AEJ15 v Minister for Immigration

[2015] FCCA 876

FEDERAL CIRCUIT COURT OF AUSTRALIA

AEJ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 876

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), 424A, 424AA 476

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

Applicant: AEJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 680 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

The Applicant appeared in person

Solicitors for the Respondent: Ms Z. Taylor
Clayton Utz

ORDERS

1. The proceedings be summarily dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 680 of 2015

AEJ15

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 18 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 RRT did not give me an opportunity to respond to negative information which intended to use to refuse my application. Therefore the RRT breached the section 424A and 424AA of the Migration Act.

   2. I had ·a lawyer until my RRT review. I intend to obtain my RRT CDs and to listen it. I may provide RR T's hearing transcript to this court.

3. The application identifies in respect of the first return date:

   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 the Court was concerned that the application failed to disclose any arguable jurisdictional error in respect to the review and that the Court was minded to consider exercising its summary jurisdictional powers.  I take into account in considering 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 asserted that the Tribunal did not inform him as to why his claims were not accepted and did not discuss with him the adverse findings of credibility and did not notify him that his application would be dismissed and the applicant said that if he is returned to Sri Lanka, he will face persecution. There is no substance in the grounds in the application. It is clear that the Tribunal complied with s.424A and s.424AA, see paras.28, 35, 38, 39, 47, 51 and 52. Ground 1 is accordingly an impermissible challenge to the findings of fact that were open to the Tribunal. Ground 2 discloses no arguable error and there is no arguable jurisdictional error identified as a basis for the obtaining of the transcript or recording. The mere assertion of a desire to obtain or listen to material does not identify any arguable jurisdictional error that properly invokes this Court’s jurisdiction.

6. It was open to the Tribunal to make adverse findings of credit in respect to the applicant.  This Court is not hearing the matters as an appeal.  This Court is not in a position to reconsider the merits of the application.  This Court is confined to jurisdictional error.  Nothing that the applicant has said identifies any arguable jurisdictional error.  There is no utility in granting any adjournment when proceedings are clearly doomed to failure and that will only add to the costs of the parties and utilise limited Court time. 

7. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.  The applicant applied for a protection visa on 7 November 2012 and was refused by the delegate on 2 August 2013.  The applicant appeared before the Tribunal on 19 November 2014 and 4 February 2015 to give evidence and present arguments and was assisted by an interpreter as well as having present his migration agent.  The Tribunal carefully identified the applicant’s claim in evidence and the submissions advanced on the applicant’s behalf.

8. In respect of the compliance with the obligations under s.424AA the Tribunal found the following:

   28. The Tribunal put to the applicant pursuant to s.424AA of the Migration Act that the information provided in the applicant’s interview with the delegate of the Minister concerning the number of times on which the Sinhalese men had visited his home was inconsistent with other evidence, which might cause the Tribunal to consider the applicant was not being truthful in his account of these visits. The applicant in the hearing responded that these men definitely visited on three occasions.

9. Relevantly, the Tribunal made adverse findings in relation to the applicant’s credit:

   29. In a submission provided following the Tribunal hearing, the applicant’s adviser provided submissions in relation to these concerns. In relation to the visits of the men after the applicant had left for Australia, it is stated that these men came twice after the applicant left for Australia but one of those times occurred after the interview with the delegate of the Minister, which is why only one visit is referred to in that interview. This does not satisfy the Tribunal’s concerns because in that interview the applicant at first said there was one visit but later in the interview said that there were two.

   30. In relation to the number of visits that occurred when the applicant was in Sri Lanka, the submission states that there were four visits as indicated in the statutory declaration. This does not ameliorate the Tribunal’s concerns about the inconsistent evidence on this point. In the Tribunal hearing the applicant was very clear that there were three visits.

   …

   32. The significant inconsistencies in the evidence concerning the number of visits of the Sinhalese, including inconsistent evidence about how many times the applicant was present at home when these men visited (which the Tribunal would think the applicant would have an immediate and spontaneous awareness), together with the way the applicant gave this evidence, all cause the Tribunal to not accept that Sinhalese fisherman or men associated with Sinhalese fisherman visited the applicant’s home threatening him or otherwise.

   …

   34. For all these reasons, the Tribunal is not satisfied that Sinhalese fishermen or persons associated with them have come to the applicant’s home looking for him and making threats against the applicant to his wife either before or after his trip to Australia.

