ACQ15 v Minister for Immigration

[2015] FCCA 827

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACQ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 827

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

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28

Applicant: ACQ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 550 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

The Applicant appeared in person

Solicitors for the Respondent: Ms N. Maddocks
DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 550 of 2015

ACQ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act for a constitutional writ in respect of a decision of the Tribunal made on 6 February 2015, affirming a decision of the delegate not to grant the applicant a protection visa.

2. The application identifies the following grounds:

   Ground

   I am a Tamil fro1n Sri Lanka. I was told by my previous representative that the refugee review Tribunal member did not find me to be a refugee due to certain inconsistencies. The incidents that happened to me occurred a while ago as I was told that I did not mention certain things at previous interviews which was one of the reasons 1ny application for protection was refused by the member.

   Since arriving in Australia (Christmas Island) in June 2012, until I left the detention centre I was under medication because of my state of mind at the time. More rece11tly 1 was prescribed medication for blood pressure (name of trug-Twynsta) which I have been taking regularly and was under medication during the time of the tribunal hearing. I believe my state of mind caused due to what happened to me in the past and the medication I l1ave taken while in the camp and since being released into the community is likely to have caused me to be inconsistent during various interviews. I did produce a medical report which was given to 1ne previously and believe the details in this report and my testimony I reasons for being inconsistent, was not properly looked into by the decision maker.

   At Paragraph 44 of the decision record the 1nember seems to indicate that I would be held at the Nego1nbo p1ison for a brief period because I departed the country illegally, I believe the possible harm I could face if I was to be i1nprisoned even for a brief period was not properly assessed.

3. On the first Court date, the application provides:

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

4. The Court identified to the applicant that having looked at the grounds, and having looked at the decision, the Court was minded to consider exercising its powers of summary dismissal.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, at [24]-[25] and [59]-[60].

5. In response to the Court’s concern that the matter failed to disclose an arguable jurisdictional error, the applicant says he was taking medication at the time of the Tribunal hearing and was confused, and said that there was contradictory evidence.  The applicant said if he returned to his home country he would be imprisoned, tortured, and his life would be in danger. 

6. The applicant asserted that there was contradictory evidence before the Tribunal, and that he was suffering from loss of memory, and sought to identify tablets that he is taking in that regard.  The Court identified that none of the matters could identify any jurisdictional error, and there was nothing further that the applicant sought to put. 

7. It was a matter for the Tribunal to determine what evidence was credible and it is not a case that because there is contradictory evidence not accepted by the Tribunal, that this gives rise to any jurisdictional error.  It was a matter for the Tribunal to determine what evidence it accepted, and I am satisfied that the findings made by the Tribunal were open on the material before the Tribunal, and the findings cannot be said to lack an evident and intelligible justification.

8. The findings of the Tribunal as to the potential consequences for the applicant having illegally departed Sri Lanka, which the Tribunal found was the relevant country for the purpose of reference in relation to the applicant's claims, were findings of fact that it was open to the Tribunal to make.  Relevantly, the Tribunal found that it did not accept that there was a real risk that the applicant would suffer harm as a consequence of any brief period of imprisonment that may be applied to the applicant as a result of a general law that is not applied on a discriminatory basis.  Relevantly, the Tribunal concluded in para.69:

   69. … Accordingly I do 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 hmm as defined in subsection 36(2A) of the Migration Act.

9. There was no substance in the grounds identified in the application, and the proceedings are clearly doomed to failure. 

10. The Tribunal carefully identified the history of the applicant in relation to Sri Lanka, and going to the United Kingdom, and then returning again to Sri Lanka, and carefully addressed the applicant's claims and held a hearing on 7 November 2014 at which the applicant appeared.  I am satisfied that the applicant  had a genuine hearing.  In respect of that hearing, the applicant also provided submissions dated 29 October 2014, which the Tribunal carefully took into account. 

