AGI15 v Minister for Immigration
[2015] FCCA 958
•16 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AGI15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 958 |
| Catchwords: PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed. |
| Legislation: Migration Act 1958 ss.36(2)(a), 36(2)(aa), 91R(1), 476 |
| Spencer v the Commonwealth of Australia (2010) 241 CLR 118; SZTAL v Minister for Immigration & Anor [2015] FCCA 64 SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 |
| Applicant: | AGI15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 788 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
| Solicitors for the Applicant: | Mr F. Nikjoo Michaela Byers, Solicitor |
| Solicitors for the Respondent: | Ms N. Senanayake DLA Piper |
ORDERS
The proceedings be summarily dismissed.
The Applicant to pay the First Respondent’s costs fixed in the sum of $1300.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 788 of 2015
| AGI15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
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 affirming a decision of the Tribunal made on 20 February 2015 affirming a decision not to grant the applicant a protection class XA visa. The application identifies the following grounds:
1. The Tribunal erred by asking itself the wrong question.
Particulars
a. The Tribunal accepted that
i. The applicant had illegally departed Sri Lanka; and
ii. He will be held for a sho1i period on arrival for questioning on arrival and is likely to be charged with an offence under the Immigrants & Emigrants Act.
b. The Tribunal erred by making a qualitative assessment instead of assessing the threat to applicant's libe1iy pursuant to s91R(2)(a) and as decided in the Federal Court of Australia in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947.
2. The Tribunal erred by considering the wrong issues instead of the threat to the applicant's liberty pursuant to s91R(2)(a).
Particulars
a. At [67] the Tribunal accepted country information provided or cited by the representative (including Amnesty International, Human Rights Watch and Freedom from Torture) reports cases of certain Tamil returnee failed asylum seekers being specifically targeted and harmed by the Sri Lankan authorities. However, as discussed at the hearing, the Tribunal find these reported instances are relatively isolated (given the volume of Tamil returnees) and are not routine or regular; and
b. At [78] the Tribunal consider whether a conviction for illegal departure under the Immigrants and Emigrants Act gices rise to real risk the applicant will suffer significant harm. The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons been determined to have illegally departed Sri Lanka.
3. The Tribunal erred by failing to consider and give reasons as to whether being held in remand while waiting to be bailed under the Immigrants and Emigrants Act constitutes significant harm.
Particulars
a. The Tribunal accepted that the applicant has illegal departed Sri Lanka and it was likely that he would be held in remand for a short period;
b. At [81] the Tribunal found that the applicant's very brief remand pending charge and bail will not itself constitute systematic and discriminatory conduct, that s.91 R(l )( c) is not met therefore the conduct is not persecution;
c. At 98, the Tribunal concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion ins.36(2)(aa). The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa);
d. As s.91R(l)(c) has no application to s.36(2)(aa), the Tribunal must consider the s.36(2A) and give reasons; and
e. By failing to consider and give reasons the Tribunal has failed its duty under s.425 to afford the applicant a fair hearing.
4. The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.
Particulars
a. The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka:
b. The Tribunal found that prison conditions in Sri Lanka that “are cramped, uncomfortable and unpleasant”.
b. The Tribunal erred in holding that the applicant may be in overcrowded and poor conditions, the Tribunal does not accept that the applicant will be intentionally harmed by the authorities in these circumstances while waiting for bail. The Tribunal finds that the applicant does not face a real risk of significant harm while detained on remand.
6. The Applicant submits that these finds that these findings are enlivened in the findings at paragraph [86] of the decision.
The application identifies under 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.
Mr Nikjoo, solicitor, appeared for the applicant and the Court raised its concern that the application failed to disclose any arguable jurisdictional error and that the Court was minded to consider exercising its summary dismissal powers. 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].
Mr Nikjoo conceded that ground 1 was not arguable in light of the Full Court’s decision in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39. In relation to ground 2 this is an impermissible challenge to the findings of fact of the Tribunal made at paragraphs 88 and 89 and has no substance.
In relation to ground 3 the Tribunal clearly appreciated the difference between s.91R(1) and s.36(2)(aa). That is apparent from the summary of the Tribunal of the applicable law at paras.10 and 16, and made appropriate findings at paras.89 and 96. There is no error in the Tribunal’s approach; see Perry J in SZTDY v Minister for Immigration and Border Protection [2015] FCA 303 at [46] and [47]. I am satisfied that the Tribunal clearly understood the statutory regime that it was applying and conducted a review in accordance with that statutory regime. Ground 3 does not disclose any arguable jurisdictional error.
The applicant seeks leave to advance a new ground 4 as follows;
It was argued that ground 4 is in almost identical terms to the decision in SZTAL v Minister for Immigration & Anor [2015] FCCA 64 in which Driver J found no jurisdictional error.. Ground 4 is in my opinion an impermissible challenge to the findings of fact at para.86 and does not disclose any arguable jurisdictional error.
The applicant applied for a protection visa on 18 December 2012 and was refused on 8 October 2013. The applicant appeared before the Tribunal on 11 February 2015 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter and the applicant was represented by his registered migration agent.
The Tribunal carefully set out the relevant law in relation to refugee criteria and then addressed the issue of the law applicable in relation to complementary protection criteria. The Tribunal then fully set out the applicant’s claims and addressed the applicant’s evidence and identified in the submissions received both before and after the hearing. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country. The Tribunal noted that the applicant’s claims primarily revolve around his appearance in para.30, and relevantly the Tribunal made the following findings:
34. The Tribunal has considered the applicant’s claim that he will be targeted for harm and harassed on return to Sri Lanka because of his appearance. The Tribunal accepts that the applicant has a distinctive appearance caused by his skin condition. However the Tribunal does not accept that the applicant was specifically targeted, or viewed with greater suspicion, because of his appearance, during these roundups.
