ADF15 v Minister for Immigration

[2015] FCCA 842

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADF15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 842

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.424AA, 476

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

Applicant: ADF15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 584 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 pay First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 584 of 2015

ADF15

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 made on 25 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA) visa.  The application identified the following grounds:

   1. The Respondent erred in law, with the error being a jurisdictional error, by failing to consider in full the complementary protection obligations Australia owed to me.

   2. The Respondent made an error in law, with the error being a jurisdictional error, by not complying with section 424AA.

   3. I intend to provide Transcript of the Respondent’s hearing to this Court.

2. The application also identified:

   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 minded to consider whether or not the matter should be summarily dismissed because the application failed to properly disclose any arguable jurisdictional error.  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].

4. The Court sought to explore with the applicant the content of what it was alleged might fall within s.424AA as information that was not properly put to the applicant. The applicant identified the finding by the Tribunal in respect of him only performing a minor role in working for a political party. The Court identified that that conclusion is not a matter that falls within s.424AA. The applicant identified that the Tribunal found that he had given contradictory evidence. Again, that is not a matter in terms of the assessment of credit that falls within s.424AA.

5. The applicant indicated that he wished to have more time.  Unless there is some utility in granting an adjournment, it is not appropriate to do so where the proceedings are doomed to failure.  For the reasons given in this decision, I am clearly satisfied the proceedings are doomed to failure and that an adjournment would only add to the costs to the parties and utilise limited Court time. 

6. It is not the case that a generalised assertion of non-compliance with s.424AA identifies an arguable jurisdictional error, nor is it the case that a request to obtain a copy of a transcript creates a basis upon which there is a jurisdictional error that is arguable which this Court should entertain. Whilst there may be circumstances in which, because of the identification of an arguable jurisdictional error, it will be appropriate to permit the obtaining of a transcript, the bare assertion of a requirement for the same does not articulate a jurisdictional error that properly invokes this Court’s jurisdiction.

7. This Court is not sitting as a Court of appeal, and an application brought to this Court for a constitutional writ must properly identify an arguable jurisdictional error. The bare incantation of non-compliance with s.424AA does not identify an arguable jurisdictional error or a proper basis upon which the Court should grant any adjournment absent articulation of an arguable jurisdictional error. In response to whether there was any further information that the applicant asserted fell within s.424AA, the applicant responded there was nothing further that he wished to put. It is clear that the first ground is an impermissible challenge, and the findings of fact made by the Tribunal were open on the material before the Tribunal.

8. The applicant was found to be a citizen of Sri Lanka and his claims were assessed on that basis.  The applicant applied for a protection visa on 3 May 2013, which was refused by the delegate on 30 December 2013.  The Tribunal carefully identified the applicant’s claims and evidence, and the applicant attended a hearing on 20 January 2015 to give evidence and present arguments, which was conducted with the assistance of an interpreter.  The Tribunal carefully set out the information provided by the applicant and identified the further written submissions that had been provided on 27 January 2015.  The Tribunal carefully considered the claims and evidence of the applicant and it relevantly made adverse credit findings:

   32. The Tribunal found the applicant's evidence that he had political activity for the UNP in a 2011 election lacking in credibility. The applicant's description of the 2011 election he worked on as a "provincial council" election is inconsistent with country information that there were no provincial council elections in 2011, but there were local government elections in 2011. When this was put to the applicant, after a long silence he stated it "could be the district level" election. When asked why he didn't know which election it was he responded it was in 2011 and he was working, adding that he had forgotten some things because of the boat journey to Australia. The Tribunal finds the applicant's response does not reasonably explain his confusion and mis-description of the election. His claim that he put up posters and advised people who to vote for would necessarily require a clear knowledge of the election he was helping with. The Tribunal also notes that the applicant claimed to have worked on only two elections, thus the scope for confusing the 2011 election would seem negligible. The Tribunal does not accept the applicant could mistake the election, one of only two he claimed to be involved with, because of the passing of time or a difficult journey to Australia.

   …

   34. Given the concerns outlined in the above two paragraphs the Tribunal does not accept the applicant was politically active for the UNP in [C] during a 2011 election.

   35. The Tribunal notes that the applicant has submitted several letters from Sri Lanka UNP politicians, a lawyer, and a Hindu Temple priest attesting to the applicant's strong political involvement with the UNP. During the hearing the Tribunal discussed with the applicant that the descriptions given by the authors of the letters were not consistent with the applicant's own evidence. The letter from "[KF]", UNP Organiser, states that the applicant actively participated in "all" party campaigns and took the "forefront" in election campaigns; the letter from ‘[PR]', UNP Member of Parliament, dated November 2012 states the applicant worked "in elections for the last four years" for the UNP; the letter from ‘[JC]’, Attorney-at Law, states that the applicant worked tirelessly for "the success of the common candidate in the 2010 presidential election" and attended the "opposition May Day rally in [J] in 2012"; the letter from "[SA]", UNP Member of Parliament or [North Western Provincial Council] states the applicant is a "forefront" member of the UNP and actively took part in "all" election campaigns. The applicant acknowledged these statements were not consistent with his actual I political activity but that this was the way such people spoke. Given the inconsistencies and mistakes in the letters the Tribunal does not give them any weight in relation to the applicant's political profile, beyond the acknowledgement the applicant was a member of the UNP.

