FEDERAL COURT OF AUSTRALIA

BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The Appellant is to pay the First Respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    The Appellant in the present proceeding, identified by the pseudonym BQL15, is a citizen of Sri Lanka. He arrived in Australia by boat in August 2012.

2    In December 2012, the Appellant applied for a Protection (Class XA) visa. In December 2013, a delegate of the Respondent Minister for Immigration and Border Protection refused the Appellant’s application. The Appellant then sought review of the delegate’s decision. In July 2015, the Administrative Appeals Tribunal affirmed the delegate’s decision: 1319791 (Refugee) [2015] AATA 3186.

3    The Appellant then sought review of the Tribunal’s decision in the Federal Circuit Court and an Amended Application was filed in that Court in August 2016. The Federal Circuit Court dismissed that Application in August 2017: BQL15 v Minister for Immigration and Border Protection [2017] FCCA 1976, (2017) 323 FLR 193.

4    A Notice of Appeal was then filed in this Court in September 2017. That notice was amended by leave granted unopposed at the hearing of the appeal.

5    The appeal is to be dismissed with costs.

The questions to be resolved

6    The two principal questions to be resolved in the present appeal are:

    whether the Administrative Appeals Tribunal failed to “comply with a direction” given by the Minister pursuant to s 499 of the Migration Act 1958 (Cth) when making its decision in July 2015 to affirm the decision not to grant to the Appellant a protection visa;

and, if so:

    whether the failure to do so vitiated the decision of the Tribunal by reason of jurisdictional error.

7    The direction in question is Direction No 56 – Consideration of Protection Visa applications (the “Direction”) made by the Minister on 21 June 2013 under s 499 of the Migration Act requiring decision-makers to take account of (relevantly) the PAM3: Refugee and humanitarian – Complementary Protection Guidelines (the “Guidelines”) to the extent that they are relevant. The aspect of the Guidelines which was allegedly not complied with concerned the circumstances in which poor prison conditions may amount to cruel, inhuman or degrading treatment or punishment.

8    It is concluded that the Appellant fails at the first hurdle. No failure to comply with the Direction has been established.

9    Notwithstanding that conclusion, it should be noted at the outset that Counsel on behalf of the Respondent Minister accepted that a failure to comply with a direction lawfully given pursuant to s 499(1) could constitute a jurisdictional error. The task of the Tribunal, it was accepted, was not merely to undertake a review of the decision made by the delegate pursuant to the jurisdiction entrusted to it by s 500 of the Migration Act; the task extended to exercising that jurisdiction in accordance with law. The requirement to do so in accordance with the Direction necessarily followed from the duty imposed by s 499(2A) of the Migration Act that “[a] person or body must comply with a direction under subsection (1).” The Tribunal, just as much as a delegate, “must comply with a direction”: Steve v Minister for Immigration and Border Protection [2018] FCA 311 at [21] per Bromwich J. The Tribunal itself has acknowledged that it must comply with Ministerial directions: e.g., Re Healy and Minister for Home Affairs (Migration) [2018] AATA 1051 at [13]; Re GSKD and Minister for Immigration and Border Protection (Migration) [2018] AATA 1078 at [25].

10    In addition, by the Amended Notice of Appeal the Appellant contends that the primary Judge erred in finding that the obligation in s 424A of the Migration Act to invite comments did not apply to information referred to by the Tribunal at para [55] of its reasons. The information in question related to the treatment of certain returnees to Sri Lanka. At the hearing, the appellant was content to rely upon his written submissions in support of this ground. This ground must also be dismissed.

The Tribunal’s reasons & those of the primary Judge

11    The Tribunal in its reasons for decision set forth (inter alia) the claims made and the evidence relied upon.

12    The Tribunal then proceeded to set forth its “Findings and Reasons”, addressing in turn the bases upon which the claim to fear persecution was founded. In part, the Tribunal stated:

Unlawful departure

[57]    I have further considered whether the fact of the Applicant’s unlawful departure from Sri Lanka would put him at risk of serious harm, either in itself or because it would increase a risk that he might face harm for having sought asylum in Australia.

