FEDERAL CIRCUIT COURT OF AUSTRALIA
AGH15 v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 1797	

Catchwords: 
MIGRATION – Protection visa – refusal – review of decision of Refugee Review Tribunal – allegation that the Tribunal erred by asking itself the wrong question as to what constitutes persecution and applied the wrong test as to what constitutes significant harm – no jurisdictional error – application dismissed. 	

Legislation:
Migration Act 1958 (Cth), ss.5, 36, 91R	

BZAFM v Minister for Immigration & Border Protection [2015] FCAFC 41
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SGBB v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 199 ALR 364
SZTAL v Minister for Immigration & Border Protection [2015] FCCA 54
SZTCY v Minister for Immigration & Border Protection [2015] FCCA 85
SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39
SZTGM v Minister for Immigration & Border Protection [2015] FCCA 87
SZTIB v Minister for Immigration & Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration & Border Protection [2014] FCA 947	

Applicant:	AGH15	

First Respondent:	Minister for Immigration & Border Protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 787 of 2015	

Judgment of:	Judge Smith	

Hearing date:	11 June 2015	

Date of Last Submission:	11 June 2015	

Delivered at:	Sydney	

Delivered on:	11 June 2015	

REPRESENTATION
Counsel for the Applicant:	Mr J. Mack	

Solicitors for the Applicant:	Michaela Byers, Solicitor 	

Solicitor for the Respondents:	Mr J. Pinder, Minter Ellison	

ORDERS
(1)	The application be dismissed.
(2)	The applicant pay the first respondent’s costs fixed in the amount of $6,825.

(1)	
FEDERAL CIRCUIT COURT 
OF AUSTRALIA 
AT Sydney	
SYG 787 of 2015
AGH15	
Applicant

