BHB15 v Minister for Immigration and Border Protection

The factual background 3 The background to this appeal is conveniently summarised in the Federal Circuit Court judgment as follows (BHB15 at [6]-[13]): 6. The applicant, a Sri Lankan national, arrived in Australia on 21 May 2012 as an unauthorised maritime arrival. His application for a protection visa was lodged on 22 September 2012. 7. The applicant is a Tamil. He claimed to fear persecution because of his ethnicity, his actual or imputed political opinions, and his membership of the social groups of failed Tamil asylum seekers, Tamil fisherman (sic) in Sri Lanka, and young single males living in Sri Lanka. 8. The applicant claimed to have been part of a group of approximately 100 young men who were rounded up and detained in 2008 or 2009. He claimed they were detained for a period of one day. In a further incident, he claimed to have been slapped in the face and hit across the head by a Sinhalese naval officer in 2011. He also claimed that in December 2011 he was threatened by authorities whilst he was in his home. He claimed that he had been pursued by the authorities after he left Sri Lanka. 9. His visa was refused by a delegate of the Minister on 21 August 2013. His application for review before the Tribunal was made on 8 September 2013. 10. On 13 January 2015, the Tribunal invited him to appear before it to give evidence and present arguments relating to the issues arising in his case. 11. The Tribunal hearing occurred on 5 March 2015. The applicant had the assistance of an interpreter and an advisor. There were no apparent difficulties with the quality of the interpretation. 12. On 10 March 2015, the Tribunal sent a letter to the applicant, pursuant to s.424(a) of the Act, inviting him to comment or respond to information which the Tribunal considered would (subject to his comments or response), be the reason, or part of the reason, for affirming the decision under review. After some correspondence … the applicant's migration agent responded on behalf of the applicant in a letter dated 24 March 2015, and by an email on 13 April 2015, which attached written submissions and country information. 13. On 3 June 2015, the Tribunal affirmed the decision of the delegate refusing to grant a visa to the applicant. (Footnotes omitted)

The Tribunal decision 4 The Federal Circuit Court judgment also contains a convenient summary of the Tribunal decision as follows (BHB15 at [14]-[18]): 14. The Tribunal considered the applicant's claims at length. It rejected them and made significant findings of credit against him. This included an overarching assessment of his lack of credibility when it concluded that it "did not accept the applicant is a witness of truth". More specifically, it did not accept that he had been harmed by a naval officer in 2011. It rejected his claim that the authorities had been looking for him "every month" in 2012 and 2013, after his departure, or that he had for any reason, been singled out for individual harm. It rejected the claim that the applicant had ever had pro LTTE opinions imputed to him, and rejected that he had been subjected to any form of harassment or harm, let alone serious or significant harm after May 2009, for any reason. 15. Whilst the Tribunal accepted that for a period after the war ended, the navy imposed new fishing regulations against Tamils that did not apply to Sinhalese fisherman (sic), it considered and accepted country information that advised that the navy is no longer involved in the administration of fishing licences. It did not accept that Tamil fisherman (sic) were being targeted for harm and it found that whilst he might be subjected to security checks by the navy, there was no reason to conclude that the applicant would be prevented from working as a fisherman. 16. The Tribunal considered and rejected the applicant's claim that he would be subjected to a real chance of serious or significant harm based on his ethnicity. 17. The Tribunal considered, in considerable detail, the question of whether the applicant would be persecuted by reason of his illegal departure. It found as follows: "I do not accept that there is a real chance the applicant will be subjected to discrimination which would amount to serious harm on the basis of his ethnicity as an ethnic Tamil, being a returnee from the west, a failed asylum seeker, an illegal departee returning to Sri Lanka. I am not satisfied, that the application of a penalty for illegal departure amount (sic) to systematic and discriminatory conduct as required by s.91R(1)(c)." 18. The Tribunal went on to say: "I have considered the claims of the applicant individually and cumulatively. For the above reasons, I find that the applicant faced no serious harm in the past and I am not satisfied the applicant faces a real chance of serious harm upon return to Sri Lanka for a Convention related reason in the reasonably foreseeable future. I am not satisfied the applicant has a well-founded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Sri Lanka." (Emphasis in original; footnotes omitted)