[58]    The information before the Tribunal indicates that under tightened procedures adopted in November 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants Act) are arrested at the airport and brought before a magistrates court for a bail hearing. Bail is routinely given on the accused’s own recognizance although a family member may also be required to provide surety. If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo prison, possibly for some days, until the next opportunity for a bail hearing arises. Conditions in Negombo prison have been described in media reports11 as overcrowded and unsanitary, but there is no evidence to indicate that returnees held there awaiting bail hearings on charges of breach of the Act, including those returned from Australia, have been subjected to torture or other forms of deliberate abuse or mistreatment.

…

[62]    On the basis of the available information concerning the enforcement of the Act 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, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum if convicted. I am not satisfied that he would face a term of imprisonment. I find that this treatment, including such a period of detention on remand, would reflect no more than the non-discriminatory enforcement of a law of general application.

Footnote 11, referred to in para [58], provided as follows:

‘Asylum denied, a penalty waits at home,’ Ben Doherty, Sydney Morning Herald, 8 December 2012, http://www.smh.com.au/world/asylum-denied-a-penalty-waits-at-home-20121207-2b0qi.html.

13    And, when addressing the claim for “complementary protection”, the Tribunal reasoned as follows (omitting footnotes):

Complementary protection

[67]    As noted, I am not satisfied that the Applicant would suffer serious harm on return to Sri Lanka because of his imputed political opinion, his Tamil ethnicity or the fact that he sought asylum in Australia after leaving 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.

[68]    I accept that the Applicant would likely face arrest on charges relating to his unlawful departure from Sri Lanka, under a law of general application, and that he would be fined if found guilty. I am not satisfied that imposition of a fine, at the essentially moderate levels indicated by the information before the Tribunal, could reasonably be seen as rising to the level of significant harm in itself. Nor am I satisfied that being fined such an amount would reflect any intention by the state authorities to cause severe pain or suffering or extreme humiliation, as required to satisfy the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment.

[69]    Further, I am not satisfied, on the basis of the definition of significant harm in ss.36(2A) and 5(1) that if the Applicant were to be detained and arrested at the airport after being questioned and later remanded in custody for a relatively brief period awaiting a bail hearing, this treatment would in itself constitute significant harm. On the available information I am not satisfied that in his circumstances he would experience mistreatment which would pose a threat to his life or constitute torture. While I accept that conditions during a brief period on remand might well be cramped, uncomfortable and unsanitary I am not satisfied they would involve him suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied there would be intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A).

[70]    I am also not satisfied, on the information before the Tribunal, that the Applicant would suffer any harsher form of penalty for having left the country unlawfully, including through long-term detention on remand awaiting trial or, on conviction, a custodial sentence.

[71]    The Applicant has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.

[72]    Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to cruel or inhuman treatment or punishment or degrading treatment or punishment.

[73]    There is no suggestion that the Applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the Applicant does not satisfy the criterion in s.36(2).

14    The Court notes that there is a discrepancy between the paragraph numbers of the Tribunal’s reasons as published (1319791 (Refugee) [2015] AATA 3186) and the version of the reasons in the Court Book. Nothing turns on this discrepancy and the Court has relied on the version in the Court Book.

15    When resolving the argument advanced before the Federal Circuit Court which challenged whether the Tribunal had in fact taken into account the Guidelines, the Judge whose decision is now under appeal concluded (in part) as follows:

Did the Tribunal take into account the Guidelines?

…

[50]    In answering that question, it is necessary to compare the Guidelines with what the Tribunal did. …

[52]    In my opinion, from what the Tribunal did it is apparent, and I find, that it took into account the Guidelines, and identified and applied, or at least purported to identify and apply, to the circumstances of the applicant’s case those principles or standards stated in the Guidelines the Tribunal considered were relevant. In particular, the Tribunal took into account, or at least purported to take into account, that part of the Guidelines that dealt with the circumstances in which detention may constitute a violation of Article 7 of the ICCPR.

[53]    An underlying assumption of the applicant’s case is that, on the evidence that was before the Tribunal, the conditions in which the applicant is likely to be detained on his return to Sri Lanka meritted [sic] the characterisation of “extremely cramped or unsanitary”. As I have already noted, counsel for the applicant submitted that the Tribunal failed to have regard to international jurisprudence concerning “extremely cramped and unsanitary” conditions of detention, and it is on the basis of the Tribunal’s not considering that international jurisprudence that the applicant submits the Tribunal failed to consider the Guidelines.

