AEF15 v Minister for Immigration
[2015] FCCA 884
•9 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEF15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 884 |
| 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 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | AEF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 676 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 9 April 2015 |
| Date of Last Submission: | 9 April 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Clark |
| Solicitors for the Applicant: | Fragomen |
| Solicitors for the Respondent: | Mr E Elliott DLA Piper |
ORDERS
The proceedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 676 of 2015
| AEF15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of which the Tribunal on 5 February 2015 affirmed a decision not to grant the applicant a Protection (Class XA) visa. The application identified the following grounds:
The grounds of the application are as follows:
1. The Tribunal engaged in jurisdictional error by failing to take into account a relevant consideration, by failing to deal with the claims before it or by failing to perform its statutory task under the Act.
Particulars
a. There was a claim before the Tribunal that the applicant was owed protection obligations as a consequence of the risk of torture by Sri Lankan authorities (Torture Claim).
b. The applicant’s migration agent referred the Tribunal to country information capable of supporting the Torture Claim (Applicant’s Country Information).
c. The Tribunal, in its summary of the country information before it (particularly the information identified at footnote 8 of its decision) concluded that country information indicated that prison conditions in Sri Lanka might not meet international standards and that concerns included instances of torture, maltreatment and violence (Tribunal’s First Finding).
d. The Tribunal, however, concluded (apparently on the basis of a DFAT Report: Tribunal’s Decision at [46]) that the risk of torture or mistreatment for the great majority of returnees was low and, therefore the risk that the applicant would be subject to torture or any other form of significant harm was remote: Tribunal’s Decision at [59] (Tribunal’s Second Finding).
e. In the premises, in making the Second Finding, the Tribunal failed to take relevant considerations into account, viz the Applicant’s Country Information and the Tribunal’s First Finding (including the country information underlying the Tribunal’s First Finding).
f. Further and in the alternative, by failing to deal with the implications of the Tribunal’s First Finding when making the Tribunal’s Second Finding, the Tribunal engaged in jurisdictional error.
g. Further and in the alternative, in making the Second Finding the Tribunal failed to perform its statutory task under the Act by failing to deal with the Applicant’s Country Information and the Tribunal’s First Finding (including the country information underlying the Tribunal’s First Finding) in a manner consistent with its statutory obligations.
2. The Tribunal engaged in jurisdictional error by failing to ask itself the right question.
Particulars
a. In finding that the application of the Sri Lankan Immigration and Emigration Act involved the enforcement of a generally applicable law, the Tribunal engaged in jurisdictional error by failing to ask itself whether the law was appropriate and adapted (in the sense of proportional) to a legitimate object of the State.
b. Further and in the alternative, in finding that the application of the Sri Lankan Immigration and Emmigration Act involved the application of the enforcement of a generally applicable law and was not discriminatory, the Tribunal failed to ask itself whether the application of the law had a discriminatory effect in respect of the particular social group to which the applicant claimed to belong, namely failed asylum seeker returnees or illegal departees.
3. The Tribunal engaged in jurisdictional error by failing to apply the law when it concluded that any detention that the applicant might face upon return to Sri Lanka did not amount to persecution.
The first return date on the application identifies the last sentence:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
Mr Clark of counsel, who appeared for the applicant, sought to object to the Court considering whether or not the application disclosed an arguable case. The identification on the first return date that the Court may hear and determine all interlocutory or final issues or make directions for the future conduct of proceedings makes patently clear that the Court is in a position where it can properly consider whether or not there is an arguable case on the first return date. Before addressing Mr Clark of counsel on behalf of the applicant, Mr Elliott on behalf of the first respondent was asked as to whether there was any reason why this matter should not be the subject of summary dismissal consideration. Mr Elliott indicated that as far as the first respondent was concerned there was no reason why the Court should not consider summary dismissal. There is no substance in Mr Clark’s objection to the Court considering whether the matter should be summarily dismissed. Mr Clark properly conceded that ground 3 was unarguable.
In considering exercise of the Court’s summary jurisdiction under s.17A (Federal Circuit Court Act 1999) and r.13.01 (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, and, in particular, [24]-[25] and [59]-[60].
