AIY15 v Minister for Immigration and Border Protection

Federal Court of Australia|2015-11-04|Before: Mr J, Perry J

REASONS FOR JUDGMENT 1 INTRODUCTION [1] 2 Relevant Provisions of the Migration Act 1958 [4] 3 BACKGROUND [12] 3.1 The appellant's application for a protection visa [12] 3.2 The decision of the Tribunal [15] 3.3 The decision of the Federal Circuit Court [24] 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 [32] 4.3 Ground 2 [43] 5 Conclusion [45]

Relevant Provisions of the Migration Act 1958 4 The statutory provisions relevant to the resolution of this appeal are the same as those explained in AGH15 at [4]-[11]. 5 In short, a protection visa may be granted where the criteria in s 36(2)(a) are met, that is, where the Minister is satisfied that the person is a person to whom protection obligations are owed under the Convention relating to the Status of Refugees 1951 as amended by the Protocol relating to the Status of Refugees 1967 (the Refugee Convention). Article 1A (2) of the Refugee Convention provides, in turn, that a refugee is a person who, relevantly, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and unable or, owing to such fear, is unwilling to available himself [or herself] of the protection of that country…". 6 In common with the appeal in AGH15, the appellant's complaint here relates solely to the Tribunal's rejection of his claim under the alternative criteria for a protection visa in s 36(2)(aa) of the Act. As I explained in AGH15: 5. …Section 36(2)(aa) recognises that a non-citizen who is not entitled to a protection visa because she or he is not a refugee may nonetheless be entitled to protection because of other obligations owed by Australia to afford protection under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, done at New York on 10 December 1984 (CAT), and the International Covenant on Civil and Political Rights 1966, done at New York on 16 December 1966 (ICCPR): Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 (SZQRB) at 522 [70] and 526 [100] (Lander and Gordon JJ), and 558 [300] and 560 [313] (Besanko and Jagot JJ). Specifically, under s 36(2)(aa) and subject to certain exceptions, the Minister must grant a protection visa to a non-citizen in Australia: …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… 6. The proper test is the same as that in s 36(2)(a), namely, whether there is a "real chance" that an applicant will suffer significant harm (as defined) if returned to her or his country of origin: SZQRB at 551 [242]-[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at 557-558 [297] and Flick J at 565 [342] relevantly agreed). 7. Section 36(2A) defines the circumstances in which a non-citizen will suffer significant harm: A non-citizen will suffer significant harm if: (a) the non-citizen will be arbitrarily deprived of his or her life; or (b) the death penalty will be carried out on the non-citizen; or (c) the non-citizen will be subjected to torture; or (d) the non-citizen will be subjected to cruel or inhuman treatment or punishment; or (e) the non-citizen will be subjected to degrading treatment or punishment. 8. This section recognises the type of harm from which the CAT and ICCPR seek to protect protection seekers: SZQRB at 526 [98] (Lander and Gordon JJ); see also the definitions of "cruel or inhuman treatment or punishment", "degrading treatment or punishment" and "torture" in s 5(1) of the Act. 7 The appellant in this case, as in AGH15, contends that the Tribunal fell into jurisdictional error in failing to consider whether the enactment of the I&E Act amounted to significant harm on the ground that it constituted "degrading treatment or punishment". That concept is defined in s 5(1) of the Act to mean: …an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission: (a) that is not inconsistent with Article 7 of the Covenant; or (b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 8 The appellant seeks to contrast in this regard the definition of "cruel or inhuman treatment or punishment" on the basis that it requires the intentional infliction of harm on the individual, being defined to mean: …an act or omission by which: (a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature; but does not include an act or omission: (c) that is not inconsistent with Article 7 of the Covenant; or (d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 9 The same requirement for the intentional infliction of harm appears in the definition of "torture", namely: …an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person: (a) for the purpose of obtaining from the person or from a third person information or a confession; or (b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or (c) for the purpose of intimidating or coercing the person or a third person; or (d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or (e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant; but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant. 10 However, as I found in AGH15, the distinction which the appellant seeks on the issue of intention is, with respect, an exercise in semantics. All three definitions involve intent to harm of a defined nature coupled with actual harm of the required kind, although in the case of degrading treatment or punishment, the harm (extreme humiliation) must also meet a requirement of unreasonableness. 11 Finally, s 36(2B) limits the circumstances in which there is taken to be a real risk that a non-citizen, if removed, will suffer significant harm for the purposes of s 36(2)(aa), exempting among other things cases where the Minister is satisfied that the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.

