FEDERAL COURT OF AUSTRALIA

ADS15 v Minister for Immigration and Border Protection [2018] FCA 233

ORDERS

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

MARKOVIC J:

1    This is an appeal from orders made by the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the then Refugee Review Tribunal now the Administrative Appeals Tribunal (Tribunal): ADS15 v Minister for Immigration [2016] FCCA 1591 (ADS15). The Tribunal had affirmed a decision of a delegate of the first respondent (Minister) to refuse to grant the appellant a Protection (Class XA) visa (Visa) under s 65 of the Migration Act 1958 (Cth) (Act).

background

2    The appellant is a citizen of Sri Lanka. He left Sri Lanka illegally by boat on 25 July 2012 and arrived in Australia on 16 August 2012.

3    On 21 December 2012 the appellant lodged his application for the Visa.

4    The appellant made a number of claims in his statutory declaration provided as part of his application for the Visa, at an interview with the Minister’s delegate and at the hearing before the Tribunal. Given the limited nature of the issues raised before the primary judge and on appeal, it is not necessary to set those claims out in detail save to note that they concerned the appellant’s fear of harm because he is a Tamil; because he will be imputed to have connections to the Liberation Tigers of Tamil Eelam (LTTE) and pro LTTE political views as well as a claim to fear harm as a failed asylum seeker; and because of his illegal departure from Sri Lanka.

5    On 9 August 2013 a delegate of the Minister refused the appellant’s application for the Visa. The appellant subsequently applied to the Tribunal for a review of the delegate’s decision.

6    On 11 December 2014 the appellant appeared before the Tribunal to give evidence and present arguments in relation to the issues arising in his case. The appellant was represented before the Tribunal by his registered migration agent.

7    On 4 February 2015 the Tribunal made its decision affirming the decision of the Minister’s delegate to refuse to grant the appellant the Visa.

TRibunal decision

8    The Tribunal noted that the issue in the case was the appellant’s credibility and whether, based on his accepted claims, he fulfilled the criteria for protection under the Act. The Tribunal concluded that the delegate’s decision should be affirmed and set out its reasons for doing so.

9    The Tribunal’s consideration of the appellant’s claim that he would suffer harm because of his membership of a particular social group characterised as failed asylum seekers is central to the issues raised on appeal.

10    In considering that claim for the purposes of s 36(2)(a) of the Act the Tribunal was not satisfied, based on the totality of the evidence, that the appellant would face differential treatment for a Convention reason nor a real chance of persecution involving serious harm in connection with his unsuccessful application for asylum now or in the reasonably foreseeable future: Tribunal decision record at [116].

11    In considering that claim for the purposes of s 36(2)(aa) of the Act the Tribunal found that, given the lack of ongoing interest in the appellant based on his LTTE links or otherwise, a real risk of significant harm to him was remote. The Tribunal formed a similar view in relation to potential harm relating to the appellant leaving Sri Lanka illegally. Related to both issues, the Tribunal noted that the appellant was likely to be investigated on his return by authorities and may be remanded in prison for several days, possibly up to a fortnight in crowded and unpleasant conditions, as part of a charge under the Immigrants and Emigrants Act. However, the Tribunal remarked that most returnees are detained for a few days whilst waiting for bail which is routinely given. The Tribunal noted that the appellant was likely to be given a fine for his illegal departure from Sri Lanka but did not think that the imposition of a fine amounted to significant harm.

12    The Tribunal observed that there were no reports of returnees being given custodial sentences and considered the risk of the appellant being detained for an extended period to be remote based on his personal circumstances.

