Federal Court of Australia

CSA16 v Minister for Immigration and Border Protection [2022] FCA 1304

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs to be agreed or assessed.

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

REASONS FOR JUDGMENT

MCELWAINE J:

1    This is an appeal from a decision of the Federal Circuit Court of Australia, dismissing the appellant’s application for judicial review of the Administrative Appeals Tribunal (the Tribunal) with costs: CSA16 v Minister for Immigration and Border Protection [2021] FCCA 404 (PJ).

2    The appellant seeks orders that the decision of the primary judge be set aside and in lieu thereof, an order be made that the decision of the Tribunal be quashed and a writ of mandamus be issued requiring the Tribunal to determine his application according to law.

3    By a notice of appeal filed 8 April 2022, the appellant relies on the following grounds of appeal:

1.    The Learned Judge erred by not finding that the Tribunal failed to consider an integer of the applicant’s claim that he faced a real chance of serious harm or significant harm on return to Sri Lanka because he departed the country illegally.

Particulars

a.    The applicant claimed to satisfy the protection criteria in s 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the Act) for reason of his Tamil race, profile as a failed asylum seeker, religion, and his imputed political opinion due to his brother’s LTTE involvement (Court Book (CB) 286, [20] – [21]).

b.     The Tribunal rejected the applicant’s claims relating to: his imputed political (sic) and race (CB 294 - 297, [68] – [82]); his religion (CB 297, [84]); and status as a failed asylum seeker (CB 298 – 299, [85] – [91]).

c.    The applicant claimed to face a real risk of significant harm while being held on remand for having departed Sri Lanka illegally due to the threat of torture in interrogation as well as poor prison conditions (CB 266 – 267).

d.    In relation to poor prison conditions the applicant relied on country information that indicated:

i.    violence is prevalent in Sri Lankan prisons, being perpetrated by security forces, guards, or other inmates in prison (CB 123 – 124, 202, 205, 267);

ii.    there are incidents of corporal punishment, as well as food and water being withheld in prison (CB 126, 267); and iii. Tamil prisoners are more likely to suffer mistreatment in prison (CB 127, 206).

e.    The Tribunal found at [100] of its reasons the applicant would – at most –spend a few days on remand (CB 301).

f.    The Tribunal found at [102] that “given its findings” in relation to “the applicant’s other claims” he did not face a real chance of serious harm or real risk of significant harm during his time in custody (CB 301).

g.    The applicant’s claims to fear harm in custody were not entirely contiguous with claims to fear harm in the community as a Tamil, failed asylum seeker, and his imputed political opinion.

h.    Therefore, the Tribunal erred by failing to consider integers of the applicant’s claim that:

i.    he could suffer harm from other inmates or guards for reasons unrelated to his previous claims or Tamil race; and/or

ii.    the applicant – as a Tamil – faced a greater risk of mistreatment while on remand.

2.    The Learned Judge erred by not finding that the the (sic) Tribunal asked itself the wrong question in relation to the applicant’s risk of significant harm as a result of having departed illegally.

a.    The applicant repeats and relies on particulars (a) – (d).

b.    The Tribunal found at [103] that “discomfort or anxiety” suffered as a result by poor prison conditions did not meet the statutory definition of “significant harm” as the conditions were poor due to a lack of resources, rather than intention by Sri Lankan authorities to inflict harm (CB 301 – 302).

c.    The Tribunal asked itself the wrong question at [103] in determining whether the applicant suffered significant harm by focusing on whether the poor prison conditions were intentionally created by the Government, as opposed to whether the acts – corporal punishment, violence between inmates, and withholding of food and water – were intentionally inflicted.

Background

4    The appellant is a citizen of Sri Lanka. He was born in 1994 and arrived in Australian as an irregular maritime arrival in August 2012. On 18 December 2012, he lodged an application for a Protection (Class XA) Visa.