10. The Tribunal noted the submissions provided after the hearing by the applicant’s adviser in relation to the applicant’s credit and the Tribunal made further findings adverse to the applicant:

    37. In the section of this decision relating to the Refugees Convention the Tribunal will deal further with religious tensions in Sri Lanka impacting on Muslims and the risk this creates to the applicant of future harm. The Tribunal finds that the applicant attended the aftermath of an attack on a mosque adjacent to his area, but otherwise has not suffered any significant restrictions on the practice of his religion other than calls for restrictions on halal food and religious attire for women.

    38. The applicant has indicated that he is at risk as a result of him being imputed as a supporter of the LTTE. The Tribunal accepts that the applicant provided some forced assistance to the LTTE when they were in control of his area during the civil conflict. The Tribunal also accepts that the Sri Lankan army at certain points questioned the applicant about LTTE involvement. The applicant says he has been beaten in various encounters. In the Tribunal hearing the applicant said that he had been beaten in about three or four encounters over the years with the army. In the applicant’s entry interview it is stated that there were two encounters with the army one in 2002 and another in 2005/2006. There was however something of a lack of clarity and certainty about some of the applicant’s claims in this respect. In the record of the applicant’s entry interview it is stated that the army came to his home in 2009/2010 and that the applicant approached some politicians and as a result he was not taken by the army. When this was put to the applicant in the Tribunal hearing he had no recollection of saying this and said that it did not occur.

    39. In addition, the applicant’s written statement indicates that post the civil conflict he was accused of being a member of the LTTE. The Tribunal expressed doubt to the applicant that he would be accused of being an LTTE member because as a Muslim Tamil he would be perceived to be against the LTTE (as explained later in this decision). The applicant provided no detail in the hearing of serious questioning post the civil conflict of the applicant a being a member of the LTTE and in the Tribunal’s view this is another example of the applicant embellishing claims.

    40. In relation to specific imputation of LTTE involvement, the Tribunal accepts that during the course of the civil conflict the applicant was questioned on a number of occasions about LTTE activities, and is prepared to accept that he may have been physically harassed during those encounters. The Tribunal does not consider that there has been any serious questioning of the applicant’s involvement in this respect since the end of the civil conflict in 2009. The Tribunal notes the applicant’s repudiation of a claim of a visit by the army to his home in 2009/10 as indicated in the record of entry interview. Independent information suggests that at the end of the civil conflict all those suspected of membership of the LTTE or significant involvement were rounded up and placed in rehabilitation camps. As is explained later in this decision, merely coming from an area formally under LTTE control does not establish a risk in the future of being imputed as an LTTE supporter to the extent that would result in scrutiny and harm from the Sri Lankan authorities.

    …

    49. The applicant’s evidence surrounding the reporting of the incident to the police was inconsistent and unsatisfactory, and the Tribunal considers that the applicant manufactured his evidence that he went to the police station twice in order to overcome the inconsistency pointed out by the Tribunal. The Tribunal is not satisfied that the applicant reported this incident to the police. The Tribunal is prepared to accept that the reason the applicant would not have reported the incident to the police was because he thought no effective action would be taken.

    …

    56. In assessing the applicant’s evidence on this issue, it notes the credibility concerns outlined with respect to the claims of being pursued, following the incident with Sinhalese fishermen, as well as inconsistent evidence about questioning of LTTE involvement post the civil conflict. In the Tribunal’s view, there is a clear willingness of the applicant to concoct or tailor claims for the purpose of his application.

    …

    59. In terms of being beaten surrounding the taking of fish or the applicant’s boat being taken, whilst the Tribunal accepts that the army are likely to have taken an intimidating and heavy-handed approach towards Tamil fishermen, it does not accept that the applicant would act in a way towards the army such as to cause regular beatings. The Tribunal is not satisfied that the applicant has been beaten by the army since the end of the civil conflict.

    60. While the Tribunal considers that the applicant has exaggerated the instances of his fish being taken, it accepts that this has happened. On the claim most generous to the applicant, fish were taken 15 times over three years. The applicant indicated that about half the catch were taken on each occasion. Assuming six days fishing a week, that translates into to 1.6% of the applicants catch being taken by the army.

