AAT15 v Minister for Immigration
[2015] FCCA 641
•19 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AAT15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 641 |
| 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: | AAT15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 443 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 443 of 2015
| AAT15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the applicant seeks a constitutional writ in respect of the Tribunal’s decision on 29 January 2015 affirming a decision of the delegate not to grant the applicant a protection visa.
The application identifies on the face the Court may hear and determine all interlocutory or final issues or may give directions for future conduct of the proceedings. The application identified the following grounds:
The RRT accepted that I am a Tamil from the North 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 sever days in overcrowded and unpleasant conditions. The prison conditions are poor.
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. Although the RRT complied with the section 424AA but it 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.
4. I will provide further details of this ground and any other ground after a lawyer has been given by this court.
The Court identified to the applicant that it was concerned that the application failed to disclose any arguable case and was minded to consider whether it should exercise its summary disposal powers.
The applicant was invited to identify why there was an arguable error with respect to the decision of the Tribunal. The applicant said that the Tribunal had not properly considered his case as to being a refugee, that he had further evidence going back to 1996 which he wished to obtain, and he said he wanted to obtain further material and wanted the benefit of an adjournment. There is no utility in granting an adjournment if the matter is clearly doomed to failure, as it will only result in increasing costs and further utilisation of Court time.
I take into consideration in respect to the Court’s summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), 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].
It is clear, in relation to the grounds of this application, so far as they rely upon WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 that this is a case where the Tribunal made cumulative findings of the kind falling within the decision of SZWAU v Minister for Immigration and Border Protection and Ors [2015] HCATrans 2. It is also a case where it is clear that the Tribunal addressed the character of the law and the WZAPN decision can be distinguished with reasons identified MZAPO v The Minister for Immigration & Anor [2015] FCCA 96.
It is clear, in those circumstances, from the findings made by the Tribunal that there is no substance in the grounds identified and, insofar as there is reference to s.424AA, the information referred to is information which, under s.424A(3)(b), is not information that requires any notification. I take into account, in relation to a request for an adjournment, the serious findings made by the Tribunal in relation to the credit of the applicant and the fabrication of the applicant’s claims. The adverse findings of credibility are a further reason why there is no utility in granting an adjournment in this case in circumstances where the findings as to adverse credibility were clearly open and those findings do not lack an evident and intelligible justification.
The applicant claims to be a citizen of Sri Lanka and his claims were commenced on that basis. The applicant applied for a protection visa on 23 October 2012 which was refused by the delegate on 31 July 2013. The applicant lodged an application for review on 7 August 2013. The Tribunal identified the applicant’s fears of persecution for reasons of race, imputed political opinion, membership of a political social group, failed asylum seeker and in relation to potential imputed pro-LTTE political opinion.
The Tribunal identified the applicant’s claims, as expanded in his statutory declaration dated 18 October 2012, and the applicant appeared before the Tribunal on 19 January 2015 to give evidence and present arguments. That hearing was conducted with the benefit of an interpreter for the applicant and the applicant was represented by his registered migration agent. After hearing the applicant’s representative the Tribunal provided until 26 January an opportunity to put in further submissions. On 27 January the representative sought an extension of time until 28 January to provide further information. By 29 January no further information had been submitted by the applicant’s representative and the Tribunal, as it was entitled to do, determined to decide the application before it.
I am satisfied the applicant had a genuine hearing in relation to the application for review. The Tribunal carefully identified the applicant’s claims and identified a real concern as to the credibility of the applicant. Relevantly, the Tribunal found:
7. As well as the protection visa application, the applicant provided a written statement dated 18 October 2012 and identity documents. The applicant’s representative also provided submissions. The applicant was also interviewed by the Department at an entry interview on 27 July 2012 and 1 August 2012 and on a second interview 18 February 2013. After hearing the representative provided further submissions. This material is held on the department and tribunal file, all of which was considered by the tribunal.
