AFG15 v Minister for Immigration
[2015] FCCA 893
•9 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AFG15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 893 |
| 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 |
| Applicant: | AFG15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 707 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 A. Carr DLA Piper |
ORDERS
The proceedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $700.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 707 of 2015
| AFG15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 for a Constitutional writ with respect to a decision of the Tribunal made on 24 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa.
The application identifies the following grounds:
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.
Particulars
The Respondent made a finding that I will be held in degrading conditions in prison for leaving the country illegally but failed to make a finding that these degrading conditions would be regarded not as a Convention reasons but as inhumane.
I do not have my RRT hearing CDs and J wish to listen it in order to find any other legal errors of theRRT.
The application identifies that on the first Court date:
The Court may hear and determine all interlocutory or final issues, or may give directions for the future conduct of the proceeding.
The Court identified to the applicant that having looked at the application and the decision, the Court was concerned that he had failed to disclose any arguable jurisdictional error, and that the Court was minded to consider exercising its summary jurisdiction powers. In response to whether there was anything the applicant wished to put as to why the Tribunal erred in the conduct of its review, the applicant said, “No, there is nothing”.
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].
Ground 1 is clearly an impermissible challenge to the findings of fact that were open to the Tribunal to make.
The applicant applied for a protection visa on 28 November 2012, was interviewed on 23 May 2013, and provided written submissions to the delegate on 7 June 2013, following which the delegate refused to grant the visa on 6 January 2014.
The applicant appeared before the Tribunal on 3 February 2015 to give evidence and present arguments, and was assisted with an interpreter, as well as a registered migration agent.
Following the hearing, the Tribunal sent to the applicant on 4 February an invitation to comment or respond to certain information. On 16 February 2015 the Tribunal received a written response, which the Tribunal has taken into account.
The Tribunal carefully identified the claims and evidence of the applicant. The Tribunal noted significant inconsistencies in relation to the applicant's evidence and, relevantly, found that the applicant was fabricating his evidence and that he was fabricating new claims. Those findings are carefully set out in paras.12-29:
The Tribunal noted that the applicant was not a Tamil and had no claims in that regard, being Sinhalese. The Tribunal carefully addressed the consequences of the applicant having left Sir Lanka illegally, and relevantly found:
34. The Tribunal has considered each of the types of harm which the applicant may suffer. First, it has considered whether the applicant will be banned as a result of the fine being imposed. 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 constitutes serious harm.
35. Secondly, the Tribunal has considered whether the applicant will be harmed during questioning or while on remand. The Tribunal is not satisfied that the fact he will be questioned could in itself be reasonably characterised as harm. The Tribunal accepts that if the arrival occurs over a weekend or on a public holiday, the returnee is placed in a remand section of [N] prison, possibly for some days, until a bail hearing is possible. Conditions in [N] prison have been described in media reports as overcrowded and unsanitary. The Tribunal accepts that returnees Who hive real or perceived associations with the L TIE either in Sri Lanka or in the Tamil diaspora, or who may have been involved in criminal activities (including people smuggling) may be detained for longer periods on return, and there are reports that some have been mistreated and subjected to torture.9 However, the Tribunal does not accept that there is evidence to indicate that returnees being questioned or 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 anti government or pro-L TIE 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.
36. The Tribunal considers that the cramped and uncomfortable conditions apply to persons in remand generally and not specifically aimed at Sinhalese, failed asylum seekers or any other group. The cramped and uncomfortable conditions, therefore, do not amount to systematic and discriminatory conduct as required by s.91R(I). Additionally, the evidence as set out above does not establish that returnees are subject to mistreatment whilst in remand, despite there being evidence of some thousand returnees. 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 persecution during this process ( eg upon arrival, at the airport, during questioning or on remand).