11. It is also clear from the discussion of the applicant's claims that the Tribunal carefully complied with the statutory requirements.  Relevantly, the Tribunal concluded that the applicant was not a witness of truth, and relevantly found:

    49. … I consider that he invented the claim that after he had come here the authorities had come to his home and had threatened his wife, pointing a gun at her and asking for him.

    50. … Having regard to the inconsistencies in his evidence and what I consider to be his willingness to embellish his evidence or to invent new claims, I do not accept that the applicant is a witness of truth.

    …

    52. …. I do not accept on the evidence before me that there is a real chance that he will be taken in a roundup and tortured if he returns to Sri Lanka now or in the reasonably foreseeable future.

    53. … I do not accept that, as he claimed at the hearing before me, he spent the entire period from 2008 until 2012 in hiding because white vans passed his home many times and were monitoring him, nor that since he left Sri Lanka his family J:rave seen white vans parked outside their home so they have been very scared and do not sleep there but go to his wife's mother's home to sleep. I likewise do not accept the claim which he made and subsequently retracted at the hearing before me that since he had left Sri Lanka the authorities had come to his home and pointed a gun at his wife, asking for him. I accept that the applicant's son is in Belgium but I do not accept that his son went there because the authorities were coming b} the applicant's home looking for him after he came to Australia, as he claimed at the hearing before me.

    54. Having regard to my findings of fact above I do not accept that the applicant has ever been of any interest to the authorities in Sri Lanka. As l put to him with regard to his fear of being abducted and killed by people in a white van, he does not come within any of the categories of people identified by UNHCR as being in need of international refugee protection nor does he come within any of the categories of people identified by the UK Tribunal as being at real risk of persecution or serious hann.16 As I put to the applicant, I am not aware of any evidence to support the claim made by him at the hearing before me to the effect that the white vans target people returning from overseas. As I put to him, the material to which his representatives referred in their submission suggests that the white vans have targeted people like opponents of the government, journalists and activists.17 I do not accept that the applicant was targeted by white vans as a person who had returned from overseas when he returned to Sri Lanka from the UK in 2008 nor do I accept on the evidence before me that there is a real chance that he will be targeted by white vans because he will be returning from overseas if he goes back to Sri Lanka now or in the reasonably foreseeable future. I do not accept on the evidence before me that there is a real chance that the applicant will be harassed, threatened, monitored, abducted or killed by people in white vans -whether these people are from the Sri Lankan Anny, people smugglers, people acting at the behest of the authorities, in particular the CID, or people from aimed pro-government paramilitary groups if he returns to Sri Lanka now or in the reasonably foreseeable future. I do not accept that, as the applicant's representatives submitted, the applicant will have a higher profile if he returns to Sri Lanka because of his application for asylum in Australia. There is nothing in the material to which they referred, and nothing in the independent evidence of which I am aware, which suggests that the white vans target failed asylum-seekers who have returned from Australia or indeed any other country.

    55. While I accept that the applicant had concerns about the behaviour of his roommates at the time when he was interviewed by the primary decision-maker, he said at the hearing before me that he did not know if they had sent his information back to Sri Lanka or not I do not accept on the evidence before me that his roommates at the time sent his information to the Sri Lankan authorities as he suggested when he was interviewed by the primary decision maker.

    56. I do not accept that, as the applicant's representatives submitted, Tamils have been socially and economically marginalised in Sri Lanka since the end of the civil war. …

    …

    57. …I do not accept on the material before me that, if the applicant returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will face discrimination for reasons of his race as a Tamil in relation to matters such as employment:, access to services or access to legal remedies that is so serious or so detrimental in its impact as to amount to persecution.

    58. …I do not accept on the material before me that if the applicant returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be persecuted in the context of his processing at the airport because he is a Sri Lankan citizen who has sought asylum abroad or a failed asylum-seeker, because he is a Tamil or a Tamil failed asy1um~seeker or because he will be perceived as holding a political opinion in support of the LTIE and opposed to the Sri Lankan Government because he is a Tamil or because he has sought asylum in Australia (as submitted by his representatives).