The Tribunal carefully addressed each of the applicant’s claims and made adverse findings about the applicant’s credibility:
20. The tribunal considers this inconsistency is major given the death notice is the crucial part of his claim. The tribunal does not accept that he would not recall the content of the notice, particularly the motivation for the threat and whether it mentioned LTTE. The tribunal considers he changed his evidence when the inconsistency was put to him and was making up the story in response to tribunal concerns. The tribunal does not accept something as crucial as the motivation for the death threat would not be recalled with accuracy and consistency if it actually happened to him. The tribunal considers that this is a crucial part of his story and that he was not recalling actual events.
…
22. The tribunal does not accept his claims that he moved around or did not stay at home at night as he did not make this claim in his written statement. It was not until his agent submissions in March 2013 that he said he lived in hiding, which was in response to the delegate concerns. In any event, he continued his same volunteer and daily work and his family remained at the same place until December 2008 so the tribunal does not accept the applicant was in hiding. The tribunal does not accept he was living in hiding as he continued live and work in the area, as did his family.
…
26. When the tribunal expressed doubts about the credibility of the story and involvement of EPRLF and CID together, he said EPRLF work with the army. When the tribunal noted he had changed his story to CID and army, he said they all work together as they don’t know the Tamil language. The tribunal found the applicant’s account vague and hesitant and he appeared to change his story and to be making it up as he went along. Further, his description of the meeting while the wife was riding a bike lacked credibility. The tribunal accepts there is a strong military presence in the north and eastern areas and there is monitoring. The description of the encounter is not a targeted encounter looking for him, but an encounter in the street when his wife was riding her bike. The tribunal does not accept that in a two week period the EPRLF found his wife and just happened to stop her on the bike and ask about him. It might be there was a random monitoring check of ID by authorities, but that is not how the applicant described it. The tribunal does not accept the authorities were looking for him and the tribunal does not accept CID or the authorities questioned or stopped the applicant’s wife.
…
29. However, the tribunal does not accept that the applicant and his whereabouts was not known to authorities or that if he was wanted the information was not shared by authorities in locating him. On the applicant’s own evidence he had reported frequently to police in [U] (15 times and the last time being in February 2012). He had written to the Deputy Minister of resettlement in 2010 about doing more to have his family resettled and provision of assistance and received a response from him (document provided by the applicant). He had received permission to leave the refugee camp and resettle in November 2009 (document provided by the applicant).The applicant said he was on the army and CID list but not on the rehabilitation list and they are not connected. The tribunal does not accept that the applicant was on any wanted list as he had to report to police frequently in [U] and he would not have been able to relocate and leave the camp if he was wanted. Country information is that the authorities have sophisticated intelligence. The tribunal does not accept authorities do not work together in finding people on their wanted list. The tribunal does not accept that he was on any wanted list as if he had been, he would have been found given his whereabouts were known and his correspondence with the government and approval to leave the camps and relocate.
30. Further, country information is that all suspected LTTE, whether low or high profile, were rounded up at the end of the war, arrested, detained, sent to rehabilitation centres or imprisoned2. The applicant confirmed at hearing he was not rounded up or questioned and that if he was he would have been shot. Many thousands were rounded up and even the slightest suspicion. As the applicant was not questioned, detained, arrested or sent for rehabilitation, the tribunal does not accept he was wanted by the authorities or suspected LTTE.
In relation to the claims of visits the Tribunal said:
33. The applicant’s story about the visits also did not make sense. The applicant had said the visits were in [K] and they did not visit his family in [K] or elsewhere. However, he had stated earlier his family had left [U] in August 2013 and the 8 visits were between August 2013 and December 2014 in [U]. It was therefore not possible for there to be 8 visits at one or two month intervals to his wife in [U] from August 2013 as she was not in [U] after August 2013. The applicant could not explain this inconsistency other than saying it happened in August 2013 after he talked to his lawyer about the refusal decision and his family told him they were looking for him.
34. The tribunal considers the applicant was not telling the truth about CID visits to his home. As discussed above his evidence about the visits lacked details and did not make sense and was inconsistent with his own evidence about the timing of the visits and where his wife lived. Further, the tribunal considers he had added this claim only at hearing. The tribunal does not accept that CID visited his family or their home or at all. The tribunal finds the applicant has fabricated this claim.