And

Minister for Immigration & Border Protection	
First Respondent
Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
(Delivered Ex Tempore & Revised)
1.	This is an application for judicial review of a decision of the second respondent (“Tribunal”) to affirm the decision of a delegate of the first respondent to refuse to grant the applicant a protection visa.
2.	This Court can only grant relief in the event that it is satisfied that the Tribunal’s decision was affected by jurisdictional error: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. For the reasons that follow there is no jurisdictional error in the Tribunal’s decision and the application will be dismissed.
Background
3.	The applicant is a citizen of Sri Lanka, who arrived in the Cocos Islands as an unauthorised maritime arrival on 12 August 2012. On 13 December 2012, he made an application for a protection visa in which he made the following claims.  
4.	The applicant's mother was remarried when he was very young and the applicant was treated very badly by his stepfather. An acquaintance obtained him a job working as a houseboy in Colombo.  However, he was also mistreated there and was taken to a second family. He claimed that he was mistreated in Colombo because of his ethnicity, namely his being Tamil.  
5.	The applicant started working in restaurants when he was 15 or 16 and later moved to Negombo to work in the fish business.  However, he could only get odd labour jobs and became a homeless person although he managed enough work to rent a place and to get married. He became a self-employed fish seller but he fell into debt to his suppliers and was attacked with a knife by one of them and, on another occasion, threatened with death.  The police did nothing to protect him.
6.	The applicant claimed that he feared that he would be killed by the Sinhalese to whom he owed money, upon return to Sri Lanka and that the government, being Sinhalese, was not interested in protecting Tamils such as himself.  He claimed that this discrimination against Tamils affected his whole life and he would not be able to make a sustainable living.
7.	On 17 July 2013, a delegate of the first respondent (“Minister”) decided to refuse to grant the applicant a protection visa. As part of her reasons, the delegate considered what might occur to the applicant if he were to return to Sri Lanka as a failed asylum seeker and as having departed Sri Lanka illegally.  The applicant applied to the Tribunal for review of that decision with the assistance of a migration agent.  
8.	In January 2015, the applicant attended a hearing conducted by the Tribunal and gave evidence in support of his claims. During the hearing, the Tribunal put to the applicant information that under the Immigrants and Emigrants Act in Sri Lanka, everyone who was believed to have left unlawfully was arrested and taken to Negombo Magistrates Court for a bail hearing.  
9.	The information went on to the effect that the bail was provided and the accused were then allowed to return to their homes on the basis that they later return to the Court to answer the charge. If convicted they were fined.  If they arrived on a weekend or a public holiday, they were held briefly in the remand section of Negombo Prison while awaiting a bail hearing.
10.	In response, the applicant said that he did not believe that he would be released from prison and that even if he were, trouble would start again five months later. Four or five months later, he also mentioned an incident in which he claimed he had been taken to the CID in Colombo in 1994 and was released a short time later.  
Tribunal’s decision
11.	The Tribunal made its decision on 17 February 2015, affirming the delegate's decision.  The Tribunal accepted that the applicant was a citizen of Sri Lanka, ethnically Tamil, and a Hindu. It found that the applicant had not clearly articulated a Convention link for his claimed fear of return to Sri Lanka but accepted that his claims were that his creditors were Sinhalese and were motivated to harm him, at least in part because of his Tamil ethnicity, and for that same reason the authorities had been unwilling to protect him.
12.	However, the Tribunal was satisfied that the applicant had never been threatened by his creditors and gave the following reasons for that finding.  First, the applicant's evidence at the hearing about the identity of the persons he feared was notably vague and lacking in some circumstantial detail. It was implausible that his house would be attacked in broad daylight on three to four occasions without his landlord having become aware of it or taking some action to bring an end to the attacks.  
13.	Also, as to the incident in which the applicant claimed to have been stabbed, the applicant made it clear in his evidence that he did not fear the fisherman responsible for the attack. Next, it was implausible that the applicant knew so little about the person he claimed had guaranteed payment for his illegal journey to Australia and also that the money needed for that journey would not have been used to repay the applicant's debts.
14.	For those reasons the Tribunal concluded that the applicant was not truthful about his circumstances in Sri Lanka and that there was no real chance that he would suffer harm from such people as creditors upon return there. The Tribunal then considered the applicant's general claims to fear harms as a Tamil.
15.	In that respect, while the Tribunal accepted that up until the end of the civil war in May 2009, Tamils in Sri Lanka were at an appreciable risk of persecutory harm at the hands of the authorities. However, it found that the risk of that harm had been substantially reduced since that time.  
16.	On the basis of the country information before it, the Tribunal was not satisfied that ethnic Tamils in Sri Lanka now faced a real chance of serious harm simply because of their ethnicity or that associated factors, such as being a young male having geographic origins of the north or east of the country, put them at greater risk of such harm. In particular, the Tribunal did not accept that the applicant, in his circumstances, including that of being a young male, gave rise to a real risk of serious harm, including the inability to find subsistence or to be denied any political, economic, religious or other rights.