In relation to ground 2, Mr Clark sought to argue as a result of the observations of North J in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 that the Tribunal erred by not considering whether or not the law was appropriate and adapted in the context of Immigration and Emigration Act applicable in Sri Lanka. This is a case where the applicant was found to be a Sri Lankan citizen and the claims were assessed on that basis. Relevantly, the Tribunal said that:
55. The evidence does not indicate that the applicant has been involved in facilitating or organising people smuggling or terrorism and therefore there is no reason to suspect he would accused of this and to thereby face possible long term imprisonment. There is no independent country information before me that shows that persons in the applicant’s circumstances are being imprisoned under the I&E Act. The DFAT information is that that they are not given a custodial sentence but are only fined as a deterrent. This information shows that Magistrates are handing out fines of up to 50,000 LKR and prosecutors would only seek a prison sentence and a fine of 200,000 LKR for people smuggling or facilitating it. My findings are also supported by information from a Sri Lankan lawyer cited above who states that persons in the applicant’s position are likely to face a fine of between 50,000 to 100,000 LKR. The information from DFAT and the Sri Lankan lawyer is very strong evidence that offenders in the applicant’s circumstances do not face both a fine and imprisonment.
There is no substance in those circumstances in the contention advanced in respect of ground 2. Ground 2 is clearly an impermissible challenge to findings of fact. In relation to ground 1, the applicant sought to identify country information that the applicant contended meant that the applicant was exposed to torture. It is clear that the Tribunal had regard to the information before it. It was open to the Tribunal to come to the findings that it did. In these circumstances ground 1 is an impermissible challenge to the findings of fact made by the Tribunal and is not reasonably arguable.
In these circumstances, the proceedings are clearly doomed to failure. The applicant applied for a protection visa on 14 November 2012 and it was refused on 15 July 2013. The applicant appeared before the Tribunal on 5 December 2014 to give evidence and present arguments and was assisted by an interpreter as well as the applicant’s migration agent. The Tribunal carefully considered the claims and evidence of the applicant and identified the relevant country information as well as the potential for application of the Immigrants and Emigrants Act upon which as I have said the Tribunal made findings that were open to it.
Relevantly, the Tribunal made adverse findings in respect of the applicant’s credit:
37. The applicant told the Tribunal that he had not received any threats prior to 2009. When I put to him that this was inconsistent with his statutory declaration where he stated that the “retailers were angry and threatened to kill us”, he again did not respond. Based on this later evidence and inconsistency, I do not accept that he was the subject of any threats by retailors or anyone else prior to 2009.
…
39. I accept that following the protest, the Deputy Mayor, his brother and local wholesalers lodged a complaint against the Society for damage done to government equipment. Whilst I accept that several Society members were arrested and questioned, the applicant was not. I accept that there was a government order that then banned the Society from fish scale distribution and regulation in the market place and that wholesalers who controlled the markets banned the Society members from attending the market. I accept that the applicant was not able to work there and that he began to work in more remote locations as a fish labourer and as housekeeper in a hotel. I accept that he received a telephone threat from one retailer called Claude who threatened him. However, the applicant has not claimed that this retailer again threatened him or tried to harm him in the three years subsequent that he remained in the village and I do not consider the chance or risk that he will be seriously or significantly harmed because of this to be anything more than remote. The applicant was able to find work as a fisherman for two men called Manju and Jude and work in a hotel and was only unemployed for short periods. In these circumstances, I do not accept that his inability to work at the fish market meant that he suffered serious harm (including a denial of capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist: s.91R(2) or that this constituted significant harm. The applicant agreed with this when I put it to him at the hearing.
40. I accept that the Society tried to introduce a fair fish price scale at the market in January 2012. I do not accept that the Deputy Mayor ever threatened the applicant as he has claimed due to a significant inconsistency. He told the Tribunal that when he was called by the Deputy Mayor and threatened that the caller identified himself. When I put to him that this contradicted his statement in his statutory declaration that the caller did not identify himself, he did not respond. I do not accept that the applicant is of any adverse interest to the Deputy Mayor.
41. I accept that the applicant and his father attended the protest in Chilaw and the subsequent funeral. I accept that the applicant was hit on the back by the authorities when he was attempting to help the injured. I do not consider the applicant to be a credible witness in relation to his other claims arising from this incident. I do so for the following reasons:
- The applicant’s evidence was marked by a significant inconsistency. He told the Tribunal that he received maybe three threatening phone calls accusing him of being a Tamil or involved in Janatha Vimukthi Peramuna (JVP). When I put to him that he had only mentioned one such call in his statutory declaration, he again did not respond.
