AFJ15 v Minister for Immigration

[2015] FCCA 883

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFJ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 883

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

Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958, ss.36(2)(a), 36(2)(aa), 424A(3)(ba), 425, 476

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: AFJ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 715 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 A. Kumar

Solicitors for the Respondent: Mr E. Elliott
DLA Piper

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 715 of 2015

AFJ15

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 made by the Tribunal on 20 February 2015, affirming a decision of the delegate not the grant the applicant a protection visa.

2. The application identifies the following grounds:

   1. The second respondent fell into jurisdictional error by failing to have regard to all relevant material consider one of the applicant's claims and focussed on the outcome I by asking itself the wrong question or by failing to apply the correct test.

   Particulars

   a. The applicant claimed to have some involvement with and the Tribunal accepted that the applicant had assisted the LTTTE through [C] (RRT at [23]).

   b. The applicant claimed to have a well-founded fear of persecution on the basis of the involvement.

   c. The second respondent found that the Sri Lankan authorities and paramilitary groups would not consider the applicant to be of interest as supporter of the LTTE.

   d. Returnees might be persecuted on the basis of involvement with, or support of, the LTTE.

   e. The second respondent failed to make any finding as to whether the Sri Lankan authorities would interrogate the Applicant may find the applicant to have had some involvement with, or to have supported, the LTTE through [C].

   f. The Tribunal failed to assess and make findings whether the interrogation would expose the Applicant's provision of services to LTTE and has focussed on the "standardised procedures" (RRT at [45]) and thereby outcome focussed.

   g. The provision of support to LTTE could be discovered in the process of questioning.

   h. The second respondent failed to consider the applicant’s fear of persecution on the basis of involvement with, or support of, the LTTE and the claim of imputed political opinion in providing services to LTTE.

   i. The Tribunal thereby committed jurisdictional error.

   2. The Tribunal engaged in jurisdictional error by failing to ask itself the right questions when addressing (RRT at [53]) whether Sri Lankan law concerning illegal departure could attract protection under the Refugees Convention.

   Particulars

   a. The Tribunal found that the applicant would be detained in cramped and unsanitary conditions (RRT at [54]).

   b. The Tribunal failed to address whether detention in cramped and unsanitary conditions would amount to significant harm under s 36(2a)(a),(c), (d) and (e).

   c. The Tribunal thereby committed jurisdictional error.

3. The application on the First Court date identifies:

   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 counsel for the applicant that the Court was concerned as to whether the application disclosed an arguable jurisdictional error.  Mr Kumar of counsel properly and frankly conceded that ground 2 was unarguable. 

5. Mr Kumar provided an outline of submissions seeking to advance an argument in support of ground 1 and ground 3.  In substance, in relation to ground 1, Mr Kumar sought to argue that the Tribunal had applied the wrong test and had not properly addressed the applicant's claim. 

6. It is clear from the decision of the Tribunal, as identified in these reasons, that the Tribunal properly identified the applicant's claim and clearly applied the correct test, and that there is no substance in relation to ground 1. Ground 1 is in substance an impermissible challenge to the findings of fact made by the Tribunal which findings were clearly open Ground 1 does not identify any arguable jurisdictional error.

7. In relation to ground 3, it is clear that this is an impermissible challenge to the findings of fact made by the Tribunal and has not disclosed any arguable jurisdictional error. Further, there is no substance in the assertion of noncompliance with s.425 of the Act, and the applicant clearly had a genuine hearing, as identified in para.16 of the reasons, at which the applicant appeared on 20 January 2015 to give evidence and present arguments with the assistance of an interpreter and the applicant's advisor also participating in the hearings.

8. The evidence concerning the person “[J]” was something that the applicant advanced in his statement in support of the application for protection, and falls clearly within s.424A(3)(ba). Ground 3 is accordingly without substance and does not disclose any arguable jurisdictional error.

9. The applicant was found to be a citizen of Sri Lanka and the claims were assessed on that basis.  The applicant applied for a protection visa on 14 November 2012.  The delegate declined to grant the visa on 9 July 2013, and the applicant applied for review on 11 July 2013.

10. The Tribunal carefully identified the claims and evidence of the applicant, including what was advanced at the interview by the applicant.  The Tribunal summarised the evidence given at the hearing, and relevantly made findings as follows:

    19. The Applicant claims to fear serious harm in Sri Lanka on the Convention grounds of his Tamil ethnicity; his perceived political opinion in support of the LTTE and his membership of the particular social group consisting of ‘returned failed asylum seekers from the west.’  It is also claimed there is a real risk he would suffer significant harm so as to bring him within the scope of complementary protection provisions, specifically arbitrary deprivation of life, imposition of the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.

