ADD15 v Minister for Immigration

[2015] FCCA 822

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADD15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 822

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – 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, s.476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39

Applicant: ADD15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 578 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 Mr L. Dennis
Sparke Helmore

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 578 of 2015

ADD15

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 by the Tribunal made on 2 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa.

2. The grounds of the application are as follows:

   1. The Tribunal considered the wrong issue by considering duration in remand in its assessment of whether the applicant would suffer serious or significant harm while being persecuted under the Sri Lankan Immigrants and Emigrants Act for illegal departure [51].

   Particulars

   a. At [52] the Tribunal accepted that DFAT and various other groups have reported that conditions in remand have been described in media reports as poor, with a lack of access to adequate food, water and lack of access to assistance and limited reform regarding violence and maltreatment.

   b. The Tribunal considers that the weight of the evidence indicates that returnees will most likely be held for up to 14 days in remand and will then be bailed.

   c. It is not appropriate to consider the period of time in question when considering whether something constitutes a threat to liberty (WZPAN)

   d. The Tribunal erred by applying a qualitative assessment to whether time in remand posed a threat to liberty [52].

   2. The Tribunal failed to consider the lack of standardised procedures for the application and administration of the Sri Lankan Immigrants and Emigrants Act.

   Particulars

   a. A discretionary decision has to be made as to when a returnee is taken before a Magistrate for a bail hearing which will be carried out in the Sinhala language;

   b. Whether there is a family members who can attend the bail hearing in either Colombo or Negombo;

   c. Whether an assurance can be provided;

   d. A discretionary decision as to the amount of the assurance required and whether a family member can provide the assurance;

   e. If there are any problems for non-Sinhala speaking returnees and family members in participation in the bail and final hearings and how they are treated;

   f. The Magistrate in Negombo is reported to hand down the amount of fines ten times more than the Magistrate in Colombo indicating further there are no standardised procedures (DFAT Country Report, Sri Lanka (3 October 2014), paras 5.22-5.99)

   g. The applicant will return to his home village with a conviction; and

   h. As there are no standardised procedures there is a real chance that the applicant would be treated in a systematic and discretionary manner in the administration of the Sri Lankan Immigrants and Emigrants Act.

   3. The Tribunal considered the wrong test when applying the complementary protection provisions. (Did not consistently apply the facts throughout both decisions. The Tribunal accepted information in making the decision under s 36(2)(a) Migration Act but then failed to take into account the same information when ruling on the application under s 36(2)(aa) Migration Act.

   Particulars

   a. When Considering the application under s 36(2)(a) Migration Act, the Tribunal accepted that some Tamils returning to Sri Lanka after failing to seek asylum had been tortured by authorities [44];

   b. The Tribunal did not accept that this torture was due to being a member of particular social group [44];

   c. When considering whether s 36(2)(aa) Migration Act should be applied, it is not appropriate to ask whether the reason for torture is due to being a member of a particular group.

   d. If the Tribunal accepts that members of the social group to which the applicant belongs have been previously subject to torture, it is submitted that the Tribunal erred by not ruling there to be a real risk of torture to the applicant if he is returned to Sri Lanka.

   4. At [52] the Tribunal incorrectly applied the test of whether the conditions in remand constitutes degrading treatment or punishment because it held there was no ‘intention’ to ‘inflict cruel or inhuman treatment or punishment’, or ‘degrading treatment or punishment’

   Particulars

   a. The poor, unhygienic and overcrowded conditions in remand in Negombo Prison were well known and documented at the time the Immigration and Emigration Act was passed in Sri Lanka.

   b. As no facilities exist at Sri Lankan airports to hold failed asylum seekers in remand, it was known and intended by legislators that failed asylum seekers returning to Sri Lanka would likely be held in Negombo Prison.

   c. As there was the intention to subject failed asylum seekers to unhygienic, poor and overcrowded conditions upon return, the applicant satisfies the requirements outlined in s5(1) Migration Act.

3. The application identifies under the First Court date that the Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceedings. 

4. The Court identified to the applicant that, having looked at the application and the grounds, the Court was minded to consider it should exercise 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. The applicant urged the Court not to summarily dismiss his application because he had problems and could not return to his home country.  The applicant contended that he wished to have more time to stay in this country.  The applicant asked for advice in relation to the meaning of “jurisdictional error”.  In response to the question of identifying what was wrong with the decision, the applicant said he could not say anything about jurisdictional error, but if he returns, his life would be in danger.

