AAS15 v Minister for Immigration
[2015] FCCA 640
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAS15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 640 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| MZAPO v The Minister for Immigration & Anor [2015] FCCA 96 Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | AAS15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 441 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: | Ms S. Given Sparke Helmore |
ORDERS
The proceeding before this Court, commenced by way of application filed on 24 February 2015, is summarily dismissed.
The applicant pay the costs of the first respondent fixed in the amount of $1,367.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 441 of 2015
| AAS15 |
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 within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 31 January 2015, affirming a decision not to grant the applicant a protection visa.
The application identifies the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings.
The grounds in this application identify the following:
The RRT accepted that I am a Tamil male from the east of Sri Lanka and that I would be detained at the airport as a failed asylum seeker who departed Sri Lanka illegally. It also accepted that failed asylum seekers are held in prison for several days in overcrowded and unpleasant conditions. The prison conditions are poor.
The RRT made the following errors:
1. When deciding that cruel or inhumane treatment or punishment would not be intentionally inflicted upon me if I was placed in prison on remand for several days on my return to my home country, because the RRT has accepted that the prison is subject to overcrowding, poor conditions and unpleasant conditions. The RRT has not considered whether the fact of possible placement of me in the overcrowded jail which has unpleasant conditions by the Sri Lankan authorities would be intentionally inflicted in circumstances where the Sri Lankan authorities have known of the existence of the overcrowded and unpleasant jails.
2. In WZAPN v MIBP, the Federal Court held that even a short period of detention that threatens an applicant’s liberty will fall within the scope of s.91R(2)(a). Therefore, it is submitted that this case law interprets that s.91R(2)(a) was not correctly applied by the RRT in my case.
3. The RRT has failed to evaluate, consider and make a finding in respect of one of my central claims that I am a Tamil from the East.
4. The RRT has breached its statutory duty imposed by section 424A of the Act as the RRT has failed to put in writing the concerns and adverse information which arose in my review (reasons for refusing my review) and it has failed to invite me for my comments, after the hearing, before it made its decision.
5. During the RRT hearing, I went with evidence in respect of my mother's arrest, my cousin's arrest and my uncle's death certificate and told the member that I have this evidence but the RRT member did not look at this evidence.
6. I will provide further details of this ground and any other ground after a lawyer has been given by this court.
Those grounds, in light of the findings made by the Tribunal under s.91R are clearly doomed to failure, consistent with the decision of the High Court SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2. The WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 decision is also distinguishable for the reasons identified; MZAPO v The Minister for Immigration & Anor [2015] FCCA 96.
I am satisfied that the Tribunal in this case clearly identified the character of the law and made no error of the kind identified in WZAPN and identified the Immigrants and Emigrants Act 1949 (Sri Lanka) as being a law of general application which was not applied arbitrarily or discriminatorily. Materially, the Tribunal found in paragraph 106:
106. The tribunal finds that the application of the breach of departure laws in Sri Lanka to the applicant will be the enforcement of a law of general application and not of itself persecution for a Convention reason. Any harm the applicant may suffer arising from punishment for an offence under the IEA has no element of persecution for the purpose of s.91R(1)(c) and therefore is not persecution. The Tribunal does not accept that his prosecution (including detention on remand) for breach of Sri Lankan migration laws amounts to persecution.
It is in these circumstances the Court raised with the applicant it was concerned that the application failed to disclose any arguable error, and invited the applicant to identify why the Court should entertain the application. I take into account the principles and caution in relation to the Court summary powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].
The applicant identified that he had changed lawyers on a number of occasions, and there was some further evidence he wanted to put on. The applicant said the member did not look at his application. The applicant said that his evidence and details was not looked at by the Tribunal. The applicant said he needed a Tamil lawyer. The applicant said he wanted an opportunity to have an adjournment to review the material, and as the audio recording was in English he wanted time to consider that material.
There is no utility in this Court granting an adjournment in respect of an application that is clearly doomed to failure, as to do so only increases the costs for the parties and utilises valuable Court time. I am clearly satisfied that there is no arguable jurisdictional error, and that the proceedings are doomed to failure. In those circumstances, there is no utility in granting any adjournment.
The Tribunal identified that the applicant claimed to be a citizen of Sri Lanka and applied for a protection visa on 23 November 2012. On 22 August 2013, the delegate refused the granting of a visa. The applicant applied for review on 28 August 2013. The Tribunal identified the material provided by the applicant in support of his application.
