FEDERAL COURT OF AUSTRALIA

AJW15 v Minister for Immigration and Border Protection [2016] FCA 197

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs to be taxed, if not agreed.

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

REASONS FOR JUDGMENT

BARKER J:

1    The appellant is a male citizen of Sri Lanka who applied for a protection (class XA) visa under the Migration Act 1958 (Cth) on 13 December 2012.

2    The appellant claimed that, if he returned to Sri Lanka, he would live in fear of attack by supporters of the Sri Lankan government because he was an active member of the opposition party, United National Party (UNP) and attended a protest organised by the Fisherman Association of the Wulla Vidya (Fishermen protest). The appellant further claimed to fear harm in Sri Lanka due to his membership of a particular social group, namely “failed asylum seekers”.

3    The appellant said he worked in Kokilai as a fisherman from 2002 to 2011, when Indian fisherman entered the area with “Trolling Boats” which destroyed the local fishermen’s nets and prevented them from fishing. He said the local fishermen reported this to the local fisherman’s association but the authorities took no action.

4    The appellant said his disappointment at the government’s inaction caused him to leave Kokilai for Negambo in September 2011, to join UNP and work for its candidate in the local election, Jayaweera Arachchige Royce Vijitha Fernando.

5    He claimed that two days prior to the local council elections in October 2011, when putting up posters for Royce around midnight in Vallaviithya with four other people, he was attacked and injured by about 10 men. He says he informed Royce of the incident but did not report it to the police as they would not take any action to help him as a UNP supporter. The appellant further claimed a fellow UNP member advised him to be careful following one of UNP’s members being severely beaten up two weeks after the election. He says he tried to keep a low profile and went into hiding in Puttuville, where he stayed with one of his father’s friends until February 2012.

6    In February 2012, the appellant said he returned to Negambo to partake in the Fishermen protest. When he was about to leave the protest, four men followed him but he ran away to Puttuville.

7    The appellant claimed he could not rely on the Sri Lankan authorities for protection because he had worked for the UNP and actively expressed his political views against the government, which meant they would harm him.

8    He further claimed to have heard that Sri Lankans who are returned to Sri Lanka after seeking asylum in Australia are imprisoned for two years and have to pay two Laks to be released.

9    The appellant further claimed he could not relocate to another area in Sri Lanka as he had no family living elsewhere to offer him support or assistance; he had no real skills or profession to help him find work elsewhere; and “they” could find him anywhere because he had to register as a resident in any area he relocated to.

10    Afraid he would have the same fate as the UNP member referred to at [5] above, the appellant says it was not safe for him to live in Sri Lanka anymore, and so he decided to leave.

11    The appellant arrived at Cocos Island on 12 August 2012 by boat.

12    On 7 March 2014, a delegate of the Minister for Immigration and Border Protection refused to grant the appellant a protection visa.

13    The appellant sought review of this decision before the former Refugee Review Tribunal, but the Tribunal affirmed the delegate’s decision on 5 March 2015.

14    On 17 September 2015, the Federal Circuit Court of Australia dismissed the appellant’s application for judicial review of the Tribunal’s decision. See AJW15 v Minister for Immigration & Anor [2015] FCCA 2579.

15    The appellant now appeals from the Federal Circuit Court’s decision by a notice of appeal filed 8 October 2015, alleging the primary judge erred in failing to find the Tribunal committed jurisdictional error in failing to consider complementary protection guidelines in the Minister’s Direction No 56 – Consideration of Protection Visa Applications and misapplying relevant country information.

DELEGATE’S DECISION

16    The delegate considered that reasons under the Convention relating to the Status of Refugees. Opened for signature 28 July 1951. 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees. Opened for signature 31 January 1967. 606 UNTS 267 (entered into force 4 October 1967) (Convention reason), namely political opinion and membership of the particular social group “asylum seeker returned from Australia without the avenue to seek protection from the Sri Lankan authorities”, were the essential and significant reasons for the harm feared by the appellant, as required by s 91R(1)(a) of the Act (while s 91R was repealed on 18 April 2015 pursuant to Sch 5 Pt 2 of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), it was current at the time of the decisions of the delegate and Tribunal). The delegate further found that the appellant’s fear of being harmed, imprisoned or killed if returned to Sri Lanka fell within the definition of “serious harm” and “systemic and discriminatory conduct” in s 91R(1)(b) and (c) of the Act, and so the harm feared amounted to persecution.