The decision of the Federal Circuit Court 5 By an application filed in July 2015, the appellant sought judicial review of the Tribunal's decision before the Federal Circuit Court. In that application, he raised the following three grounds of review: 1. The Tribunal misconstrued or misapplied s 91 R (1) of the Act. 2. The Tribunal misconstrued or misapplied ss 5 and 36 (2A) of the Act. 3. The Tribunal failed to comply with s 4992(A) of the Act and Directions No 56 - Consideration of Protection Visa applications, dated 21 June 2013 (Direction 56). (Errors in original; particulars and emphasis omitted) 6 Since the issues raised by grounds of review one and three have not been pursued in this appeal, ground of review two is the only ground that is relevant for present purposes. The particulars the appellant provided of that ground of review were as follows: a. The applicant repeats particulars 1.b and 1.c. [b. The Tribunal found that the applicant would be "charged under the Immigrants and Emigrants Act (IEA) for illegal departure" and may be held on remand for up to two weeks: at [129]; [134]. c. The Tribunal accepted that "conditions in Sri Lanka's prisons are generally poor, overcrowded and unsanirtary": at [136].] b. The Tribunal reasoned that it did "not accept that pain or suffering caused by the overcroeding and other problems in prison in Sri Lanka is intentionally inflicted' on the applicant as required by the definition of cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act": at [158]. c. In engaging in this reasoning process, the Tribunal erred in: i. Failing to identify whose intention was relevant to whether the definition of cruel or inhuman treatment or punishment had been met; ii. Failing to consider whether the deliberate act of imprisoning the applicant in conditions that might involve pain or suffering came within the definition of "intentionally inflicted" in the definition of "cruel or inhuman treatment or punishment" in s5 of the Act; iii. Failing to consider whether the act of imprisoning the applicant in the conditions described by the Tribunal was such that "severe pain or suffering whether mental or physical" might be inflicted on the applicant: s5 of the Act; d. The errors in paragraph 2.c. above reveal that the Tribunal misconstrued ss5 and 36(2A) of the /act. (Errors and emphasis in original) 7 After setting out the definition of the expressions "cruel or inhuman treatment or punishment" and "significant harm" in s 5 and the provisions of ss 36(2)A (sic - 36(2A)) and 36(2B) of the Migration Act 1958 (Cth) (the Act) (BHB15 at [31]-[32]), the primary judge addressed the errors set out in Particular 2.c. above. His Honour rejected the first error (2.c.i.) because he considered the Tribunal had concluded that the "relevant intention was that held by the authority in Sri Lanka that might be responsible for implementing the I&EA [Immigrants and Emigrants Act]". His Honour then went on to observe (BHB15 at [33]): That would appear to be a logical conclusion. I reject the proposition in paragraph 2(c)(i) of the applicant's grounds that the Tribunal fell into error in the manner complained of. The findings by the Tribunal clearly stated that it did not accept that any treatment the applicant might experience on his return to Sri Lanka by reason of being punished for having departed illegally, would be "intentional" as required by the law in Australia. (Emphasis in original; footnote omitted) 8 Thereafter, his Honour set out the findings of the Tribunal on the question whether any punishment would be intentional (from [158]-[160] of the Tribunal's decision), stating that they were, in his view, "clear and detailed" (BHB15 at [34]). He then reached the following conclusions (BHB15 at [35]): Those findings were clearly made with s.36(2)(aa) (sic - 36(2A)) criteria in mind. I am satisfied that the Tribunal gave adequate consideration to the question of "cruel or inhumane (sic) treatment or punishment" as defined in s.5(1) of the Act … (Emphasis in original) 9 As for the error identified in Particular 2.c.ii., his Honour considered the Tribunal had made a clear finding on that issue (at [159] of the Tribunal's decision). He said (BHB15 at [35]): … the Tribunal clearly stated, with respect to prison conditions, that it found they would not involve "cruel or inhumane (sic) treatment or punishment." The Tribunal made a finding on the very issue that this subparagraph complains of. I reject the contention in this subparagraph. I dismiss this ground. (Emphasis in original; footnote omitted) His Honour does not appear to have specifically addressed the error identified in Particular 2.c.iii., probably because it is substantially encapsulated in the conclusion above.

