AEV15 v Minister for Immigration
[2015] FCCA 898
•9 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AEV15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 898 |
| 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 |
| Applicant: | AEV15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 701 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 Applicant: | Mr T. Galvin Minter Ellison |
ORDERS
The proceedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1367.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 701 of 2015
| AEV15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(As Corrected)
This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 18 February 2015 affirming a decision of the delegate not to grant the applicant a Protection (class XA visa), and the application identifies the following grounds:
1. RRT decision is unsupported by any evidence. (sic)
2. RRT did not fully deal with my problem.
The application identifies on 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.
The Court raised with the applicant that the application on its face failed to disclose an arguable jurisdictional error and was minded to consider whether or not the Court should exercise its summary jurisdiction. 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 at [24]-[25] and [59]-[60].
It is clear from para.6 of the Tribunal’s decision that there was supplementary material provided by the applicant after the hearing which was received on 22 January 2015 and was taken into account by the Tribunal. The applicant said that he had some documents relating to his imprisonment and that those documents came into his possession last year, and he said that those documents were provided. The applicant wished to ascertain whether the Tribunal had taken those documents into account.
Nothing the applicant said identified any arguable jurisdictional error. The applicant said that his wife had also provided a letter in relation to threats, but again this fails to identify any arguable jurisdictional error. It is clear in relation to the grounds of the application that ground 1 is doomed to failure. The Tribunal identified the claims and evidence that it carefully analysed and identified in relation to its reasons which were open on the material before it.
In relation to ground 2 it is clear that the applicant’s claims were fully dealt with by the Tribunal and there is no substance in relation to ground 2. The applicant applied for a protection visa on 3 December 2012 which the delegate refused on 2 October 2013. The applicant appeared before the Tribunal on 15 December 2014 to give evidence and present arguments which hearing was conducted with the assistance of an interpreter and the applicant was represented by a migration agent.
As indicated earlier further submissions were received by the Tribunal on the applicant’s behalf. The Tribunal carefully identified the claims and evidence of the applicant and in particular the alleged LTTE connection of the applicant. Relevantly, the Tribunal found:
13. However, he has not claimed to have been accused at that time of being an LTTE member or supporter.
The Tribunal made an adverse finding of credit in para.14 which is as follows:
14. However, the Tribunal did not find the applicant’s evidence in relation to the accusations against him since his release from the refugee camp to be persuasive or consistent for the following reasons.
The Tribunal then carefully set out the reasons in support of that adverse finding in paras. 15 to 20. The findings adverse in relation to the applicant’s credit were clearly open.
The Tribunal continued to make adverse findings in para.23 in relation to the alleged proceedings against the applicant. Whilst the Tribunal had some credibility concerns it was willing to accept that the Court documents were genuine, and accordingly the Tribunal accepted that the applicant was falsely charged with attempted kidnapping and later found to be innocent. Relevantly, however, the Tribunal found:
27. However, as discussed above, the Tribunal is not satisfied that the applicant had an adverse political profile while living in Sri Lanka and is not satisfied that he was viewed as being an LTTE supporter or member. Therefore, the Tribunal is not satisfied that the charges were falsely laid against him because he had an adverse political profile or was imputed with pro-LTTE political views.
29. …For the reasons set out above, the Tribunal did not accept that the CID had any adverse interest in the applicant after his release on bail. Therefore the Tribunal finds that the applicant did not have any further difficulties in Sri Lanka once he was found to be innocent of the charges against him. Therefore the Tribunal is not satisfied that the local authorities have any adverse interest in the applicant as a result of these charges.
32. …However, in light of the above country information and the lack of past harm after the applicant was found to be innocent, the Tribunal is not satisfied that any adverse attention would result from the applicant having been cleared of charges against him in 2010 relating to an attempted kidnapping that does not appear to have any political or terrorism elements to it. The Tribunal finds that there is no real chance that the applicant will be harmed as a result of the charges laid against him in 2010.