    …

    22. The Applicant has provided no substantiation for his claims concerning his father’s contacts with the LTTE as a representative of his village community or his death in 1990 when the army attacked the LTTE occupying the village.  I note, however, that he has referred to these circumstances with some consistency since he arrived in Australia, including in his entry interview of 27 August 2012, and I am prepared to accept these claims are true. 

    23.    On the same basis I am also prepared to accept that in 2002 the Applicant may have met and become friendly with an older person named [C] who had been a friend of his father and who was then working in some administrative capacity for the LTTE.  I accept that on the basis of this friendship the Applicant may occasionally have offered [C] some assistance with clerical tasks, using his IT skills for this purpose.  I accept as well that he may have been approached by another LTTE figure named [J] who asked him to join the organization and perform some work for it and that he refused these requests in terms which caused offence.

    24. Although I accept the Applicant’s account of these circumstances I am not satisfied as to the credibility of his further claim that they have put him at risk of harm at the hands of the CID, the army, the Karuna paramilitary group or other authorities.  This is for the following reasons:

    As put to him at the hearing, the fact that he was able to go about his life in Sri Lanka without suffering any form of harm from the authorities, and without even having been questioned about his activities by anyone except the LTTE, is a strong indication that he was of no adverse interest to them.  Beyond this, he was able to obtain a passport in his own name and have it renewed, use the passport to leave Sri Lanka and return on two occasions, obtain a police clearance in March 2012 stating that he had no criminal record, obtain a driving licence and engage in steady employment in a number of positions.  These are further indications that he was not under any suspicion of LTTE involvement, suspicions which, had they existed, would have led the authorities to take rapid and severe action against him during the years of the civil war and its immediate aftermath. 

    His claim to be at risk of harm from the Karuna group as a consequence of a grudge held against him by [J] (who is said to have sided with Karuna when he split from the LTTE in 2004 and to have become a senior official in the group) is at odds with the fact that he has suffered no form of harm from this source since the incident, apparently in 2002, when he refused the request to perform work for the LTTE.  [J] offered him no form of harm either as a member of the LTTE, which was in power in the area up to 2004, or subsequently when he became powerful in the Karuna group.

    I am not satisfied that an explanation for the Applicant’s ability to live free of harm over a period of some ten years leading up to his departure for Australia lies in his having been able to avoid detection.  By his own account he lived for the whole of this period in [Z] district, with the exception of a stay in Saudi Arabia for about ten months in 2003.  He spent most of his time in his family home in the village of [X] and lived in [Z]  town itself from 2004 to 2005.  He was in settled employment and lived with his wife and family members.  As discussed below, I am not satisfied that he was ever forced to go into hiding in Sri Lanka, as he claims occurred in early 2012.  While I note his claim that the reason for his travel to Saudi Arabia was a fear of retribution over the argument he had had with [J] there is nothing to indicate that [J] either threatened him or did him any kind of harm, either before his departure or after his return.  I am not satisfied as to the truth of his claims about his reasons for going to Saudi Arabia. 

    I also note that when this inconsistency was put to the Applicant at the hearing he said the reason the authorities were unable to do anything to him was, simply, that he had not broken the law.  As put to him, however, this explanation seems to rely on the assumption that the authorities, and the Karuna group, were strictly bound by the letter of the law during the years of the civil war and its immediate aftermath so as to prevent them committing any form of infringement on basic human rights or freedoms.  Such an assumption is, however, not supported by the available country information which indicates that both sides to the conflict engaged in frequent and grave abuses including murder, abduction, disappearances, torture and deprivation of liberty.  I am not satisfied that if the authorities ever suspected the Applicant of links with the LTTE they would have been prevented by a scrupulous adherence to the niceties of the law from taking severe action against him.  Nor has he satisfactorily explained why, even remaining within the strict confines of the law, the authorities would not have gone so far as to ask him any questions about his activities and loyalties.

    25. I have considered the Applicant’s claim that he left Sri Lanka for Australia following a visit to his house in February 2012 by unidentified people in a white van.  He claims they questioned him as to whether he was a member of the LTTE or had ever worked for [C] and that the CID subsequently came to the house in May 2012, during his absence, and informed his wife and family that they would arrest him when he returned.  I find it generally implausible that the authorities would suddenly take an interest in him in this way over events which had occurred ten years previously.  I also find it implausible that if the CID had genuinely been interested in apprehending him they would have been able to be fobbed off by his mother and wife telling them simply that he had gone to work and they did not know when he would return.  He does not claim that the CID ever came back to the house to pursue their enquiries or that they took any other action to try to find him.  Finally, if the CID had been interested in apprehending him it is difficult to understand why they would effectively tip him off by telling his mother and wife that they intended to arrest him when he returned.  Having considered the Applicant’s claims in this area I am not satisfied that these two incidents did, in fact, occur.  It follows that I do not accept that he fled to his wife’s village for safety or that he left Sri Lanka because he had been made fearful by such visits or, on a related issue, that a friend named [R] had disappeared after interrogation by the occupants of a white van.