6. The applicant appeared before the Tribunal on 22 January 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages. The applicant was represented in relation to the review by his registered migration agent who attended the hearing by telephone. The representative has until 29 January 2015 to provide any further submissions, but nothing was received as at 31 January 2015.
The Tribunal identified the applicant was a national of Sri Lanka and assessed the claims of the applicant against Sri Lanka for the purpose of s.36(2)(a), and as his receiving country. The Tribunal identified that the applicant was a single Tamil, and identified an issue of the credibility of the applicant. In that regard, the Tribunal carefully identified the applicant’s claims. In the context of having identified the credibility concern:
14. The tribunal discussed throughout the hearing its concerns about the applicant’s credibility. The tribunal was concerned that the applicant’s descriptions of events lacked detail and were not free flowing, that he needed prompting to recall events, appeared to be adding to his account in response to tribunal concerns as he went along and there were some major inconsistencies in his account throughout the application process.
In relation to the applicant’s account and evidence, the Tribunal expressed concerns as to credibility:
18. The tribunal found the applicant’s evidence was vague, lacking in details. The tribunal spent some time prompting the applicant for more information but the applicant’s evidence was repetitive, rather than providing more information. Further, the tribunal found when pressed to describe key events, he spoke about the motivations or irrelevant periphery issues, rather than describe the event or answer the question put to the applicant. The tribunal found his evidence was given in a piecemeal fashion and not told in a coherent manner. The tribunal considers he was not recalling events as if they happened to him but making it up. In addition, some of his claims lacked credibility for instance that immediately after he was assaulted he drove the bus on its normal 12.30 bus run. Further, he added two major late claims late in the hearing about his family’s LTTE connection and his father signing at the police station. In addition his account was inconsistent with his 2012 statement of claims. Further, his account lacked credibility in a number of respects. Also when tribunal concerns were raised he changed his story and sometimes the explanations also lacked credibility. For the reasons set out below the tribunal finds the applicant has fabricated his claims and is not a witness of truth.
…
24. The tribunal was concerned that the applicant’s account started with the assault, rather than his first encounter with authorities which was at his home. It appeared to the tribunal the applicant had forgotten they came to his home initially. The tribunal considers he remembered this when the tribunal raised its concerns about inconsistency with his 2012 statement. The tribunal does not accept he was telling his story bit by bit or got it out of order. The applicant’s account at hearing started with recounting his bus trip and then a week after he was assaulted. He did not refer to the visit to his home until the discrepancy was pointed out to him.
…
32. Further the tribunal considers that the men would assault him at the bus stop behind the shop, with people around ready to get on the bus lacks credibility. Further, that the men would finish the assault in time for the applicant to do the 1230 bus run lacks credibility. In addition that he would get up after a 15 minute assault of kicking, punching and hitting by 3 or 4 men and do the 1230 bus lacks credibility. The applicant said people cannot do anything and he had to take the bus run otherwise he was scared they might find him. The tribunal finds this explanation also lacking in credibility as the men knew where he lived as they had previously visited his home, so they could find him. The tribunal does not accept that if he were assaulted for 15 minutes by 3 or 4 men that he could or would get up and do a bus run straight afterwards. The tribunal considers the applicant was making up his story in response to tribunal concerns that he would be well enough to drive the bus at 12.30
33. The tribunal also noted his interview account (pursuant to s424AA) was vague and inconsistent as he did not mention the Karuna group and said the people who questioned him were a party out of the LTTE. The applicant said he meant the Karuna group was with the LTTE before. The agent submitted the Karuna group was the party that came out of the LTTE. The tribunal accepts the explanations regarding the Karuna group. However, the tribunal considers the applicant’s interview account like his hearing account of the assault was vague and lacked details.
34. Further, the tribunal considered that the men would be interested in the applicant rather than the boss who took the booking lacked credibility. The tribunal also expressed doubt that the boss would disclose his address to unknown people and not tell the applicant. The applicant said he did not know why he his boss did that. Later he changed his evidence and said normally these things happen and they ask the driver and everyone knows he is the driver. The tribunal considers this explanation lacks credibility and is at odds that the authorities sought him but not the boss.
35. The tribunal considers the applicant was not recalling events as if they happened to him but making it up and as a result he was not remembering key events, the order of events and could not provide details of what happened or a coherent free flowing account. Further, his claims about taking the bus on its 12.30 run immediately after the assault, is not credible.
The Tribunal also addressed claims relating to visits to the applicant’s home, and the Tribunal made findings:
44. The tribunal does not accept his explanation as the statement was read back to him in his language and the statement is very clear and the discrepancies are not minor.