- The applicant resided in his home area from February 2012 (the month of the kerosene protests) until his departure in June 2012. As noted in the delegate’s decision (a copy of which was submitted to the Tribunal) the applicant stated at his interview that he continued working. At the hearing, he said did not work during this period and that he stayed in fisherman’s huts. When I noted the inconsistency, he said he did some work for the Society. I consider that if the applicant had been of interest to the authorities they could have located him in fishing huts located in his village particularly as he indicated he still continued to do some work for the Society. That he was able to avoid any adverse attention from the authorities or anyone else during this period further detracts from his credibility.
- As noted in the delegate’s decision, the applicant also stated at his interview that the authorities or anyone else did not come to his house after the kerosene protests. At hearing, the applicant said they came to know he was not there and their supporters would have given this information. I consider the applicant’s comments to be completely speculative and consider the absence of anyone coming to his home to enquire with his family about his whereabouts to be a factor that detracts from his credibility, particularly in the light of his statements at hearing that his father (who had attended the kerosene protests) did not have any issues afterward.
- The Tribunal has not identified any reports of members of Halawattewella Fisherman’s Society being involved in these protests or of anyone being targeted by the authorities in the aftermath of these protests as he has claimed. Independent country information set out above indicates that over 5000 persons attended the protest and 20,000 persons for the funeral. The lack of reports and the large numbers of persons who attended add to the lack of credibility of the claims that the applicant and other members of the Society became the target of the authorities or anyone else after the protest.
42. Given these highly significant credibility concerns, I do not accept that the applicant was or is of any adverse interest to the authorities or anyone else on account of his involvement in the kerosene protests. I do not accept that he received any phone calls accusing him of being an instigator of the protest, a Tamil or a JVP member or threatening to harm him if he returned to the market. I do not accept that he went into hiding as he has claimed. I do not accept that any members of the Society or the Society itself, has faced any charges in relation to this protest.
43. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any Convention reason (including his actual or imputed political opinion arising from his involvement in the Society or imputed JVP support or any imputed Tamil race) or any non-Convention related reason.
44. Considering the applicant’s individual circumstances and the independent country information, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on these bases.
Failed asylum seeker
45. At the hearing, I put to the applicant for comment the substance of country information that indicated that he would not face a real chance of persecution or a real risk of significant harm on account of returning to Sri Lanka as a failed asylum seeker or due to his illegal departure. The applicant said that as he could speak Tamil, people would think he was a Tamil. He said that it was different in Sri Lanka and that people can be killed and there is corruption. I have considered his comments but they do not overcome my assessment of the independent country information and his individual circumstances which include my above findings that he is of no adverse interest to the authorities. I do not accept that there is anything more than a remote chance he will be perceived as a Tamil given his ethnicity actually is Sinhalese, he has a Sinhalese name and speaks Sinhalese.
…
47. I have considered the country information referred to by the agent. Whilst I note there some reports of the mistreatment of returnees set out above, these need to be weighed against other information such as that provided by DFAT that those who make an asylum claim abroad are not treated differently to other deportees and the individual circumstances of the applicant. I have given greater weight to the report of DFAT, as it is recent, authoritative and they have been specifically charged with giving advice to the Australian government.
In that regard, I note the Tribunal said it gave greater weight to the report of the DFAT in respect of the country information referred to in respect of failed asylum seekers. The Tribunal continued to make adverse findings:
50. I do not accept that the applicant is now of any adverse interest to the Sri Lankan authorities for any reason. I therefore find, based on the overall weight and authority of the country information and the applicant’s individual circumstances that whilst he may be subjected to questioning upon his return as the country information indicates, I do not accept that this constitute serious harm or significant harm.
51. The applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, if he were to return to Sri Lanka as a failed asylum seeker whether this is categorised in terms of the Convention grounds of any actual or imputed political opinion or membership of a particular social group (such as failed Sri Lankan asylum seekers).
52. Based on his individual circumstances and the independent country information, 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 that there is a real risk he will suffer significant harm on this basis.