17.	The Tribunal found that the applicant was not suspected of any anti‑government, political opinion. It accepted the authorities would most likely know that the applicant had unsuccessfully sought protection in Australia, however, did not accept that he would be suspected of having links with or opinions supportive of the LTTE because of that fact.  It also rejected the possibility that the applicant might be suspected of LTTE involvement on the basis that he was somehow involved in the people smuggling venture.
18.	The Tribunal then considered whether the applicant might be at risk of harm on return because he had sought asylum in Australia more generally. The Tribunal accepted the applicant would be subject to some processes on return, such as police checks, however, was not satisfied that that would involve him in being singled out or targeted in a fashion because of his Tamil ethnicity or for any other reason.
19.	It was not satisfied that the fact that he would be questioned at the airport, even for an extended period, could in itself reasonably be characterised as harm or that he would be subjected to any other form of mistreatment there.
20.	The Tribunal then considered whether the applicant might be at risk of serious harm because of his unlawful departure in itself or that the risk of that harm might be exacerbated for having sought asylum in Australia.  In this respect it said the following:
	[45]	The information before the Tribunal indicates that under tightened procedures adopted in November 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants Act) are arrested at the airport and brought before a magistrates court for a bail hearing. Bail is routinely given on the accused’s own recognizance although a family member may also be required to provide surety. If the arrival occurs over weekend or a public holiday the returnees placed in remand section of Negombo prison, possibly for some days, until the next opportunity for a bail hearing arises. Conditions in Negombo prison have been described in media reports as overcrowded and unsanitary, although there is no evidence to indicate the returnees held their awaiting bail hearings on charges of breach of the Immigrants and Emigrants Act have been subjected to torture or other forms of deliberate mistreatment.
	[46]	Although the Immigrants and Emigrants Act provides for penalties of both imprisonment and fines on conviction for illegal departure, the information before the Tribunal indicates that magistrates and judges have discretion in imposing penalties, and that in practice those who have simply breached the terms of the Act by departing through a point other than an official port of entry or exit are only fined. DFAT reports that it was informed in March 2014 by Sri Lanka’s Attorney-General’s Department, which is responsible for the conduct of prosecutions, that no returnee was only a passenger on people smuggling venture has been given a custodial sentence for departing Sri Lanka illegally but that fines have been issued to act as a deterrent against joining boat ventures in the future. According to DFAT fines eventually imposed on returnees by the courts for illegal departure range from Rs 5,000 to 50,000 (about AUD 45 to 450 at current exchange rates). DFAT reported that it had not received and was unaware of allegations of mistreatment of returnees in general at the airport or in remand.
21.	The Tribunal found that Sri Lanka's law regarding unlawful departure was a law of general application which was appropriate and adapted to meet the legitimate national interests in regulating the security of the country's borders and found that it was not selectively enforced, or enforced in a way for any Convention reason but instead was applied to Sri Lankans found to have departed illegally regardless of their race or other personal circumstances.
22.	Further, the Tribunal found that there was no real chance that on return to Sri Lanka the applicant would face more than questioning at the airport, detention for a brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined. It was not satisfied that that treatment could reasonably be seen as constituting serious harm for the applicant.  
23.	On the basis of those findings the Tribunal was not satisfied that there was a real chance that the applicant would suffer serious harm amounting to persecution, for one of the Convention reasons, and so was not a refugee.
24.	It turned then to the complementary protection regime in sub-s.36(2)(aa) of the Migration Act 1958 and found, at [52]:
	… While I accept he would face arrest on charges of illegal departure, that he would be held in remand for a relatively brief period while awaiting a bail hearing and the he would later be fined if found guilty I'm not satisfied this treatment could reasonably be seen as amounting to significant harm in terms of the complementary protection provisions of the Act. …
25.	It continued at [53]:
	… I am not satisfied … that there is a real risk he would be arbitrarily deprived of his life, the death penalty would be carried out on him, he would be subjected to torture, or he would be subjected to treatment or punishment which was cruel and inhuman or degrading.
26.	For those reasons the Tribunal was not satisfied that the applicant met the criteria for the grant of a protection visa and so affirmed the decision under review.
Consideration
27.	There are two grounds in the application before me:
	1.	The Tribunal erred by asking itself the wrong question as to what constitutes persecution. 
	Particulars
	a.	The Tribunal accepted that under tightened procedures adopted in November 2012, returnees who are believed to have left the country in breach of the law on immigration and emigration (the Immigrants and Emigrants act) are arrested at the airport and brought before a magistrates court for a bail hearing;
	b.	If the arrival occurs over a weekend or on a public holiday the returnee is placed in the remand section of Negombo Prison, possible for some days, until the next opportunity for a bail hearing arises; and
	c.	The Tribunal as failed to consider the applicant’s claim of threat to his liberty in accordance with s.91R(2)(a) and the Federal Court of Australia decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.
	2.	The Tribunal erred by applying the wrong test as to what constitutes significant harm.
	Particulars
	a.	The Tribunal accepted that the applicant would face arrest on charges illegal departure;
	b.	He would be held in remand for a relatively brief period while awaiting a bail hearing;
	c.	He would be fined if found guilty;
	d.	Degrading treatment/punishment requires considering whether the act of holding the applicant in poor prison conditions is an intentional act by Sri Lankan authorities that would cause the applicant extreme humiliation and embarrassment. 