45. The tribunal does not accept that he would not recall these events consistently and accurately, even with the passing of time, as there were not many events to recall and they happened just before he departed Sri Lanka in 2012. Further, they were key parts of his claim. The tribunal considers the applicant’s poor recounting of the events and inconsistent account is because the applicant was not recalling events as they occurred to him.
46. The tribunal does not accept the applicant was questioned, threatened or assaulted by the army, Karuna group or anyone else. It follows the tribunal does not accept they visited his parent’s home asking for him or threatening to kill him. Tribunal does not accept anyone islooking for him or he is suspected of being LTTE or wanted for questioning.
The Tribunal carefully sought to address the applicant’s new claims, and relevantly:
48. The tribunal considers the applicant added this LTTE connection claims in response to tribunal doubts about his lack of LTTE profile. He had not mentioned any of this in his 2012 statement and only mentioned it in the last stages of the hearing. There is no mention that he claimed this in the delegate’s decision record either. Further his evidence came out in a hesitant and piecemeal way as if he was thinking about it and making it up as he went along. In addition he had no details or information about the claimed detentions or escape.
…
51. Besides being a very late claim and not mentioned earlier, the applicant’s evidence about this event was problematic as it was hesitant, piecemeal and evasive. The tribunal asked a number of times how his parents discovered they were required to report to police. Each time the applicant talked about the association between the Karuna group and police. The applicant kept repeating this evidence each time the tribunal asked him to explain how his parents knew to report to the police. It was not until the third time that the applicant said as an afterthought, the police sent a letter. The tribunal considers the applicant was making ups his story as he went along and was avoiding the answer until he could think of an appropriate response.
…
53. The tribunal does not accept the applicant’s father is required to report to police monthly or that authorities know that he is abroad because they caught the agent. The tribunal finds the applicant was making up the story as he went along.
55. The agent submitted the applicant could not explain himself well. However, the tribunal does not accept this explanation as he was able to provide coherent and clear information about his background and his family circumstances at the outset of the hearing. For instance he could clearly and coherently provide details of his family’s occupations, finances, how much he earned in Sri Lanka and in Australia. Further the applicant is not uneducated or inexperienced as he has been educated to O levels, has been employed in SL as a driver and bus driver. He has obtained employment in Australia. He also clearly understood some English as sometimes he would start to respond to tribunal questions before they were interpreted (though the tribunal made sure everything was in interpreted). The tribunal considers the applicant’s difficulties in his evidence only arose when he gave evidence about his claims when pressed for details or more information beyond his very basic general story.
57. The tribunal finds the applicant has fabricated his claims and does not accept that faces any real chance of harm from the CID, army, police, Karuna group or authorities or anyone else.
The Tribunal then turned to consider whether there were protection obligations owed to the applicant, and relevantly the Tribunal found:
65. The tribunal does not accept adverse events are not reported as it is evident from the country information and newspaper reports that they are reported. As discussed above the tribunaldoes not accept the applicant has family issues with LTTE connections as the tribunal does not accept his cousin was arrested, detained or escaped as an LTTE member in 2004or that mother was arrested on suspicion in 1991 or the family has LTTE links or problems as claimed.
In relation to the applicant’s ethnicity, the Tribunal found:
70. Based on the country information, the tribunal finds that Tamils, do not face a real chance of suffering serious harm solely on account of their ethnicity. While the country information indicates that individuals who are suspected of being involved with or supporting ongoing pro-LTTE activities or Tamil separatism more generally continue to face a real chance of suffering serious harm in Sri Lanka, a Tamil person will not be imputed to be a supporter or to be involved with the LTTE, or to be opposed to the current Sri Lankan government, solely on account of their ethnicity as a Tamil. The Tribunal therefore finds the applicant’s claim to fear harm on return to Sri Lanka because of his Tamil ethnicity is not well-founded.
…
72. The tribunal has had regard to the applicant’s circumstances. The tribunal has not accepted that he was suspected of LTTE links or wanted for questioning about transport of weapons or people for the LTTE. The country information is that the LTTE are a spent force. Further, towards the end of the conflict anyone suspected of LTTE links was arrested, detained or sent to rehabilitation centres.7 But the applicant confirmed he was not and neither was his immediate family. While he claimed his cousin was detained in 2004 and his mother in 1991, the tribunal has not accepted his claims in that regard. The tribunal has not accepted that he or his his family had any LTTE connections or were suspected of LTTE, (or Karuna group) or arrested or detained or escaped. The tribunal is not satisfied that he falls within any of the UNHCR risk profiles or that there are any other circumstances that put him at risk.