    26. Taking these considerations together I am not satisfied the Applicant was ever of adverse interest to the CID, the Karuna group or other authorities in Sri Lanka because he was imputed with a political opinion in favour of the LTTE - or was believed to have had some form of LTTE involvement – arising either through his father’s contacts with the organization before 1990 or his own occasional assistance to it in 2002 at a time when his area was under its control.  Nor am I satisfied that he was ever at risk of harm from the Karuna group arising from an argument he had in 2002 with [J], a person who later rose to a senior position in that organization.  This being the case, and in the absence of any indication that the situation has changed since he left in 2012, I do not accept there is a real chance that he would suffer harm for these reasons should he return to Sri Lanka.

    27. I have also considered whether the Applicant’s Tamil ethnicity and his status as a failed asylum seeker would serve to cast suspicion on him as holding a pro-LTTE political opinion.

    28. I accept that the information before the Tribunal indicates membership of the LTTE and support for it during the civil war was very largely confined to Sri Lanka’s Tamil population.  The information does not indicate that all Tamils were members or supporters of the organization, however, or even that a majority supported it during that period.  Having considered the available information I am not satisfied that the Sri Lanka authorities presently hold such a view about members of the Tamil minority.  Nor am I satisfied that simply because the Applicant is a Tamil - or more specifically because he is a young Tamil male whose geographic origins are in the east of the country- he would be suspected for that reason of holding a pro-LTTE or anti-government political opinion. 

    29. I further accept that if the Applicant were to be returned to Sri Lanka it would most likely be apparent to the authorities that he had unsuccessfully sought protection in Australia.  However, as further discussed below, having considered the information on the treatment of returnees to Sri Lanka cited in the delegate’s decision record and in the submissions, together with reporting by DFAT  I am not satisfied it supports a conclusion that returning Tamils are in fact suspected of having links with the LTTE simply because they have sought asylum in Australia.  I am not satisfied that the Applicant would be imputed with a pro-LTTE political opinion for this reason.

11. The Tribunal carefully turned to the applicant’s ethnicity, and relevantly found:

    34.    Taking this information together, I am not satisfied it indicates that those Sri Lankans who are ethnically Tamil now face a real chance of serious harm at the hands of the authorities simply because of their ethnicity, or that associated factors such as being a young male or having geographic origins in the north or east of the country put them at greater risk of such harm.  I am not satisfied the information supports a conclusion that the Applicant is at real risk of harm because of his ethnicity.  Nor am I satisfied that the fact he is a young male from the Eastern Province would operate to exacerbate the fact of his Tamil ethnicity so as to create a real chance that he would suffer such harm.

    …

    37. While DFAT reporting does indicate that Tamils continue to face some degree of societal discrimination I am not satisfied that this can reasonably be seen as rising to the level of serious or significant harm.  Nor am I satisfied, on the information available to the Tribunal, the Tamils are subjected to serious or significant harm through being denied political, economic, religious or other rights.

    38. In the particular circumstances of the Applicant I accept that his earlier life was marked by the tragedy of the death of his father, and that his family was subjected to displacement during the war.  I note, however, that he has been able to make a life for himself, obtaining settled employment, marrying and living with his wife and other family members in the family home.  He does not claim that he ever suffered harm from the authorities or the Karuna group and, as noted, I am not satisfied that he was ever sought in 2012 during visits to his house by unidentified armed men in a white van or by the CID.  Nor am I satisfied that he was forced to leave Sri Lanka because of a fear that he would be harmed, either in 2003 when he went to Saudi Arabia or in 2012 when he came to Australia.  I am not satisfied that he would suffer harm in Sri Lanka because of his Tamil ethnicity or that, for this reason, he would be prevented from earning a living or continuing to lead a normal life.

12. The Tribunal turned to the issue of being a failed asylum seeker, and relevantly found:

    46. I accept the Applicant would be subjected to such processes on return.  I am not satisfied this would involve him being singled out or targeted in a discriminatory fashion because of his Tamil ethnicity or for any other reason.  As I am not satisfied that he has ever been under genuine suspicion of having links with the LTTE, or that there is any reason to believe he would now fall under such suspicion or would be suspected of having committed any crime, I am not satisfied he would be arrested, detained or subjected to harm for this reason.  Nor am I satisfied that he falls within any other identified category of person who might be at risk of persecutory harm on return for other reasons.  I am not satisfied that the fact of his being questioned at the airport, even for an extended period, could in itself reasonably be characterized as harm, or that he would be subjected to any other form of mistreatment there.  While the information suggests he might be visited by the CID or police on return to his home area to check on his arrival, and that he might be placed under some degree of monitoring I am not satisfied that in his particular circumstances he would be subjected to any more serious forms of attention and I do not accept that such monitoring in itself could reasonably be described as harm.

