ACF15 v Minister for Immigration

[2015] FCCA 729

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACF15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 729

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation: 
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958, ss.36(2)(a), 36(2)(aa), 91R(1), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: ACF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 512 of 2015

Judgment of: Judge Street

Hearing date: 26 March 2015

Date of Last Submission: 26 March 2015

Delivered at: Sydney

Delivered on: 26 March 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms M Alderton
Mills Oakley

ORDERS

1. Proceedings be summarily dismissed.

2. Applicant pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 512 of 2015

ACF15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 28 January 2015, affirming a decision of the delegate not to grant the applicant a protection visa.  The application identifies the following grounds:

   1. The Tribunal made jurisdictional error as it did not properly look at my profile and the threat I experienced with the Sri Lankan authorities as they did not consider my brothers-in-law who were involved in LTTE and my association with the members of LTTE which would give rise to imputed political opinion.

   Particulars

   The Tribunal did not consider my association with my brothers – in – law who were involved in LTTE and the Tribunal failed to consider my involvement would give rise imputed political opinion.

   2. The Tribunal made an error as it did not properly look at my complementary protection.

   Particulars

   The Tribunal did not consider my circumstances, my involvement with my brothers-in-law who were compelled to get involved in LTTE, and being a Tamil the risk I faced as young Tamil male from authorities of Sri Lanka.

   3. The Tribunal made an error in assessing my protection visa application and failed to consider the well-founded fear in my circumstances.

   Particulars

   The Tribunal did not look at the threat and treatment from the authorities as I indirectly got involved with LTTE activities which must be considered as having imputed political opinion.

2. The application under the first return date identifies:

   The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.

3. The Court raised with the applicant that it was concerned that the application failed to identify an arguable jurisdictional error and, having looked at both the Tribunal decisions and the Court book, was minded to consider whether it should exercise its summary disposal powers and deal with the matter today. 

4. The applicant identified that everything that he had said was true and that the Tribunal did not believe him.  The applicant identified that he was planning to hire a solicitor to assist him.  The Court indicated that it would not grant the applicant an adjournment if there is no utility in doing so because the proceedings are clearly doomed to failure as that will only unnecessarily add to the costs of the parties and utilise Court time.  For the reasons given in this decision, I am clearly satisfied that the proceedings are doomed to failure and that there would be no utility in granting any adjournment. 

5. In considering exercising the summary disposal powers under s.17A (Federal Circuit Court Act 1999) and r.13.10 (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.

6. The first respondent, in my opinion, correctly identified that each of the grounds were, in substance, an impermissible merits review.  The findings the Tribunal made were clearly open on the material before it.  In relation to the proposition that the Tribunal did not properly look at the applicant’s claims in relation to his brothers in law, that is clearly contradicted by paras.8, 21, 22 and 29.  Accordingly, there is no substance in ground 1. 

7. In relation to ground 2, it is clear from para.64-72 that the Tribunal considered and made findings that were open to it in respect of complementary protection. 

8. In relation to ground 3, that is in substance a challenge to the finding of fact made by the Tribunal, and it is clear that the Tribunal carefully considered the claims of the applicant and made findings as to credit of the applicant that were open to the Tribunal.  It cannot be said that those findings lack an evident and intelligible justification. 

9. The applicant applied for a protection visa on 3 December 2012, which was refused on 11 October 2013.  The applicant appeared before the Tribunal on 20 June 2015 to give evidence and present arguments and was assisted by an interpreter as well as represented by registered migration agents, being Vrachnas Lawyers.  The Tribunal carefully set out the applicant’s claims and, relevantly, the Tribunal made the following findings:

   14. For the reasons outlined below, the Tribunal has found the applicant’s evidence to be a generally vague, inconsistent, and lacked in significant details about fundamental aspects of his claims. In the course of the hearing, the applicant was unable to provide coherent accounts of core aspects of his claims, such as when the CID had questioned and approached him. Those matters raise doubts about the applicant’s claims and his credibility generally. The applicant, on various occasions, told the Tribunal that he has memory problems and that he could not recall details. The Tribunal appreciates that the applicant is claiming to have experienced incidents years ago and that it is plausible that his memory may lack details. The Tribunal understands that the applicant has had limited years of education (up to year six) and that this could impact on one’s ability to recall. The Tribunal has taken those matters into consideration, however, without independent evidence, the Tribunal does not accept that the applicant suffers from any clinical condition which the Tribunal needs to take into account when assessing his claims; the Tribunal is satisfied that the evidentiary problems highlighted below reflect poorly on the applicant’s credibility.