9. In relation the alleged threat from the ruling party, the Tribunal made the following findings:

   42. The Tribunal notes the media reports of a UNP supporter being killed in [B] shortly after the Presidential election, in a clash between supporters of the opposing parties, UNP and UPF. The Tribunal does not consider that this, or any similar incident, would give rise to a well-founded fear of harm to the applicant on return to Sri Lanka. The Tribunal accepts the applicant is a UNP supporter but there is no evidence that he involves himself in clashes or fights between rival political party supporters. The Tribunal considers there is no reason the applicant would find himself in a situation in which he was at risk of such harm from opposing party supporters.

   43. The Tribunal finds that the applicant was a low level, briefly active supporter of the UNP in Sri Lanka for a short period between June 2009 and March/ April 2010. The Tribunal is not satisfied that with this profile there is any risk of serious or significant harm to the applicant on return to Sri Lanka from opposing party politicians or supporters.

10. In relation to the applicant’s Tamil ethnicity, the Tribunal relevantly found:

    51. The applicant has not claimed any mistreatment, or actual threat of mistreatment, from the Sri Lankan authorities as a Tamil. He did express a worry that the authorities could suspect him of being LTTE if bad incidents involving Tamils occur elsewhere. However he was not able to identify any basis for this worry or any indication why it may be realised. The evidence that it has not occurred to the applicant, despite security incidents involving Tamils taking place elsewhere in Sri Lanka, gives no support to the applicant's claim. Nor did the applicant indicate it is occurring to other Tamils in Sri Lanka. The country information available to the Tribunal also does not indicate that Tamils, in places such as [C], are being subjected, or may be subjected, subjected to accusations of being L TTE because of security incidents involving Tamils elsewhere. The applicant described himself as well known in his village area. He has lived openly as a Tamil in the village, he was not a member of the LTTE, and he was not suspected of being with the LTTE. The Tribunal finds that the chance or risk of the applicant being suspected of L TTE links or detained on accusation of being L TTE highly remote.

    52. The applicant confirmed that he had no other problems in Sri Lanka as a Tamil. The Tribunal is not satisfied on the information before it that there is a real risk or chance of the applicant facing serious or significant harm in Sri Lanka because of his Tamil ethnicity.

11. In relation to the applicant’s illegal departure, the Tribunal relevantly held:

    58. It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of

    such a law does not ordinarily constitute discrimination. As Brennan CJ stated in Applicant A:

    ... the feared persecution must be discriminatory .... [It] must be "for reasons of' one of [the prescribed] categories. This qualification ... excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of "refugee".

    …

    60. While the implementation of laws of general application does not ordinarily constitute persecution, there is no rule that the implementation of such laws can never amount to persecution. A law of general application is capable of being implemented or enforced in a discriminatory manner. Where laws of general application are selectively enforced, in that the motivation for prosecution or punishment for an ordinary offence can be found in a Convention ground, or the punishment is unduly harsh for a Convention reason, then Convention protection may be attracted.

    61. … There is no evidence or information to indicate the applicant would be suspected of facilitating people-smuggling and the Tribunal is satisfied there is no risk of this happening. The Tribunal is not satisfied that application of the I&EA laws to the applicant involves systematic or discriminatory conduct as required under s.91R(l)(c) of the Act.

    62. The applicant put forward that because the former President's son has been accused of involvement in people smuggling Tamils may be targeted on return to Sri Lanka. The Tribunal finds this is unsubstantiated speculation with no evidentiary basis. The Tribunal is not satisfied there is any risk of Tamils being targeted on return to Sri Lanka because the former President's son may have been implicated in people smuggling.

    …

    64. The Tribunal is not satisfied there is a real chance of serious harm to the applicant in Sri Lanka for one or more of the Convention grounds for, or arising out of, his unlawful departure from Sri Lanka.

    …

    66. The definition of "cruel or inhuman treatment or punishment" in s.5(1) of the Act requires that pain or suffering be intentionally inflicted on a person. Similarly, "degrading treatment or punishment" is defined to mean an act or omission that causes and is intended to cause extreme humiliation. The Tribunal is not satisfied that pain or suffering caused to the applicant by overcrowding and poor and insanitary conditions in prison or on remand would be intentionally inflicted, as required. Nor does the Tribunal accept that the conditions are intended to cause extreme humiliation.  The Tribunal is also not satisfied that exposure to poor and overcrowded prison conditions for up to a few days rises to the level of significant harm as defined by the Act.

    67. The Tribunal notes the country -information indicates the applicant will likely be subject to a fine for his illegal departure from Sri Lanka. The Tribunal is not satisfied the imposition of a fine amounts to any of the significant harms listed and defined in the Act, including cruel or inhuman treatment of punishment or degrading treatment or punishment.

    68. The Tribunal is not satisfied there is a real risk the applicant will be subjected to significant harm in Sri Lanka for departing the country unlawfully.

12. The Tribunal relevantly concluded:

    69. The applicant has not made any other claims to fear harm in Sri Lanka. On the evidence before it and for the reasons outlined above the Tribunal is not satisfied the applicant has a well-founded fear of persecution for a Convention reason in Sri Lanka.

    70. For the reasons discussed above, the Tribunal is also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Sri Lanka, there is a real risk the applicant will suffer significant harm.

    71. 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).

    72. 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).

    73. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

13. It is clear from the decision of the Tribunal that the Tribunal complied with the statutory regime.  I am clearly satisfied the applicant had a genuine hearing.  The adverse findings by the Tribunal were open on the material before the Tribunal.  The findings cannot be said to lack an evident and intelligible justification.  The proceedings are clearly doomed to failure.  For reasons I have already given, there is no utility in an adjournment.  I am clearly satisfied the proceedings have no reasonable prospect of success.  I summarily dismiss the proceedings.

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