The contentions 10 The appellant did not file any written submissions. However, at the hearing of this appeal, he appeared in person and made some short oral submissions. First, he submitted that there was no interpreter present at the delivery of the Federal Circuit Court judgment and he did not understand what was said. The Minister responded that this was common practice and, in any event, this did not demonstrate any error by the primary judge. The only other submission the appellant made was that he was fearful of returning to Sri Lanka after having lived safely in Australia over the past several years. 11 The Minister did file written submissions. With respect to appeal ground one above, the Minister submitted that, contrary to what is stated in the particulars to this ground, the Tribunal did not find that the appellant would be held in "degrading prison conditions". Instead, while it accepted that Sri Lankan prison conditions were "generally poor, overcrowded and unsanitary" and that the appellant "may be remanded in conditions which are cramped, uncomfortable and unsanitary", it did not accept that spending up to a fortnight in custody in such conditions amounted to significant harm, or meant that the appellant faced a real risk of suffering significant harm. The Tribunal therefore concluded, so the Minister submitted, that these prison conditions would not involve "cruel or inhuman treatment or punishment" as that expression is defined in s 5(1) of the Act. Further, the Minister submitted that, in this ground, the appellant is, in essence, expressing disagreement with the factual findings of the Tribunal and that such disagreement is not demonstrable of an appealable error on the part of the primary judge, and nor does it establish jurisdictional error on the part of the Tribunal. 12 The Minister submitted that the appellant's appeal ground two was not raised before the primary judge and, as such, he required leave to advance this ground before this Court. However, the Minister did not oppose leave being granted in the circumstances. On the assumption leave would be granted, the Minister submitted that no obligation arose under ss 424A or 424AA of the Act to put adverse findings to the appellant for comment. Further, he submitted the appellant had not identified any information that could be construed as "information" under s 424A.

Consideration 13 First, I give leave to the appellant to rely upon appeal ground two. Having done so, I will deal with that ground and the appellant's oral submissions first, and then turn to appeal ground one. Ground two raises the Tribunal's compliance with ss 424AA and 424A of the Act. Those sections required the Tribunal to give to the appellant "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". While the two sections may both apply to a particular application, where no objection is made with respect to the Tribunal's compliance with its obligations under s 424A or, in the circumstances, no such obligations arise, a failure on the Tribunal's part to comply with s 424AA will not amount to jurisdictional error: see SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415; [2009] FCAFC 46 at [2] per Moore J and at [79] per Tracey and Foster JJ. Further, the "information" to which those sections relate does not extend to "the existence of doubts, inconsistencies or the absence of evidence": SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. Finally, information that is commonly referred to as "country information", for example, information about the conditions existing in a particular country, or a part of it, falls within the exception stated in s 424A(3)(a) of the Act because it is information that is not specifically about the applicant. 14 These observations provide a number of reasons why this ground of appeal has no merit. First and foremost, the appellant has not, in his particulars of this ground, identified the information to which he is referring and, without knowing what that information is, it is impossible to determine whether the Tribunal failed to comply with its obligations with respect to it under ss 424A or 424AA of the Act. 15 Secondly, those two sections do not, as the appellant has claimed in his particulars for this ground, require the Tribunal to give him particulars of the "part or parts of the adverse decision for [him] to comment [on]". Thirdly, nonetheless, in this matter, the Tribunal did write to the appellant on 10 March 2015 and provide him with particulars of a number of pieces of information under s 424A and then stated why, based on that information, it considered he was not a witness of truth and had fabricated his claims in order to obtain a protection visa. Finally, in