   15. The Tribunal asked the applicant where he lived prior to leaving Sri Lanka. The applicant stated that he arrived in Australia on 25 July 2012 and that prior to his departure from Sri Lanka, he lived in [C]. The Tribunal asked him for how long he had lived in [C] and the applicant stated that he was in [C] for about two months prior to his arrival in Australia (May 2012). The applicant subsequently said that he was confused about when he went to [C] and that he could not remember the exact date. He said he remembers that he left Sri Lanka on 11 July 2012 and that he was in [C] for about two months prior to his arrival in Australia. He was asked and he confirmed that he could not recall but he thought that it was the 6th month of 2012. The Tribunal asked the applicant where he lived prior to going to [C] and the applicant stated that he was living in [M]. The Tribunal asked the applicant for how long he had lived in [M]. He said that his family lived in [V] and that he was going back and forth from [M] to [V]. He later said that he lived in [V]. The Tribunal indicated to the applicant that he had earlier said that he was living in [M] prior to going to [C] and the applicant now said that he went to [M] for business and when he was faced with problems, he went to [C] straight from [M]. The Tribunal noted that he had said that he was living in [V]. The applicant now said that his wife was living in [V] and that when he was told that he had problems, he went to [C] by bus from [V]. He said he went from [M] to [V] and then [C]. The Tribunal asked again where the applicant had lived prior to going to [C] and the applicant stated that his family was in [V] but he had stayed in [M]. The Tribunal is of the view that the applicant’s evidence in relation to where he had lived prior to going to [C], is confused, incoherent, vague, and inconsistent raising doubts about the applicant’s credibility.

   16. The Tribunal asked the applicant about his claim that after he started commuting to [M] in 2005, he was approached and questioned by CID officers. The applicant stated that he was not at home but his wife had told him that the CID had gone to their home asking about him. The Tribunal asked him when his wife had told him that the CID had gone to his home and the applicant stated that after he went to [C] and kept his two brothers in law. As the applicant did not answer the question, the Tribunal asked him again and now the applicant said that this occurred after he had gone. The applicant started talking about an adopted brother by the name of [S] who had lived in his house with the family. Asked again when his wife had told him about the CID officers and now the applicant stated it was in 2011. He was asked to clarify the date and he said that he could not remember clearly but he thought it was at the end of 2011. The Tribunal asked the applicant again about his claim that after he started commuting to [M] in 2005 he was approached and questioned by CID officers. The applicant responded by saying that when they go from “here to there”, there were checkpoints where he was stopped and asked questions about where he was, what he was doing, and where he was going. He said this happened because they lived close to a camp. The applicant gave evidence that where he lived in [V] was close to the air force base and army camp which was about a five minute walk from his home. He said that this was a big problem for him. He said because he was travelling to [M], he was suspected of having LTTE associations. The Tribunal asked the applicant if he was able to provide any dates in relation to those incidents and the applicant stated that he could not remember any dates but that he was asked questions because he used to go to [M] weekly. He stated that he was questioned at checkpoints. The Tribunal is of the view that despite ample opportunity to clarify and provide details about his claim that he was approached and questioned by the CID sometime after 2005, the applicant’s responses were incoherent, lacked in significant details and were vague, raising serious doubts about those claims and the applicant’s general credibility.

   17. The Tribunal asked the applicant if there were any other incidents apart from the claimed questioning. The applicant did not answer the question; he stated that he got help because he did not want anything to happen to his business. The Tribunal asked him again if he had experienced any other incidents and now the applicant confirmed that nothing else had happened to him. The Tribunal put to the applicant that in the statement of claims provided in support of the application for a protection visa, he had claimed that between 2005 and 2009, he was subjected to CID harassments, extortions, and threats. The Tribunal asked the applicant when he was harassed and subjected to extortion. The applicant stated when he was in the jewellery business, CID would put orders from jewellery but did not pay. The Tribunal asked him if he could remember any of those dates and the applicant stated that the incidents occurred in 2006 and 2007 when he was doing business. He said they asked for chickens but refused to pay for them. He said they demanded bribery and that he did not give the money but instead gave jewellery and chickens. The Tribunal is of the view that the applicant required substantial prompting to respond to simple questions about his claims, raising doubts about their veracity. Furthermore, the applicant’s written claims are inconsistent with his evidence, raising doubts about the claims and the applicant’s credibility generally.

