FEDERAL COURT OF AUSTRALIA

ABJ16 v Minister for Immigration and Border Protection [2017] FCA 1371

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant pay the first respondent’s costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from the judgment and orders of the Federal Circuit Court of Australia given and made on 7 July 2017, dismissing the application filed in that Court on 8 January 2016. That application sought judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) made on 18 December 2015, affirming the decision not to grant the appellant a Protection visa.

2    The appellant was found by the Tribunal to be a young single Tamil fisherman from Udappu who departed Sri Lanka illegally by boat in 2012.

The appellant’s claims

3    The appellant’s claims were that his family was often targeted and persecuted because his uncle was a member of the LTTE. The Army and other government officials often came to their home and interrogated the appellant’s father and took him to the military camps where they would beat him in order to find out more information about the appellant’s uncle. The appellant was never taken when he was young and when he was older he would run away and hide when the Army visited his home. He grew up as an only child and was concerned that he would be targeted by the Army for investigation. The appellant’s uncle now resided in the United Kingdom and the Sri Lankan government was aware of this. However, the appellant claimed, his family will always be a target for the government because of his uncle’s ties with the LTTE.

4    The appellant stated that in around 2009, Tamil people from his village began to be abducted by people in white vans. They believed that the Army was carrying out the abductions. His village had been targeted by the Army and government groups. Since 2011, the Sri Lankan Army had harassed and tortured the people in his village by introducing “grease men”. The grease men only targeted the Muslim and Tamil areas and did not harm Sinhalese people.

5    The appellant referred to an incident at a Sinhalese village in February 2012 and another incident in March 2012 on his way home from the cinema when some Army men in a white van began to chase him and his friends.

6    The appellant claimed generally that as a fisherman in Sri Lanka he was required to gain passes from the Army and Navy before going out to sea. He was afraid to go out at night because he feared being caught and beaten by the Army and Navy.

7    The appellant claimed that it was difficult to find employment as a Tamil and he was heavily discriminated against in Sri Lanka. Tamils were persecuted by the government and discriminated against by local Sinhalese people. Tamils had no security and the Army randomly came to the village to abduct young men. The appellant feared a similar fate awaited him in Sri Lanka.

8    The appellant also claimed that, if forced to return to Sri Lanka as a failed asylum seeker, he would be harmed or mistreated by the government. The government would be suspicious of his links to the LTTE and he feared being persecuted or killed.

The Tribunal’s findings

9    The Tribunal made findings at [92]-[114] of its decision. It was prepared to accept that the appellant had an uncle who was involved in a Tamil separatist movement or militia during the time of the civil conflict. It also accepted that his uncle departed Sri Lanka in 2000 and at present resides in the United Kingdom. The Tribunal was prepared to accept that the appellant’s family, particularly his father and other uncles, may have been interrogated and mistreated by the Sri Lankan security forces as a consequence of their relationship to the appellant’s uncle during the course of the civil conflict or shortly thereafter. The Tribunal also accepted the appellant’s evidence that his father had not been approached in relation to his brother’s LTTE connection since 2009 and the appellant had never personally been questioned or interrogated in relation to the matter.

10    The Tribunal found that if the Sri Lankan security forces were genuinely concerned about the appellant’s own LTTE connections, there had been ample opportunity for them to detain and question him. The Tribunal was not satisfied that the appellant’s other evidence in relation to his past experience in Sri Lanka was credible. The appellant’s evidence in relation to the three attacks he claimed to have been subjected to in 2012 had changed over time.

11    The Tribunal sent the appellant a letter under s 424A of the Migration Act on 19 November 2015.

12    Having regard to its general credibility concerns and the appellant’s failure to raise the claim prior to the Tribunal hearing, the Tribunal was not satisfied that the appellant’s family had been visited by Sri Lankan security forces on five or six occasions since the appellant’s departure from Sri Lanka. Nor was the Tribunal satisfied that the Sri Lankan security forces suspected that the appellant may have joined the LTTE movement when he left Sri Lanka. Despite the submissions made in response to the Tribunal’s s 424A letter, the Tribunal noted that the appellant did not suggest when the matter was discussed at hearing that he only became aware of the visits after his protection visa interview.

