AAQ15 v Minister for Immigration
[2015] FCCA 645
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAQ15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 645 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958, s.476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 |
| Applicant: | AAQ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 455 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 19 March 2015 |
| Date of Last Submission: | 19 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 March 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondent: | Mr S. Speirs Clayton Utz |
ORDERS
The proceeding before this Court, commenced by way of application filed on 25 February 2015, is summarily dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $1,367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 455 of 2015
| AAQ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ giving the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal of 4 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa. The application identifies on its facing return date, the Court may hear and determine all interlocutory or final issues or making of directions for the future conduct of the proceedings. The application in this case identified the following ground:
That the decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.
It is patent on the face of that ground that it fails to identify any jurisdictional error.
In those circumstances, the Court raised with the applicant that having looked at the Tribunal’s decision and the application it was minded to entertain considering whether it should exercise its powers of summary dismissal.
In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), I take into account the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].
The applicant indicated that he had not yet had the opportunity to obtain the oral recordings from the Tribunal and review that material. The applicant requested an adjournment to do so. The Court indicated that there is no utility in granting an adjournment unless there is some arguable jurisdictional error. When invited to identify any further submission as to why there was a jurisdictional error, the applicant indicated there was nothing further to add.
In this case, the Tribunal identified that the applicant was a citizen of Sri Lanka and assessed his claims against that country. The applicant applied for the protection visa on 16 November 2012 having travelled to a number of other countries which I will not identify prior to that. That application was refused on 8 January 2014. The applicant applied for a review by the Tribunal and the Tribunal had a hearing at which the applicant attended to give evidence and present arguments. The applicant was accompanied by his registered migration agent as well as assisted by an interpreter. At the conclusion of the hearing, the applicant was provided with a timeframe to provide further submissions. However, the Tribunal received notification a few days after the conclusion of the hearing that the applicant did not wish to make any further submissions.
The Tribunal correctly identified the applicant’s claims for a protection visa and the evidence that he gave in that regard. The Tribunal made an adverse finding as to the credit of the applicant as set out as follows:
21. Looking at the evidence in its entirety, I consider it implausible that the person or persons described in this case would have waited a year or so to continue their theft of whatever gold Mr Kugenthiran might have possessed. Wheras the delegate accepted that the initial theft did occur, I put to Mr Kugenthiran that the more he told me the more his story struck me as being less plausible overall. On its own, as shown the story incident at the checkpoint includes a number of inconsistencies and implausible elements. On review of the evidence I do not accept that this incident occurred. This is significant as it logically flows that I do not accept that Mr Kugenthiran received a telephone call from a soldier from the unidentified checkpoint in 2012, and that I do not accept that any soldier or soldiers came looking for him or for more gold after he left Sri Lanka. In addition, I find the story about the visits to Mr Kugenthiran’s family home, on its own, to be undermined by a number of inconsistencies. For this reason I do not accept that Mr Kugenthiran’s description of, or explanation for, the intervening telephone call is reliable. On review of the evidence overall, I find that this whole story is a concoction. On the evidence before me, which I find overwhelmingly untruthful, I dismiss this claim in its entirety, except by and a large for two integers: I accept that Mr Kugenthiran is a goldsmith who has sometimes carried and worked with valuable amounts of gold and jewellery and that his work over the years has required him to travel between Ampara in the east and the capital, Colombo.
24. I note that in his account of coming to Australia, Mr [K] disclosed that he left Sri Lanka illegally, so I considered it fair to ask him if he had any relevant fears relating to that factor. He confirmed that he left Sri Lanka illegally but said he did not have any relevant fears in relation to this factor. I put to him that, according to independent country information, he might be interviewed on arrival at Colombo airport as to the means by which he departed Sri Lanka and he said, “Yes.” I then put to him that, according to independent country information, that he might be prosecuted under generally-applicable laws relating to illegal departure from Sri Lanka, and he continued to make no claims in relation to this issue. When I asked Mr [k] himself if he had any fears relating to or arising from or alongside of the process of being interviewed, remanded, charged and fined over illegal departure from Sri Lanka, he said he did not. This was an opportunity for him to argue whether he might face discriminatory treatment in the course of prosecution, such as for reasons of being a Tamil. However, he did not suggest that the laws I mentioned are discriminatory or that they would be applied or exploited in any way that might discriminate against him. He went on to confirm that his protection visa application relies entirely on his fears about the individual/s seeking to rob him of the gold that he/they presume he possesses. I gave Mr [K] a further opportunity to make any claims he might wish to make in relation to his treatment on return, not only at the hearing but also by permitting additional time after the hearing for a further written submission. As notes, no post-hearing submission was made. I note that at paragraph 2.2 of Mr [K]’s 2 January 2015 submission, his adviser makes one bald reference to her client fearing persecution in Sri Lanka “both in terms of the extortion demands and as a failed asylum seeker”; however, Mr [K] made no claims in relation to this factor at or since the hearing.