3.1 The appellant's application for a protection visa 12 The appellant is a 41 year old citizen of Sri Lanka who arrived at Christmas Island on 7 July 2012 as an unauthorised maritime arrival without his Sri Lankan passport. On 15 November 2012 the appellant applied for the protection visa. In his statement in support of the application, the appellant claimed to fear serious harm from the Sri Lankan authorities by reason of an imputed pro-LTTE political opinion and from the Tamil paramilitary groups. In addition he claimed that he was at a high risk of being harmed if returned to Sri Lanka because he fled Sri Lanka illegally and claimed asylum in Australia. 13 At the interview for the appellant's protection visa application on 18 February 2013, the appellant's migration agent submitted that there is a real chance that the appellant would suffer persecution for Refugee Convention reasons by reason of his Tamil race, his imputed political opinion in support of the LTTE and his membership of particular social groups. Relevantly for present purposes, he fears that he would be tortured, imprisoned and killed as a member of the social group described as "failed asylum seekers returning from a Western country". The appellant's migration agent also submitted that there is a real risk that the appellant will suffer significant harm for the same reasons under the complementary protection provisions. 14 On 7 August 2013 the delegate refused the application in relation to s 36(2)(a) of the Act on the basis of adverse credit findings and relevant country information.

3.2 The decision of the Tribunal 15 The appellant applied to the Tribunal for a review of the delegate's decision on 13 August 2013. 16 Written submissions prepared by the appellant's migration agent were provided to the Tribunal on 19 March 2014. In those submissions, the appellant's representative submitted that: On his illegal departure from Sri Lanka, available information supports the proposition that [the appellant] will be charged on his return for a criminal offence under Sri Lanka's Immigrants and Emigrants Act (I&EA) relating to his illegal departure. The provisions of the I&EA carry penalties of imprisonment for 1 to 5 years and a fine (note a maximum of 5 year jail sentence for fleeing any country illegally is harsh in comparison to domestic law - the Migration Act states that a Serious Australian Offence could be punishable by imprisonment for a maximum term of not less than three years). That is, imprisonment and fines are not alternative sanctions - those convicted can anticipate at least one year in prison. We submit it is not open on the available evidence for the Tribunal to conclude the applicant will not be jailed if convicted. In light of the known facts regarding his illegal departure, we further submit he will inevitably be convicted. It is also possible that claimant would be released on bail and therefore is at risk of harm as per Sri Lankan statue [sic] law. are not alternative sanctions - those convicted can anticipate at least one year in prison. We submit it is not open on the available evidence for the Tribunal to conclude the applicant will not be jailed if convicted. In light of the known facts regarding his illegal departure we further submit that he will inevitably be convicted. (emphasis added) 17 With respect to his claim for complementary protection, the written submission also claimed that there is a real risk that the appellant if returned would be subjected to "significant harm", specifically, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment, or arbitrary deprivation of his life. In support of the submission that there were substantial grounds for believing that the appellant would be in danger of harm from the Sri Lankan authorities, the appellant referred among other things to "the issue of [the appellant's] illegal departure from Sri Lanka which could result in a prison sentence, as discussed above." 18 Further in a statement emailed to the Tribunal on 11 December 2014, the appellant contended that: I left Sri Lanka illegally and committed a crime under the Sri Lankan immigration laws. I committed two crimes under that law. Firstly, I left Sri Lanka not through recognized places from which a person is allowed to leave Sri Lanka. Secondly, I left Sri Lanka without a passport. As a result of violating the above laws, I fear if I returned to Sri Lanka, I will be detained, interrogated at the airport and imprisoned. I understand that the law is a general application of law but in my case the Sri Lankan law will be applied discriminately and selectively towards me because I am a Tamil and a Tamil Christian. This is the particular situation, I fear the law will be applied simply because of my ethnicity and minority religious group and will face harm. The Sri Lankan prisons are horrible places to live and I fear I will be not only attacked by the Sri Lanka security forces in the prison but also will be attacked by the Sinhala inmate due to my ethnicity and suspected LTTE issues. 19 The appellant appeared before the Tribunal on 15 December 2014 and 17 February 2015 to give evidence and present arguments. The appellant was represented by a registered migration agent and assisted at the Tribunal hearing by an interpreter in the Tamil and English languages. 20 On 9 March 2015, the Tribunal affirmed the delegate's decision to refuse to grant the appellant the protection visa. Specifically, the Tribunal rejected the appellant's claims to fear persecutory harm if returned to Sri Lanka on the basis of his Tamil ethnicity, religion, and imputed political opinion of being a supporter of the LTTE. The Tribunal also rejected his claims regarding fear of persecution as a failed asylum seeker. 21 On the issue of the appellant's unlawful departure in the context of his claims for fear of persecution for a Refugee Convention reason, the Tribunal accepted that: (1) the appellant left Sri Lanka unlawfully; (2) if he returns to Sri Lanka he will be charged with offences under the I&E Act of having left Sri Lanka unlawfully; (3) he will be processed in accordance with standard procedures, irrespective of ethnic extraction or religion, which involve questioning by various officials at the airport, and checking records and databases; (4) detainees are not subject to mistreatment during the processing at the airport; (5) the appellant will be arrested and remanded in custody but not for any significant period before being taken before a magistrates court for a bail determination; and (6) prison conditions in Sri Lanka are poor due to overcrowding and due to poor conditions generally. 22 However, based on the country evidence, the Tribunal was not satisfied that: (1) the appellant would be singled out for persecutory harm or face a real chance of persecutory harm for any Refugee Convention reason; (2) the arrest, questioning and detention of the appellant, including overcrowding and poor conditions that the appellant would face in jail, amounted to significant harm as contemplated by the Act; (3) the infliction of such treatment as contemplated by the provisions in the Act would be intentional as is required by the Migration Act; or (4) the imposition of a fine as the likely penalty for the appellant having left Sri Lanka illegally would expose the appellant to a real chance of persecutory harm. 23 As to the last of these points, the Tribunal accepted country evidence contained in reports of the Department of Foreign Affairs and Trade and raised with the appellant at the Tribunal hearing, that: …no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing illegally. Fines have been issued to act as a deterrent towards joining future boat ventures. The country reports indicate that there are a range of penalties for leaving Sri Lanka unlawfully. Those penalties can include a custodial sentence of up to 5 years and a fine of up to Rs.200,000. The country report provides information about the variation in the fines that have been imposed and this indicates that judicial discretion is involved in the imposition of fines.