The Tribunal turned to the applicant’s ethnicity and relevantly found:
33. …However, the Tribunal does not accept that being a Tamil, young, from the northern province and/or a male would mean that the applicant is imputed with a pro-LTTE profile as the country information referred to below does not support such a conclusion.
34. …For the reasons discussed above, the Tribunal is not satisfied that the applicant has any adverse profile because of his past low level assistance to the LTTE, and in light of the Tribunal’s findings about the lack of past harm or adverse interest in the applicant, the Tribunal is not satisfied that there is credible evidence before the Tribunal which suggests that the Sri Lankan authorities suspect that the applicant has any ongoing pro - LTTE profile.
36. …The Tribunal agrees with this but is not satisfied that any past connection with the LTTE, no matter how low level, is sufficient to support a finding that there is a real chance of harm upon return to Sri Lanka, therefore the issue for the Tribunal is whether the applicant has a pro-LTTE profile that would mean there is a real chance that he will be subjected to persecution because of that profile.
37. …He stated that the UNHCR listens to what the Sri Lankan government tells them. The Tribunal did not find this persuasive and considers that the UNHCR provides it own assessment which is not just based on what the Sri Lankan government tells it.
38. The applicant’s representative made a submission that the applicant may be targeted by paramilitary groups as a victim of serious criminal activities such as extortion, abduction and violent crime. The applicant did not himself refer to any such fears. He did not refer to having been subject to any such criminal activity in the past or to any of his family or friends being subject to any such activity. The information referred to by the representative in their written submissions refers to the Karuna group or EDPD members targeting suspected LTTE supporters. However, for the reasons given above, the Tribunal is not satisfied that the applicant has a pro-LTTE profile that would mean there is a real chance of such harm occurring to him.
39. …Whilst the Tribunal accepts that there continues to be persecution of persons with certain profiles, such as persons with certain pro-LTTE profiles, the Tribunal does not accept that the applicant has a profile such that there is a real chance that he will suffer serious harm for reason of his ethnicity as a Tamil or a Tamil from the Northern Province. The Tribunal is not satisfied that he has, or had, a real or imputed pro-LTTE or anti-government political opinion on the basis of his race or that there is a real chance of him being persecuted because of his actual or imputed political opinion.
The Tribunal then turned to the issue of the applicant being a failed asylum seeker, and relevantly found:
40. …On the basis of the country information discussed below, the Tribunal is not satisfied that there is a real chance that the applicant will be persecuted because he is a failed asylum seeker (including because he is Tamil), a returnee who departed illegally (including because he is Tamil) or is returning from Australia (including because he is Tamil).
41. The Tribunal has considered the country information in light of its above findings that the applicant would not be returning with an actual or imputed pro-LTTE or antigovernment profile, that there is no evidence he has been involved in any political activities here in Australia and that his family have not been involved in any LTTE activities.
42. … Independent information from a range of sources supports this conclusion.
45. Having considered the country information as a whole the Tribunal is not satisfied that it supports a finding that there is a real chance of a Tamil returning from Australia being targeted for that reason.
46. …However, as referred to above, the Tribunal is not satisfied that the country information suggests that the applicant will be imputed with a pro-LTTE profile by reason of his failed asylum claims in Australia. The Tribunal is not satisfied on the basis of the evidence before it that there is a real chance that the applicant will be subjected to.
The Tribunal turned to the application of the Immigration and Emigration Act 1949 and relevantly found:
49. …However, the Tribunal does not accept that there is evidence to indicate that returnees held on remand awaiting bail hearings on charges of breach of the I & E Act have been subjected to torture or other forms of deliberate mistreatment in the absence of a profile that would place them at risk. The Tribunal is not satisfied that the applicant has any real or perceived pro-LTTE profile or involvement in organising people smuggling. DFAT have found:
DFAT assesses that the risk of torture or mistreatment for the great majority of returnees is low, including those suspected of offences under the Immigrants and Emigrants Act.
50. On the basis of the country information referred to above, the Tribunal is not satisfied that the evidence before it supports a finding that there is a real chance that he will be subjected to serious harm during this process (eg upon arrival, at the airport, during questioning or on remand).