17    However, the delegate did not believe the appellant had a real chance of being persecuted for one of these reasons. The delegate considered country information did not support the conclusion that there was a real chance the appellant would face persecution by reason of being a UNP supporter alone. The delegate further considered the appellant did not have a political profile such that he would be of interest to the government or Sri Lankan authorities.

18    In reaching his conclusion regarding the second Convention reason, the delegate placed “significant weight” on advice from the Department of Foreign Affairs and Trade (DFAT) dated 31 July 2013, which detailed the treatment of returned asylum seekers to Sri Lanka, the standard procedures in place for their handling, and the protection the Sri Lankan legal system affords those vulnerable to harm or ill-treatment by the state. While the delegate accepted the appellant may face short-term detention and/or receive a fiscal penalty upon returning to Sri Lanka for breaking domestic law, he did not believe the appellant would face serious harm amounting to persecution.

19    The delegate therefore found that Australia did not owe the appellant protection obligations for a Convention reason, and so the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act and cl 866.221(2) of Sch 2 of the Migration Regulations 1994 (Cth).

20    For the same reasons, the delegate was not satisfied the appellant had a real chance of being subject to serious harm if returned to Sri Lanka. The delegate therefore found Australia also did not owe the appellant protection obligation under s 36(2)(aa) of the Act.

TRIBUNAL’S DECISION

21    In considering whether the appellant had a well-founded fear of persecution for a Convention reason, the Tribunal stated that, in accordance with Direction No 56, it took into account the country information in DFAT Country Information Reports for Sri Lanka dated 3 October 2014 and 16 February 2015 (DFAT Reports).

22    The Tribunal stated the country information in the DFAT Reports confirmed that only people with a high political profile were targeted in Sri Lanka. The appellant sought to refute this country information, saying it was low level supporters who were targeted. The Tribunal nonetheless held that, based on the country information, there was no real chance the appellant would be seriously harmed in the reasonably foreseeable future on account of his low level support for the UNP, and that his fear of persecution on that basis was not well-founded.

23    In respect of the appellant’s claim to fear harm as a result of his participation in the Fishermen protest discussed at [6] above, the Tribunal stated it could not find any independent country information to suggest that those who were involved in the protest were harassed or targeted by authorities because of their imputed anti-government beliefs. Consequently, the Tribunal found that, on this basis, there was no real chance the appellant would be seriously harmed in the reasonably foreseeable future and that his fear of persecution was not well-founded.

24    With regard to the appellant’s claim to fear persecution due to his membership of the suggested particular social group of “failed asylum seekers”, the Tribunal noted the country information in the DFAT Reports did not suggest that returnees generally are targeted for serious or significant harm. The Tribunal did not accept the contention of the appellant’s representative that media reports not verified by DFAT indicated that returnees are detained on return for up to two to three years, as the DFAT Reports were consistent with reports by the Danish Immigration Service and the United Kingdom Home Office, which the Tribunal considered to be preferable and authoritative. Consequently, the Tribunal found there was not a real chance the appellant would be persecuted for this reason.

25    Having regard to the DFAT Reports, the Tribunal considered it likely the appellant would be remanded in custody for up to a fortnight if returned to Sri Lanka due to having departed Sri Lanka in breach of Sri Lankan departure laws. The Tribunal stated, in reliance on the DFAT Reports, the country information indicated returnees were brought before a Magistrate for a bail hearing within a few days of their return and were granted bail, based on personal recognisance, with the requirement for a family member to stand as a guarantor but with no payment required.

26    The Tribunal considered the “brief period” in jail on remand was the result of non-discriminatory enforcement of a law of general application and was not, therefore, a Convention reason. While the Tribunal accepted that the conditions in Sri Lankan prisons were poor, it did not accept the applicant faced a real chance of persecution during that period of remand. Having regard to DFAT’s advice that allegations of mistreatment of returnees had not been substantiated and that DFAT was not aware of allegations of mistreatment of returnees while on remand, the Tribunal rejected the suggestion that the appellant could be tortured on return. Consequently, the Tribunal found there was not a real chance the appellant would be persecuted due to his membership of the particular social group “failed asylum seekers”.

27    For the same reasons, the Tribunal was not satisfied the appellant would suffer harm if returned to Sri Lanka. The Tribunal noted that any period in custody on remand or the imposition of a fine did not amount to significant harm under s 36(2A) of the Act. While it accepted the conditions in Sri Lankan prisons were poor, it was not satisfied, having regard to the conditions in Negombo prison detailed in a report in the Sydney Morning Herald, that any period in custody on remand would involve treatment of the kind mentioned in s 36(2A) of the Act. Consequently, the Tribunal did not accept there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being returned to Sri Lanka, there was a real risk he would suffer significant harm as defined in s 36(2A) of the Act.