3.3 The decision of the Federal Circuit Court 24 On 2 April 2015 the appellant applied for judicial review of the Tribunal's decision in the Court below pursuant to s 476 of the Act. The application for judicial review was dismissed on 5 June 2015: AIY15 v Minister for Immigration & Anor [2015] FCCA 1571. 25 Three grounds of judicial review were raised. The first ground alleged that the Tribunal had applied the wrong test by embarking upon a qualitative assessment of the circumstances in which the appellant may be detained. As to this ground, the primary judge found that it was open to the Tribunal to find that the appellant did not satisfy the criteria under ss 36(2)(a) or 36(2)(aa) and there was no substance in the first ground. Nor did the primary judge consider that there was substance in relation to the second ground which alleged error by the Tribunal in determining that the I&E Act was a law of general application which would not be applied in a discriminatory way. There is no appeal against the findings rejecting these grounds of review. 26 Relevantly to this appeal, ground 3 before the primary judge was that: At paragraph [80]-[81] the Tribunal misapplied the definition of significant harm in 36(2)(aa) of the Migration Act and thereby fell into jurisdictional error. Particulars The Tribunal have failed to properly consider whether detention on return would involve degrading treatment or punishment within 36(2A) and s(5) 27 Counsel for the appellant in the Court below submitted that this ground should be understood as a failure to hold that s 45 of the I&E Act had an objective intention to cause extreme humiliation which could be inferred from the country information and the appellant's fear as embodied in his further submission to the Tribunal (set out at [16] above). The primary judge rejected that submission, holding that the appellant's fear was the subject of findings by the Tribunal and "is not a basis upon which such a serious adverse inference could be drawn". Findings as to the nature of the law were also held to be a matter for the Tribunal. 28 Finally, the primary judge found in any event that it was clear that the Tribunal made findings that the I&E Act, and the detention and questioning that would occur, would be as a result of a non-discriminatory enforcement of the law, and that it was a law of general application and not enforced for any "Convention-based reason". In those circumstances, the primary judge found that ground 3 was "doomed to fail" (at [12]).