its decision, the Tribunal relied extensively on country information which, as is already mentioned above, falls within the exception in s 424A(3)(a). For these various reasons, I do not consider the primary judge made any error in his review of the Tribunal's decision with respect to the matters raised by ground of appeal two. 16 Similarly, aside from the fact they are not raised anywhere in his grounds of appeal, there is no merit in either of the two oral submissions the appellant made at the hearing of this appeal. A failure to have an interpreter present at the delivery of a Federal Circuit Court judgment does not establish that the judgment being delivered is affected by error. In any event, the appellant confirmed that he had received a copy of the Federal Circuit Court judgment and subsequently had it interpreted for him. As to the appellant's fear of returning to Sri Lanka, that goes to the merits of his visa application and it is not a matter that could be relied on to establish error on the part of the primary judge in this appeal, involving, as it does, judicial review proceedings: see Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 36-37 per Brennan J and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [66] per Hayne, Kiefel and Bell JJ. 17 Turning then to ground one, it raises the complementary protection obligations contained in ss 36(2)(aa) and 36(2A) of the Act as informed by the definitions in s 5(1). The parts of those subsections that are relevant for present purposes are as follows: [Section 36(2)(aa)] 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; or [Section 36(2A)] 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. [Section 5(1)] cruel or inhuman treatment or punishment means 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. significant harm means harm of a kind mentioned in subsection 36(2A). As well, the expressions "torture" and "degrading treatment or punishment" are separately defined in s 5. 18 On the assumption that the word "inhumane" in the appellant's particulars of this ground (see [2] above) is an erroneous reference to "inhuman", this ground appears to be directed to subparagraph (b) of the definition of "cruel or inhuman treatment or punishment" above, which, in turn, corresponds to that expression as it is used in s 36(2A)(d) above and, therefore, is "significant harm" for the purposes of s 36(2)(aa) above. 19 The Tribunal dealt with the complementary protection obligations set out above in the final section of its decision ([151]-[162]). It is convenient to set out, in full, the particular paragraphs of that section that related to the way in which the appellant would be treated as a returnee to Sri Lanka who had departed illegally. They were as follows ([154]-[160]): 154. I accept that, as a returnee to Sri Lanka who departed illegally, the applicant may face being questioned at the airport, being arrested on charges of leaving the country illegally, potentially being remanded for a relatively short period pending a bail hearing and be fined up to 50,000 rupees for his illegal departure. He may also receive contact visits from the authorities on return to his home. 155. The independent information referred to above indicates that returnees are not mistreated. I do not accept questioning at the airport, being charged and bailed or payment of a fine, or held on remand for a short period constitutes significant harm. I do not accept monitoring visits on return, if they occur, constitutes significant harm. I do not accept that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment in those circumstances. I have found the applicant would be able to pay the fine, even the maximum amount of 50,000, and this payment would not constitute significant harm. 156. In relation to the prospect of detention for any period of time, it was submitted that conditions in prison in Sri Lanka breach human rights and that if the applicant is detained in prison, there is a real chance that he will be mistreated or tortured as a Tamil male. 157. I accept that the applicant may be remanded in conditions which are cramped, uncomfortable and unsanitary, I do not accept that spending up to a fortnight in such conditions amounts to significant harm or that he faces a real risk of suffering significant harm. 158. I also do not accept that such treatment is intentional as is required by the law in Australia. I do not accept that pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is 'intentionally inflicted' on the applicant as required by the definition of 'cruel or inhuman treatment or punishment' in subsection 5(1) of the Migration Act. Nor do I accept that overcrowding and other problems are 'intended to cause' extreme humiliation as required by the definition of 'degrading treatment or punishment'. 