35. At hearing, the applicant claimed his wife returned to [M] in 2011 for two weeks to register, but in his statement he claimed she returned in 2010 for one month. The tribunal considers the inconsistency is minor and accepts the applicant’s wife returned to [M] for a short period and then returned to [U]. The tribunal accepts, based on country information that there was a strong military presence in the area and there have been allegations of assaults on women3 in the north and east. The tribunal accepts the applicant’s wife returned to [U], but is not satisfied this was because of fear, as the applicant was still in [U], where they had a place to live and job, whereas the wife would have been on without her husband and with no home. However, as discussed above, the tribunal does not accept while she was in [M] authorities enquired about the applicant or were looking for him or questioned the wife. The tribunal does not accept his mother warned him not to come to [M] as they were looking for him. The tribunal considers the applicant was not a witness of truth and fabricated his evidence.
In relation to the allegations concerning his father and brother being killed:
38. The tribunal does not accept the applicant’s father and brother were killed by the army because of suspected LTTE links. The tribunal does not accept his family have any LTTE links. The applicant has never mentioned in his statement, at any of his interviews or in any of the agent submissions that his family were killed due to LTTE suspicions. While the agent submission mentions his father and brother were killed, there is no mention of their LTTE connection or that they were killed because of LTTE suspicions or links. The first time he claimed the death of his brother and father was due to their LTTE connection was at the close of the hearing despite being asked previously if he had anything further to say. Further, his evidence was inconsistent at hearing, saying at first they were killed by gunshots, then shelling. When the inconsistency was put to him he explained this by saying the death certificate would not disclose gunshot wounds because of the international community. The tribunal does not accept this explanation but finds he was making up the story as he went along in response to tribunal concerns. The tribunal does not accept that a crucial part of being connected to LTTE would have been forgotten in his evidence as he has had many opportunities to present his claims and has had legal representation throughout. The tribunal does not accept that he would not understand that LTTE connections might be an important part of his claim. In fact he had mentioned being accused of being an LTTE supporter, but not in the context of his family links but because he was a Tamil from [M]. He did not mention his family had LTTE connections or were killed because of LTTE connections. The tribunal finds the applicant fabricated his evidence about his brother and father being killed due to LTTE suspicions, links or associations. The tribunal accepts that they have died, and possibly due to shelling in the war, but the tribunal does not accept they were killed because of any LTTE connections or suspicions.
Relevantly, in paragraph 39 the Tribunal said:
39. The tribunal finds the applicant has fabricated his claims and does not accept that he faces any real chance of harm from EPRLF, CID, the army, authorities or anyone else. The tribunal does not accept that he was put on a death list by EPRLF, that EPRLF, CID or any authorities are looking for him, or that they visited his family from August 2013. The tribunal does not accept there were other people on the list who were killed. The tribunal finds the applicant was displaced due to the war and has lived in [U] since October 2009 until his departure. The tribunal does not accept his family moved around to avoid CID or EPRLF. The tribunal does not accept his brother or father were killed due to LTTE connections or suspicions. The tribunal does not accept he has any LTTE connections or familial LTTE connections or that he may be suspected of being LTTE connections.
The Tribunal then found:
42. The Tribunal considers irrespective of which Convention ground is considered, the issues are substantially the same, both independently and cumulatively.
…
47. The tribunal has already found that it does not accept the applicant claims that he was on a targeted list prepared by the EPRLF and therefore does not accept that he faces a heightened risk because of his race. Further as discussed below the tribunal does not accept because he sought asylum or his pronged absence that is imputed with anti-government sentiment. Further the tribunal does not accept he has spoken out against the government as there is no evidence he has.
…
49. The tribunal does not accept Sinhalisation occurs to eradicate Tamils, but rather there is greater movement of Sinhalese throughout the country because the war has ended. In any event, the applicant has lived in the North and most recently in [U], which have a very high Tamil population. In any event, as referred to in the country information below, the tribunal does not accept an increase in Singhalese in an area means the applicant faces a real chance of harm because of his Tamil ethnicity.
50. The tribunal does not accept the situation is different to what is reported in the press as there are reports of harm in the press and in many other reports including DFAT country reports.