4.1 The issues 29 Leave was granted without objection for the appellant to file an amended notice of appeal containing two grounds of appeal, namely: Ground 1. His Honour erred in failing to find that the Tribunal misapplied the definition of significant harm in s 36(2)(aa) of the Migration Act. … Ground 2. His Honour erred in finding that Ground 3, which related to significant harm under s 36(2)(aa) of the Migration Act, was doomed to fail on the basis that Sri Lanka's Immigrants and Emigrants Act was a law of general application and was not enforced for any Convention-based reason (see decision at [12]). 30 Even though, as I hold, there is merit in ground 2, it does not allege any failure to find jurisdictional error in the Tribunal's decision and does not provide a basis for allowing the appeal. 31 The critical issue is that embodied in ground 1. Specifically, the appellant contends that the primary judge erred in failing to find that the Tribunal failed to take into account a relevant consideration in a jurisdictional sense, namely that the enactment of s 45 of the I&E Act was an "act" intended to cause extreme humiliation and thereby fell within the meaning of "degrading treatment or punishment". The appellant's submissions in support of this ground essentially mirrored those in support of the equivalent ground of appeal in AGH15, as did the Minister's submissions in response.

4.2 Ground 1: Failure to consider whether the I&E Act was an "act" within the meaning of degrading treatment and punishment 32 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. I have already expressed my doubts as to the correctness of this proposition in AGH15. As I explained in that decision at [31], this proposition 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, ground 1 could not in any event succeed. 33 Based on the proposition which I have identified, the appellant contended that: 20. …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. 21. This failure to consider the legislative act of the Sri Lankan Parliament arises in circumstances where the Tribunal, for the purposes of the complementary claims, accepted that the applicant faces arrest on charges of illegal departure if he returns to Sri Lanka [80]. As such, the arrest on charges of illegal departure is rightly viewed as an arrest pursuant to the Immigrants and Emigrants Act (I&E Act). 34 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 country information referred to earlier. 35 The submission, with respect, fails at a number of levels. 36 First, to the extent to which the appellant maintained the submission initially made 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, the submission identifies no error of a jurisdictional kind. 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 thereby rejecting the appellant's submissions to the contrary. The appellant does not contend that that finding was not supported by any evidence, or was 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. 37 Secondly, to the extent that the appellant moved away from the proposition of a mandatory minimum sentence, the appellant's submissions nonetheless fail 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, the first respondent submits with some force that 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". 38 Thirdly, as I also explain in AGH15, the requirement under s 414 of the Act that the Tribunal "review" the delegate's 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. 39 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.) 40 As the Minister submits, 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 is "pursuant to the Immigrants and Emigrants Act" 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 however 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. 41 Furthermore, my finding in AGH15 at [40] is equally applicable here: …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. 42 It follows that ground 1 must be dismissed.

4.3 Ground 2 43 The appellant also submits that the primary judge erred in finding in the context of ground 3 of the judicial review application alleging error in the Tribunal's findings on the complementary protection claim, that: 12. It is clear that the Tribunal made findings that that law and the detention and questioning that would follow would be as a result of a non-discriminatory enforcement of the law, and that it was a law of general application and was not enforced for any Convention-based reason. In those circumstances, ground 3 is doomed to fail. 44 The fact that the law is one of general application may well have been relevant to the question of whether there was any improper intention of the kind alleged by the appellant, as the Minister submits. Nonetheless, with respect, I accept the appellant's submission that the primary judge has at [12] plainly conflated the criteria under s 36(2)(a) for a protection visa based on a claim to be a refugee, on the one hand, with the criteria for a protection visa based on a claim for complementary protection under s 36(2)(aa), on the other hand. However, that error relates only to an additional basis on which the primary judge found that there was no jurisdictional error in the Tribunal's decision and was not essential to his decision. No equivalent error is said to taint the validity of the Tribunal's decision. As such, the ground ultimately does not provide a basis on which to allow the appeal.

Conclusion 45 For the reasons set out above, the appeal must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perry .

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