   18. The Tribunal asked the applicant whether his brothers-in-law were in the LTTE. The applicant stated that his brothers-in-law were captured by the LTTE and forced to do things such as training and preparing to fight. The Tribunal asked him when he is a brothers-in-law escaped from the LTTE and he stated that it was during the last war in 2009. He said they came to live with his family where they were hiding. He said that he kept them in his house for two years and they did not go out. The Tribunal asked him to clarify whether they were indeed kept in the house for two years and the applicant stated that they occasionally left the house to get chickens with him. The Tribunal asked him when the CID had questioned him about his brothers-in-law. The applicant stated that this was at the end of 2011. He told the Tribunal that it would be best to ask his wife about those dates as she would know. The Tribunal indicated to the applicant that he is making the claim that he was questioned by the CID and it is appropriate for the Tribunal to ask him when he was questioned. The applicant gave evidence that his brothers-in-law left Sri Lanka sometime in 2011 and went to Saudi Arabia. He said he was approached by the CID on three occasions in 2011 after they left. The Tribunal asked him about those dates and the applicant stated he could not recall the dates of when he was approached. The Tribunal is of the view that the applicant’s responses in relation to when he was questioned by the CID about his brothers-in-law, were vague, lacked in details, and evasive, raising doubts about the claims and his credibility generally. The Tribunal is also of the view that the applicant’s evidence that he kept his brothers in law in the house, apart from the rare occasions, is exaggerated and suggestive of an ability to embellish, raising doubts about his credibility.

   19. The Tribunal asked the applicant if his house has ever been ransacked by the authorities and the applicant stated that it had on one occasion. He later changed his evidence and said that they came twice. The Tribunal asked him when that happened and the applicant stated that he could not recall. The Tribunal is of the view that the applicant’s evidence in relation to this claim lacked details, raising doubts about the claims and his credibility generally.

   …

   22. Whilst the Tribunal accepts as plausible that on occasions the applicant was stopped at checkpoints and asked questions about where he was going, what he was doing, on the basis of the available information, in consideration of the evidence as a whole and given the Tribunal’s concerns discussed above about the applicant’s credibility, the Tribunal does not accept that the applicant was ever questioned by the CID about his brothers-in-law, or that his wife was ever approached and asked about him, or that she ever told him that the CID had gone to their home asking questions about him, or that the brothers-in-law had been abducted by the LTTE, or that they had any connections with the LTTE, or that he was ever approached by the CID, or requested to respond to enquiries about the brothers-in-law’s activities in the past, or that he did not abide CID orders, or that he was ever subjected to any extortions, threats and or harassments by the CID (including chicken and jewellery being demanded for free), or that his house was ever ransacked, or that he fears harm or that he fled Sri Lanka for not abiding CID orders. In essence and for the stated reasons, the Tribunal does not accept that the applicant’s brothers-in-law had any connection, actual or imputed, with the LTTE, or that the applicant has a profile through his associations with his brothers-in-law, his Tamil ethnicity, or for having had a goldsmith and chicken business, or for having travelled to [M] regularly, that would lead to him being imputed with LTTE association or connection, or that there is a real risk or real chance of harm on these bases. For the same reasons, the Tribunal does not accept that the applicant has suffered or would suffer serious or significant harm on the bases of his business, Tamil ethnicity, family relations, place of origin ([V]), or any other reason. In relation to living in a house in close proximity to the camp, whilst it is possible that this could mean that he could be stopped at checkpoints, in consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real risk or real chance of harm on this basis.