159. I am not satisfied that the applicant has any personal characteristics that renders him vulnerable to harm on remand. Nor am I satisfied that during any questioning at the airport, bail conditions, possible detention on remand, prison conditions or subsequent contact or monitoring visit that there is a real risk that the applicant will suffer arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I find that there is no real risk that the applicant will suffer significant harm. 160. I do not accept there are 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 that he would suffer significant harm in terms of s.36(2)(aa) of the Act. I am not satisfied, specifically, that there is a real risk that the applicant would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subject (sic - subjected) to cruel or inhuman treatment or punishment or to degrading treatment or punishment. 20 It can be seen from these paragraphs of the Tribunal's decision that the Minister is correct in his contention that the Tribunal did not, in fact, make a finding that the appellant would be held in "degrading" conditions in prison, as the appellant claimed in his particulars of this ground (see at [2] above). What it did find was that the appellant may be "remanded in conditions which are cramped, uncomfortable and unsanitary" (see [157] set out at [19] above). To similar effect, earlier in its decision (at [136]), the Tribunal also found: "that conditions in Sri Lanka's prisons are generally poor, overcrowded and unsanitary". Assuming that those are the findings to which the appellant intended to refer in his particulars, his complaint about them is that the Tribunal failed to make a finding that those conditions "would be regarded not as a Convention reasons (sic) but as inhumane (sic - inhuman)". This statement is ambiguous. However, based on its context, I take it to be a complaint that the Tribunal erred by failing to find that those conditions did constitute a Convention reason because they were inhuman. If this assumption is correct, the first thing to be noted is that the Tribunal did make a finding on that question, but it was to the opposite effect. It found that "spending up to a fortnight" in those conditions would not amount to "significant harm or … a real risk of suffering significant harm" (see the Tribunal's reasons at [157] set out at [19] above). This reference to "significant harm" is plainly directed to that expression as it is used in ss 36(2A) and 36(2)(aa) above, including significant harm in the form of cruel or inhuman treatment as provided for in s 36(2A)(d). If there were any doubt about this, it is removed by the express findings the Tribunal made elsewhere that the appellant would not suffer, and nor was there a real risk of him suffering, any form of "significant harm" as that expression is described in s 36(2A)(a) to (e), including "arbitrary deprivation of life [s 36(2A)(a)], the death penalty [s 36(2A)(b)], torture [s 36(2A)(c)], cruel or inhuman treatment or punishment [s 36(2A)(d)], or degrading treatment or punishment [s 36(2A)(e)]" (see the Tribunal's reasons at [155], [159] and [160] set out at [19] above). Putting aside the construction issue referred to immediately below, since all of these findings were findings of fact and there was evidence before the Tribunal to support them, they are not open for review in this appeal. There is, therefore, no basis for the appellant's claim in appeal ground one that the primary judge committed any error by failing to find that the Tribunal failed to "consider in full the complementary protection obligations Australia owed to me" (see at [2] above). 21 Finally, while the appellant's particulars of ground one do not mention the "intentionally inflicted" aspect of the definition of "cruel or inhuman treatment or punishment" (above), which issue he pursued before the primary judge, for completeness I record my agreement with the Minister's submissions that the Tribunal's conclusions and findings on that issue (at [158] set out at [19] above) constituted an alternative reason why the appellant's claims with respect to the complementary protection obligations should be rejected. Furthermore, the Tribunal's construction of that expression has since been approved by a Full Court: see SZTAL v Minister for Immigration and Border Protection (2016) 243 FCR 556; [2016] FCAFC 69. 22 For these reasons, I do not consider ground of appeal one has any merits.

Conclusion 23 Since none of the appellant's grounds of appeal or oral submissions has any merit, his appeal must be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.