11. The Tribunal made findings in relation to the applicant’s ethnicity and, relevantly:

    86. However, the applicant as a Muslim Tamil is in a very different situation as to how he would be perceived compared to other Sri Lankan Tamils. As the independent information makes clear, Muslim Tamils are considered enemies of the LTTE. Whilst the Tribunal can understand that during the course of the civil conflict the applicant may have been questioned as to the support he was forced to give to the LTTE, because by mere residency in a LTTE area it would be assumed he would have provided support. The Tribunal does not consider that post-conflict there is any well founded basis on which the applicant would be perceived to be a supporter of the LTTE. The applicant would be in a position to reveal that he is a Muslim Tamil to anyone questioning him. This is consistent with the Tribunal’s finding that there has been no questioning or suspicion of the applicant as a LTTE supporter post the civil conflict.

    …

    89. In terms of generalised discrimination, given UNHCR guidelines that Tamils in Sri Lanka do not suffer persecution per se, the Tribunal does not consider there is a real chance of the applicant facing serious harm on this basis. There is nothing in the applicant’s personal circumstances that would change this assessment.

    90. In terms of the commandeering of the applicant’s boat, the Tribunal is not satisfied that this has occurred since the end of the civil conflict, and does not consider there is a real chance of this happening in the future. In terms of the applicant being beaten by the army, the Tribunal is not satisfied that this has happened to attend the civil conflict and does not consider there is a real chance of this happening in the future.

    91. In terms of tensions with Sinhalese fishermen, the Tribunal accepts that the applicant has been involved in verbal altercations with Sinhalese fishermen over fishing territory and that the applicant suspects Sinhalese fishermen of cutting his nets. The Tribunal accepts that there was an incident at sea where the applicant’s boat was rammed, causing physical damage. The Tribunal accepts that some objects were thrown by the Sinhalese fishermen causing some minor injuries to the applicant’s colleagues. The Tribunal does not consider that the physical harm in this incident constituted serious harm. While the Tribunal has not accepted that the applicant complained to police, it is prepared to accept that he may not have done so because of a belief that they would not take action

    92. The Tribunal accepts that there is a real chance of similar issues arising for the applicant in the future should he returned to Sri Lanka as a fisherman. Nevertheless, the Tribunal does not consider that the tensions between Sinhalese fishermen create a real chance of the applicant suffering: significant physical harassment; significant physical ill-treatment; significant economic hardship that threatens the applicant’s capacity to subsist; denial of capacity to earn a livelihood of any kind, which threatens the applicant’s capacity to subsist, or any other form of serious harm for the purpose of s.91R(1)(b) of the Act. Past treatment is one guide to future treatment. The applicant has not suffered significant physical injury from the ongoing tensions nor have the tensions affected the applicant’s capacity to subsist.

    93. The Tribunal notes that whilst independent information certainly confirms tensions between Tamil and Sinhalese fishermen, the Tribunal does not consider that the independent information it has seen would suggest that the difficulties create a real chance of persecution or serious harm to a generic Tamil fishermen living in the East.

12. The Tribunal made adverse findings in relation to the claims concerning the applicant’s political opinion:

    97. The Tribunal is not satisfied that there is any evidence that establishes that the applicant would be perceived to hold anti-government or pro-LTTE of a nature that would lead to a real chance of serious harm, particularly given that he is a Tamil Muslim and would specifically be perceived as against the LTTE cause. The applicant would be in a position to reveal that he is a Muslim to any one questioning him. The Tribunal has also found that the applicant has not been subject to any detailed questioning or suspicion of LTTE involvement since the end of the civil conflict. As independent information makes clear, following the end of the civil conflict in 2009 in the order of 12,000 LTTE cadres were identified and placed in rehabilitation camps. Reports suggest that most have been released.

    98. The Tribunal also considers in this section the applicant’s claim that he faces harm due to him being a member of a particular social group of young Tamil men who have been active in or suspected of being active in the LTTE. The Tribunal does not consider that the applicant would be perceived to been a young Tamil man active in the LTTE, particularly given that he a young Muslim Tamil who would be perceived as being against the LTTE cause, and given that there has been no adverse interest in the applicant in terms of any LTTE involvement since the end of the civil conflict.

    99. Based on all the evidence before it, including evidence provided by the applicant’s adviser, the Tribunal is not satisfied that the applicant has or will have any actual or imputed political opinions or profile which would give rise to a real chance of serious harm in Sri Lanka in the reasonably foreseeable future.

13. The Tribunal carefully took into account the country information and made the following findings:

    121. The Tribunal note that the screening and admission process for all those entering Sri Lanka whether voluntary or involuntary remains the same. The process is in place to properly identify and screen returnees to ensure that a returnee is not a person the subject of criminal charges or the like. While those who are without full entry documents may be subject to temporary detention that is due to the time taken to undertake appropriate checks, not as a result of any discriminatory process. The Tribunal is not satisfied on the information before it that the process that the applicant faces on return to Sri Lanka is in place to persecute Tamils, undocumented arrivals, suspected LTTE supporters, failed asylum seekers, or any other particular social group.