13    At [141] of its decision record the Tribunal considered the appellant’s treatment in detention:

In terms of the applicant's treatment in detention, the Tribunal accepts that prison conditions are poor, particularly in terms of overcrowding, and the Tribunal noted the applicant's adviser's submissions in this respect: the Tribunal does not accept that spending up to a fortnight in jail amounts to 'significant harm’ or that such treatment is intentional as is required by the law in Australia. The Tribunal does not accept that there is a real risk the applicant will be subject to ‘torture’ as defined while he is on remand. The definition of 'cruel or inhuman treatment or punishment’ in s.5(1) of the Migration Act requires that the pain or suffering be 'intentionally inflicted' on a person and the definition of 'degrading treatment or punishment' requires that the relevant act or omission be ‘intended to cause' extreme humiliation. The Tribunal does not consider that overcrowding, and very unpleasant conditions, which are a product of the general state of the system and negligence and indifference have the requisite intention required in the definitions of 'cruel inhuman treatment or punishment' and 'degrading treatment or punishment’. The Tribunal does not accept therefore that 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 will suffer significant harm as a consequence of the poor conditions in prison due to overcrowding.

14    The Tribunal did not consider that the appellant’s personal circumstances created a real chance of the appellant suffering significant harm if he was contacted by the authorities on his return home on the basis of being a failed asylum seeker or for any other reason: Tribunal decision record at [143].

Proceeding before the Federal Circuit Court

15    The appellant sought judicial review of the decision of the Tribunal in the Federal Circuit Court. In his amended application filed in that court the appellant raised three grounds but did not press the first ground leaving only grounds two and three for consideration by the primary judge. The primary judge summarised those grounds at [5] of ADS15 as follows:

The applicant now seeks judicial review of the Tribunal’s decision. The applicant relies on two grounds to argue that the decision was affected by jurisdictional error: first, that the Tribunal was wrong to proceed on the basis that “significant harm” relevantly required an element of subjective intention; and secondly, that the Tribunal failed to comply with a direction made by the Minister under s 499 of the Act, namely Ministerial Direction No. 56.

(footnotes omitted)

16    Ground two concerned the meaning of “significant harm” is relevant to s 36(2)(aa) of the Act. That section provides that a criterion for the grant of a protection visa is that:

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 …

17    Section 5(1) of the Act defines “significant harm” to mean harm of a kind mentioned in s 36(2A) which, in turn, relevantly provides:

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

…

(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.

18    Each type of “significant harm” referred to in s 36(2A)(c) to (e) is defined in s 5(1) of the Act and each definition includes that the harm be intentionally inflicted or caused.

19    The primary judge noted that the appellant conceded that ground two was bound to fail because of the decision in SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556 (SZTAL FFC) but that he formally submitted that the decision was wrong. At the time of determination of the matter by the primary judge the decision in SZTAL FFC was the subject of an application for special leave to appeal to the High Court of Australia (High Court). The primary judge refused the appellant’s request to reserve his decision until the determination of the application for special leave to appeal and, if special leave was granted, the determination of the appeal: ADS15 at [6].

20    Referring to SZTAL FFC at [59] where Kenny and Nicholas JJ accepted that the meaning of “intentional infliction is actual, subjective intention by the actor to bring about the victims’ pain and suffering by the actor’s conduct”, the primary judge noted that a common feature of each element of the definition of significant harm in the Act is that the harm be intentionally inflicted or caused. The primary judge held that the Tribunal’s approach at [141] of its decision record (see [13] above) was consistent with SZTAL FFC and for that reason the appellant was correct to concede that he must fail on the first ground: ADS15 at [11].

21    In relation to ground three, the primary judge noted that the question was whether the Tribunal failed to comply with “Direction 56 - Consideration of Protection Visa applications” (Direction 56): ADS15 at [16].

22    In rejecting this ground, the primary judge accepted the Minister’s submissions that: first, the Tribunal was clearly aware of Direction 56; secondly, relying on SZTMD v Minister for Immigration and Border Protection (2015) 150 ALD 34; [2015] FCA 150 (SZTMD) at [20], cl 2 and cl 3 of Direction 56 contemplate that the Tribunal was only obliged to consider the guidelines referred to therein or country information to the extent that they are relevant and it is the Tribunal’s view of relevance which matters not that of the Court; and thirdly, the relevant parts of the guidelines upon which reliance is placed are limited in their scope and merely state that “in certain circumstances” it “may be appropriate” to infer the requisite intention: ADS15 at [18]-[21].