13    The Tribunal said it had been unable to find any corroboration of the appellant’s claim to have had difficulties with grease men in his village in 2011 in the general country information. The Tribunal nevertheless proceeded on the basis that this type of attack did occur in the appellant’s village in 2011, including on one occasion where the villagers caught a grease man but were told that if they did not release him they would be killed. The appellant’s own evidence was that there had been no further attacks since 2011. The Tribunal had been unable to find any reference in the country information to grease men activity since 2011. The country information indicated that the general security situation Sri Lanka had significantly improved in recent years and the Tribunal was not satisfied there was a real chance of the appellant been subjected to a grease men or similar attack in the reasonably foreseeable future.

14    At [103], the Tribunal accepted as credible the general country information discussed at hearing from UNHCR, that being of Tamil ethnicity no longer created a presumption of eligibility for protection as a refugee. UNHCR had identified certain groups in need of protection, including persons suspected of having certain links with the LTTE. For the reasons it had already given, the Tribunal found that it was not satisfied that the appellant had in the past or would be imputed with a pro-LTTE opinion or that he fell within any of the profiles identified by UNHCR as being at risk. The Tribunal accepted DFAT’s general advice that there were no official laws or policies that discriminated on the basis of ethnicity or language in Sri Lanka. DFAT had assessed that there was a low-level of discrimination in the implementation of laws and policies and forced registration of Tamils had ceased. The Tribunal was not satisfied there was a real chance or risk of serious or significant harm arising solely from the appellant’s Tamil ethnicity, now or in the reasonably foreseeable future.

15    At [104], the Tribunal said that although the appellant previously described difficulties experienced as a fisherman in Sri Lanka and Sinhalese people encroaching upon his village land and building shrines, he indicated at the Tribunal hearing that he had no ongoing concerns in relation to these issues.

16    At [105], the Tribunal accepted as credible information from DFAT in December 2015 that upon return to Sri Lanka returnees were processed by various law enforcement agencies at the airport, which typically took several hours while they checked the person’s identity and the existence of criminal or terrorist backgrounds. Returnees were not subject to mistreatment during this period of processing the airport. Returnees who left Sri Lanka illegally were arrested by the police for breach of Sri Lanka’s immigration laws, had their fingerprints taken, were photographed and then transported to the Magistrates Court at the first available opportunity. They remained in police custody at the CID airport office for up to 24 hours. Should a magistrate not be available because of a weekend or public holiday, those charged were held at the nearby prison. The country information indicated that prison conditions in Sri Lanka did not meet international standards because of overcrowding and poor sanitary conditions.

17    The Tribunal found, on the country information, that the appellant was likely to be questioned at the airport, charged with an offence of having departed illegally under the Immigration and Emigration Act and then either fined on the spot and released or granted bail on personal surety immediately by a magistrate or required to have a family member act as guarantor. The Tribunal found that fines may be paid by instalment and, if bailed, there were rarely any conditions.

18    The Tribunal accepted, at [108], that there was a low, albeit real, chance that the appellant may spend a brief period in remand until a magistrate was available, in conditions which may be cramped, uncomfortable and unsanitary. This situation applied to all persons who left Sri Lanka illegally, regardless of their background. The Tribunal was not satisfied on the evidence that during a brief period in remand there was a real risk or chance that the appellant will suffer intentionally inflicted torture, the death penalty or arbitrary deprivation of life.

19    At [109], the Tribunal said it was not satisfied that there was a real chance or risk the appellant will be singled out or treated any differently upon return to Sri Lanka either in the course of processing at the airport, while in remand, in sentencing or upon return to his own home area because he is a young Tamil male, has departed Sri Lanka illegally and sought asylum in Australia or because of any other personal attribute, including his uncle’s LTTE or PLOTE links.