    122. The Tribunal notes the decision in SQPA v Minister for Immigration and Anor [2012] FMCA 123 (29 March 2012) in which Driver FM indicated that it was necessary to look at both the process of interrogation that a Tamil returnee may face in addition to the outcome bearing in mind that the harm could occur during the process of convincing authorities that the person was not an LTTE member. The Tribunal accepts the need to consider the process of questioning and interrogation, but it does not accept the proposition that every Tamil returning to Sri Lanka has a real risk of facing serious harm during the questioning process as part of re-entering the country, both as a failed asylum seeker and having departed the country illegally. Such a proposition is inconsistent with the risk profiles set out by the UNHCR and the United Kingdom Upper Tribunal already outlined, as well as the information as to how the vast majority of returning Tamils to Sri Lanka have been treated to date. The Tribunal considers though that it needs to be very careful in assessing whether there is any imputation of a link that would place an applicant in a risk category. In the current case the Tribunal thinks that there is no real chance of an imputation of a link to the applicant which creates a risk of serious harm.

    123. In terms of the follow up in his home area, there is a real chance that the applicant will be followed up by authorities. The Tribunal considers that the applicant’s personal circumstances are such that he does not face a real chance of serious harm as a result of any such follow by authorities when he returns to his home area.

    124. In terms of the broader treatment that the applicant faces returning to Sri Lankan society as a failed asylum seeker, the preponderance of independent information is that the applicant will face no different circumstances than any other Sri Lankan Tamil and the Tribunal does not consider that there are any special circumstances applying to the applicant that would create a risk of additional harm.

    125. On the basis of all the independent evidence, including evidence provided by the applicant’s adviser, the Tribunal assesses the risk of harm to the applicant as a result of him being a failed asylum seeker as less than a real chance. Based on the totality of the evidence, the Tribunal is not satisfied that the evidence gives rise to the applicant facing differential treatment for a Convention reason or reveals a real chance of persecution involving serious harm in connection with the applicant’s unsuccessful application for asylum in the reasonably foreseeable future.

1. The Tribunal addressed the concerns of the applicant in relation to the illegal departure from Sri Lanka and relevantly found that the Immigration and Emigration Act was a law of general application. The Tribunal found that the Act was not applied on a discriminatory basis, in para.134, and made adverse findings as set out at para.138 as follows:

   138. The Tribunal has determined each of the applicant’s claims relating to the Refugees Convention and concluded that under none of these claims does the applicant face a real chance of serious harm or otherwise satisfy the requirements of s.91R(1)for any of the reasons claimed or arising on the evidence. The Tribunal also considers the applicant’s claims cumulatively and in doing so finds that based on all the evidence before it, including the applicant’s claimed past circumstances, and what is accepted of his current personal and family circumstances and profile in Sri Lanka, the Tribunal is not satisfied that the applicant faces a real chance of harm or otherwise satisfy the requirements of s.91R(1) for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that the Tribunal is not satisfied that the applicant faces a well founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that the Tribunal is not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.

2. The Tribunal carefully addressed the issue of complementary protection and made adverse findings to the applicant as relevantly follows:

   141. In terms of treatment by Sinhalese men looking for him, as the Tribunal has not found the applicant’s claims in this respect credible, there is no real risk that the applicant will suffer significant harm on this basis.

   142. In terms of the applicant facing a real risk of harm based on being perceived as an LTTE supporter for the same reasons as the Tribunal has found there is no real chance of persecution on this basis, the Tribunal finds there is no real risk of significant harm. For the same reasons the Tribunal considers there is no real risk of significant harm on the basis of the applicant being from a particular social group of young men who are perceived to be LTTE supporters.

   …

   145. In terms of harm on the basis of the applicant’s religion, for the same reasons the Tribunal has given that there is no real chance of persecution on this basis the Tribunal similarly considers there is no real risk of significant harm. The Tribunal has found that the applicant himself has not been significantly impacted in the practice of his religion as a result of ongoing religious tensions. In terms of what the applicant may face in the reasonably foreseeable future while attacks on Muslim and Christian churches by fundamental Buddhists occur in Sri Lanka, the Tribunal does not consider that the specific risk to the applicant amounts to a real risk of significant harm. In making this assessment the Tribunal takes into account the fact that the applicant has only reported one incident in the past that has affected him indirectly and also considers the fact that the Tribunal has not seen independent information that would suggest that difficulties that have been experience have risen to a level of a systemic risk that would require Sri Lankan Muslims or Christians in Sri Lanka to be granted protection under the complementary protection criterion. There is nothing in the applicant’s profile, in the Tribunal’s view, that creates a real risk of significant harm to him based on his religious beliefs.