23    The primary judge observed at [21] of his reasons that the real difficulty for the appellant was the lack of prescription in the relevant part of the Complementary Protection Guidelines which only contain a suggestion that it may be appropriate, in certain circumstances, to draw certain inferences. His Honour also noted that this ground lacked an important factual element that there was any knowing infliction of humiliation or pain or suffering and upon analysis, failed at that level: ADS15 at [22].

24    The primary judge concluded that, although the Tribunal did not state that it had regard to the Complementary Protection Guidelines or state whether it had considered if the indifference of the authorities to the prison conditions in Sri Lanka could give rise to the inference of subjective intention, he was not satisfied that the Tribunal failed to take those guidelines into account: ADS15 at [24].

the appeal

25    The appellant’s notice of appeal raises two grounds as follows:

1.    The learned Primary Judge, Smith J fell into error in consideration of "significant harm": ADS15 v Minister for Immigration & Anor [2016] FCCA 1591 (at [8]-[13))

Particulars

(i)    His Honour failed to correctly address whether spending up to fortnight into jail (AAT at [124]) was correctly addressed by the Tribunal whether the time in jail was legitimate and in accordance with MIAC v SZNWC (2010) 190 FCR 23 the Tribunal having found that he would be charged with offence for illegal departure.

(ii)    Erred in failing to address whether the Tribunal asked wrong questions / failed to ask correct questions regarding:

(a)    Hefty fines;

(b)    Whether Immigrants and Emigrants Act (Sri Lanka) was discriminatory;

(c)    The reason for the penalties;

(d)    Appropriate and whether the imposition of fines was adapted to a legitimate object; and

(e)    whether the time in jail was adapted to legitimate objects;

2.    The learned Primary Judge, Smith J fell into error in consideration of whether the Minister Directions No 56 (dated 21 June 2013) made pursuant to s 499(2A) was applied or correctly applied: ADS15 v Minister for Immigration & Anor [2016] FCCA 1591 (at [14)-[24])

Particulars

(i)    His Honour erred when he failed to correctly address whether the intention could arise by omissions such that knowing infliction can be inferred;

(ii)    The spending up to fortnight into jail (AAT at [124]) was intentionally inflicted such that pain and suffering is intentionally / knowingly inflicted; could be said to be humiliating.

(iii)    His Honour should have found that the Tribunal fell into error.

26    At the time of the filing of his notice of appeal the appellant appeared, on the face of the notice of appeal, to have been represented by counsel. However, by the time of the hearing the appellant was no longer legally represented. He informed the Court that his lawyer had written to him and informed him that he would not be appearing.

27    The appellant did not file any written submissions in support of his grounds of appeal. At the hearing he made a number of submissions concerning the danger and persecution he would face if he was to return to Sri Lanka and described events which had affected his brothers since his departure which, in his submission, would mean that he too would face similar threats and danger were he to return. Those submissions did not address the grounds of appeal raised in the notice of appeal but sought merits review which this Court cannot undertake.

28    The appellant also sought to tender a bundle of documents comprising newspaper articles and recently dated letters about various events that had taken place. The Minister opposed the tender of the documents on the grounds of relevance and for that reason, namely that they were not relevant to the issues raised on appeal, I did not allow the tender.

Consideration

29    By the first ground of appeal the appellant contends that the primary judge fell into error in his consideration of the meaning of “significant harm”. The particulars which elucidate the ground allege that the primary judge fell into error first, in considering whether spending up to a fortnight in jail was correctly addressed by the Tribunal and whether the time in jail was legitimate; and secondly, in failing to address whether the imposition of fines for contraventions of the Immigrants and Emigrants Act is appropriate and adapted to achieving a legitimate government objective.