20    The Tribunal was not satisfied that the Sri Lankan security forces have had any interest in the appellant’s family as a consequence of his uncle’s connection since 2009 and was not satisfied that they had any interest in the appellant for this reason.

21    The Tribunal was not satisfied that being subjected to the process it had described on return to Sri Lanka, including any brief period in remand or any penalty imposed on the appellant as a consequence of his breach of Sri Lanka’s immigration laws would involve systematic and discriminatory conduct as required by s 91R. Rather, such treatment would be the consequence of the non-discriminatory enforcement of the law of general application, which was appropriate and adapted to achieving a legitimate state objective. The Tribunal was not satisfied that the appellant would be subject to treatment on return to Sri Lanka amounting to “persecution” for the purposes of s 36(2)(a).

22    The Tribunal went on to consider whether such treatment involved “significant harm” for the purposes of s 36(2)(aa). The Tribunal had regard to the PAM3 Refugee and Humanitarian Complementary Protection Guidelines. The Tribunal was not satisfied that any pain or suffering caused by severe overcrowding and poor and insanitary conditions would be intentionally inflicted on the appellant as required by the definition of cruel or inhuman treatment or punishment. Nor did the Tribunal accept that severe overcrowding and poor conditions would be intended to cause extreme humiliation as required by the definition of “degrading treatment or punishment”. The Tribunal was not satisfied that any element in the process the appellant was likely to face upon return involved “significant harm” as defined.

Proceedings in the Federal Circuit Court

23    The application for review contained no grounds but was accompanied by an affidavit dated 18 December 2015 which read, omitting formal parts,

1.    I lodge this application myself

2.    I have read my RRT decision and found a number of errors made by the RRT. I do not agree with the RRT decision as it has acted beyond its jurisdiction and it declined its jurisdiction. I lodge this application myself. I will wait until a lawyer is given by this court and I will meet the lawyer.

24    The primary judge found, at [23], that the Tribunal exercised its jurisdiction to review the delegate’s decision, as was made clear by the procedural history leading to the Tribunal’s decision and as evidenced by its decision record.

25    As to the Tribunal making a number of errors, the primary judge said, at [24], that this contention was completely unparticularised and no errors were identified in the one page written submissions filed by the appellant on 24 June 2016 or at the hearing on 24 June 2016. Nothing identified any error by the Tribunal which could constitute jurisdictional error, but rather invoked a merits review which was not available in the Court.

26    The primary judge noted, at [25], that it was not incumbent on the Court to independently consider whether an unparticularised assertion of error by the Tribunal might be capable of being identified as a jurisdictional error. Nonetheless, the primary judge considered the decision record of the Tribunal for himself and said that it appeared to him to have made findings that were legally open to it on the material and constituted a balanced, careful and detailed consideration of the appellant’s claims.

27    The primary judge noted, at [26]-[27], that the letter dated 13 November 2015 and sent by the Tribunal purportedly pursuant to s 424A merely contained content relating to inconsistencies in the appellant’s version of events which might tend to cast doubt on his credibility. As such, s 424A(1) did not require the Tribunal to send that letter to the appellant. This was because the section “is related to the existence of evidentiary material documentation, not the existence of doubts, inconsistencies or the absence of evidence”: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 235 ALR 609 at [18].

Notice of Appeal

28    The notice of appeal to this Court was in the following terms:

Grounds of appeal

The Federal Circuit Court failed to find, in respect of the AAT (Respondent) that the Respondent declined its jurisdiction to me on the basis of grounds including the main grounds stated in my Federal Circuit Court Application.