…
56. The tribunal is not satisfied that there is a real chance of serious harm, including any denial of rights, as a result of the applicant’s ethnicity (being a Tamil, a male Tamil, male Tamil from the north) and / or political association or any other reason or reasons, in the reasonably foreseeable future. The applicant was educated to grade 9 and has worked as a farmer, in construction and done volunteer work during the war and after he was displaced. He relocated to [U] in 2009 and began a new life and has worked as an assistant stonemason earning 22,000 rupees a month. The applicant has demonstrated he is resourceful and adaptable and employable in a number of areas in Sri Lanka. The tribunal considers there is no reason why he could not return to similar work upon return. His children are attending school completing their O and A levels. On the evidence before it, the tribunal does not consider that if the applicant returns to Sri Lanka that he faces a real chance of suffering discrimination that would constitute serious harm.
57. 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 north or male Tamils or male asylum seeker Tamils from the north.
The Tribunal turned to the issue of political opinions and made adverse findings:
63. The tribunal does not accept the applicant was an aid worker for NGOs or employed by NGOs or that he was an activist or human rights advocate. The applicant’s evidence was he helped some local people in 2007 and 2008 with fixing huts for widows, helping children with school work and helping people at hospital and raising money to help the community. The tribunal accepts that he assisted the local Tamils as a volunteer. The applicant does not accept that he would be identified as an aid worker for NGOs or be at risk of harm. The tribunal accepts he may be considered a volunteer aid worker for Tamils. However, the applicant ceased this work in 2008, many years ago. Further, the country information is that the authorities accept that nearly everyone in LTTE controlled areas had some involvement with LTTE. The tribunal does not accept given the applicant ceased this work many years ago and he relocated to [U] and the change in authorities focus on present risk( discussed in paragraph below) that the applicant faces any chance of harm for being an aid worker for Tamils in the north. The tribunal does not accept the applicant faces any harm on the basis of him providing assistance as described or being considered an aid worker.
66. The tribunal does not accept his displacement or work assisting Tamils in 2008, as an aid worker may warrant further attention or that upon return the details of his history will be reinvestigated and expose him to the risk of harm.
67. Further, the tribunal does not accept his family have an LTTE profile or that he has prior connections to the LTTE. As discussed above the tribunal does not accept the applicant’s claim his brother and father were killed in 2009 because they were suspected LTTE or were LTTE. The tribunal does not accept the EPRLF targeted him or are interested him. The tribunal does not accept CID have visited his home or family or enquired about him. The tribunal does not accept he will be killed, detained, arrested or otherwise seriously harmed. As discussed above the tribunal finds the applicant has fabricated his claims.
It is of significance in relation to para.67 that the Tribunal found that the applicant had fabricated his claims. That is a matter that materially impacts on the utility of granting any adjournment, for the reasons I have already identified. The Tribunal made further adverse findings in relation to the applicant:
69. Further, as discussed above the applicant has not hidden his whereabouts having corresponded with the government in 2010 and reported to police frequently until 2012. The tribunal does not accept his claims that CID and resettlement authority do not share information. As discussed they have sophisticated intelligence. 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. It is the Tribunal’s view that the applicant claims are not consistent with the available country information. The tribunal does not accept he is of interest to authorities or perceived as antigovernment or pro LTTE or Tamil separatist.
70. The tribunal accepts the applicant is a Tamil from the North. However, the applicant has been educated, lived and worked in the North and in [U] up until his departure. Further, independent information is that Tamils from the north on its own do not face serious harm. The applicant does not claim to have advocated for a separatist state or to have otherwise been politically active. The tribunal does not accept that because of his race or his circumstances, membership of a particular social group or political opinion that he will be perceived as LTTE or anti-government and suffer harm.
71. The tribunal does not accept the applicant faces a real chance of harm for reasons of his imputed political opinion or membership of a particular social group being a Tamil male who previously resided in an LTTE area and an aid worker for Tamils or failed asylum seeker from a western country ( discussed in more detail below) .
72. The tribunal does not accept the applicant faces being arbitrarily killed, kidnapped/detained or physically harmed by EPRLF,CID, army or the Sri Lankan authorities based on the applicant’s race ethnicity, particular social group or any political association.