30    The Minister submitted that this ground relates to the first ground of review in the appellant’s amended application filed in the Federal Circuit Court which was not pressed. In that application the ground was stated as follows:

1.     The Tribunal misconstrued or misapplied s 91R(1) of the Act.

Particulars

a.     The Tribunal accepted that the applicant was a member of the social group of “those that have departed Sri Lanka illegally”: [63], [125].

b.     The Tribunal found that, because the applicant had departed Sri Lanka illegally, he would be charged with an offence under the Sri Lankan Immigrants and Emigrants Act: [124].

c.     The Tribunal found that the applicant “may be held for several days, possibly as much as a fortnight in jail on remand before being given bail”: [124].

d.     The Tribunal found that a penalty of a fine “ranging from between 5,000 – 100,000 rupees” would be imposed on the applicant under the Immigrants and Emigrants Act: [124].

e.     In finding that “the essential and significant reason for penalties under the Immigrants and Emigrants Act is to prevent unregulated departures” (at [125]), the Tribunal asked itself the wrong question.

f.     The Tribunal should have asked itself whether the Immigrants and Emigrants Act was discriminatory against members of the social group of those that have departed Sri Lanka Illegally: cf Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23 (SZNWC).

g.     The Tribunal erred in its approach to considering whether the Immigrants and Emigrants Act was fines imposed upon persons returning to Sri Lanka who had departed Sri Lanka illegally were appropriate and adapted to a legitimate end object of Sri Lanka:

i.     the Tribunal failed to ask itself whether the applicant’s spending up to a fortnight in jail on remand was appropriate and adapted towards a legitimate end, either at all or in accordance with the approach outlined in SZNWC;

ii.     the Tribunal accepted that it may be true that “a potential fine of 50,000 rupees presents a figure that is many times over the official poverty line in Sri Lanka”: at [127];

iii.     the Tribunal failed to ask itself whether the fines that were likely to be imposed under the Immigrants and Emigrants Act were was appropriate and adapted towards a legitimate end in accordance with the approach outlined in Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23: [127].

(underlining and strike out in original)

31    In my opinion this ground seeks to agitate the ground which was abandoned before the primary judge. The Minister submitted that the appellant ought not be permitted to raise a ground which was expressly abandoned in the court below, particularly in circumstances where the appellant was legally represented before the primary judge.

32    The question of whether leave should be granted to raise this ground on appeal, essentially a fresh ground on appeal, is governed by the principles enunciated in NAJT v Minister for Immigration & Multicultural and Indigenous Affairs (2005) 147 FCR 51 at [166] where Madgwick J (with whom Conti J agreed) said that the questions relevant to the exercise of the Court's discretion to allow fresh grounds of appeal include:

1)    Do the new legal arguments have a reasonable prospect of success?

2)    Is there an acceptable explanation of why they were not raised below?

3)    How much dislocation to the Court and efficient use of judicial sitting time is really involved?

4)    What is at stake in the case for the appellant?

5)    Will the resolution of the issues raised have any importance beyond the case at hand?

6)    Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent?

7)    If so, can it be justly and practicably cured?

8)    If not, where in all the circumstances, do the interests of justice lie?

33    No explanation has been proffered by the appellant as to why the ground was abandoned below and is now raised on appeal. Indeed the appellant was legally represented before the primary judge and, I would infer, abandoned the ground on advice from those representing him. That is a powerful reason why in this case leave would not be granted. On the other hand, it cannot be said that to allow the ground would create much, if any, dislocation to the Court nor inefficient use of its sitting time and it was not suggested that there would be any prejudice to the Minister in allowing the ground. Of course, at stake for the appellant is his status as an applicant for a protection visa.

34    Ultimately the question of whether the appellant should be permitted to raise this ground turns on whether it has reasonable prospects of success. In my opinion it does not.

35    An inquiry into whether a law or policy is “appropriate” to a legitimate object of the country concerned is necessary only once it is concluded that the law or policy results in discriminatory treatment for a reason specified by the Refugees Convention: see Minister for Immigration and Border Protection v WZAPN (2015) 254 CLR 610 at [77]. Here the Tribunal did not accept that one or more of the five Convention reasons would be the essential or significant reason for the appellant spending up to a fortnight in jail on remand and fined if he returns to Sri Lanka. It found that the essential and significant reason for imposing penalties under the Immigrants and Emigrants Act was to prevent unregulated departures from Sri Lanka. The Tribunal was also not satisfied that the enforcement of the law in Sri Lanka was undertaken with any discriminatory motive or that there was any selective targeting of those against whom the law was to be enforced: Tribunal decision record at [125]-[126]. That being so, it was not necessary for the Tribunal to consider whether the relevant law, the Immigrants and Emigrants Act, was appropriate and adapted to achieve a legitimate objective as alleged by the appellant.