    …

    60. Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraphs 42· and 44 above that returnees are treated in the same way regardless of their race or religion, that allegations of mistreatment of returnees have not been substantiated and that it is not aware of allegations of the. mistreatment of returnees while on remand, I do not accept on the evidence before me that there is a real chance that the applicant will be singled out or treated differently, for one or more of the five Convention reasons, from any other returnee who has breached thE1 laws of Sri Lanka relating to illegal departure. I do not accept that, as submitted by his representatives, he will face discrimination on account of his race through the discriminatory and disproportionate enforcement of the law. I do not accept on the evidence before me that, as submitted by his representatives, his illegal departure was politically-motivated nor that the Sri Lankan Government views illef.al departure as an implied statement of disloyalty or defence or as defection from a police state. I do not accept that, as required by paragraph 9IR(I)(a) of the Migration Act 1958, one or more of the five Convention reasons will be the essential and significant reason for his spending a brief period in gaol on remand or his being fined for his illegal departure if he returns to Sri Lanka. As I put to him, I consider that these consequences will be the result of the non-discriminatory enforcement of a law of general application.

    …

    62. For the reasons given above I do not accept that the applicant was forced to transport kerosene for the LTTE nor that he ge.ve the LITE kerosene on one occasion. I do not accept, therefore, that there is a real chance that if he returns to Sri Lanka he will be tortured or killed because of his claimed forced involvement in the L TTE. I do not accept that there is a real chance that the Sri Lankan authorities or the Sri Lankan Anny in particular will kill him because he is a Tamil and they suspect him of involvement in the LITE. Having regard to the fact that he returned: voluntarily to Sri Lanka from the UK in 2008 I do not accept that he genuinely fears that he "-ill be suspected of involvement in the L TIE because he spent many years outside Sri Lanka, as he claimed, nor do I accept on the evidence before me that there is a real chance that he will persecuted because of any political opinion imputed to him as a result of his periods of residence in the UK and Australia, as submitted by his representatives. I do not accept on the evidence before me that, as the applicant claimed, the Sri Lankan Government arrests, detains and tortures failed asylum-seekers and that this too will lead the authorities to suspect him of involvement in the L'ITE. As I have indicated above, I accept that the applicant will be briefly detained after he returns to Sri Lanka but this will be as a consequence of his illegal departure, nor because he it1 a failed asylum-seeker, and it will be the result' of the non-discriminatory enforcement of a law of general application. For the reasons given above I do not accept on the evidence before me that there is a rea1 chance that the applicant will be persecuted by the Sri Lankan Arn1y, the CID, the Sri Lankan authorities more generally, pro-government paramilitary groups or people smugglers if he :returns to his home in [U] now or in the reasonably foreseeable future.

    63. For the reasons given above, I do not accept that, if the applicant returns to Sri Lanka now or in the reasonably foreseeable future, there is a real chance that he will be persecuted for reasons of his race as a Tamil, his imputed political opinion in support of the LTTE or opposed to the Sri Lankan Government or his membership of either of the two particular social groups suggested by his representatives, Sri Lankan citizens who have sought asylum abroad' or 'failed asylum seekers'. I have considered the totality of the applicant's circumstances as a Tamil from [U] who I accept previously left Sri Lanka and spent some years in tho UK, 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 of1hese 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.

12. It was in those circumstances the Tribunal turned to the issue of complementary protection, and relevantly made findings:

    64. …Having regard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 41 above, 1 do 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 as a result of discrimination against him as a Tamil in relation to matters such as employment, access to services or access to legal remedies.

    …

    66. …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 the applicant 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.

    67. …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.

    68. 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 j 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 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..

    69. … Accordingly I do 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 hmm as defined in subsection 36{2A) the Migration Act.

    70. For the reasons given above I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant 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 be 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, the applicant does not satisfy the criterion in subsection 36(2) for a protection visa.

1. I am clearly satisfied that the findings made by the Tribunal were open and cannot be said to lack an evident and intelligent justification.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:   9 April 2015