The Tribunal noted that the Immigrants and Emigrants Act 1949 was not at a law applied on any discriminatory basis, nor was there a relevant intention to impose harm upon those dealt with under the Act. The Tribunal made the following finding:
37. … Therefore, the Tribunal finds, as discussed with the applicant at the hearing (to which he had no comment), that the fact that the applicant will be remanded for a short period of time does not amount to Convention persecution as it does not constitute serious harm and 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 then concluded:
42. As discussed with the applicant at the hearing, the country assessment from DFAT suggests that persons without a profile which would put them at risk are not at real chance of being harmed in their home area because they are returning as failed asylum seekers. This is consistent with the February 2015 report by DFAT which states that between October 2012 and November 2013, over 1,100 Sri Lankan Irregular Maritime Arrivals were returned from Australia to Sri Lanka. This is in addition to the many Sri Lankan asylum seekers who have been involuntarily returned from other countries, including the US, Canada, the UK and other European countries. It appears that the principle focus of the authorities has been "persons considered to be LTTE members, fighters or operatives or persons who have played an active role in the international procurement network responsible for financing the L TIE and ensuring it was supplied with arms". The applicant has not claimed to have any association, either actual or imputed, with the LTTE and the Tribunal is not satisfied that he will attract adverse attention for reason of his actual or imputed political opinion. Similarly, Freedom from torture reported in 2012 that it was a combination of residence in the UK and an actual or perceived association with the L TIE which placed individuals at risk of torture and inhuman and degrading treatment. It stated that those at particular risk included Tamils with an actual or perceived association with the L TIE, including those returning from abroad. The applicant is not a Tamil and having considered his specific profile the Tribunal is not satisfied that the country information supports a finding that there is a real chance that he will be banned as a failed asylum seeker if he was to return to [N].
43. 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 being persecuted upon his return to Sri Lanka. Therefore, having considered the independent evidence and the applicant's personal circumstances, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution on arrival in Sri Lanka or upon his return to his village because of his actual or imputed political opinion, because he is 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.
44. For the reasons given above, having considered the applicant's claims individually and cumulatively, 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).
The Tribunal then turned to the issue of complementary protection, and relevantly found:
46. … It follows that the Tribunal is not satisfied that it has 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 because of the SLFP, any actual political opinion or because of any imputed political opinion as a result of any association with the SLFP or the UNP.
47. For the reasons discussed above, the Tribunal does not accept that the applicant was subject to false charges in Sri Lanka. It follows that the Tribunal is not satisfied that it has 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 because of any such false charges.
48. On the basis of the country information discussed above and for the reasons discussed above, the Tribunal is not satisfied that the evidence before it supports a finding that there is a real risk that he will suffer significant harm because of he is a returnee or a failed asylum seeker (including a failed asylum seeker from Australia). The Tribunal is not satisfied that the applicant has a profile that would put him at real risk of significant harm if removed from Australia to Sri Lanka. The Tribunal is not satisfied that there is a real risk of the applicant facing significant harm as a result of any follow-up by any other authorities or agencies.
49. … The Tribunal does not accept that imposition of a fine would constitute significant harm as 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.
50. … The Tribunal has accepted that the applicant may be remanded in conditions which are cramped and uncomfortable, but is not satisfied that there is evidence of mistreatment of such persons such that it amounts to torture, arbitrary deprivation of life, or intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A).
51. … The Tribunal is not satisfied that it has 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 result of having left illegally, as a returnee from Australia or as a failed asylum seeker returned to Sri Lanka (including from Australia). Nor is the Tribunal satisfied that there is a real risk that the applicant would be exposed to significant harm for any other reason.
52. Having considered the applicant's claims individually and cumulatively, the Tribunal finds, therefore, 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 that the Tribunal was satisfied that the applicant was not a person in respect of whom Australia had a protection obligation, and that the criteria of s.36(2)(a) or s.36(2)(aa) were not satisfied.
I am clearly satisfied the applicant had a genuine hearing, and that the findings made by the Tribunal were open. It is not appropriate to grant an adjournment of the proceedings for the applicant to listen to the recordings of the RRT in circumstances where there is identified no arguable jurisdictional error. It is only appropriate to grant an adjournment if there is some utility. There is no utility if the proceedings are doomed to failure. For the reasons I have given, the proceedings are clearly doomed to failure. In these circumstances an adjournment would serve no utility and would only add to increasing the costs of the parties, and utilise limited Court time.
It is clear that the Tribunal made findings in relation to the conditions to which the applicant would be exposed. Those findings were open on the material and cannot be said to lack an evident and intelligible justification, and in substance the applicant’s alleged ground is an impermissible challenge to the findings of fact made by the Tribunal.
It is in those circumstances I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 13 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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Procedural Fairness
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Jurisdiction
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Summary Judgment
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