28    As such, the Tribunal was not satisfied Australia owed the appellant protection obligations under s 36(2)(a) or (aa) of the Act.

JUDICIAL REVIEW IN THE FEDERAL CIRCUIT COURT

29    In his amended grounds of judicial review before the Federal Circuit Court, the appellant contended:

Ground 1

The Tribunal failed to take into account the PAM 3 Refugee and Humanitarian Complementary Protection Guidelines (‘Guidelines’) when considering whether the Sri Lankan prison conditions faced by the Applicant upon return constituted significant harm, thereby breaching s 499(2A) of the Migration Act 1958 (‘the Act’).

Particulars

1.    The Tribunal was under an obligation to comply with the Guidelines under Ministerial Direction No. 56 to the extent that they were relevant to the decision under consideration;

2.    The Guidelines provide extensive guidance on prison conditions and whether they can amount to significant harm;

3.    The Tribunal accepted at [44]-[46] that the applicant would be detained in Sri Lanka because of his illegal departure and that the conditions in Sri Lankan prisons were poor (CB 133);

4.    These factual findings meant that the Guidelines were relevant to the Tribunal’s assessment of whether the conditions of imprisonment in Sri Lanka met the definition of significant harm under s 36(2A) and s 5 of the Act; and

5.    The Tribunal mentioned the Guidelines in the ‘Relevant Law’ section (CB 137), but failed to consider the relevance of the Guidelines when it made findings on complementary protection obligations to the Applicant in its decision record.

Ground 2

The Tribunal made a jurisdictional error by misapplying information in the two relevant DFAT Country Reports for Sri Lanka dated 3 October 2014 and 16 February 2015 (‘DFAT Reports’) that the Tribunal was required to consider under s 499 of the Act.

Particulars

1.    The Applicant submitted that he would not be protected by the Sri Lankan authorities as he had heard that people who have returned from Australia have been imprisoned for two years because they have sought asylum and to be released they have to pay two Laks (CB 35);

2.    The Tribunal put to the Applicant that upon return to Sri Lanka he would be detained under the Immigrants and Emigrants Act and later released on bail with the requirement for a family member to stand as a guarantor but with no payment required (CB 132[37]; Transcript pages 16-17);

3.    In making this statement to the Applicant the Tribunal relied upon the information in the DFAT Reports (CB 132);

4.    Both DFAT Reports state at paragraph 5.28 that ‘In most cases, returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor’;

5.    The Tribunal misapplied the country information in paragraph 5.28 of the DFAT Reports by putting to the Applicant the information that no payment would be required for a family member to stand as guarantor;

6.    It is inherent in the concept of guarantor that a guarantor is liable for the debt of another person, therefore a requirement for a family member to stand as guarantor does require payment.

30    The primary judge accepted the appellant’s proposition in ground 1 that, due to the findings in this case, the Tribunal had to engage with the guidelines in Direction No 56. His Honour considered it was clear that the Tribunal did engage with the guidelines when it stated that it had taken into account the country information in the DFAT Reports, and from its findings in relation to the conditions in jail.

31    In those circumstances, the primary judge was satisfied the Tribunal had engaged with the guidelines and there was no jurisdictional error of the kind alleged in ground 1.

32    With regard to ground 2, the primary judge considered the Tribunal’s reasons should be read without a “keen eye for error”. In his Honour’s opinion, the Tribunal identified that there would be, on the material accepted by the Tribunal, no requirement that the guarantor pay at the time bail was obtained. His Honour considered this was consistent with the DFAT Reports referred to by the appellant, particularly para 5.28, which his Honour considered did not specify that there was a form of bail bond in a particular amount that must be posted in order to obtain bail.

33    Consequently, the primary judge rejected the appellant’s submission that the Tribunal did not take into account the most recent country information when making its finding that there was no requirement for payment in order for a family member to stand as guarantor. His Honour held that the Tribunal’s adverse findings in that regard were open on the material before it and no jurisdictional error of the kind alleged in ground 2 was made out.

APPEAL TO THIS COURT

34    The appellant’s notice of appeal filed 8 October 2015 essentially repeats the grounds of appeal and particulars in the amended application before the Federal Circuit Court.

35    Until 9 February 2016, when the solicitors then acting for the appellant filed a notice that the solicitors had ceased to act for the appellant, the appellant was legally represented.

36    At material times prior to the hearing of the appeal, the appellant failed to lodge any written submissions in support of the appeal.