[54]    The assumption on which the applicant relies, however, is unwarranted. The severity of the conditions of detention the applicant is likely to encounter on his return to Sri Lanka was a matter for the Tribunal to assess. Although the Tribunal found that the conditions in which the applicant is likely to be detained on his return to Sri Lanka will be “cramped, uncomfortable and unsanitary”, the Tribunal did not find that those conditions would be “extremely cramped or unsanitary”. In those circumstances, it is not open to infer from the Tribunal’s not referring to international jurisprudence concerning “extremely cramped and unsanitary” conditions that the Tribunal did not take into account the Guidelines.

[55]    The Guidelines referred to “extremely cramped or unsanitary conditions” as one of a number of examples of what has been held to constitute a violation of Article 7 of the ICCPR. The Guidelines prefaced those examples with the observation that “particularly harsh conditions of detention may constitute a violation of Article 7” if a minimum level of severity is present, and whether such minimum level of severity is present depends “on all the circumstances of the case”. On a fair reading of the Tribunal’s reasons for decision, the question the Tribunal considered was whether, in all the circumstances of the case, the conditions under which the Tribunal found the applicant would be detained on his return to Sri Lanka would amount to the applicant “suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment”.

A consideration of the Ministerial Guidelines

16    In the circumstances of the present case, it is concluded that the primary Judge was correct to conclude that the Tribunal had implicitly taken into account the Guidelines and thereby “compl[ied]” with the Direction: [2017] FCCA 1976 at [52], (2016) 323 FLR at 208. A “fair reading” of the Tribunal’s reasons for decision, the primary Judge correctly concluded, led to the conclusion that the argument then advanced should fail: [2017] FCCA 1976 at [55], (2016) 323 FLR at 209.

17    The implication that the Tribunal had taken into account the Guidelines follows primarily from its reasoning at para [69]. Contrary to the submission of Counsel for the Appellant, it is concluded that:

    para [69] is not merely an elaboration of the statutory requirements imposed by ss 5(1) and 36(2A) of the Migration Act,

but extends to:

    a consideration of the text of the Guidelines, as evidenced by the reference in para [69] to the “cramped, uncomfortable and unsanitary” conditions experienced in prison conditions local to Sri Lanka – that being language not found in the statutory provisions but rather language drawn from the Guidelines.

The balance of the Tribunal’s reasoning process, moreover, exposes a consideration of:

    the claims made by the Appellant and, in particular, his reliance upon a newspaper article published on 8 December 2012. So much necessarily follows from the express reference to that article in the footnote to para [58] of the Tribunal’s reasons for decision.

18    Considerable disquiet may nevertheless be expressed at the fact that compliance with the Ministerial Direction, being a direction with which the Tribunal “must comply”, was ultimately left to a process of implication. In expressing such disquiet, it may readily be accepted as a practical matter that:

    compliance with a Ministerial direction is no mere formality. Ministerial directions are given not merely for the purpose (inter alia) of achieving consistency in decision-making but also serve as a useful touchstone for decision-makers to ensure that their task is undertaken in accordance with law.

It must also be necessarily and constantly recalled that:

    the decisions made by the Tribunal, particularly with respect to protection visas, have the very real potential to fundamentally affect the liberty and personal well-being of those seeking protection. An applicant for refugee status, it has been said, is “engaged in an often desperate battle for freedom, if not life itself”: Abebe v Commonwealth [1999] HCA 14 at [191], (1999) 197 CLR 510 at 577 to 578 per Gummow and Hayne JJ.

The very real consequences flowing from a decision to refuse a protection visa means that a careful and thorough consideration of a visa applicant’s claims can never be sacrificed in the name of uniformity in decision-making or administrative expediency.

19    Insistence upon compliance with a Ministerial direction, it is respectfully considered, should not be left to an uncertain process of lawyers and courts drawing implications from ill-expressed administrative reasons. It is highly desirable, if not essential, that reasons clearly expose consideration being given to directions lawfully given by a Minister. Without insisting upon unnecessary formality, properly drafted reasons should disclose a consciousness of those matters set forth in any applicable Ministerial direction. Mere adherence to the statutory scheme does not, of itself, establish that there has been compliance with a Ministerial direction. A Ministerial direction ensures, in a very real sense, an additional safeguard or protection to those claiming protection – one level of protection is the necessity for a decision-maker to comply with the statutory scheme; the second level of protection is the necessity for a decision-maker to separately consider whether a decision reached “compl[ies]” with the relevant Ministerial directions.