5    In support of his application for the visa, the appellant relied on the following grounds:

(1)    He is of the Tamil race and Hindu religion;

(2)    His older brother was forcibly recruited by the Liberation Tigers of Tamil Elam (LTTE) in 2007 and has been missing since 2009. In 2011, the Sri Lankan Army (SLA) interviewed his family about his brother’s involvement with the LTTE;

(3)    In May 2012, the SLA detained his father and interrogated him about his brother;

(4)    He fears the police, Criminal Investigation Department (CID), Eelem People’s Democratic Party and/or the SLA will arrest and kill him due to his being a Tamil and his brother’s involvement with the LTTE; and

(5)    He is at risk of harm while being held on remand for departing Sri Lanka illegally.

6    On 4 February 2014, a delegate of the Minister for Immigration and Border Protection refused the grant of visa on the grounds that they were not satisfied that the appellant was a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) (the Act) (Minister’s Decision).

7    On 11 February 2014, the appellant applied to the Tribunal for a review of the Minister’s Decision which decision was affirmed on 26 August 2016, following a hearing on 2 August 2016.

8    By amended application filed 20 January 2021, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia which application was heard on 16 February 2021. By orders made 10 March 2021, Judge Blake dismissed the application.

9    The appellant filed his notice of appeal in this Court on 8 April 2021. For the reasons that follow I have concluded that the appeal must be dismissed.

the Decision of the Tribunal

10    The central issue before the Tribunal was whether it was satisfied, pursuant to s 36 of the Act and Schedule 2 of the Migration Regulations 1994 (Cth) that the appellant was either a person in respect of whom Australia has protection obligations under the “refugee” criterion or on other “complementary protection grounds”.

11    The Tribunal also considered Australia’s protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees, as well as Ministerial Direction No. 56, made under s 499 of the Act. Having undertaken that exercise, the Tribunal affirmed the Minister’s Decision.

12    On the evidence before it, the Tribunal accepted the appellant’s claims about his family background as “plausible and credible”, however, it found his evidence regarding SLA or CID interest in his family to “lack [creditability] due to inconsistencies and the applicant’s vague and speculative evidence”. In particular, the Tribunal did not accept that the appellant’s brother had “some kind of responsibility” or a “higher position” within the LTTE; did not accept the SLA visits to the family home were for any reason other than to make general inquiries and were not solely for the purpose of inquiring about the brother; did not accept that the CID made any visits and did not accept that the appellant was of any interest to the SLA when he left Sri Lanka. Overall, the Tribunal found the applicant’s evidence regarding ongoing visits to his home “vague and lacking in detail that it would expect him to be aware of”.

13    The Tribunal also considered the risks faced by the appellant “on the basis of the above findings and general claims regarding his risk of harm as a Tamil… his LTTE associations and imputed pro-LTTE and/or anti-government political opinion”. On the basis of the country information before it, the Tribunal formed the view that being a Sri Lankan Tamil “no longer gives rise to a risk profile in Sri Lanka now nor does such a profile impute an individual with pro-LTTE opinion”.

14    The Tribunal next considered the appellant’s claims relating to his religion, however, did not accept that the appellant faces any real chance of serious or significant harm as a member of the Hindu religion in Sri Lanka.

15    The Tribunal then considered the appellant’s claims relating to his status as a failed asylum seeker and his illegal departure. The Tribunal accepted that the appellant would likely be referred for questioning and criminal and security checks by Sri Lankan authorities, and as a result, is likely be charged with an offence under the Immigrants and Emigrants Act 1949 (Sri Lanka) and held on remand. The Tribunal did not, however, accept that the appellant would face serious or significant harm as a result of either questioning or during the period of remand which it found would only be a “short period of up to 24 hours or a few days maximum”.

16    As the Tribunal was not satisfied that the appellant faced any real chance or risk of harm for any of the reasons claimed, the Tribunal affirmed the Minister’s Decision.