    47. In reaching these conclusions I have taken into account a 2013 Sydney Morning Herald report by Ben Doherty  regarding returnees from Australia who were said to been harassed following their release from the airport and their return to their homes in [B].  The six persons interviewed claimed they were campaign workers for the opposition Tamil National Alliance (TNA) and that they and other TNA activists were threatened by paramilitary groups allied to the government after the governing United People’s Freedom Alliance lost control of the Eastern Provincial Council.  I also note there has been considerable media reporting on the case of three Sinhalese men reported to have been abused by the CID after return from Australia.   These include two brothers, [S] and [I] who arrived in Christmas Island in 2009 as crew members of a people smuggling boat and were later returned to Sri Lanka.  They claimed they were detained and tortured after their return.  They were arrested again in August 2010, together with [LW], on charges of people smuggling in connection with a further journey to Australia and claimed they had again been subjected to severe torture while in detention.  Having considered these cases I am not satisfied they have any relevance to the situation of the Applicant, who has never involved himself in political activity of any kind, and has never been involved in people smuggling ventures. 

    48. Taking this information together I am not satisfied the Applicant would face a real chance of serious harm at the hands of the authorities on return to Sri Lanka, either at the airport or after his return to his home, because he had sought asylum in Australia.

1. In relation to unlawful departure, the Tribunal made findings in relation to the Immigrants and Emigrants Act 1949, and found it was a law of general application which was appropriate and adapted to meet the general needs of the country, and was not enforced in a discriminatory manner or for a Convention reason. 

   53. Having considered the relevant country information I am satisfied that Sri Lanka’s law governing the departure of people from the country is a law of general application which is appropriate and adapted to meet a legitimate national interest in regulating the security of the country’s borders.  I am also satisfied that the law, which provides for penalties including fines and imprisonment and which involves suspects being arrested and possibly held in remand awaiting a bail hearing, is not selectively enforced or enforced in a discriminatory way on the basis of a Convention reason, but is instead applied to all Sri Lankans found to have departed illegally, regardless of their race or other personal circumstances.

   54. Further, on the basis of the available information concerning the enforcement of this law I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would face more than questioning at the airport on arrival, detention for a brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum.  I am not satisfied this treatment could reasonably be seen as constituting serious harm for him. 

2. It was in those circumstances the Tribunal concluded:

   55. In the light of all the information before the Tribunal, considered individually and cumulatively, I am 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, his actual or imputed political opinion or because he had sought asylum in Australia and had left the country unlawfully, whether or not this is expressed in terms of his membership of a particular social group.  He does not claim to fear serious harm for any other Convention-related reason and no other reason is apparent on the face of the information before the Tribunal.

   56. I am not satisfied that the Applicant has a well-founded fear of persecution for a Convention reason should he return to Sri Lanka, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

3. The Tribunal turned to the issue of complementary protection and found relevantly:

   57. As noted, I am not satisfied that the Applicant would suffer serious harm on return to Sri Lanka because his Tamil ethnicity, his political opinion, his status as a returned asylum seeker or the fact that he left Sri Lanka unlawfully.  Nor, having considered the information available to the Tribunal, am I satisfied he would be at risk of significant harm, as provided in s.36(2A) and further defined in s.5(1) of the Act, for these reasons.  While I accept that he would face arrest on charges under a law of general application, that he could be held in remand for a relatively brief period while awaiting a bail hearing and that he would later be fined if found guilty I am not satisfied this treatment could reasonably be seen as amounting to significant harm in terms of the complementary protection provisions of the Act.  He has not identified any additional matters which could be relevant to an assessment of Australia’s complementary protection obligations in his case.

   58. Having considered these circumstances I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the Applicant being removed from Australia to Sri Lanka, there is a real risk he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk he would be arbitrarily deprived of his life, the death penalty would be imposed on him, he would be subjected to torture, or he would be subjected to treatment or punishment which was cruel, inhuman or degrading.

4. It was in those circumstances that the Tribunal found that the applicant was not a person in respect of whom Australia owes a protection obligation, and that the applicant failed to meet the criteria under s.36(2)(a) or 36(2)(aa).

5. The findings of the Tribunal were clearly open.  The applicant had a genuine hearing.  The findings cannot be said to lack an evident and intelligible justification.  There is no substance in the grounds advanced.  The proceedings are clearly doomed to failure.  I am clearly satisfied the proceedings 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