25. As to the claim in the 2 January 2015 submission about Mr [K] facing persecution for reasons of being a “failed asylum seeker”, the section of the submission in which it appears merely proceeds to cite very generalised references to abductions in different parts of Sri Lanka in the post-war period. In this way, the submission fails to provide any detailed argument about “failed asylum seekers” facing persecution in Sri Lanka. In addition, the submission does not argue, let alone in any detail, that returning asylum seekers or returnees who previously departed Sri Lanka illegally face persecution in Sri Lanka.
26. … Overall, I am of the view that the sources discussed here would contain evidence of persecution for reasons of being a “failed asylum seeker” if the claim had a basis in fact.
The Tribunal also turned to the application as a person who left Sri Lanka illegally of the Immigrants and Emigrants Act 1949:
27. As discussed with him, I find on the basis of the information provided in the October 2014 DFAT Sri Lanka Country Report that on return to Sri Lanka by air, Mr [K] would likely come to the attention of authorities there as a former illegal emigrant from Sri Lanka as soon as he reaches the airport. I accept that he will likely be questioned by police on return and possibly charged under the I&E Act. I accept that he may have fingerprints taken and be photographed. l accept he may be transported by police to the Magistrates Court in [N] at the first available opportunity after investigations are completed and come under the responsibility of the courts or prison services. I accept that he could remain in police custody at the airport for up to 24 hours, or for three or four days if there is an intervening weekend, and then bailed. I accept that many if not most of the people with whom Mr [K] could be remanded may be Tamils. I find on the independent evidence that he would be granted bail on his own recognisance as, having considered all of the evidence in this case, including his own assertions about not fearing any imputed linkage, I find he would not be suspected of association with the LTTE. Mr [K] did not suggest that he would be accused of any link with people smugglers, and I am not satisfied o the evidence before me that he ever would be.
28. On the DFAT evidence before me, I find that the process of interviewing, detaining and prosecuting Sri Lankans who previously departed illegally is implemented under laws of general application. On the evidence before me, including the evidence and arguments in all of the submissions before me, I am not satisfied that the law that detains or remands illegal emigrants is discriminatory or enforced in a discriminatory way. I am satisfied on the evidence before me that the laws and processes relating to returnees including those who previously departed Sri Lanka illegally would not be applied, exploited or manipulated in any way as to discriminate against Mr [K], notwithstanding that he is a Tamil. In the event that Mr [K]were detained for having departed Sri Lanka illegally, s.91 R(l )(c) of the Act, an essential element of "persecution" as defined under s.91R(l), would not be met because I find on the evidence before me that this treatment does not involve "discriminatory conduct".
29. I have considered whether the conditions in which Mr [K]might be remanded could constitute serious harm but neither Mr [K]nor his adviser have suggested that they would. They did make some generalised claims about "unlawful detentions" and "torture" but I give more weight in this case to Mr [K]having nothing to say about how the process of being prosecuted on return might affect him. I have taken into account that he would be experiencing detention as a member of the Tamil minority, however I am not satisfied on the evidence in this case that remand conditions would constitute serious harm within the nature ofs.91R(2).
30. 1 have considered whether Mr [K] faces a real chance of serious harm in Sri Lanka for reasons of being a Tamil, or Tamil male or young adult Tamil male, or for reasons of any similar permutation of characteristics. In the course of this consideration, I have again referred to the UNHCR and DFAT material. I had particular regard to arguments in the adviser's submission about the behaviour of state agents in the north and east of Sri Lanka. I give weight to evidence about Mr [K]'s family continuing to live and work as usual in their home district, although note that Mr [K] has suggested at different stages of his evidence that employment and the economy have been weaker of late. I have considered the evidence of Mr [K]' s freedom of movement within Sri Lanka, such as to and from [A], [C] and [N] and on to [T] and his ability to live and work in different regions in Sri Lanka including his home region. On the evidence before me, I do not agree with the submission about his being unable to move freely outside of his family home. Overall, I am not satisfied that Mr [K] faces a real chance of serious harm in Sri Lanka for reasons of being a Tamil, or Tamil male or young adult Tamil male, or for reasons of any similar permutation of characteristics.