73. The tribunal referred to country information in the recent UK Upper Tribunal decision that suggested the Sri Lankan authorities focus is on individuals who are, or are perceived to be, a threat to the integrity of Sri Lanka as a single State because they are, or are perceived to have a significant role in relation to post-conflict Tamil separatism or those for whom there are outstanding court orders or arrest warrants (see 1.3.7 of the UKHO report) rather than merely because they are Tamil. The tribunal has already not accepted that authorities are looking for him and does not accept that there are any outstanding arrest warrants. The applicant does not make any claims that he is involved in post conflict Tamil separatism or interested in reviving the civil conflict or separate Tamil state and there is no evidence he is involved in such activities. The tribunal does not accept that receiving a birthday card from his cousin in France would expose him to risk or perception that he is involved in anti-government activities or Tamil separatism.
74. Based on the country information, the tribunal does not accept that because he is a Tamil he is perceived as LTTE supporter or that because he departed illegally or is a failed asylum seeker he may be perceived as LTTE or imputed with anti-government sentiment or opinion (discussed below). The tribunal has not accepted that he has links to the LTTE or is imputed with links or supporter of the LTTE and therefore does not accept he faces a real chance of harm as a young Tamil male supporter of the LTTE.
75. The Tribunal accepts the harassment and discrimination that Tamils may face in Sri Lanka may give rise to some harm in terms of monitoring or employment prospects as indicated in the country information. However, the applicant has been educated and employed since leaving school until his departure from SL. The tribunal does not accept he has faced discrimination in that regard or that he faces a real chance of serious harm upon return with respect to employment prospects. Further, the trend of monitoring and harassment has generally eased since the end of the conflict8 and the tribunal does not accept monitoring or reporting at checkpoints, when having regard to the instances of serious harm set out in s91R(2) harm amounts to serious harm. The tribunal is not satisfied he faces a real chance of serious harm in that regard.
It was in those circumstances that the Tribunal made the findings as follows:
76. Based on the evidence before it, the tribunal is not satisfied that there is a real chance of serious harm, including any denial of access to health and education, or the ability to subsist, or any denial or social or economic rights, as a result of the applicant’s ethnicity (being a Tamil, a male Tamil from the East) and / or political association or any other reason, in the reasonably foreseeable future. The tribunal does not accept the applicant faces a real chance of suffering mistreatment or discrimination that would constitute serious harm for the purposes of s91R(1)(b) having regard to the guidance provided by the examples as set out in s.91R(2) upon return to Sri Lanka. The tribunal has considered the harm the applicant faces a real chance of suffering, including the harm feared as a returnee discussed below, cumulatively, and is not satisfied he faces a real chance of suffering discrimination and mistreatment that would amount to serious harm.
77. Considering the applicant’s circumstances and the independent information the tribunal does not accept that the applicant faces a real chance of persecution because of Tamil race or ethnicity or membership of a particular social group as Tamil from the east or male Tamils or young male Tamils, or male asylum seeker Tamils from the east or Tamil supporter of the LTTE(Karuna), suspected LTTE (Karuna) sympathiser or family member of suspected of LTTE persons.
The Tribunal then turned to consider the question of imputed political opinion, and relevantly the Tribunal in para.80:
80. The tribunal has rejected his claims that he was interrogated about bus passengers or suspected of LTTE links or transporting LTTE or their weapons. The tribunal therefore does not accept he is imputed with LTTE or antigovernment sentiment. The tribunal has also not accepted his claims that his mother and cousin had been arrested as LTTE. As well as the problems with the applicant’s evidence about these claims, the country information referred to below also reinforces the tribunal’s view that the applicant has not been suspected of LTTE links because of his family or his bus driver activities or for any other reason.
The Tribunal then found:
81. The independent evidence also indicates that when the government announced its military victory over the LTTE in May 2009, a large number of LTTE members were arrested and detained by the government security forces following their surrender or capture. Further country information indicates that there is continued persistent surveillance, intimidation and monitoring of former LTTE members by the security forces continues to restrict their freedom of movement and association. The applicant was not detained, arrested, or sent for rehabilitation at any time. The tribunal has not accepted the applicant’s mother or cousin were arrested as LTTE in 1991 and 2004. In the tribunal’s view, if the applicant was suspected of LTTE links because of family links or arrests, he would have been questioned about it and likely detained at the conclusion of the war. Even if he was questioned about passengers (though it is not accepted), he would not have been released if authorities suspected him of being LTTE or transporting weapons, but would have been detained.
