ACJ15 v Minister for Immigration
[2015] FCCA 736
•26 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACJ15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 736 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010]HCA 28 SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 |
| Applicant: | ACJ15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 518 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
| Counsel for the Applicant: | Mr A. Kumar |
| Solicitors for the Respondent: | Mr L. Dennis Sparke Helmore |
ORDERS
Proceedings be summarily dismissed.
Applicant pay the Frist Respondent’s costs fixed in the sum of $1367
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 518 of 2015
| ACJ15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
As Corrected
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 made on 12 February 2015, affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa. The application identifies the following grounds:
Ground 1
The Tribunal committed jurisdictional error by failing to comply with its obligations under s425 of the Act.
Particulars
(i) The Tribunal stated that it was unconvinced that the Applicant had been taken in for questioning (RRT dec at [22] – [23).
(ii) The Tribunal otherwise rejected the claims.
(iii) The Tribunal fell into error by failing to provide the applicant opportunity to explain and put his claims.
(iv) The Tribunal committed jurisdictional error.
Ground 2
The Tribunal erred when assessing the complementary protection in that it asked itself the wrong questions / applied wrong test / 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 [72] – [73]) in harsh conditions.
(ii) Short determination for illegal departure is not the correct assessment under s 36(2)(aa).
(iii) The Tribunal fell into jurisdictional 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
(i) 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.
(ii) Short detention for illegal departure was no 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.
(iii) The deprivation of livelihood constituted significant harm was not properly considered.
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.
I take into account the principles and caution in respect of the summary dismissal 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].
The Court raised with counsel before the applicant that it was concerned that the application failed to disclose an arguable case. Mr Kumar properly conceded that ground 2 was not arguable. In relation to ground 1, Mr Kumar sought to argue that there was an important connection with respect of the findings in paras.22 and 23 to the determination of whether the applicant was a refugee. Mr Kumar is correct, that this was a matter for the Tribunal to determine and grounds 1 and ground 3 are an impermissible challenge to findings of fact that were open before the Tribunal and a matter for the Tribunal to determine.
Mr Kumar identified in relation to ground 3 that he wanted to amend the ground to expand an argument in relation to the findings by the Tribunal of the suffering of harm under s.91R(2)(a) and the attention to which the applicant would be exposed, I am satisfied that that proposed amendment has no utility and is equally doomed to failure as an attack on a finding of fact that was open for the Tribunal to make and is an impermissible change to the finding of fact.
The applicant applied for a visa on 31 December 2012, which the delegate refused to grant on 2 September 2013. The Tribunal expressly notes that the applicant appeared before the Tribunal on 5 December 2014 to give evidence and present arguments. There is no substance in the assertion of non-compliance with s.425 of the Migration Act 1958. It was clear from the decision that the Tribunal properly considered and identified the applicant’s claims and the relevant law.
Materially, the Tribunal made the following findings:
16. On the basis of the available information, the Tribunal finds that the applicant is a national of Sri Lanka. He has provided copies of documents relating to his identity. The applicant made no claim to be a national of any other country. The Tribunal finds that the claims should be assessed against Sri Lanka for the purposes of the Convention in s.36(2)(a) and as the receiving country for the purposes of the complementary protection obligations in s.36(2)(aa).
Has the applicant suffered any of the claimed harm?
17. For the reasons outlined below, the Tribunal has found the applicant’s evidence to be generally vague, inconsistent, and lacked in significant details about fundamental aspects of his claims. As discussed below, in the course of the hearing, the applicant was unable to provide coherent accounts of core aspects of his claims, raising doubts about his claims and credibility generally.
18. The applicant gave evidence that he is of Tamil ethnicity and that his parents, wife and 3 ½ year-old son live in Sri Lanka in the same house where he was living prior to him coming to Australia. He stated that he worked in [S] salon in [C]. In response to questions about his claims, the applicant stated that on 7January 2007, he was arrested and that the owner of the salon [SN], was arrested two weeks earlier, namely at the end of 2006. The Tribunal asked the applicant if he knew why [SN] was arrested and the applicant stated that a leading LTTE member, [T] who was also of the same cast, had sent people to the salon who had links to the LTTE. The Tribunal asked when that happened and the applicant stated that it was in 2002 when a few LTTE supporters went to the salon. Subsequently, the applicant stated that this occurred between 2004 and 2006. The Tribunal pointed out that he had earlier said that this was in 2002. The applicant stated that he had been in the salon since 2002 but those people moved around between 2004 and 2006. The applicant indicated that [SN] was arrested because of those people who used to visit the salon.
