ABZ15 v Minister for Immigration
[2015] FCCA 817
•2 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ABZ15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 817 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| Paramananthan v Minister of Immigration and Cultural Affairs (1998) 94 FCR 28; [1998] FCA 1693, Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | ABZ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 499 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 2 April 2015 |
| Date of Last Submission: | 2 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp |
| Solicitors for the Respondent: | Ms S. Lloyd Minter Ellison |
ORDERS
Proceedings be summarily dismissed.
Applicant pay First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 499 of 2015
| ABZ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application in the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ in respect of the decision of the Tribunal made on 13 February 2015 affirming a decision of the delegate not to grant the applicant a Protection visa. The grounds of the application are as follows:
Ground 1
The Tribunal erred when assessing the claims as the Tribunal misapprehended and misdirected enquiries (RRT at [72] - [74]; (82]) in relation to the Applicant claim as Tamil and thereby committed jurisdictional error.
Particulars
(i) The Tribunal accepted that the Applicant was a Tamil and accepted that the Applicant was a police clerk for a period of time prior to arrival in Australia.
(ii) In assessing of the claims, the Tribunal failed to consider the impact of the Applicant being Tamil police clerk – erroneously assessing that the Police Clerk were not in the UNHCR guidelines the Applicant did not require protection.
(iii) The Tribunal thereby committed jurisdictional error.
Ground 2
The Tribunal erred when assessing the complementary protection in that it asked itself the wrong questions I applied the wrong tests I misdirected enquiries in that short time detention would not amount to harm for the purposes of complementary protection under s 36(2)(aa).
Particulars
(i) The Tribunal accepted that the Applicant would be held in custody pending determination of bail (RRT dec at [para [89] - [90]) in harsh conditions.
(ii) Short detention for illegal departure is not the correct test under s 36(2)(aa).
(iii) The Tribunal fell into error making qualitative assessment.
(iv) The Tribunal committed jurisdictional error.
Ground 3
The Tribunal erred when assessing the Convention and complementary protection misdirected enquiries in that short time detention would not amount to "significant harm" (s 36(2A)) or "serious harm" (s 91R(2)) of the Migration Act and thereby committed jurisdictional error.
Particulars
(v) The Tribunal accepted that the Applicant would be held in custody pending determination of bail in harsh conditions. This constitutes "serious harm" pursuant to (s 91R(2)(a) - (c)) of the Act.
(vi) Short detention for illegal departure was not properly considered under Complementary protection nexus. The short term detention constitutes "significant harm" pursuant to (s 36(2A)) (a), (d) and (e)) of the Act.
(vii) The deprivation of livelihood constituted significant harm was not properly considered.
Ground 4
The Tribunal committed jurisdictional error in that it failed to assess the particular social group that applied to the Applicant based on the material before the Tribunal and thereby committed jurisdictional error.
Particulars
(i) The Applicant is a Tamil, Catholic from [B] who was employed in the Police force in Sri Lanka.
(ii) The question of a particular social group arose.
(iii) The Tribunal failed to address any particular social group and thereby fell into error.
The application identifies:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
The Court raised with Mr Karp that the grounds did not appear to disclose an arguable case and Mr Karp candidly identified that the grounds were not necessarily ones that he would have advanced, but he did seek to advance an argument in relation to paras.89 and 90 in respect of the Tribunal’s identification of the risk of detention by the applicant and conditions to which he may be exposed in respect of that detention.
The Tribunal had clearly found in para.80 that the relevant Immigrants and Emigrants Act 1949 was a law of general application and that it was applied on a non-discriminatory basis. It is in those circumstances that there is no substance in the alleged issue raised in relation to WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, which has been overruled by the Court in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39.
It follows, from the fact that it is a general law that is not applied discriminatorily in paragraph 80, that the decision in Paramananthan v Minister of Immigration and Cultural Affairs (1998) 94 FCR 28; [1998] FCA 1693, at [39], paragraphs (b) to (d), and [43] at (c) to (d) can be distinguished.