Ground/particulars: The AAT has declined its jurisdiction failing to assess as to whether I would be persecuted as a young Tamil male aged 30 from Chillaw of Puttalam District of Sri Lanka (a particular part of Sri Lanka) but it has assessed that there is no persecution for Tamils generally. There is information before the AAT and the country information on Sri Lanka indicates that that the failed asylum seekers are held in prison several days in overcrowded and unpleasant conditions. The prison conditions are poor. The AAT made an error when deciding that cruel or inhuman treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the AAT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The AAT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails. In addition to the above grounds, I still rely on the grounds and the particulars for the judicial review with the Federal Court of Australia.

The parties’ submissions

29    The appellant filed no written submissions. In oral submissions the appellant did not say anything directed to establishing error on the part of the primary judge or jurisdictional error on the part of the Tribunal.

30    By his written submissions dated 15 November 2017, the Minister submitted that, in light of the Tribunal’s findings pursuant to s 36(2)(aa) of the Migration Act, and in light of the High Court’s decision in SZTAL v Minister for Immigration and Anor [2017] HCA 34; 347 ALR 405 (SZTAL), no jurisdictional error was discernible in the Tribunal’s decision.

31    In SZTAL, the High Court considered the meaning of “intentionally inflicted” in the definitions of “cruel or inhuman treatment or punishment” and “torture”, and the meaning of “intended to cause” in the definition of “degrading treatment or punishment' found in s 5 of the Migration Act. The Minister set out the conclusion of the plurality at [26]-[27] and at [28]-[29].

32    The Minister submitted that the Tribunal’s findings in the present matter, that the poor prison conditions while held on remand did not amount to significant harm, did not disclose any error.

33    The Minister submitted that, as found by the primary judge, the Tribunal did not have obligations pursuant to s 424A. In any case, the appellant’s solicitor and registered migration agent provided a response to the invitation to comment, and the response was considered in the Tribunal’s decision at [87]-[91] and [100].

34    The Minister submitted the appeal should be dismissed and the appellant ordered to pay the Minister’s costs.

Consideration

35    In my opinion, the appellant has not shown any error in the judgment of the primary judge.

36    As to the contention that the Tribunal erred in failing to assess whether the appellant would be persecuted as a young Tamil male aged 30 from Chillaw of Puttalam District of Sri Lanka (a particular part of Sri Lanka), in my opinion the Tribunal addressed all the claims that were made. It does not appear that this general claim was made. The general claims that were made were that the appellant feared harm due to his Tamil ethnicity and his imputed anti-government and pro-LTTE political opinion, his illegal departure from Sri Lanka or as a failed Tamil asylum seeker. This was summarised by the Tribunal at [50], and considered by it at [103], [104] and [109] in particular.

37    Next, there is nothing of substance arising from the Tribunal’s mistaken view that it was required to proceed under s 424A. As submitted by the Minister, the mistake advantaged the appellant because he was given an opportunity to be heard on matters which the legislation did not require the Tribunal to hear him on, and his response was taken into account by the Tribunal.

38    As to the claim based on the prison conditions in Sri Lanka, it is of no substance in light of the findings of fact made by the Tribunal and the conclusion of the High Court in SZTAL. The High Court, in the judgment of the plurality, held as follows:

[28]    In the present cases the question for the Tribunal was whether a Sri Lankan official, to whom knowledge of prison conditions can be imputed, could be said to intend to inflict severe pain or suffering on the appellants or to intend to cause them extreme humiliation by sending them to prison. That question was to be answered by the application of the ordinary meaning of “intends”, as the Tribunal concluded.

[29]     As has been explained, evidence of foresight of the risk of pain or suffering or humiliation may support an inference of intention. In some cases, the degree of foresight may render the inference compelling. But in the present matters, having regard to the evidence before the Tribunal (including evidence about what the Sri Lankan authorities might know), the Tribunal was entitled to conclude that it was not to be inferred that the Sri Lankan officials intended to inflict the requisite degree of pain or suffering or humiliation.

(Footnote omitted.)

Conclusion and orders

39    The appeal is dismissed, with costs.

Associate:

Dated:    22 November 2017