In paragraph 53, the Tribunal identified an argument advanced by the applicant that the law was not one of general application and that argument was clearly rejected. The Tribunal then made the relevant finding in paragraph 54 in relation to the Immigration and Emigration Act:
54. I find that the provisions of the I&E Act that deal with irregular departure are not expressed in terms that are discriminatory on their face or reveal a discriminatory intent or impact. I find that the enforcement of this law of general application does not constitute discriminatory conduct and that the law is not selectively enforced and does not have a different impact on different groups. The country information indicates that all persons who are returnees who have left Sri Lanka by irregular means are dealt with equally regardless of ethnicity. A Sydney Morning Herald report cited above indicates that both Tamil and Singhalese returnees have been charged under these provisions. There is no suggestion of discriminatory enforcement or punishment of a particular group of returnees in the country information. Though it may have only been enforced since 2012, this does not mean that it is not a law of general application. The country information indicates that it is applied to everyone not just those who depart illegally due to a lack of financial means or who lack the ability to do so due to adverse attention from the authorities.
The last sentence relevantly identifies the country information supporting that the law applies to everyone not just those who depart illegally due to a lack of financial means or a lack of ability to do so due to adverse attention from the authorities. The Tribunal then made relevant findings:
56. I have given greater weight to the DFAT report than the reports submitted by the applicant concerning the length of time spent on remand as the DFAT reports are more recent. I note that the Ceylon Today article cited by the agent notes that the persons remanded for 15 days in October 2013 were because they had attempted to reach Australia by boats on more than one occasion or facilitated the boat people which is not of the situation of the applicant. The cited SBS article does not explain why five persons were remanded in custody for two weeks but says that the court granted bail to 27 of the returnees. Considering all the country information and the applicant’s individual circumstances, I find that on the applicant’s return to Sri Lanka he faces short term detainment prior to applying for and obtaining bail and a fine as a result of being charged under the I&E Act. The information from DFAT is that returnees have been granted bail on personal surety immediately by magistrates. I note the applicant has parents in Sri Lanka who would be able to come and collect him from court and an amount of money would not be needed to be paid to obtain bail. I find that any short term detention or fine does not amount to persecution for a Convention reason because it is the enforcement of a generally applicable law and is not discriminatory.
57. I accept that prison conditions in Sri Lanka are poor but I am not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason, but are factors which apply to the general population. I am not satisfied therefore, that questioning, arrest, detention and the poor conditions in remand amount to systematic and discriminatory conduct as required by s.91R(1)(c).
58. I further find that this short term detention, questioning or imposition of a fine does not amount to significant harm under s.36(2A) in that it does not constitute the arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I have considered carefully the country information and accept that prison conditions in Sri Lanka are poor but the short term nature of any detention means that I find that it would not constitute significant harm. It does not involve intentionally inflicted severe physical or mental pain or suffering or intentionally inflicted physical or mental pain which could reasonably be regarded as cruel or inhuman in nature. It does not involve any act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.
59. Given the short term nature of the detention and the country information that the risk of torture or mistreatment for the great majority of returnees is low, I find that the risk he will be subject to torture or any other form of significant harm is remote. Furthermore based on the country information, I find that any treatment the applicant may face upon return to Sri Lanka (including a fine and detention and poor prison conditions) would not amount to significant harm as this would apply to every person in Sri Lanka who breached the illegal departure law. As this is a real risk faced by the population and not the applicant personally under s.36(2B)(c) this is taken not to be a real risk that the applicant will suffer significant harm.
60. I have also considered carefully the country information concerning the mistreatment of Tamil political prisoners suspected of involvement with the LTTE. As earlier found, I do not accept that the applicant is in this position and would be suspected of involvement with the LTTE. I therefore find that would not face a real chance or real risk of such treatment (or any form of serious harm or significant harm) during any short detention. Based on his individual circumstances and the independent country information, I find that the applicant does not face a real chance of persecution on account of his illegal departure in the reasonably foreseeable future from the authorities or anyone else.
61. Based on his individual circumstances and the independent country information, I find that there are not substantial grounds for believing as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm on this basis.
The Tribunal then turned to consider the issue of complementary protection and, relevantly, found:
62. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that he does not face a real chance of persecution in the reasonably foreseeable future for any reason (Convention or non-Convention related). His fear of persecution is not well-founded.
63. Considering the applicant’s individual circumstances and the independent country information cumulatively, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka that there is a real risk that he will suffer significant harm.
64. 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).
65. 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).
66. 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).
The findings of the Tribunal were clearly open. The applicant had a genuine hearing. There is no substance in the grounds advanced for the reasons I have identified. The proceedings have no reasonable prospect of success. The application is summarily dismissed.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 14 April 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Summary Judgment
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Costs
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Jurisdiction
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