19. The Tribunal noted that there appears to be inconsistencies with the statutory declaration dated 10 December 2012, where the applicant had claimed that [SN] was arrested sometime in January 2007, to which the applicant responded by saying that the dates are very close and that 2007 is what he remembers. The Tribunal noted that the claim relating to [T] is a significant claim which appears not to have been made in the statutory declaration. The applicant stated that he was told that he could elaborate on his claims and that it is appropriate to outline his claims briefly in the statutory declaration. Subsequently, the applicant referred to a person whom he had met by the name of [G] who was sent by [T]. The Tribunal noted that there was no mention of [G] in the statutory declaration and the applicant stated that [G] was an important person in the LTTE who often went to the salon. The Tribunal asked him why he had not mentioned [G] in the statutory declaration and the applicant stated that the representative had told him that those details could be mentioned subsequently. The applicant stated that he saw [G] in the fourth floor in [C] and that both he and [G] were kept in the same room and asked questions about their connections with the LTTE.
20. In oral submissions, the representative noted that the UNHCR guidelines in relation to the assessment of refugee claims stipulate that the benefit of the doubt should be given to an applicant, and that inconsistencies as well as lack of details should not deflect from the claims. He stated that the applicant was advised by the representative that he could further elaborate on his claims. The Tribunal is of the view that it is indeed reasonable that a statutory declaration provided at the primary stage may not contain every detail about the applicant’s claims for protection and there is no such expectation by the Tribunal. On the other hand, inconsistencies and not mentioning significant claims at that early stage of the process could suggest fabrication and as such cannot be dismissed. Whilst the inconsistency in relation to the date of [SN]’s arrest may be minor, when considered with other issues with the evidence, the Tribunal is satisfied that it does raise doubts about the claims. The claims relating to [T] and [G] are not minor and failure to mention them in the statutory declaration suggests that the applicant was tailoring his claims, raising doubts about his credibility.
21. The Tribunal asked the applicant for how long he was detained in 2007 and he stated that he was detained for one month and was released subsequent to his mother giving [AD] who was CID officer Rs.100,000 on condition that he would report so that he could be monitored. The applicant was asked and he confirmed that he had to report to the CID office once a month for a year. The Tribunal noted that in the statutory declaration he had claimed that he was required to report weekly for approximately a year, not monthly. The applicant responded by saying in [C] he reported weekly then he was asked to report monthly. The Tribunal is not persuaded and is of the view that the inconsistency raises doubts about the applicant’s claims and his credibility.
22. The Tribunal asked the applicant if there were any other incidents of arrest and the applicant confirmed that there were not any other incidents. He stated that after his arrival in Australia, [SN] disappeared in May 2013. The Tribunal asked the applicant if there were any other incidents of arrest and the applicant stated that there were not but there were problems. He now said that the police often came to their home and took them for questioning as they were suspicious because of where he had been which was an LTTE area and was therefore always suspected of being involved with the LTTE. The Tribunal asked him when he was taken for questioning and the applicant stated that since he moved to [J] after 2007, he was questioned by the police. Asked about any dates and the applicant stated that this happened when the police patrolled the area which was once a month during which some of them were taken, including him. The Tribunal asked the applicant if he was able to provide any dates and the applicant stated that this happened “often”. He said in May 2014, his wife’s ID was taken and his sister was harassed by the police which led her to leave Sri Lanka. He said his sister’s children died at sea when they were on the boat in Indonesian waters. He said his sister is alive. The Tribunal referred to the photographs provided of the dead children in coffins and the applicant confirmed that the photographs relate to his sister’s children who died at sea. The Tribunal indicated that it would further consider the relevance and weight that it would place on the photographs.
23. The Tribunal referred to the applicant’s oral evidence that he had often been taken for questioning and indicated that there does not appear to be mention of that claim in the statutory declaration and the applicant’s reiterated his earlier explanation namely that his representatives wanted him to provide his claims in a summary format and advised him that only significant matters should be noted. The Tribunal is not convinced; the applicant’s evidence in relation to the claim of being questioned and or arrested subsequent to the 2007 incident, was internally inconsistent, general, vague, and incoherent raising doubts about the claims. Furthermore, the claim that he was often taken for questioning was not made in the statutory declaration of 10 December 2012, raising doubts about the claims and suggesting fabrication.