73. Having considered the country information and the applicant’s circumstances the tribunal does not accept the applicant faces a real chance of harm because of his race or ethnicity, particular social group or political opinion.
In relation to being a failed asylum seeker and being attributed with a political opinion the Tribunal made adverse findings:
78. The tribunal has considered the applicant’s particular circumstances. The Tribunal has rejected the applicant’s claims relating to his being targeted by the EPRLF or CID and his claims that his brother and father were killed by the army because they were suspected or were LTTE. The tribunal does not accept he fled the country after being pursued by authorities or that he will be blacklisted or that authorities will be concerned about his prolonged absence. The tribunal has rejected claims that the EPRLF or that authorities have been or are interested in him. The applicant does not claim to have advocated for a separatist state or to have otherwise been politically active. The Tribunal has found that the applicant has no links with LTTE and that he will not be imputed with any political opinion. The tribunal does not accept he faces any chance of being imputed with LTTE connections or anti- government sentiment. The applicant did not make any claim that he was involved in organising people smuggling and he made no claims that he had any other criminal offences. Further the Tribunal has rejected the applicant’s claims that EPRLF, CID or any people are looking for him.
79. Further DFAT information details the exit an entry procedures and treatment of returnees who departed illegally, which is observed by Australian officials or IOM. The information is confirmed by the UK and Canadian 19 governments. The information indicates that all Sri Lankan nationals are treated in the same manner with regard to entry procedures into Sri Lanka. It indicates that returnees who departed illegally are checked for the identity information including contacting family and local police to check criminal records. This information also indicates that failed asylum seekers or illegal departees who are Tamils are not specifically targeted for adverse attention from the Sri Lankan authorities at the time of entry and are not mistreated. 20 Further as discussed below ( under illegal departure) the country information suggests the applicant will be subject to a fine for his illegal departure as he was not involved in organising the people smuggling venture and has no outstanding criminal offences.
80. The tribunal does not accept he will be imputed with LTTE connections or antigovernment sentiment because he departed illegally, because of his prolonged absence and ethnic minority, sought asylum in a western country or Australia, is Tamil male or Tamil male aid worker who assisted Tamils during the war in an LTTE area or Tamil originating from the north, or Tamil male who previously resided in an LTTE area.
In relation to illegal departure and the application of the Immigrants and Emigrants Act for illegal departure the Tribunal carefully identified that they were laws of general application and materially found that they were not applied for any Convention reason:
85. Based on country information, the tribunal does not accept he faces any chance of harm even as part of the bail or questioning process or being monitored return to his home area. In any event, as discussed below, the tribunal is not satisfied questioning involves systematic and discriminatory conduct under s91R(1)(c) as the country information is that all returnees are treated the same.
86. In any event, the tribunal finds that the Sri Lanka departure laws are laws of general application and therefore the enforcement of the laws do not constituted persecution but prosecution. The tribunal does not accept that the I&EA provisions that deal with breach of the departure laws from Sri Lanka are discriminatory on their face, or disclose discriminatory intent. The country information indicates the Sri Lankan departure laws are applied regardless of ethnicity to all persons who are returnees and are not applied in a way that is discriminatory or selectively enforced against a particular group of those returnees.
87. The tribunal has considered country information that if he arrives on the weekend or public holiday he may be on remand before a magistrate is available for bail release. The tribunal notes there was one report of a two week remand period, although the tribunal does not accept he faces a real chance of two week remand period as the country information is most are bailed immediately unless on a weekend or public holiday and then are held only a couple of days. The tribunal has doubts that he faces being remanded given this will only occur if he arrives on a weekend or holiday. However, the Tribunal accepts that there is a possibility he will be held for a limited period in remand if he arrives on the weekend or holiday and accepts prison conditions can be poor due to overcrowding and unsanitary conditions. However, the tribunal does not accept the applicant will be treated any differently and considers that questioning at the airport, the possibility of being in remand for a short period (even up to two weeks) and charged is not because he is a Tamil, but because he left Sri Lanka illegally. The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors which apply generally and not specifically to Tamils. The Tribunal is not satisfied, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).