20    On the facts of the present case, albeit with some misgiving, it is concluded that the Tribunal did comply with the Direction. So much follows from the references in the Tribunal’s reasons to:

    the Direction and Guidelines and the requirement “to take account of policy guidelines” (at para [8]);

    the expression used in the Tribunal’s reasons, which is similar to the language used in the Guidelines, namely “cramped, uncomfortable and unsanitary” conditions (at para [69]; see also: para [58]); and

    the reference to the newspaper article which formed part of the Appellant’s submissions (at para [58]).

The alleged failure to comply with s 424A of the Act

21    The Appellant also contends that the primary Judge erred in not finding that the Tribunal had failed to comply with s 424A of the Migration Act. As the primary Judge explained at [63], that section requires the Tribunal to do two things: first, to give particulars of “information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review”; and secondly to ensure, as far as reasonably practicable, that the applicant understands why the information is relevant to the review and the consequences of it being relied on in affirming the decision under review. That obligation is subject to certain exceptions including where the information in question is just about a class of persons of which the applicant or another person is a member (s 424A(3)(a)).

22    In its reasons at [55], the Tribunal referred to a newspaper report regarding six returnees from Australia who claimed they had worked for the Tamil National Alliance and claimed that, upon their return, they and other Tamil National Alliance activists were threatened by paramilitary groups allied to the government. The Tribunal also referred to media reports of three Sinhalese men, two of whom were crew members on a people smuggling boat, who claimed to have been detained and tortured after their return. The Tribunal found at [55] that “[h]aving considered these cases I am not satisfied they have any relevance to the situation of the Applicant, who has never involved himself in political activity of any kind, and has never been involved in people smuggling ventures.”

23    The primary Judge rejected the appellant’s contention that the information concerning the nine men was information that could attract the obligation in s 424A. Specifically, his Honour held (without alteration) that:

[64]    … The only circumstance in which the information concerning the nine individuals could conceivably have been relevant to any claim for protection the applicant had made is if the applicant had claimed, or there was material before the Tribunal that could reasonably have given rise to the claim, that the applicant was a member of a particular social group that was characterised by participation in political activity or people smuggling. The applicant, however, made no such claim, and the applicant does not submit that such claim reasonably arose from the material that was before the Tribunal. Even if, however, the applicant had made such claim, the information would have supported the applicant’s claim because it would have supported the existence of such particular social groups. In other words, the information “did not contain in [its] terms a rejection, denial or undermining of the” applicant’s claims to be a person to whom Australia owed protection obligations; instead, the information would “have been a relevant step towards rejecting, not affirming, the decision under review” [quoting SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [17], (2007) 81 ALJR 1190 at 1196 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ].

24    That reasoning, with respect, is plainly correct. Furthermore, contrary to the Appellant’s submissions, the Tribunal did not purport to rely on the material as evidence that the Appellant did not face harm because he did not share the characteristics of these individuals. That submission could succeed only if, fairly read, it should be inferred from the Tribunal’s reasons that the information was relied upon as establishing exhaustively the circumstances which putative Sri Lankan asylum seekers must demonstrate in order to attract protection obligations. No such inference can be drawn. As the primary Judge held, the Tribunal simply found that the information was irrelevant because the Appellant did not share the characteristics of the returnees referred to in the media reports. It follows that the decision in Kaur v Minister for Immigration and Border Protection [2016] FCA 132, (2016) 245 FCR 296 on which the Appellant relies is distinguishable. In that case, the Tribunal took into account a computer record which disclosed that there was no evidence of any current enrolment by the Appellant in finding that the Appellant had not met the statutory criterion for the visa in question that she be currently enrolled. It was in that context that Perry J held at para [44] that the fact that the evidentiary material was used by the Tribunal as, in effect, “proof of a negative”, that is, in support of its finding that there was an absence of evidence in the Appellant’s favour, did not exempt the Tribunal from complying with a statutory equivalent to s 424A of the Migration Act.

CONCLUSIONS

25    The appeal should be dismissed.

26    There is no reason why costs should not follow the event.

THE ORDERS OF THE COURT ARE:

1.    The appeal is dismissed.

2.    The Appellant is to pay the First Respondent’s costs of the appeal

Associate:

Dated:    3 July 2018