24. The Tribunal asked the applicant about his claim that the army often went to his house searching for him and asked him when that occurred. The applicant stated that since 2008, the army visited regularly and harassed his wife. He said there was an army camp close to their house and when the army passed, they spoke to them. The Tribunal asked him about the claim that he was harassed by the army and asked him how he was harassed and the applicant said that the army knocked on the gate, chatted with his wife and asked for water. The Tribunal asked the applicant when the army searched his house and he stated that on 27 May 2013, they searched the whole house and took photos and IDs. The Tribunal is of the view that the applicant’s responses in relation to the question about when the army came searching for him are general and lacking in details, raising doubts about the claims.
25. The Tribunal asked the applicant about his claim that his brother in law’s relative was a member of the LTTE. The Tribunal asked him when he had discovered that the relative was a member of the LTTE and the applicant stated in 2008 when his sister got married. The Tribunal asked the applicant why he had not mentioned that relative in the statutory declaration that was provided in support of the application for a protection visa and the applicant stated that he had told his representative that the relative was a member of the LTTE and that he had died in 2009 during battles. He said that he was requested to provide information about him and felt that the relative’s connection with the LTTE was not relevant. As mentioned earlier, whilst the Tribunal is of the view that it is reasonable that a statutory declaration provided at the primary stage may not contain every detail about the applicant’s claims for protection, not mentioning significant claims at that early stage of the process could suggest fabrication and as such cannot be dismissed. Claiming that a relative is a member of the LTTE is a significant claim and the Tribunal would have expected prior reference to that claim and the failure to have done so suggests fabrication.
26. In consideration of the evidence as a whole, on the basis of the available information and given the Tribunal’s concerns about the applicant’s credibility, the Tribunal is not satisfied that the applicant was ever arrested, or detained, or ill-treated by the CID or any other entity of the Sri Lankan authorities.
27. In essence and for those reasons, the Tribunal does not accept that [SN] was ever arrested by the CID, or that the applicant was arrested by the CID in 2007 or on any other date, or that he was ever detained for any period of time in 2007 or any other date, or that he was ever taken to, or questioned in the fourth floor about any association with the LTTE, or that he was ever ill-treated in any form during any detention by the Sri Lankan authorities, or that the applicant’s parents paid any person, including [AD] any money as a bribe in order to secure the applicant’s release, or that the applicant subsequent to his release had to report weekly or monthly, or that it was not until 2008 that he was told that he no longer had to report, or that after his release he and his parents informed the Sri Lankan authorities that he would not be remaining in Sri Lanka, or that he went to [K] village because he was afraid of working in [C], or that he was ever harassed and treated differently by the Sri Lankan soldiers whenever he travelled on roads, or that the army ever went to his house searching for him, or that he was ever questioned by the army in relation to any LTTE members or support of the LTTE, or that the army continued to go to his home from 2009 until 2012, or that whenever he travelled with his wife he was harassed by the army, or that he left Sri Lanka for any of the claimed reasons, or that he is at risk of been harmed or possibly killed by the Sri Lankan authorities because he is Tamil, or that he has ever come to the adverse attention of the Sri Lankan authorities, or that the CID or any other entity of the Sri Lankan authorities were searching for him after he left Sri Lanka, or that on 27 May 2014, the police searched his house or that they took photos and ID, or that his life would be in danger because the Sri Lankan authorities believe that he is an LTTE supporter, or that his brother in law’s relative was a member of the LTTE or that the applicant’s life is in danger because of this connection, or that because of the harm he had suffered previously he would be targeted by the Sri Lankan authorities on his arrival.
28. On the basis of the available information, that the Tribunal accepts as plausible that the sister’s children died at sea in the Indonesian waters whilst trying to leave Sri Lanka. However, given the credibility concerns, in consideration of the evidence as a whole, and in light of the above findings in relation to the applicant’s claims, the Tribunal does not accept that the applicant’s sister had fled Sri Lanka because of what had happened to the applicant or that her decision to leave had any connection with the applicant’s claims. Similarly, whilst the Tribunal accepts as plausible that Tamil Hindu temples are being demolished and Sinhalese Buddhist temples are being built instead, on the basis of the available information, the Tribunal is not satisfied that the applicant has a well-founded fear on this basis.
…
37 The Tribunal is satisfied that credible independent country information fundamentally indicates that it is those who have actual or perceived strong LTTE links/sypathisers who can be targeted. As the Tribunal has found that the applicant has no profile of being involved or associated with, 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 the North, or he has left Sri Lanka illegally, or as a failed asylum seeker, or for any other claimed reason.
38. On the basis of the available information, the Tribunal is not satisfied that the applicant’s attributes, including being a Tamil Hindu, and profile considered individually and cumulatively mean that he would be discriminated against in any way, or that he would be denied any opportunities.