   146. In terms of the applicant’s race and the potential for generalised discrimination beyond the issues that have already been discussed, the Tribunal does accept that Tamils in Sri Lanka face discrimination as outlined in the section of this decision concerning persecution on the basis of the applicant’s race. As found in that section, the Tribunal considers that the applicant’s personal circumstances, together with the independent information, does not establish the applicant faces a real chance of serious harm in the reasonably foreseeable future as a result of discrimination he might suffer. For the same reasons the Tribunal also considers that the nature of future harm that the applicant would suffer as a result of discrimination would not constitute ‘degrading treatment’ or ‘cruel or inhuman treatment or punishment’ or any definition of significant harm for the purpose of the complementary protection criteria. The Tribunal notes the view of UNHCR that being a Tamil itself does not establish a right to protection based mechanisms – including complementary forms of protection which supports the proposition that the level of discrimination against Tamils in Sri Lanka per se does not reach a level that would constitute significant harm.

   147. In terms of the risk faced by the applicant due to him being a failed asylum seeker, as previously indicated, given that the applicant has no actual links, or no reasonable basis to impute links, to the LTTE, the Tribunal assesses the risk of harm to the applicant on this basis as remote. That includes, in the Tribunal’s view, the real risk of significant harm. The Tribunal forms a similar view with respect to potential harm relating to the applicant leaving Sri Lanka illegally. Related to both issues, the applicant is likely to be investigated on his return by authorities and may be remanded in prison for several days as part of a charge under the Immigrants and Emigrants Act, possibly up to a fortnight in crowded and unpleasant conditions. Most returnees are detained for a few days whilst waiting for bail which is routinely given. As indicated from information previously cited, the applicant is likely to be given a fine for his illegal departure from Sri Lanka. There are no reports of returnees being given custodial sentences. The Tribunal considers the risk of the applicant being detained for an extended period is remote, based on his personal circumstances. The Tribunal does not consider that the process of investigation, being placed on remand or the imposition of a fine amounts to significant harm.

   148. In terms of the applicant’s treatment in detention, the Tribunal accepts that prison conditions are poor, particularly in terms of overcrowding, and the Tribunal noted the applicant’s adviser’s submissions in this respect. However, the Tribunal does not accept that spending up to a fortnight in jail amounts to ‘significant harm’ or that such treatment is intentional as is required by the law in Australia. The Tribunal does not accept that there is a real risk the applicant will be subject to ‘torture’ as defined while he was on remand. The definition of ‘cruel or inhuman treatment or punishment’ in s.5(1) of the Migration Act requires that the 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. In the current situation the Tribunal considers that poor conditions, and in particular overcrowding, are a by-product of the system and do not constitute the intention required in the Act. The Tribunal does 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 prison due to overcrowding.

   149. The applicant may also be contacted by authorities when he returns to his home area. The Tribunal does not consider that the applicant’s personal circumstances and his lack of any particular risk profile create a real risk of the applicant suffering significant harm when he is contacted authorities on his return home on the basis of being a failed asylum seeker or for any other reason.

   150. Considering the applicant’s claims in their entirety, both singularly and cumulatively, the Tribunal is not satisfied that the applicant faces a real risk of treatment amounting to significant harm as contemplated by s.36(2A) of the Act. The Tribunal is not satisfied on the information before it that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, he faces a real risk of: being arbitrarily deprived of his life; the death penalty being carried out on him; being subject to torture; being subject to cruel or inhuman treatment or punishment; or being subject to degrading treatment or punishment for any reason claimed or arising on the evidence.

3. It was in these circumstances that the Tribunal found that the applicant was not a person to whom Australia had protection obligations and that the applicant did not satisfy the criteria under s.36(2)(a) or s.36(2)(aa). The findings of the Tribunal were clearly open. The applicant had a genuine hearing. The findings made cannot be said to lack an evident and intelligible justification. The proceedings are clearly doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed. The Court orders the applicant to pay the first respondent’s costs fixed in the amount of $1367.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  14 April 2015