36    Accordingly, I do not grant leave to the appellant to raise the first ground on appeal.

37    By the second ground the appellant contends that the primary judge erred in the findings he made concerning the Tribunal’s approach to Direction 56.

38    As is evident from the Tribunal’s decision record at [9], the Tribunal was aware of Direction 56 and its requirements. In that paragraph the Tribunal stated:

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 – and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

39    In SZTMD Perram J considered the obligation imposed on the Tribunal to comply with any Ministerial directions issued under the Act and, in particular, Direction 56. In that case, the Tribunal mentioned the relevant guidelines in a paragraph not dissimilar to that set out at [39] above. Beyond this, it was otherwise silent and did not explain whether it dealt with the guidelines referred to in Direction 56 and country information; nor did it explain whether it regarded the guidelines and country information to be irrelevant to its task: at [11]-[12]. At [14]-[16] his Honour said:

14    The first step, in his submission, was to attend to the nature of the Tribunal’s reasons. The Tribunal was bound by s 430(1) to provide a written statement of those reasons. …

15    It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal’s reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf (M10 of 2000) (2001) 206 CLR 323 at 346 [69] … (‘Yusuf’). Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision.

16    If that inference were to be drawn it would defeat the applicant’s argument at the threshold. This is because the silence of the Tribunal on these matters would then signify not that it had not considered the guidelines and country information but that it did not consider them material to the task it had to perform. This is significant because cll 2 and 3 of Direction No 56, in terms, contemplate that the Tribunal is only obliged to consider the guidelines or country information to the extent that they are relevant.

40    At [20] of SZTMD Perram J noted that it was for the Tribunal to form an opinion as to what was relevant under cl 2 and cl 3 of Direction 56 and that it was the Tribunal’s views on relevance, not those of the Court, which matter. Similarly, in the present case it was a matter for the Tribunal to determine what was relevant having regard to Direction 56. The primary judge rejected the contention that the Tribunal failed to comply with Direction 56. He was correct to do so.

41    As to the issue of the inferring of intention to inflict harm, the primary judge set out the relevant part of the Complementary Protection Guidelines referred to in Direction 56 noting that they state that “[i]n certain circumstances it may be appropriate to infer an intention to inflict extreme humiliation where it is evident that humiliation was or may be knowingly inflicted”. In agreeing with the Minister’s submissions, the primary judge identified that the Complementary Protection Guidelines give no guidance about the circumstances in which it may be appropriate to draw a requisite intention and noted that those guidelines contain nothing more than a suggestion that it may be appropriate, in particular circumstances, to draw certain inferences: ADS15 at [20]-[21]. There was no error in his Honour’s approach. As the primary judge identified, the Complementary Protection Guidelines are not prescriptive.

42    The primary judge also found, in my opinion correctly, that the appellant’s challenge failed at a factual level because the Tribunal did not accept that the Sri Lankan authorities knowingly inflicted humiliation or pain or suffering but rather that the prison conditions were the result of a number of things, including indifference to those conditions. His Honour found that even if the Tribunal implicitly found that the authorities were aware of the conditions it did not follow that they were aware of the pain and suffering that might be caused by those conditions and, even if they were, there is a difference between that awareness and knowingly inflicting harm as opposed to exposing a detainee to a risk of such harm: ADS15 at [22].

43    There was no error in the primary judge’s approach to considering whether Direction 56 was correctly applied by the Tribunal. The second ground of the appeal is not made out.

44    For completeness I note that there was no challenge to the primary judge’s findings about the second ground raised before him. That is not surprising. His Honour’s finding at [11] of his reasons concerning the Tribunal’s approach to the question of whether there had been the requisite intent in relation to the relevant types of significant harm was consistent with that of the plurality in SZTAL v Minister for Immigration and Border Protection (2017) 347 ALR 405; [2017] HCA 34 at [15] and [27].

conclusion

45    For the reasons set out above the appeal should be dismissed and the appellant ordered to pay the Minister’s costs.

Associate:

Dated:    7 March 2018