82. The Upper Tribunal report indicates that the “Sri Lankan authorities approach is based on sophisticated intelligence” and authorities collect and maintain sophisticated intelligence on former LTTE members and supporters.14 In the Tribunal’s view, if the applicant was perceived as being an LTTE supporter, that would have resulted in his arrest in or prior to 2009 and certainly before his departure from the country. The applicant was not arrested or detained. Further, the tribunal has not accepted he was even questioned by authorities. Further, despite evidence of continual action against LTTE suspects, DFAT has assessed that as of October 2014, the LTTE does not exist as an organised force. It is the Tribunal’s view that the applicant claims of being suspected LTTE are not consistent with the available country information.
83. Country information is that the authorities are now concerned with the activities of individuals who continue to actively support the LTTE or advocate for Tamil separatism or revival of the conflict, either in Sri Lanka or overseas interested in persons now who continue to take an active role in Tamil separatism. The risk is limited to those who are or are perceived to have a significant role in relation to post-conflict separatism. The applicant has not claimed that he has engaged in activities expressing opposition to the current Sri Lankan government or Tamil separatism at any time in the past, either in Sri Lankan or in Australia. The tribunal does not accept the applicant will engage in activities in opposition to the Sri Lankan government in the reasonably foreseeable future. The tribunal does not accept the applicant will be imputed with LTTE connections or anti-government sentiment.
84. The tribunal does not accept the applicant faces a real chance of harm or being tortured as he does not fall within the UNHCR risk profile (and the tribunal acknowledges it is not exhaustive). The tribunal does not accept seeking asylum or being overseas increases the risk of harm.
85. The tribunal has had regard to the applicant’s circumstances and is not satisfied that he falls within any of the UNHCR risk profiles or that there are any other circumstances that put him at risk. The tribunal has rejected his claims that his mother and cousin were arrested and that he was questioned about passengers he carried on the bus and assaulted by army or CID. The tribunal does not accept there is anything in the applicant’s past history which indicates or suggests involvement or perception of being LTTE involved and nothing that suggests he is or will be perceived as a present risk to the unitary state. Even if the tribunal were to accept (and it does not) that his mother and cousin were arrested as suspected LTTE, the tribunal does not accept that he is or will be perceived as a present risk to the unitary state as he is not involved in such activities or politically active.
It was in those circumstances the Tribunal made the evidence findings in paras.86 and 87 as follows:
86. Based on the country information, the tribunal does not accept that because he is a Tamil male from the East, his activities as a bus driver or any family past he is perceived as LTTE supporter or that because he departed illegally or is a failed asylum seeker, lived overseas in a western country or Australia or because he has family who live overseas he may be perceived as LTTE or imputed with anti-government sentiment or opinion
87. The tribunal does not accept he will be imputed with LTTE (or Karuna) connections or antigovernment sentiment because he departed illegally, sought asylum in a western country or Australia, is Tamil or has family overseas.
The Tribunal then turned to failed asylum seeker and political opinion claims, and again made adverse findings to the applicant. Relevantly, in paragraph 100 as follows:
100. The tribunal is not satisfied the applicant has a real chance of being persecuted should he be returned to Sri Lanka as a failed asylum seeker or illegal departee or for any imputed political opinion.
The Tribunal then turned to the issue of illegal departure, and relevantly made findings in para.106, which I have earlier set out.
The Tribunal identified that the condition of prisons were not ones which would affect the applicant for any Convention reason. The Tribunal was satisfied that the questioning and arresting conditions, and application of a penalty for illegal departure, did not amount to systematical discriminatory conduct as required by s.91R(1)(c).
The Tribunal considered complementary protection considerations, and relevantly addressed the issues of discrimination and illegal departure. The Tribunal was not satisfied that the applicant faces a real risk of significant harm being removed from Australia to Sri Lanka. It was for those reasons the Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations under the Refugee Convention, and that the criteria under s.36(2)(a) was not satisfied, nor was the criteria under s.36(2)(aa).
I am clearly satisfied that the grounds identified in the application have no substance. It was not necessary for the Tribunal to put to the applicant country information because of the provisions of s.424A(3)(a). I am satisfied that the Tribunal conducted a genuine hearing, and that the findings made by the Tribunal were open. I am satisfied that the findings do not lack an evident and intelligible justification, and I am satisfied that the Tribunal brought an independent impartial mind to the determination of the applicant's claims and that there is no conduct identified that is capable of supporting any reasonable apprehension of bias.
In these circumstances it is clear that the application is doomed to failure. I am clearly satisfied that the proceedings have no reasonable prospect of success. I summarily dismiss the application.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 25 March 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Summary Judgment
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