AFT15 v Minister for Immigration

[2015] FCCA 980

FEDERAL CIRCUIT COURT OF AUSTRALIA

AFT15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 980

Catchwords:
MIGRATION –  Refugee Review Tribunal – Protection (class XA) visa – 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, s.476

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

Applicant: AFT15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 748 of 2015

Judgment of: Judge Street

Hearing date: 16 April 2015

Date of Last Submission: 16 April 2015

Delivered at: Sydney

Delivered on: 16 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms N. Johnson
Mills Oakley Lawyers

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 748 of 2015

AFT15

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 this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal on 19 February 2015 affirming a decision of the delegate not to grant the applicant a Protection visa.

2. The application identifies the following two grounds:

   1. The decision of the second respondent, the Refugee Review Tribunal member, was affected by legal error.

   2. More details will be provided by the legal representative.

1. The grounds patently fail to identify any arguable jurisdictional error.  The Court raised with the applicant that it was minded to consider dealing with the matter summarily, and the applicant indicated that he did not have a time to get a lawyer and did not advance any other submission as to why the decision of the Tribunal was wrong.  I indicated to the applicant there is no utility in granting an adjournment if the proceedings are doomed to failure. 

2. For the reasons given, these proceedings are clearly doomed to failure and an adjournment will only add to the costs to the parties unnecessarily and utilise limited Court time.  I take into consideration in respect of 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].

3. The applicant applied for a protection visa on 25 August 2012, which was refused on 20 July 2013.  The applicant appeared before the Tribunal on 20 January 2015 to give evidence and present arguments and was assisted by an interpreter. Also present at the hearing by the Tribunal was the applicant’s registered migration agent.  The Tribunal carefully summarised the applicable law and identified in para.10 the central issues in relation to the case. 

4. The Tribunal proceeded to carefully identify the applicant’s claims for protection in the documents provided as well as the earlier submissions provided to the Tribunal on 15 May 2014 as well as further submissions after the hearing received on 25 January 2015.  The Tribunal found the applicant to be a citizen of Sri Lanka, and his claims were assessed against that country.  The Tribunal made adverse findings of credit in relation to the applicant’s claims relevantly as follows:

   77. …The Tribunal does not accept that the applicant's injuries were as severe as he claimed.

   81. The Tribunal does not accept that [V] is a senior member of the Karuna party, even in

   the area of the applicant's home village. The applicant has provided no independent or documentary evidence to support that claim. At that time, the applicant was not working for the Chief Minister. The reason for the attack was therefore not because the applicant was working for Pillayan. The Tribunal does not accept that the applicant suffered serious or significant harm during that incident.

   82. The Tribunal does not accept that the reason for the incident was the applicant's Tamil ethnicity or actual or imputed political opinion, or for ·any other Convention reason.

   83…. The applicant claimed that he would be in greater danger if he returned home and said nothing to [V]. [V] did not harm him on that occasion or thereafter. The Tribunal does not accept that this incident occurred.

   87. Based on the applicant's evidence, the Tribunal does not accept that anyone suffered harm from greasemen in the area of the applicant's home village at that time. The Tribunal accepts that the applicant was threatened, as he claimed, by army personnel. That was in the context where villagers had blocked off the access road to the village at the time of the greasemen fear, which the Tribunal finds raised the concern of the army personnel. Although frightening, given the brevity of the incident, and the fact that he suffered no physical harm, the Tribunal does not accept that the incident involved a real chance of serious harm or a real risk of significant harm to the applicant. It is the only incident the applicant claimed had occurred to him in Sri Lanka involving actual or potential harm from any Sri Lankan authorities. The Tribunal also does not accept that he was targeted personally. Being Tamil may have been part of the reason for the threat at the time, but the main reason was that he was in the wrong place at the wrong time. The Tribunal does not accept that there is any chance or risk that that incident will lead to the applicant suffering any harm in the future.

   103…. The Tribunal accepts that he thought he would leave when two incidents occurred when people associated with Pillayan, but not the applicant, were attacked or threatened, but remained because he was promised help to get a sports job, which he wanted. That he continued to work in the CM's office until his departure for Australia in May 2012, without being further threatened or harmed, is not consistent with his fearing serious or significant harm from the Karuna group or anyone else because of his association with Pillayan. The applicant did not claim that he would have an association with Pillayan if he returned to Sri Lanka. That he would not, is consistent with his disappointment at working" voluntarily", but being paid for his work, on the basis of repeated but unfulfilled promises of a sport job in the future.

   104. The Tribunal does not consider that there is real chance that the applicant will suffer serious harm, or that there is a real risk that he will suffer significant harm if he returns to Sri Lanka because of his actual or imputed political opinion, including being an actual or perceived supporter of Pillayan, or as being an actual or perceived opponent of the Kamna group, because of his voluntary work with Pillayan, from March 2011 until the end of April 2012, when he left to come to Australia.

   105…. She organised for him to board a boat for Australia. He did not leave Sri Lanka because he feared serious or significant harm from anyone.

   108…. It does not accept that there is a real chance that he will suffer serious harm or that there is real risk that he will suffer significant harm for any one or more of those reasons if he returns to Sri Lanka.

   115. The Tribunal finds that the Immigrants and Emigrants Act is a law of general application. It is not discriminatory in its terms or intention, including its impact. It is not enforced in a discriminatory manner. The conduct under that Act, including detention, and the conditions during detention, is not discriminatory conduct and therefore does not satisfy s 91R(l)(c). It is not persecution.

   116…. In making the latter finding, the Tribunal has considered the definitions in s.36(2A) and the regulation.

   117. The Tribunal does not accept that the applicant's circumstances would result in his being given a custodial sentence.

   118…. The Tribunal does not accept that the applicant's circumstances give rise to any possibility that he will be charged under the PTA.

   119. The representative claimed that the applicant will be killed or "disappeared", even if he is interviewed and released after his arrival in Sri Lanka at the airport, and that he will be at risk of intimidation, abduction and extortion because of the lack of programs for reintegration, being viewed as a traitor by bringing the country into disrepute and being subject to systematic media attacks as being LTTE mouthpieces and supporters. Given the history of the applicant and his family, including his sister, the Tribunal does not accept that he would face any such risk. The Tribunal has taken into account his claim that if he has breached the law, he will not be able to get a sport job with the government. There is no independent information to support that claim. However, assuming that is correct, as he said, he could do video and photography work, his second preference job.

5. The Tribunal carefully identified the taking into account of the submissions and country information provided by the applicant, but preferred the DFAT country report and the DFAT thematic report. The Tribunal made the following further adverse findings:

   123. For the above reasons, taking into account the applicant's claims singly and cumulatively, the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm for a Convention reason in the reasonably foreseeable future if he returns to Sri Lanka.

   124. The applicant does not have a well-founded fear of persecution for a Convention reason if he returns to Sri Lanka.

   125. 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).

   126. 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).

   127. For the reasons given above, the Tribunal does not accept that the applicant has suffered significant harm in Sri Lanka in the past and does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm for any one or more of the reasons he claimed. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   128. 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).

6. It was in those circumstances that the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa.  The findings of fact were clearly open.  The adverse findings in relation to the credit of the applicant were clearly open.  The application fails to identify any arguable jurisdictional error.  The proceedings are clearly doomed to failure. This is an application for a Constitutional writ and there is not utility in granting any adjournment. The applicant had a genuine hearing.  I am satisfied that the Tribunal complied with the statutory regime in respect of the review.  I am clearly satisfied the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  17 April 2015