AQP15 v Minister for Immigration and Border Protection

1. The extension of time is granted, but limited to the prosecution of an appeal on the first of the grounds identified in the draft notice of appeal annexed to the originating application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(REVISED FROM TRANSCRIPT) LOGAN J: 1 On 1 April 2015, for reasons which were given that day in writing, the then Refugee Review Tribunal (the Tribunal) decided to affirm a decision of a delegate of the Minister for Immigration and Border Protection, a respondent to the present application, not to grant the applicant that class of visa under the Migration Act 1958 (Cth) known as a Protection (Class XA) visa. A judicial review application subsequently instituted by the applicant to the Federal Circuit Court was, on 18 March 2016, dismissed with costs. 2 The applicant sought to challenge that particular order of dismissal, but did not file within time the originating process. The long and the short of the reason why that did not occur within time is that, notwithstanding that the applicant attended at the registry within the time provided, it did not prove possible on the day, and that was the last day, for him then to provide all of the information which would warrant a fee waiver. He gathered that information in a timely way such that the requisite extension that is sought is no more than four days. 3 I am quite satisfied, particularly having regard to the very real difficulties that are faced by a person whose first language is not English and who is untrained in law, that the explanation given by the applicant is sufficiently explanatory of the delay. He did seek, within the requisite time, to institute his challenge and moreover, having done that, hardly rested on his rights in gathering the information which, as a result of advice from the registry, was necessary to secure the requisite waiver. 4 Were there, therefore, any particular basis upon which the judgment of the Federal Circuit Court might be challenged, I would readily grant the requisite extension of time. 5 The real question today, is whether or not there is an arguable case, at least in respect of one of the proposed bases of challenge. Those proposed bases, as disclosed by the draft notice of appeal, are as follows: Grounds of appeal 1. The Federal Circuit Court should have found that the RRT failed to comply with s 425 of the Migration Act. Particulars The Federal Circuit Court should have found that the Tribunal failed to give the appellant the opportunity to present information and arguments at a hearing concerning the critical issues of whether a family member would provide surety to enable him to be bailed in the event that he was charged for illegally departing Sri Lanka, 2. The Federal Circuit Court erred in not finding that the RRT failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958. Particulars The Federal Circuit Court should have found that the RRT failed to take into account the PAM 3 Protection Visas complimentary protection guidelines when it made a finding on whether the treatment that applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment The Federal Circuit court should have found that the RRT failed to take into account the PAM 3 Protection Visas complimentary protection guidelines when it made a finding on whether the treatment that the applicant would face if detained on return to Sri Lanka would be intentionally inflicted. 3. The Federal Circuit Court should have found that the RRT failed to take into account a relevant consideration Particulars The applicant repeats the particulars to ground 2 4. The Federal Circuit court should have found that the RRT erred in its understanding of the definition of degrading treatment or punishment and thereby failed to lawfully answer the question of whether the applicant was owed complimentary protection obligations Particulars degrading treatment or punishment is defined to mean an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal found that the conditions which the applicant faced were a result of neglect and under-resourcing. That neglect and under resourcing was a result of the action or omission of the Sri Lankan Government, as was the impending action of placing the applicant in those conditions. The Federal Circuit Court should have found that the RRT erred as it should have considered whether the Sri Lankan Government's neglect and under resourcing of its prisons was deliberate so as to cause extreme humiliation of those incarcerated there 5. The Federal Circuit Court should have found that the RRT applied an incorrect test of whether the applicant was owed complimentary protection obligations as it did not address the question of whether the action of placing the applicant in detention would be with knowledge of conditions there which could cause extreme humiliation or pain and suffering. Particulars The federal Circuit Court should have found that the RRT erred in failing to address the question of whether or not intention to inflict extreme humiliation or pain and suffering could be inferred from the knowledge of the Sri Lankan Government of the conditions in its prisons when it took action in detaining him in those prisons on remand. 6. The Federal Circuit Court should have found that the RRT erred in its understanding of the definition of cruel or inhuman treatment or punishment and thereby applied an incorrect test of whether the applicant was owed complimentary protection obligations Particulars cruel or inhuman treatment or punishment is defined as severe pain or suffering, whether physical or mental, intentionally inflicted on a person; or (b) pain or suffering, whether physical or mental, 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. The Tribunal found that the conditions which the applicant faced were a result of neglect and under-resourcing. That neglect and under resourcing was a result of the action or omission of the Sri Lankan Government, as was the impending action of placing the applicant in those conditions. The Federal Circuit Court should have found that the RRT erred by not considering whether the Sri Lankan Government's neglect and under resourcing of its prisons was deliberate so as to cause all those incarcerated, including the applicant, pain or suffering. 