51. …The Tribunal is satisfied on the basis of the DFAT information referred to above that if convicted, the applicant will almost certainly be fined and the chance of him being given a custodial sentence is remote. The Tribunal is not satisfied on the evidence before it that there is any evidence of persons being harmed or mistreated in relation to the payment or non payment of the fine which is levied at a later time. On the basis of the evidence before it the Tribunal is not satisfied that the scale of the fine as indicated above could reasonably be seen as constituting
In relation to the application of that general law the Tribunal relevantly found:
52. …The Tribunal finds that there is no evidence to suggest that the I & E Act is discriminatory in its terms or intention. Therefore, the Tribunal finds, as the delegate did, that the fact that the applicant will be detained or remanded for a short period of time does not amount to Convention persecution as the processing of returnees and any penalties to which the applicant may be subjected, will be applied on a non-discriminatory basis under a law of general application.
The Tribunal took into account the cramped and uncomfortable conditions that the applicant may be placed in during remand and relevantly found it did not amount to systematic and discriminatory conduct as required by s.91R(1), and the Tribunal made adverse findings:
54. …Further, the Tribunal considers that despite the large numbers of reported involuntary returnees to Sri Lanka, and despite high level reporting, there is very limited evidence of returnees suffering serious harm. The Tribunal accepts that a fine may be imposed upon him. However, the Tribunal is not satisfied, when his circumstances and the evidence are considered both cumulatively and individually, that the evidence supports a conclusion that the applicant faces a real chance of serious harm upon his return to Sri Lanka, beyond the consequences of a law of general application applied in a non-discriminatory manner. Therefore, having considered the independent evidence and the applicant’s personal circumstances, the Tribunal is not satisfied that there is a real chance that he would suffer serious harm on arrival in Sri Lanka or upon his return to his village because he is a Tamil, a Tamil from the north, a failed asylum seeker, because he left Sri Lanka illegally without proper documentation, because he is returning from Australia or for any other Convention reason.
55. Having considered the applicant’s claims individually and cumulatively, for the reasons given above, the Tribunal is not satisfied there is a real chance that on return to Sri Lanka the applicant would suffer serious harm amounting to persecution for the Convention reasons of his Tamil race/ethnicity, his actual or imputed political opinion or his membership of a particular social group. He does not claim to fear serious harm for any other Convention reason and no other reason is apparent on the face of the information before the Tribunal. Accordingly, 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).
In relation to complementary protection the Tribunal found that there was no real risk that the applicant would be harmed because of any of his activities and relevantly found:
60. The Tribunal has accepted that it is likely that he would face arrest on charges of illegal departure, that he could be placed in remand for a relatively brief period while awaiting a bail hearing, and he would later be fined if found guilty. The Tribunal does not accept that imposition of a fine would constitute significant harm. This does not involve arbitrary deprivation of life, the death penalty or torture and the Tribunal is not satisfied that in imposing a fine the government is intending to cause severe pain or suffering or extreme humiliation, as required to satisfy the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment. Therefore the Tribunal finds that it would not meet the definition of significant harm as set out in s.36(2A) of the Act.
62. …Nor is the Tribunal satisfied that there is a real risk the applicant will suffer significant harm for any other reason.
63. Having considered the applicant’s claims individually and cumulatively, the Tribunal finds 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, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act.
It was in those circumstances the Tribunal found the applicant was not a person in respect of whom Australia has protection obligations and that the applicant failed to meet the criteria under s.36(2)(a) or s.36(2)(aa). The application fails to identify any arguable jurisdictional error. There is no utility in granting an adjournment as the proceedings are clearly doomed to failure and to do so will only increase the costs to the party and utilise limited Court time. The proceedings clearly have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 13 April 2015
CORRECTIONS
The cover page was amended by deleting ‘SYG688 of 2015’ and substituting ‘SYG701 of 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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Jurisdiction
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Procedural Fairness
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Summary Judgment
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