37    On 2 March 2016, the day before the hearing of the appeal, the appellant gave to the Court a handwritten note enclosing a medical certificate and stating that “I will not in a possition to attend for the hearing on 3rd March 2016 at 10.15am” (as in original).

38    The attached medical certificate apparently signed by Dr Thanuja Sumanarathna of the Corfield Doctors Surgery in Gosnells dated 1 March 2016, stated that it was to certify that “[The appellant] has a medical condition and will be unfit for work from 01/03/2016 to 05/03/2016 inclusive”.

39    The Court responded to this advice on 2 March 2016, by advising the appellant by email that his correspondence had been referred to the solicitors for the Minister to ascertain the Minister’s response to the implied request for an adjournment. The Court further advised the appellant that he should not assume that he had been granted the adjournment at that stage and should attend the hearing on 3 March 2016, if necessary, to apply for an adjournment. The Court made it clear in the correspondence that it was not open to a party simply to tell the Court they will not be attending a hearing or that the Court must agree to the adjournment, which will only be granted on proper grounds. The Court also pointed out that the medical certificate stated very little, referring merely to a “medical condition” without any detail. The Court made it plain that, on the basis of the medical certificate, the Court may well be reluctant to grant the appellant an adjournment.

40    On the calling of the appeal for hearing at 10.15am on 3 March 2016, the appellant appeared and was assisted by an interpreter speaking the Sinhalese language. He applied for an adjournment, not on the basis of the medical certificate previously provided, but on the basis that he wished to obtain legal advice and representation. When asked why the lawyers that had been acting for him no longer did so, he indicated that he was not in a financial position to retain them. After hearing from counsel for the Minister, the Court refused the adjournment on the basis that, if the appellant was unable to retain the lawyers who had previously been acting for him, there were no reasonable prospect that he would be able to retain lawyers in the future.

41    In those circumstances, the Court proceeded to hear the appeal. While the appellant placed his hand on his forehead and appeared to indicate that he was not well, there was no reason, in all the circumstances, including the inadequate medical report previously provided and the absence of any further medical evidence, that he was unable to deal with the matters arising on the appeal, to hear and determine the appeal.

42    When asked whether he wished to make oral submissions in support of the appeal, the appellant first indicated that he would like to send in written submissions at a later date following the hearing. The Court in all the circumstances declined that approach, pointing out that the matter had been listed for some time and this was the occasion for submissions to be made. The appellant declined the opportunity to make any oral submissions in support of the grounds of appeal and particulars set out.

43    The Minister relied upon his written submissions on the appeal.

44    The Court, in those circumstances, said that, generally for the reasons given by the primary judge and the submissions of the Minister, no error was apparent in the reasoning of the judge in the Court below. Consequently, the appeal should be dismissed with costs.

45    The Court indicated that it would release its reasons for decision containing the orders later that day and provide the same to the parties by email. These are the reasons for decision.

46    The Court agrees that the Tribunal’s statement that it was required to take account of the guidelines should in itself, on a fair reading of the Tribunal’s reasons in accordance with Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271-272; [1996] HCA 6, be sufficient to conclude the Tribunal has done so. See SZTCV v Minister for Immigration and Border Protection [2015] FCA 1309 at [14].

47    As to ground 1 of the appeal, the appellant has the burden of establishing the Tribunal failed to take account of the guidelines and should identify why the Court should infer, on the balance of probabilities and reading the Tribunal’s reasons fairly, the guidelines were not in fact taken into account despite the Tribunal’s express reference to its obligation to do so.

48    As noted by the primary judge, the Tribunal’s consideration of Sri Lankan prison conditions indicates it was aware of those parts of the guidelines concerning whether prison conditions could amount to a breach of the International Covenant on Civil and Political Rights, opened for signature 16 December 1966. 999 UNTS 171 (entered into force 23 March 1976).

49    There is no basis reasonably to infer the guidelines were not taken into account by the Tribunal.

50    Consequently, ground 1 fails.

51    With regard to ground 2, the choice and interpretation of country information is a factual matter for the Tribunal. See NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13]. As held by the primary judge, the country information cited by the Tribunal did not state that payment was required by the guarantor, and it was open for the Tribunal to infer that no such payment was required. In any case, the Minister led evidence before the primary judge of other country information available to the Tribunal confirming no payment was required for bail.

52    Consequently, ground 2 also fails.

53    The appeal should be dismissed with costs.

CONCLUSION AND ORDERS

54    The Court orders:

(1)    The appeal be dismissed.

(2)    The appellant pay the first respondent’s costs to be taxed, if not agreed.

Associate:

Dated:    3 March 2016