39. In consideration of the evidence as a whole and for the stated reasons, the Tribunal is not satisfied that the applicant would be subjected to any harm amounting to persecution or significant harm on the basis of being Tamil (or any other bases).
…
51. In consideration of the evidence as a whole, the Tribunal finds that the applicant would not suffer serious harm on the basis of being a Tamil failed asylum seeker, or a returnee from a Western country, or be subject to treatment involving systematic and discriminatory conduct for any Convention reason. On balance, country information indicates 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 seriously harmed on his return.
The Tribunal addressed the issue of illegal departure, in light of the decision of the Full Court SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 it is not necessary to address the findings in details but it is clear from paragraph 63 that the Tribunal found that the Immigrants and Emigrants Act 1949 was a law of general application and applied for non-discriminatory and legitimate purposes.
The Tribunal carefully identified the potential application of that Act and the consequences of detention, the possible prejudice to the applicant:
63. The Tribunal is satisfied that the laws in relation to illegal departure are laws of general application, applied in a non-discriminatory manner and serving a legitimate purpose of dealing with people who depart their country unlawfully. Having considered the relevant country information, the Tribunal is satisfied that the laws regarding unlawful departure, which includes being arrested, charged and fined are not selectively enforced or applied in a discriminatory way for a Convention reason, as they apply to all returnees who departed illegally. The Tribunal is not satisfied that the treatment faced by returnees who departed illegally would give rise to persecution as contemplated by s.91R(1)(c). This includes processing at the airport, questioning, and being held on remand for a few days awaiting a bail hearing and being fined. With regards to the loss of liberty while on remand, because it arises from the non-discriminatory operation of a law of general application, the Tribunal finds that it does not amount to persecution for the purposes of s.91R(1)(c). Although the conditions of the remand cell he might be kept in would cause him to suffer discomfort and unpleasantness, on the evidence and information before it, the Tribunal does not accept that, in his particular circumstances and with his attributes, he would be persecuted for any reason, as contemplated by s.91R.
64. Having considered the information before it, the Tribunal is not satisfied that the treatment faced by Sri Lankan returnees who have departed Sri Lanka unlawfully, either at the airport on arrival, on remand awaiting a bail hearing or when they are later dealt with by the courts, amounts to persecution or gives rise to such harm in the reasonably foreseeable future, even when assessed cumulatively with what is accepted of the applicant’s personal profile and circumstances in Sri Lanka. Nor is the Tribunal satisfied that the process involves or gives rise to differential treatment for a Convention reason.
65. 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 Hindu ethnicity from the Northern Province, a failed asylum seeker, or for his illegal departure.
66. In essence, in consideration of the evidence as a whole, including the applicant’s individual circumstances either singularly or cumulatively, the Tribunal is not satisfied that the applicant faces 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. Accordingly, the Tribunal is not satisfied that the applicant is a refugee under section 36(2)(a) of the Act.
The issue of s.91R is not relevant to the issue of complementary protection and it’s clear for the reason of the adverse findings of fact made in respect of s.91R(1) that the arguments advanced by the applicant in grounds 2 and ground 3 are doomed to failure.
The Tribunal turned to the issue of complementary protection:
73. While the Tribunal accepts, on the basis of the country information available to it, that the applicant may be remanded in conditions which are cramped and uncomfortable, the Tribunal does not accept that spending time in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required in the definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment. On the evidence before it, the Tribunal is satisfied that the conditions have not arisen due demonstrable intent on the part of the Sri Lankan authorities. Accordingly, the Tribunal does not accept that there is a real risk that the applicant will be subjected to significant harm as defined while he is on remand for a relatively short period.
74. 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. Mere negligence or indifference is not sufficient, what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept on the evidence before it 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. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.
75. 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. Whilst the Tribunal accepts as plausible that Tamil Hindu temples are being demolished and Sinhalese Buddhist temples are being built instead, on the basis of the available information, the Tribunal is not satisfied that the applicant would suffer significant harm on this basis.
76. 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.
CONCLUSIONS
77. 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).
78. 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 is in these circumstances that it is clear that the application is doomed to failure. There is no utility in granting the applicant an adjournment to amend the application as the proceedings are clearly doomed to failure and the proposed amendment identified by Mr Kumar does not identify an arguable ground. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 6 May 2015
CORRECTIONS
Representation for the Respondent corrected to Mr L. Dennis of Sparke Helmore.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Summary Judgment
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Costs
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