("the Act") can be imported into the analysis required for determining whether complementary protection obligations are owed under s 36 (2)(aa) of the Act. 3. Ground 3. At [50] his Honour erred in finding that the face of the Sri Lankan Immigrants and Emigrants Act is required to reveal a subjective intention for the purposes of s 36(2)(aa) of the Act. 30 The appellant contends that the central ground of the appeal is that the primary judge erred in failing to find that the Tribunal failed to take into account a relevant consideration, namely that the enactment of s 45 of the Immigrants and Emigrant's Act was an "act" within the meaning of degrading treatment or punishment. The appellant accepted that the second and third grounds stand or fall depending on whether the first ground is accepted.
4.2 Ground 1: Failure to consider whether the I&E Act was an "act" within the meaning of degrading treatment and punishment 31 The appellant's submissions were based on the proposition that nothing in the text of s 36(2)(aa) or the definitional provisions excluded the possibility that a legislative act could be an "act" and therefore that a parliament may be an actor for the purposes of the complementary protection provision. This proposition in turn assumes that the criteria in s 36(2)(aa) can be met by the enactment of a law dissociated from the question of how that law might in fact be applied to an applicant. Yet that assumption is difficult to reconcile with the statutory requirement to consider whether there is a real risk that the non-citizen will suffer significant harm if the person concerned were returned to her or his country of nationality - a question which is of its nature directed towards what might happen in the future if certain circumstances eventuate. However, it is unnecessary for me to determine the correctness of this proposition as, even if it were correct, the ground could not in any event succeed. 32 Based upon the proposition which I have identified, the appellant contended that: 12. …the Tribunal had material before it that clearly indicated that there was a legislative act of the Sri Lankan Parliament and that the Tribunal didn't consider it in relation to the degrading basis. 13. This failure to consider the legislative act of the Sri Lankan Parliament arises in circumstances where it was clear to the Tribunal the harm the Applicant alleged would suffer upon return was as a result of the operation of a Sri Lankan law. (Emphasis added.) 33 The "act" then identified in the appellant's written submissions as causing and intended to cause extreme humiliation was legislative, being "the exercise of political power to bring about the mandatory one year incarceration of a citizen who is returning to their home country on the sole basis they departed their home country without their passport" (emphasis added). The material said to clearly indicate this legislative "act" for the purposes of the degrading treatment limb of s 36(2A)(e) was the material before the Tribunal, the Tribunal's findings accepting that the appellant would face arrest, a period in remand pending bail and a fine, the evidence that the appellant had departed without his passport from an unauthorised Port, and the effect of the I&E Act. On this basis the appellant submitted that the claim that the enactment of the I&E Act was intended to cause extreme humiliation arose squarely on the material before the Tribunal in relation to the complementary protection claim and on the Tribunal's decision. 34 In my view, the first ground fails for a number of reasons. 35 First, the appellant initially premised ground 1 on the assumption that the provisions of the I&E Act which he contravened in leaving Sri Lanka illegally imposed a mandatory minimum sentence of imprisonment for 1 year and for this reason caused extreme and unreasonable humiliation. However, the Tribunal found that the Sri Lankan courts had a discretion with respect to the imposition of a penalty and was not satisfied that the appellant would face more in terms of punishment than a fine. It is not said that that finding was not supported by any evidence, or otherwise unreasonable or illogical. To the contrary it was plainly open to the Tribunal on the country information before it. To this extent, therefore, the ground seeks impermissibly to take issue with the facts as found by the Tribunal, as the Minister submits. 36 Secondly, to the extent that the appellant appeared to move away in oral argument from the proposition that the I&E Act imposed a mandatory minimum term of imprisonment, the appellant's submissions failed to grapple with the Tribunal's findings with respect to the likely imposition of a fine and the possibility of a brief period of detention only on remand pending bail. In other words, as the first respondent submits, the Tribunal's findings are inconsistent with the appellant's argument that the Sri Lankan Parliament intended to cause, and the fact that any penalty would cause, "extreme humiliation which was unreasonable". 37 Thirdly, the requirement under s 414 of the Act that the Tribunal "review" the decision requires only that the Tribunal consider the appellant's claims. As Allsop J (as his Honour then was) held in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42]: To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; 66 ALR 299 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1; 62 ALD 225. See also Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287; 58 ALD 30 at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. 