31. I have had regard to the material in the pre-hearing submission about unlawful killings by security forces and paramilitary groups being common in predominantly Tamil areas in the north and east of Sri Lanka, and I have considered that in a report subsequent to its 2012 edition4, the US Department of State observed that discrimination and other abuses in Sri Lanka have disproportionately affected Tamils. However, on the evidence before me, I am not satisfied that Mr [K] faces a real chance of persecution directly or indirectly from security forces and paramilitary groups or anyone else in Sri Lanka in the reasonably foreseeable future.
32. On the evidence before me I find it would be reasonable for Mr [K] to continue to live and work in [C] and in his home province. On the evidence before me, I find that there would be no obstacle to Mr [K] re-accessing his home region after the arrival process discussed above.
33. I have considered Mr [K]'s claims cumulatively and separately. I have considered general references to Sri Lanka's human rights situation. However, on the evidence before me, l am not satisfied that Mr [K] faces a real chance of persecution in Sri Lanka in the reasonably foreseeable future for any Convention-related reason. Accordingly, I am not satisfied that he has well founded fear of Convention-related persecution in Sri Lanka. I find that he is not a refugee. For the reasons given above, I am not satisfied that Mr [K] is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore Mr [K] does not satisfy the criterion set out in s.36(2)(a).
Having found that the applicant does not face a well founded fear of persecution in Sri Lanka, the Tribunal turned to consider the complementary protection criterion under 36(2)(aa) and relevantly made the findings identified in the following paragraphs:
38. As to the matter of having left Sri Lanka illegally, I consider it significant that when I raised this a number of times with Mr [K] he did not express or identify any fears in relation to how he might be treated in regard to having departed the country unlawfully. I discussed the law with him and he made no claims in response. His adviser fleetingly referred to "failed asylum seekers", but he himself did not take any opportunity provided to discuss this and I am not required to make his case for him. Relevant to this issue, I do not accept on the evidence before me that the process of investigating Mr [K]'s illegal departure or other aspects of his background on return to Sri Lanka, or the period he may face in in custody for questioning or remand or the fine he might have to pay for illegal departure, or any ensuing sanctions would involve or amount to significant harm, as an act or omission will not constitute torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment if it arises only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights. I find they are lawful sanctions under the I & E Act and not inconsistent with the Covenant.
39. I also find that there would be taken not to be a real risk that Mr [K] will suffer significant harm as a result of the sanctions involved, including his possible detention, because I am satisfied that they come within the exception set out in s.36(28)( c) in that as a law to which everyone is subject, the risk is one faced by the population of the country generally and is not faced by Mr [K] personally.
40. l find on the evidence before me that in regard to the process of being prosecuted for illegal departure, Mr [K] will not be, and has not claimed that he will be, arbitrarily deprived of his life or subject to the death penalty being carried out. In light of my finding above on the conditions in which Mr [K] might find himself if remanded and particularly in light of his having made no claims as to how the enforcement of the law might affect him in such circumstances, in spite of ample opportunity to do so, I am not satisfied that the remand conditions he might face constitute torture or cruel or inhuman treatment or punishment; this is because no information before me indicates that it is severe physical or mental pain and suffering or pain and suffering that is cruel or degrading in nature. Nor is it degrading treatment or punishment as it does not involve extreme humiliation.
41. I do not accept that Mr [K] faces a real risk of significant harm from the state, or the authorities, or agents or supporters of the state, or any other party, in the course of or subsequent to return to his home region. In particular, on the evidence before me, I am not satisfied that Mr [K] faces a real risk of significant harm directly or indirectly from security forces and paramilitary groups anywhere in Sri Lanka. I am not satisfied on the evidence before me that Mr [K]'s status as a Tamil, on its own, or combined with other factors such as his gender, marital status, religion, occupational profile or place of origin or places of work, or other factors, give me substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
42. On the evidence overall, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence of Mr [K] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm. Accordingly, I am not satisfied that Mr [K] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
I am satisfied that there is nothing to indicate that the Tribunal made any legal error in the conduct of the review. I am satisfied that the findings of the Tribunal were open and it can’t be said that they lack an evident and intelligible justification. I am so satisfied that the applicant had a genuine hearing and that there is no substance in the grounds raised in the application. As the proceedings are clearly doomed to failure, there is no utility in granting any adjournment as that will only add to the cost of the parties as well as utilise Court time unnecessarily. I am clearly satisfied that the proceedings have no reasonable prospect of success. I summarily dismiss the proceedings.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 25 March 2015
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