The Decision of the Primary Judge

17    The appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia on grounds which are near identical to the grounds of appeal relied upon in this Court. The primary judge dismissed each.

18    In dismissing the first ground, the primary judge concluded that the Tribunal had addressed the integers raised by the appellant, including his fear of harm within the Sri Lankan prison system from either other inmates or prison authorities on the basis of his political opinion, profile or ethnicity. The primary judge found the Tribunal had been “cognizant of and considered carefully the submissions made by the appellant” and clearly directed itself at paragraph [101] of its reasons to the risks the appellant would face in prison, assessing those risks by reference to country information provided by the Department of Foreign Affairs and Trade.

19    Having regard to the Tribunal’s reasons, the primary judge found at PJ [28]:

(a)    First, the Tribunal was aware of the Applicant’s claims as is evident from, inter alia, its explicit references to the Applicant’s submissions and reports of the ill-treatment that occurred within Sri Lankan prisons;

(b)    Second, the material that the Applicant points to was not probative of the question facing the Tribunal. He only placed before the Tribunal extracts of the earlier Tribunal decisions which contained conclusions and not the underlying material. It was open to the Tribunal in the present matter to reach either the same or a different conclusion to earlier Tribunal decisions. Further, the material the Applicant placed before the Tribunal was dated and the Tribunal referred to more recent country information;

(c)    Third, the Tribunal found that the Applicant did not face a real chance or risk of serious or significant harm by reason of his Tamil race. That, as I have indicated, was a general finding; one that can be read as extending to risks in prison; and

(d)    Fourth, the Tribunal found that the Applicant would not face significant harm in what would otherwise be a short period spent in prison.

20    The primary judge was therefore satisfied that the Tribunal had considered the claims the appellant contends were not considered.

21    On the basis of his Honour’s findings in relation to ground one, along with concessions made by the appellant at the commencement of the hearing, the primary judge found it unnecessary to deal with ground two in any detail. His Honour concluded ground two must also be dismissed.

The Appeal to This court

22    Although the appellant was legally represented at the Tribunal and before the primary judge, the appellant appeared unrepresented before me with the assistance of an interpreter.

23    The appellant did not file written submissions ahead of the hearing. At the hearing, the appellant sought to challenge the merits of the Tribunal’s decision. It soon became clear that the appellant has two complaints. One, that his evidence should have been accepted by the Tribunal; and the other that he has more recent evidence to present in support of his application. I explained to the appellant that I was unable to look at the merits of his claim, unable to receive new evidence and that to succeed before me, he would need to demonstrate jurisdictional error in the primary judgment; a concept that I explained to him as simply as I could.

24    Despite the above explanation, the appellant sought to challenge the country evidence on which the Tribunal relied in making its decision on the basis that it was contradictory to what he was hearing from family members presently in Sri Lanka. I therefore explained to the appellant that the fact the Tribunal reached a conclusion contrary to the appellant’s claims does not mean that the Tribunal erred in a way that could be reviewed in this Court. As submitted by the first respondent, the information relied upon by the Tribunal was recent and the choice of country information is a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, Gray, Tamberlin and Lander JJ at [11]-[13].

25    The first respondent helpfully filed written submissions ahead of the hearing. I accept the first respondent’s submissions that the Tribunal did not fail to deal with any aspects of the appellant’s claims and, as the primary judge found, the Tribunal was aware of the appellant’s claims, carefully considered the claims as to any risk of harm while being held on remand and the submissions in support made by him, and expressly rejected there being any real chance or risk of serious or significant harm while on remand. On this basis, ground one of the appeal cannot succeed.

26    I also accept the first respondent’s submissions that ground two does not add to ground one with the consequence that it must also fail.

27    As the appellant has been unable to identify any errors in the primary judgment the appeal must be dismissed. Despite the submission of the appellant, I see no reason to depart from the usual rule that costs should follow the event.

Conclusion

28    I therefore make the following orders:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs to be agreed or assessed.

Associate:

Dated:    4 November 2022