6 As to the first of the proposed grounds, it must be said that this is not a ground which was pursued before the Federal Circuit Court as a ground of review. Exceptionally though, it is possible, in the interests of justice, even where an appeal is instituted within time, for a ground not taken below to be added. A question for today is not whether that ground must be upheld, but whether it is arguable and, related to that arguability, whether not to permit that ground to be advanced would result in an injustice to the applicant, even though it was not pursued in the original jurisdiction. As far as the first of the grounds is concerned, the question really is whether, in the events which transpired before the Tribunal, the case is one which at least arguably is analogous to, Minister for Immigration and Border Protection v SZTQS [2015] FCA 1069, or rather whether the case is so clear as to be nothing more than that type of case to which the Full Court referred as not raising any procedural fairness issue in SZTAP v Minister for Immigration and Border Protection [2015] FCAFC 175? 7 As to that, it is a feature of the Tribunal's reasons in relation to what would happen to the applicant if returned to Sri Lanka, that he would be granted bail after a short time on the basis that a family member would be a guarantor. Pertinent extracts from the proceedings at the hearing before the Tribunal have been placed in evidence on the application. These disclose that, at a general level of abstraction, the Tribunal made reference both on 8 December 2014 and 19 February 2015 to the prospect of the returnees being held on remand for a short period of time before being brought back before a court where they would be released on bail. 8 There is no reference on either occasion to the particularity of "released on bail" on the basis that a family member would stand as guarantor. The Tribunal did make reference on the second occasion, ie. 19 February 2015, to a then very recently released Department of Foreign Affairs and Trade Country Report in respect of Sri Lanka dated 16 February 2015 in which one finds at para 528, a sentence which says: Sometimes returnees then need to wait until a family member comes to court to collect them. The Tribunal also made reference to the requirement in most cases for a family member to act as guarantor. So it is not a matter where the Tribunal has made a finding in the absence of information. 9 Rather, the point is that the precision of most cases has been translated into what would happen in this case. The short point for the applicant is that, it thereby became personal. Even though it was conceded that the applicant's then agent had had possession of the Country Report and was offered an opportunity to make submissions after the 19 February 2015 hearing, that was an unfocused opportunity and unfocused in the sense that the Tribunal did not make any reference to the finding subsequently made that this applicant would have bail granted upon a family member standing as guarantor. The argument then is, that this descended below that level of general abstraction, of country information in respect of which there was no obligation to provide an opportunity to be heard and, instead, descended into the intimate personal of what would happen in relation to the applicant. In my view, an arguable case is raised in respect of this ground. 10 The other grounds in one way or another, centre around whether or not a guideline was observed by the Tribunal. At para 15 of attachment 1 to the Tribunal's Reasons, there is a generic reference to s 499 of the Act and to Ministerial Direction No. 56 made under that section, which requires the Tribunal to take account of policy guidelines issued by the Department, being PAM3: Refugee and humanitarian - Complementary Protection Guidelines, and PAM3: Refugee and humanitarian - Refugee Law Guidelines. Working one's way through that guideline, one comes to proposition that the Tribunal ought to have regard to such of the international jurisprudence concerning the Refugee Convention, as is pertinent to particular issues raised on the facts. 11 When one looks at the Tribunal's Reasons, particularly having regard to paras 52 - 55, it becomes apparent that the Tribunal has expressly adverted to jurisprudentially raised issues firstly, by way of finding of fact, that the applicant may be remanded in conditions which are cramped and uncomfortable (para 54), then, having done so, by finding that it is not satisfied that the evidence supports a finding that there is a mistreatment of such persons such that it amounts to torture, and then, later, by not being satisfied that it amounts to inhuman treatment, degrading treatment or punishment. The international jurisprudence, as it happens, overlaps with subjects which are specified in s 36(2A), of the Act. Insofar as the requirement to look to the guidelines required, having regard to international jurisprudence, to advert to particular subjects where the evidence raised an interrogative note in relation to them, the Tribunal has done that. 12 The real point about adverting to this jurisprudence is to underscore that there is an arguable case in relation to the first of the grounds, namely, if one finds that the detention is short because an applicant is likely to be granted bail on the basis of an applicant's family member standing as guarantor, it is by no means unreasonable then to conclude that there is no degrading treatment or cruel or unusual punishment of such a nature as to fall within the terms of the convention or, for that matter, to engage complementary protection. If, on the other hand, one has made that finding where there has been a failure to observe a particular procedural fairness obligation, then the vice lies in that failure, not in the failure to advert to the guidelines and related subjects that flow from that. 13 For these reasons then, insofar as the applicant seeks an extension of time to appeal, the extension is granted but, limited to the prosecution of an appeal on the first of the grounds identified in the draft notice of appeal annexed to the originating application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.