38 In turn, as I recently explained in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [38] in determining whether a claim has been made attracting the obligation to consider it: A failure to consider a contention amounting to a failure by the Tribunal to exercise its jurisdiction will relevantly arise where there has been a failure to consider a "substantial, clearly articulated argument" that, if accepted, might establish a well-founded fear of persecution for a Convention reason (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; 197 ALR 389 at [24] (Gummow and Callinan JJ (Hayne J agreeing at [95])); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90] (the Court); see also the helpful recent discussion of relevant principle in SZSSC v Minister for Immigration and Border Protection (2014) 317 ALR 365 at [81]-[82] (Griffiths J). Equally, there will be a constructive failure to exercise jurisdiction if the Tribunal fails to consider a claim which "squarely" arises on the material before the Tribunal in the sense that "it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal": NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 (NABE) at [58] (the Court). In either case, the constructive failure to exercise jurisdiction may properly be seen as a failure to carry out the review required by s 414 of the Act: NABE at [55]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] (Allsop J with whom Spender J agreed at [1]). (Abbreviations omitted.) 39 The short point, as the primary judge found, is that no argument to the effect that the enactment of the I&E Act was itself degrading treatment or punishment was clearly articulated before the delegate or the Tribunal. Nor did it arise "squarely" on the material before the Tribunal, including the material before the delegate and the delegate's reasons. The appellant's claim before the Tribunal was not based upon the mere existence of the I&E Act, but upon how it would be applied to him if he were returned. To submit that the harm identified because of his illegal departure "was as a result of the operation of a Sri Lankan law" is therefore to seek to carve out an integer of the appellant's claim as put and duly considered by the Tribunal, and to treat that integer as if it were a separate claim. There was nothing to suggest that the appellant put, as a separate and distinct claim, the proposition that the I&E Act itself was intended by the Parliament to cause extreme humiliation which was unreasonable. 40 Furthermore, contrary to what appears to be the appellant's written submission, there is no obligation upon the Tribunal to consider whether the enactment of the I&E Act was an "act" for the purposes of s 36(2A)(e) of the Act outside the scope of the claims made by the appellant or otherwise squarely arising on the material before the Tribunal. Any suggestion to the contrary would run counter to the authorities to which I referred at [37]-[38] above. It is true, as the parties agreed, that where a claim is made for complementary protection under s 36(2)(aa) the applicant does not have to establish a subjective fear of significant harm, in contrast to a claim for protection as a refugee under s 36(2)(a) where a subjective fear of persecution is an essential criterion. However, as explained above, the requirement that the Tribunal consider only the appellant's claims flows from the nature of the Tribunal's function under s 414 of the Act to "review" the decision. Thus, in my view, the Minister rightly submitted that the difference in the criteria under ss 36(2)(a) and (aa) for the grant of a protection visa does not change the nature of the task undertaken by the Tribunal so as to require it to consider what might happen to an applicant quite apart from the applicant's claims.
4.3 Grounds 2 and 3 41 Ground 2 of the notice of appeal alleges that the primary judge erred in considering that the proposition that the Sri Lankan Parliament intended that the I&E Act cause "extreme humiliation which is unreasonable" is contrary to the Tribunal's finding that the I&E Act "was appropriate and adapted to meet a legitimate national interest in regulating and securing the country's borders" (at [54]). The latter finding is made by the Tribunal in that part of its reasons which considered the claim that the appellant was entitled to protection as a refugee rather than the alternative claim for complementary protection. The error is therefore said to lie in the primary judge's assumption that the finding made in the context of the claim for protection as a refugee could be imported into a consideration of the claim to meet the criteria for complementary protection. However the submission fails to appreciate that each of the definitions of "degrading treatment or punishment", "cruel or inhuman treatment or punishment" and "torture" in s 5(1) of the Act is subject to the qualification that these concepts do not include acts or omissions "arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with" the Articles of the ICCPR. One of these Articles, in turn, is Article 12 which reads: 1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. 2. Everyone shall be free to leave any country, including his own. 3. The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant. 4. No one shall be arbitrarily deprived of the right to enter his own country. 42 As such, there is no error in the primary judge's view that there was an inconsistency between the proposition that the I&E Act was intended to cause extreme and unreasonable humiliation and the Tribunal's finding in effect that the law imposed a restriction which did not infringe Article 12(3) of the ICCPR. 43 In any event, once the view is reached that the Tribunal was not required to consider whether the Sri Lankan Parliament intended to cause extreme humiliation in enacting the I&E Act because no such claim was made, ground 2 cannot provide a separate ground for setting aside the decision below as the appellant conceded at the hearing of the appeal. The appellant also conceded that the position was the same in this regard with respect to ground 3 of the notice of appeal. That ground alleged that the primary judge erred in finding that the face of the I&E Act is required to reveal a subjective intention for the purposes of s 36(2)(aa) of the Act. It follows therefore in view of my findings dismissing ground 1, that the appellant cannot succeed in his appeal on grounds 2 or 3. It is therefore unnecessary to consider those grounds further.
AGH15
Minister for Immigration and Border Protection
(2015) 321 ALR 117
(2001) 194 ALR 244
(2013) 210 FCR 505
(2015) 229 FCR 497
(2015) 321 ALR 81
(1986) 162 CLR 24
(2001) 206 CLR 323
(1999) 90 FCR 287
(2003) 77 ALJR 1088
(2010) 243 CLR 319
(2014) 317 ALR 365
(2004) 144 FCR 1