FEDERAL COURT OF AUSTRALIA

SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

1    This is an appeal from a decision of a Judge of the Federal Circuit Court dismissing with costs the appellant’s application for judicial review of a decision of the second respondent (“the Tribunal”) affirming a decision of a delegate of the first respondent (“the Minister”) to refuse to grant the appellant a Protection (Class XA) visa.

2    The appellant is a citizen of Sri Lanka who arrived at Christmas Island by boat on 20 June 2012. He applied for a protection visa on 18 September 2012. The appellant claimed to fear persecution in Sri Lanka because of his Tamil ethnicity, his suspected involvement with the LTTE and as a failed Tamil asylum seeker.

The Grounds of Review

3    By his further amended application for judicial review in the Federal Circuit Court, the appellant raised the following grounds of review:

1.    The [Refugee Review Tribunal] erred in its understanding of the applicable law on what was degrading treatment or punishment and cruel or inhuman treatment or punishment. It accordingly failed to address the correct test 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.

2.    The [Refugee Review Tribunal] failed to comply with Ministerial Direction Number 56 in contravention of s 499(2A) of the Migration Act 1958.

    Particulars

    The [Refugee Review Tribunal] 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.

3.    The [Refugee Review Tribunal] failed to take into account a relevant consideration.

    Particulars

    The applicant repeats the same particulars to ground 2.

4.    The [Refugee Review Tribunal] failed to address a claim of fear of persecution for imputed political opinion.

    Particulars

    The [Refugee Review Tribunal] did not address the claim that he would be imputed to be a supporter of ProTamil political parties because the applicant’s family had a history of supporting these parties. His step father was imprisoned and tortured in the past because of his involvement with the EPDP and his uncle has also stood for election in 2010 for the Tamil National Alliance and his step brother helped him campaign.

The grounds of appeal

4    On appeal to this Court, the appellant raised the following three grounds of appeal:

1.    His Honour erred in not finding that the RRT made an error of understanding of the meaning and effects of the Act in determining what is degrading treatment or punishment and cruel or inhuman treatment.

2.    His Honour erred in not finding that the RRT failed to comply with Ministerial Direction 56 in contravention of s. 499(2A) of the Act.

    Particulars

    (a)    The Tribunal failed to take into account PAM 3 Protection Visas complementary protection guidelines when it made a finding on whether the treatment that the applicant would face on being detained in Sri Lanka was degrading treatment or punishment or was cruel or inhuman treatment or punishment.

3.    His Honour erred in not finding that the RRT failed to address a claim of fear of persecution for Imputed political opinion.

    Particulars

    (a)    The Tribunal did not address the claim that he would be imputed to be a supporter of the Pro Tamil political parties because of the his family's support for those parties.

5    The appellant was represented by counsel before the primary judge, but was not legally assisted at the hearing of this appeal. He was, however, assisted by an interpreter. No written submissions were filed by the appellant, and the oral submissions that were made by him did not address the grounds raised in his Notice of Appeal.

Relevant Statutory Provisions

6    Section 36 of the Migration Act 1958 (Cth) (“the Act”) relevantly provides:

(2)    A criterion for a protection visa is that the applicant for the visa is:

    (a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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

    …

(2A)    A non-citizen will suffer significant harm if:

    …

    (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.

7    Section 5 of the Act includes the following definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment:

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.

degrading treatment or punishment means 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    Section 499 of the Act relevantly provides:

(1)    The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

    (a)    the performance of those functions; or

    (b)    the exercise of those powers.

(1A)    For example, a direction under subsection (1) could require a person or body to exercise the power under section 501 instead of the power under section 200 (as it applies because of section 201) in circumstances where both powers apply.

(2)    Subsection (1) does not empower the Minister to give directions that would be inconsistent with this Act or the regulations.

(2A)    A person or body must comply with a direction under subsection (1).

…

9    Direction 56 was issued pursuant to s 499 of the Act on 21 June 2013. It relevantly provides:

1.    This Direction applies to a decision-maker performing function or exercising powers under section 65, 414 or 415 of the Migration Act 1958 (the Act) when considering an application for the grant of a Protection Visa and when reviewing a decision to refuse to grant a Protection Visa. This direction is subject to the Migration Act and Regulations and other applicable laws.

2.    In performing functions or exercising powers under section 65, 414 or 415 of the Act, the decision-maker is to take account of the following guidelines prepared by the Department of Immigration and Citizenship to the extent that they are relevant to the decision under consideration.

    ‘PAM3: Refugee and humanitarian – Complementary Protection Guidelines’

    ‘PAM3: Refugee and humanitarian – Refugee Law Guidelines’

…

10    The two documents referred to in para 2 of Direction 56 (“the PAM3 Guidelines”) set out guidelines and related information as to the background, purpose and application of the complementary protection provisions of the Act.

The primary judge’s decision

11    The primary judge’s reasons make extensive reference to the parties’ submissions at [10]-[59]. His Honour’s actual consideration of the grounds of review and the related submissions is found at [60]-[94] of his Honour’s reasons. The primary judge was not satisfied that the Tribunal committed any relevant error and he dismissed the appellant’s application for judicial review.

CONSIDERATION

12    Turning to the grounds of appeal, there are, as I have mentioned, three relevant grounds. I will deal with each of them in turn.

Appeal Ground 1

13    The primary judge found that the Tribunal correctly interpreted the complementary protection provisions of the Act. In doing so, his Honour rejected the appellant’s argument that the Tribunal was required to have regard to the decisions of the United Nations Human Rights Committee concerning prison conditions for the purpose of construing the relevant provisions of the Act. There is no reason to doubt the correctness of his Honour’s conclusion on this issue which is fully supported by authority: see Minister for Immigration and Citizenship v MZYYL (2012) 207 FCR 211 at [18]-[20].

Appeal Ground 2

14    The particulars to appeal ground 2 indicate that the appellant contends that the primary judge erred by not finding that the Tribunal failed to take into account the PAM3 guidelines when making a finding on whether the treatment of the appellant, if detained in Sri Lanka, would amount to degrading treatment or punishment or cruel or inhuman treatment. There is no reason to doubt the correctness of the primary judge’s finding that the Tribunal took the PAM3 guidelines into account. The Tribunal referred to the PAM3 Guidelines expressly at [11]:

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration - PAM3 Refugee and humanitarian- Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines - to the extent that they are relevant to the decision under consideration. I have done so.

Appeal Ground 3

15    The primary judge rejected the appellant’s complaint that the Tribunal failed to address a claim that he faces a real chance of persecution if he is required to return to Sri Lanka on the basis that he may be perceived to be a supporter of pro-Tamil political parties. The basis for the submission that such a claim was advanced is found in a written submission that was provided by the appellant to the delegate which is referred to at [76] of the primary judge’s reasons.

16    As the primary judge’s reasons make clear at [78]-[82], this claim was not persisted in before the Tribunal. His Honour concluded, correctly in my view, that this particular claim was effectively abandoned by the appellant. The appellant’s evidence before the Tribunal was to the effect that, to his knowledge, neither side of his family had willingly been involved with, or supported, the LTTE.

Disposition

17    In the circumstances, I am satisfied that the primary judge’s decision was correct. The appeal will be dismissed. The appellant must pay the Minister’s costs of the appeal.

Associate:

Dated:    8 December 2015