I accept Mr Karp’s proposition that in relation to the question of complementary protection under s.36(2)(aa) that the focus is whether there is a real risk that the non-citizen will suffer significant harm. It is clear from the decision of the Tribunal that it made a finding of fact in relation to that requirement and took into account the principles identified in s.36(2)(a). Relevantly, in paras.91, 92 and 93, there is, in my opinion, no arguable jurisdictional error arising out of paras.89-90 and Mr Karp’s proposition is an impermissible attack on the merits:
89. Having regard to the information referred to in the previous paragraph and to what I have found to be Mr [X]’s circumstances, I consider that there is only a remote chance that he will have to spend any longer than a fortnight in gaol on remand. Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in the previous paragraph, I do not accept that there are 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 or specifically that he will experience torture, cruel or inhuman treatment or punishment or degrading treatment or punishment during any period which he may spend in gaol on remand.
90. As I indicated to Mr [X], I accept that prison conditions in Sri Lanka are poor but I do not accept that spending up to a fortnight in such a gaol amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia. For the reasons given in the previous paragraph I do not accept that there is a real risk that Mr [X] will be subjected to ‘torture’ as defined while he is on remand for what I find on the evidence before me will be a period of up to a fortnight. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.
91. I consider it clear from the relevant statutory provisions that mere negligence or indifference is not sufficient: what is required is an intention to inflict pain or suffering or to cause extreme humiliation. I do not accept on the evidence before me that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act, nor do I accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’. I do not accept, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of Mr [X] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a consequence of the poor conditions in prisons due to overcrowding during any period which he may spend in gaol on remand.
92. I have considered the totality of Mr [X]’s circumstances as a Tamil and a Catholic who I accept was employed by the Police Department in [B] for six years, who departed Sri Lanka illegally in 2012 and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept, having regard to my findings of fact above, that there are 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 be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of Mr [X] being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.
93. For the reasons given above I am not satisfied that Mr [X] is a person in respect of whom Australia has protection obligations. Therefore he does not satisfy the criterion set out in paragraph 36(2)(a) or (aa) of the Migration Act for a protection visa. There is no suggestion that he satisfies subsection 36(2) on the basis of being a member of the same family unit as a person who satisfies paragraph 36(2)(a) or (aa) and who holds a protection visa. Accordingly, Mr [X] does not satisfy the criterion in subsection 36(2) for a protection visa.
There is no substance in relation to ground 1 of the application. It is clear that the Tribunal took into account the applicant’s ethnicity and, in particular, focused on the role that he had played as a police clerk and ground 1 is in my opinion an impermissible challenge to a finding of fact as not disclosing arguable jurisdictional error.
In relation to ground 2 it was a matter for the Tribunal to make findings of fact in respect of the issue of complementary protection, and again ground 2 does not identify any arguable error. In relation to ground 3 again it was a matter for the Tribunal to make findings in relation to the issue raised and the findings were clearly open. In respect of complementary protection and s.36(2A) again in my opinion this is an impermissible challenge to a finding of fact.
In relation to ground 4, it is clear that the Tribunal took into account the two social groups that were identified as the essential claims advanced in paragraph 2 of the decision of the Tribunal, and that they were properly addressed in the decisions of the Tribunal, in particular, the finding at para.84:
84. Mr [X] said that he had disclosed all the events which had happened in the past and he had only mentioned what had really happened. He said that the only reason he had come here had been to protect his life and to give a good life to his children. For the reasons given above I do not accept that there is a real chance that he will be persecuted for reasons of his race as a Tamil, his religion as a Catholic, his imputed political opinion - either in support of the Sri Lankan Government because he worked for the Police Department or opposed to the Sri Lankan Government because he is a Tamil and because he has applied for protection in Australia - or his membership of the two particular social groups suggested by his representatives, ‘employees of the police’ or ‘failed asylum seekers returning to Sri Lanka’. I have considered the totality of Mr [X]’s circumstances as a Tamil and a Catholic who I accept was employed by the Police Department in [B] for six years, who departed Sri Lanka illegally in 2012 and who will be returning to Sri Lanka from Australia as a failed asylum-seeker. However, even taking into account the cumulative effect of these circumstances, I do not accept for the reasons given above that he has a well-founded fear of being persecuted for one or more of the five Convention reasons if he returns to Sri Lanka now or in the reasonably foreseeable future.
In these circumstances, ground 4 is also an impermissible challenge to a finding of fact made by the Tribunal and does not disclose any arguable jurisdictional error.
I am satisfied that the applicant had a genuine hearing and that the findings by the Tribunal were reasonably open, and that the findings made cannot be said to lack an evident and intelligible justification. I am satisfied that the proceedings are doomed to failure and that there is no utility in granting an adjournment, as it will add to the costs of the parties and utilise limited Court time. I am clearly satisfied that the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 9 April 2015
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