10. The Tribunal then turned to carefully consider whether the applicant would suffer serious harm on the basis of being a Tamil, a failed asylum seeker, a returnee from a Western country or being perceived to be an LTTE sympathiser.  Relevantly, the Tribunal found in that regard:

    29. The applicant does not claim to be a member or a supporter of the LTTE. He does not claim that he is, or has ever been, an LTTE member, supporter or sympathiser. He is claiming that his brothers-in-law were abducted by the LTTE and were forced into training, which the Tribunal has not accepted. For the stated reasons, the Tribunal has not accepted that the applicant or any member of his family is of any adverse interest to the CID. The applicant is essentially claiming that the political opinion would be imputed from being a Tamil, a failed asylum seeker, from being forcibly returned from a Western country and for having departed illegally. The Tribunal accepts that the applicant is of Tamil ethnicity from [V], that he may be considered as a failed asylum seeker and a forced returnee from a Western country. However, in consideration of the evidence as a whole, the Tribunal is satisfied that those factors do not mean that the applicant or any member of his family would be perceived as having any links or associations with the LTTE or sympathiser. In any event, credible independent country information essentially indicates that it is those who have actual or perceived strong LTTE links/sympathisers who can be targeted.

    …

    36. The Tribunal is satisfied that credible independent country information fundamentally indicates that it is those who have actual or perceived strong LTTE links/sympathisers who can be targeted. As the applicant has no profile of being involved or suspected of being involved with the LTTE, the Tribunal does not accept that the applicant would be imputed with an adverse political opinion by the Sri Lankan authorities because he is Tamil from [V], or that he had goldsmith and chicken businesses, or that he had travelled to [M] regularly. In consideration of the evidence as a whole, the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm on these bases, in case of his return to Sri Lanka.

11. The Tribunal carefully addressed the issue of the applicant being a failed asylum seeker and relevantly found:

    48. In consideration of the evidence as a whole, the Tribunal finds that the applicant would not face a real chance of harm on the basis of being a Tamil failed asylum seeker, or a returnee from a Western country. On balance, the Tribunal is satisfied that country information indicates that Tamil asylum seekers are not a target of ill-treatment on their return and that it is essentially those with an adverse profile, who can encounter harm in Sri Lanka, if returned from a western country as failed asylum seekers. In consideration of the evidence as a whole, the Tribunal is not satisfied that the applicant has a profile that would mean that there is a real chance that he would be harmed on his return by the authorities, or his own community, or any other group.

1. The Tribunal carefully addressed the issue of illegal departure, and the application of Immigrants and Emigrants Act 1949, which it found to be a law of general application applied in a non-discriminatory manner and serving a legitimate purpose in para.59.  It is clear the decision WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 was overruled by the Full Court of the Federal Court in the decision SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40. In this case, it is also clear that the Tribunal made cumulative findings adverse to the applicant within s.91R(1). Relevantly, the Tribunal found:

   62. Therefore, in consideration of the evidence as a whole, the Tribunal is satisfied that the applicant does not now or in the reasonably foreseeable future have a well-founded fear of persecution arising essentially and significantly for one or more of the five Convention reasons if he returns to Sri Lanka on the basis of his illegal departure, being of Tamil ethnicity, or being perceived as being opposed to the authorities, or for his illegal departure. In essence, in consideration of the evidence as a whole, including the applicant’s individual circumstances, the Tribunal is not satisfied that the applicant faces a real chance of harm amounting to persecution as a failed asylum seeker, for his illegal departure, for being a forced returnee, or for any other claimed reasons, either singularly or cumulatively. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

   63. Based on all the evidence before it, the Tribunal is not satisfied that the applicant faces persecution for any of the reasons claimed or arising on the evidence, either singularly or cumulatively, for a Convention reason, in the reasonably foreseeable future. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Sri Lanka for a Convention reason in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.

2. Tribunal turned to the issue of complementary protection and made findings as follows:

   71. In essence, the Tribunal finds that there are no 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 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. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.

   72. On balance, on the information before it, the Tribunal is not satisfied that, the applicant, being a person who has left Sri Lanka illegally, even when considered cumulatively with what is accepted of the applicant’s claimed risk profile and the independent sources excerpted by the applicant’s representative, involves or creates a real risk of treatment amounting to significant harm as contemplated by section 36(2A) of the Act. Accordingly, the Tribunal does not accept that 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 that he will suffer significant harm.

   73. 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).

   74. 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).

3. The findings of the Tribunal were clearly open.  I am satisfied that the applicant had a genuine hearing.  There is no substance on the grounds identified in the application.  The proceedings are clearly doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  31 March 2015