6. There is no utility in granting an adjournment in respect of proceedings that are doomed to failure, as it will only add to the costs of the parties and utilise limited Court time.  I accept the submissions of the respondent that Grounds 1 and 2 of the application are doomed to failure in light of the decision of the Full Court in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39. I also accept the submissions of the first respondent that ground 3 seeks to impermissibly challenge a finding of fact that was open to the Tribunal and that ground 4 seeks to engage in a merits review of findings of fact that were open to the Tribunal to determine. There is no arguable jurisdictional error identified in the application.

7. The applicant was found to be a citizen of Sri Lanka and his claims were assessed on that basis.  The Tribunal carefully considered the applicant’s claims and evidence.  The Tribunal identified that it had issues concerning the applicant’s credibility which were squarely raised with the applicant by the Tribunal.  Relevantly, the Tribunal said:

   35. As I put to Mr [K] in the course of the hearing before me, I have difficulty in accepting his account of events which he claims prompted him to leave Sri Lanka.

   36. I likewise do not accept that it is plausible that Mr [K] might have appeared suspicious to the Sri Lankan authorities because he was travelling on his own, as he and his representatives have suggested.

   38. For the foregoing reasons I do not accept that Mr [K] is telling the truth about the events which he claims prompted him to leave Sri Lanka.

   39. …Having retard to the advice of the Australian Department of Foreign Affairs and Trade referred to in paragraph 29 above, I do not accept that there is a real chance that Mr [K]will be denied access to food, shelter, employment or medical treatment or that he will be unable to access protection from the authorities in Sri Lanka for reasons of his race as a Tamil if he returns to Sri Lanka now or in the reasonably foreseeable future.

   43. …I accept that on his return to Sri Lanka Mr [K]will be questioned about how he managed to leave the country, but having regard to the advice of the Australian Department of Foreign Affairs and Trade, I do not accept that there is a real chance that he will be mistreated or otherwise persecuted because he will be returning to Sri Lanka as a failed asylum- seeker or specifically a Tamil failed asylum-seeker.

   44. …There is nothing in the evidence before me to suggest that Mr [K] has been engaged in any political activities whether in Sri Lanka or abroad which would have attracted the attention of the Sri Lankan Government.

   45. …I do not accept on the evidence before me that there is a real chance that Mr [K] will be singled out or treated differently, for one or more of the five Convention reasons, from any other returnee who has breached the laws of Sri Lanka relating to illegal departure. I do not accept that, as required by paragraph 91R(1)(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.

   47. …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.

8. The Tribunal turned to the issue of complementary protection and relevantly found:

   48. Having regard to my findings of fact above, I do not accept that Mr [K] is telling the truth about the events which he claims prompted him to leave Sri Lanka

   …

   Having regard to my findings of fact above, 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 because, when he claims the people from the CID questioned him in May 2012, he told them that he did not know any people smugglers so now they may harm him, asking him how he managed to leave the country, because the CID already have the paperwork from when he was previously detained, or because he will be recorded as having escaped or being missing as his representatives suggested.

   49…1 do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of Mr [K] being removed from Australia to Sri Lanka, there is a real risk that he will be murdered or executed or assaulted or tortured by the Sri Lankan Government and its allied paramilitary groups or that he will be denied access to education, healthcare and employment to such an extent that his dignity, autonomy and survival will be threatened, as submitted by his representatives.

   51. ..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 Mr [K] 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.

   52. As I indicated to Mr [K], I accept that prison conditions in Sri Lanka are poor. I do not accept, however, 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 he 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.

   55. …Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of Mr [K] 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.

   56. …Accordingly, Mr [K] does not satisfy the criterion in subsection 36(2) for a protection visa.

9. I am satisfied that the applicant had a genuine hearing and that the findings made by the Tribunal were reasonably open on the material before it.  I am satisfied that the findings cannot be said to lack an evident and intelligible justification.  I am satisfied that the grounds identified in the application are doomed to failure.  I am clearly satisfied the proceedings have no reasonable prospect of success.  I summarily dismiss the application.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  9 April 2015