Ground 1
28.	The first ground is based upon the decision of North J in the decision of WZAPN v Minister for Immigration & Border Protection [2014] FCA 947, which was to the effect that any period of detention, however isolated or short, necessarily constituted persecution and that there was no room for a qualitative assessment of that detention. In his written submissions the applicant suggested the decision was not found to be clearly wrong by the Full Court of the Federal Court in three recent cases, and that because the High Court had recently reserved its decision in the appeal from the decision of North J, the Court should adjourn the proceedings.
29.	I refused the adjournment on the basis that if the application were adjourned, this case would not be likely to be heard until some time next year, and given that it is impossible to predict the outcome of the appeal to the High Court, it was not in the interests of the administration of justice that there be a significant delay in the resolution of these proceedings.  
30.	Further, in my view, I am bound to apply the more recent and closely reasoned decisions of the Full Court in SZTEQ v Minister for Immigration & Border Protection [2015] FCAFC 39, SZTIB v Minister for Immigration & Border Protection [2015] FCAFC 40 and BZAFM v Minister for Immigration & Border Protection [2015] FCAFC 41. If I am not bound by those decisions then I would, in any event, prefer those to that decision of North J.  In each of those cases the Full Court held that on its proper construction, s.91R does not forbid a qualitative assessment of claimed detention or imprisonment with a view to establishing whether or not it rises to the level of serious harm so as to constitute persecution if the detention or imprisonment is for a convention reason, and the other aspects of s.91R are satisfied.
31.	Here the applicant's complaint is that the Tribunal engaged in a qualitative assessment of the possible detention that the applicant faced upon return to Sri Lanka.  I accept that that is what the Tribunal did.  However, it was entitled, if not required, to do so on the strength of the authority of the Full Court of the Federal Court.  In light of that, the first ground cannot succeed.
Ground 2
32.	In respect of the second ground, the applicant concedes that the facts of this case are relevantly similar to those in the decisions of SZTAL v Minister for Immigration & Border Protection [2015] FCCA 64, SZTGM v Minister for Immigration & Border Protection [2015] FCCA 87 and SZTCY v Minister for Immigration & Border Protection [2015] FCCA 85, which stand for the proposition that, in order to constitute degrading treatment or punishment for the purposes of ss.5 and 36(2A) of the Act, there needs to be actual subjective intent.  
33.	However, he argued that those cases are subject to appeals which will be determined relatively soon, and requested an adjournment pending the outcome of the appeals.  He properly conceded that on the present state of the law, the proposition relied upon would fail.  However, for the reasons that I have given in respect of the first ground, I was not prepared to adjourn the proceedings pending the outcome of those appeals.
34.	The applicant, at the hearing and in written submissions filed shortly before the hearing, put an alternative way of arguing the second ground, namely that the Tribunal erred by applying the wrong test as to what constitutes significant harm by failing to consider whether the enactment of the Immigrants and Emigrants Act by the Sri Lankan Parliament, constituted an Act for the purposes of definition of degrading punishment or treatment in the Act.  In my view, that argument does not readily arise on the grounds as set out in the application itself, and leave is required in order for it to be argued.
35.	The applicant has read without objection the affidavit of Michaela Byers that, to some extent, explains the lateness of the provision of the written submissions in this case. The deponent explains that she had originally briefed counsel in the matter on 16 May 2015 and was only told on 29 May 2015 that the counsel would no longer be able to appear on today at the hearing.  She does not indicate who that counsel was or the reasons given for that inability to attend.
36.	Ms Byers says that she contacted Mr Mack of counsel on 3 June, which was last Wednesday, and that he received the brief from counsel who had originally been briefed.  Mr Mack agreed to appear pro bono in the matter and on 4 June 2015, he had a conference with Ms Byers in respect of the case.
37.	As a consequence of that conference, Ms Byers emailed the solicitors for the Minister, requesting a number of documents, those being the documents that were referred to in the Tribunal's decision, being the country information concerning the circumstances in Sri Lanka as they relate to the applicant.  
38.	Ms Byers deposes that she received the documents on 9 June and sets out in annexure B in an email by which she said she received them.  She says in para.7 of her affidavit that Mr Mack was not able to settle the submissions before reviewing the documents requested in annexure A.
39.	I accept that to some extent Ms Byers was hampered in her preparation of the case, as was Mr Mack, because of the late unavailability of other counsel.  However, it is remains unexplained why earlier efforts were not made to amend the application in circumstances where orders had been made on 23 April that allowed that to be done.  The applicant was well represented by solicitors who are very experienced in refugee matters and each of the grounds as raised had significant difficulties with them, given the state of the authorities discussed above.
40.	Nevertheless, I think it is important in determining whether or not to grant leave to consider whether or not the ground is sufficiently arguable because even if the excuse is not really sufficient, it may be that the administration of justice is best served by allowing the ground to be raised, in effect overcoming the obstacle that the applicant would face in seeking an appeal.  In other words, requiring leave rather than simply having a right to appeal against the decision of this Court.
41.	Section 36(2)(aa) of the Act provides:
	(2)	A criterion for a protection visa is that the applicant for the visa is:
	…
	(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 …
42.	Significant harm in that provision is dealt with by sub-s.(2A) and includes:
…
(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.
43.	“Degrading treatment or punishment” is further defined in s.5 to mean:
	… 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.
44.	Mr Mack, who appeared today for the applicant, accepted that in order for there to have been jurisdictional error in the Tribunal's decision, there had to have been some obligation upon him to consider whether the enactment by the Sri Lankan Parliament of the Immigrants and Emigrants Act could have fallen within the description of degrading treatment or punishment mainly, and perhaps more particularly, that the Sri Lankan Parliament intended to cause extreme humiliation which was unreasonable, by enacting that Act.
45.	He would have to establish, in accordance with the authorities such as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1 and Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 77 ALJR 1088, that the argument was sufficiently raised on the material before the Tribunal.  The way in which he sought to argue that case was that on the face of the law, which imposed a maximum penalty of five years and also a fine, the intention of the Parliament was to cause extreme humiliation.  
46.	I will leave aside for the moment the fact that his submissions do not deal with the aspect of the definition which requires that the extreme humiliation be unreasonable, although that too tells against the proposition.  
47.	There are a number of serious difficulties with this ground.  The first is, and this seems to have been admitted by Mr Mack, that there is a significant degree of complexity to the argument.  One, in other words, that does not leap off the page.
48.	The degree of complexity tells against acceptance of the proposition that it was sufficiently raised before the Tribunal, particularly given that neither the applicant himself nor the migration agent raised the argument.  That is not surprising because I have never seen this argument raised before.
49.	Another proposition is that set out at [29] of the applicant's submissions, which I have referred to earlier, namely that the intention element was satisfied on the face of the law, which mandates a person who has left Sri Lanka illegally and without a passport is to be subjected to a minimum of one year imprisonment and a maximum of five years and also a fine. This appears to be relying upon the ascertainment of an objective intention in a manner familiar to people who are accustomed to construing legislation and other written documents in Australia and other common law countries.
50.	The face of the law, however, does nothing to reveal any subjective intention and that, according to the current state of the law, is what is required.  In these circumstances it might be asked whose intention: is it the intention of the entire Parliament or the majority of the Parliament?  That certainly doesn't arise from the material before the Tribunal.
51.	Another difficulty is that the penalty appears to be a maximum penalty and with no direction in the law that any particular penalty ever be imposed. Certainly on the findings of the Tribunal, the penalties that are imposed do not, in the circumstances of people in the applicant's situation ever or, if ever then only rarely, include any term of imprisonment. Rather, they tend to be an imposition of fine which varies from Rs 5,000 not a considerable sum, up to Rs 500,000 which, for a Sri Lankan, I accept might be considerable: an amount, according to the evidence, of roughly AUD $450
52.	For those reasons, in my view, the Tribunal was under no obligation to consider the argument, namely because it was never raised, even in the most obscure way, before it.  It is trite law, although sometimes difficult to apply, that the Tribunal is not obliged to consider a claim or argument that does not arise in the material (see NABE) or unless it is a substantial clearly articulated argument relying upon established facts (see Dranichnikov at [24]).  The question is whether the case put by the applicant before the Tribunal has sufficiently raised the relevant issue so that the Tribunal should have dealt with it (see SGBB v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 199 ALR 364 at [18]).
53.	For those reasons, even if it was possible to find that the Sri Lankan Parliament intended to cause extreme humiliation by enacting the Immigrants and Emigrants Act, it was not incumbent upon the Tribunal to consider whether it was in that case, and any failure by it to deal with it did not amount to jurisdictional error.
54.	In any event, the ground appears to have been dealt with by the Tribunal in two ways.  First, it found at [48] that the relevant law was appropriate and adapted to meet a legitimate national interest in regulating and securing the country's borders.  That finding appears to me to be inconsistent with the basis proposition underlying this ground. Mr Mack argued that because that finding was made in respect of the Refugee Convention criteria in s.36(2A) it could not be imported into the complementary protection regime.
55.	However, it is clear, in my view, from the way in which the Tribunal's reasons are structured, that each of the findings of fact, and its finding about the Act was one of fact, was relied upon in respect of both the refugee and the complementary protection criteria.  
56.	Secondly, the Tribunal found that the applicant would only be fined at most and, possibly, if he arrived at the weekend or some public holiday, might be detained briefly while awaiting for a bail hearing.  That, in my view, tells against the proposition not only that the Parliament intended that there be extreme humiliation by the operation of the Act but also that it caused such extreme humiliation.  In effect, the Tribunal rejected the operation of the definition of degrading and humiliating treatment in respect of the facts that it found might happen to the applicant.
57.	For that additional reason it did not matter whether or not the Act in question was the enactment of the Immigrants and Emigrants Act or some other Act.
Conclusion
58.	There has been some excuse given for not raising this ground before and, although the ground would ultimately fail, it is not entirely unarguable. For those reasons, although I do so with some hesitation, I will allow the applicant leave to raise the argument but I reject it. The Tribunal’s decision was not affected by jurisdictional error. The application must be dismissed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate:  

Date: 6 July 2015