Material in para.88 the Tribunal found the applicant does not face a well-founded fear of persecution due to his illegal departure from Sri Lanka because the laws were not persecution, with no discriminatory intent or application. In any event, the Tribunal finds his being questioned and fined would not amount to any harm so serious as to be serious harm and there is no real chance he would face a term of imprisonment for the offences.
The Tribunal made the further findings:
90. The Tribunal is not satisfied there is a real chance that the applicant would, be tortured or mistreated or that he would be subjected to penalties other than a fine. If a fine were imposed, country information is that it is generally 5000 rupees, though the magistrate at [N] imposes fines of 50,000 rupees. The tribunal finds the most the fine will be is 50,000 rupees. The tribunal has considered the applicant’s circumstances and is satisfied that the scale of such a fine does not constitute serious harm. As discussed above the applicant has previously worked in Sri Lanka as a farmer and more recently as an assistant stonemason earning 22,000 rupees a month. He also has worked in Australia for the past two years earning $650 a week and there is no reason to suggest he could not return to similar work and that he could not afford to pay even the fine of 50,000 rupees ($400).
91. The Tribunal is not satisfied that the evidence establishes that there is a real chance that the applicant would suffer serious harm on arrival in Sri Lanka or at any subsequent point.
92. The Tribunal is not satisfied that the information supports a conclusion that the applicant faces a real chance of serious harm upon his return to Sri Lanka because of his Tamil ethnicity or particular social group. Neither is the Tribunal satisfied that he would be subsequently targeted or subjected to serious harm because he sought asylum in Australia. As already found above the tribunal does not accept he has or will be imputed with a political opinion.
93. The Tribunal has considered the claims of the applicant individually and cumulatively. For the above reasons, the Tribunal finds the applicant faced no serious harm in the past. The Tribunal is not satisfied the applicant faces a real chance of serious harm by the EPRLF, Sri Lankan authorities, CID, army, or from any other Sri Lankan authorities due to his race, being a failed asylum seeker, political opinion, membership of a particular social group or unlawful departure from Sri Lanka. The Tribunal is not satisfied the applicant has a wellfounded fear of persecution for any Convention reason now, or in the reasonably foreseeable future if he returns to Sri Lanka. Therefore he does not satisfy the requirements of s.36(2)(a). The Tribunal considers his claims further below in relation to complementary protection.
The Tribunal then turned to consider the issue of complementary protection. Insofar as discriminatory treatment and concern in respect of being a Tamil the Tribunal found:
99. … The tribunal does not accept he faces any significant harm in terms of education or employment or livelihood.
In respect of illegal departure the Tribunal found:
101. As discussed above and for the same reasons, the Tribunal is not satisfied that there is a real risk of significant harm upon his return with regard to his treatment as a failed asylum seeker in a Western country or in Australia and for his illegal departure. The Tribunal is not satisfied there is a real chance that the applicant would suffer imprisonment, be tortured or mistreated or that he would be subjected to penalties other than a fine of up to 50,000 rupees. The tribunal has had regard to the definition of significant harm but the tribunal does not accept that payment of the fine amounts to significant harm.
…
104. As discussed above, the tribunal is not satisfied he faces a real risk of abduction, detention, being physically harmed, interrogation or killed by EPRLF, the army, CID or authorities upon his return to his home or that he faces a real risk of significant harm upon his return home or elsewhere in Sri Lanka.
105. Having regard to the definition of significant harm, the tribunal is not satisfied that the applicant faces a real risk of significant upon arrival, being questioned, if remanded and upon return to his home.
106. On the evidence before it, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka there is a real risk the applicant will suffer significant harm, in the form of: arbitrary deprivation of life; the death penalty being carried out; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment. Therefore the applicant does not meet the requirements of s.36(2)(aa).
107. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
108. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
It was in those circumstances that the Tribunal affirmed the decision of the delegate. It’s clear from the reasons that are identified that there is no substance in any of the grounds identified in the application. The proceedings are plainly doomed to failure. In light of these considerations there is clearly no utility in granting any adjournment. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 25 March 2015
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Procedural Fairness
-
Summary Judgment
0
4
5