…
36. The applicant has claimed that his appearance caused him to be rounded up, as the authorities suspected that people with scarring or visible wounds were involved in the war. The Tribunal does not accept this element of the applicant’s claim, the Tribunal does not accept that the applicant’s skin condition led to him being targeted in any specific way, including being viewed with greater suspicion, by the authorities. The Tribunal considers that the applicant has been rounded up in the past with a number of other individuals. The Tribunal considers that the applicant has been asked about his appearance, which is noticeable. The applicant has explained his condition, with the assistance of medical documentation. The evidence of the applicant is that after he had provided information to show that the skin condition was a skin disease, either by directly showing the authorities the letter he had been provided with by a doctor, or quickly provided by his family when he did not have the report on him, the applicant was released by the authorities. The Tribunal considers that the applicant was not of interest to the authorities once he had explained his appearance and any other queries about his activities. The Tribunal does not accept that the authorities believed that the applicant was in any way involved with or supported the LTTE, given that they were satisfied with his responses to their inquiries and released him.
37. The Tribunal does not accept that on return to Sri Lanka the applicant will be harassed by the authorities because of his appearance. As discussed with the applicant, the circumstances of 2012 and earlier have altered in the intervening period of his absence from Sri Lanka. The claim that he would be targeted by the authorities on return because of his appearance was affected by the current practices of the authorities, that roundups of general suspects was not a significant concern in Sri Lanka as the authorities were concentrating on individuals with particular attributes, such as actual LTTE involvement. This was not true of the applicant.
38. The Tribunal does not accept that the applicant will be targeted by the authorities because of his appearance. Though the applicant’s appearance is distinctive, the Tribunal considers that the authorities do not have an interest in the applicant, having demonstrated historically that their interest in the applicant was limited to general roundups that ended in a prompt release. The applicant does not have any of attributes detailed below at paragraphs 42 and 43 which have been identified as needing careful examination, the Tribunal does not accept that the authorities suspect the applicant of any involvement in the civil war or LTTE in general. The Tribunal finds that the authorities will not target the applicant in the present day for any attribute that has.
39. The Tribunal finds that the applicant does not have a real chance of serious harm as a young Tamil with facial scarring. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this Convention reason, now or in the reasonably foreseeable future.
The Tribunal carefully addressed the country information in relation to the applicant being a young Tamil, and relevantly found:
46. The Tribunal does not accept that applicant’s claim that all Tamils in Sri Lanka face harm because of their race or gender. The country information shows that there are certain types of people, of Tamil and other backgrounds, who have a profile that raises the risk of being harmed in Sri Lanka. Tamils whom the authorities believe to be a threat because of roles and responsibilities that they have had in the LTTE, or relationship to someone with such a role or responsibility, or Tamils who may be considered to be a present threat to the integrity of the single state of Sri Lanka, are considered at risk of harm. The UNHCR states that Tamils are reportedly more often subjected to arbitrary detention, abductions or enforced disappearances. The Tribunal considers that this references those individuals who are considered a risk to the integrity of the state of Sri Lanka, through their past or present activities. The Tribunal does not accept that this applies in the circumstances of the applicant, a man from the eastern region with no involvement in such activities, historically or presently.
47. The Tribunal does not accept that the applicant, a young male Tamil from the Eastern regions of Sri Lanka, faces a real chance of serious harm because he is of Tamil ethnicity or as a young male Tamil from the East. The applicant stated that neither he nor any member of his family were LTTE or supported the LTTE . The Tribunal considers that the applicant is not a person, who simply because of his ethnicity, location in Sri Lanka, age, gender, or skin condition, will be targeted by the authorities for harm. The Tribunal finds that the applicant does not face a real chance of serious harm, now or in the reasonably foreseeable future, arising from the Convention reason of race, or membership of particular social groups arising from his race, location with Sri Lanka or gender. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
48. Further, based on the considerations of the evidence before it, the Tribunal finds that the applicant does not face a real risk of significant harm for these reasons.
The Tribunal addressed the issue of an imputed political opinion and relevantly found:
56. The Tribunal does not accept that the applicant faces a real chance of serious harm now or in the reasonably foreseeable future arising from any imputed pro-LTTE political opinion. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason.
57. The Tribunal has also considered the applicant’s claims on this point in relation to the complementary protections provisions of the Act. The Tribunal finds that the applicant does not face a real risk of significant harm for this reason.
The Tribunal addressed the issue of a failed asylum seeker:
64. The Tribunal questioned the applicant about current treatment that the applicant was taking for his condition. The applicant stated that he had previously received treatment from a hospital in Clayton, but was presently working so was not receiving assistance. The Tribunal notes that the applicant has previously been able to explain his condition to the authorities, including with appropriate medical information about his circumstances. The Tribunal considers that the applicant will be able to do this again on return to Sri Lanka, and to demonstrate, as he has done before, that the skin condition is not due to any involvement in the civil war. The Tribunal has not accepted that the applicant has been targeted by the authorities because of his skins condition, the Tribunal does not consider that the applicant will be targeted for harm while being interviewed on return to Sri lanka
65. The Tribunal again notes that it is particular groups of people, as specified by the UNHCR, who are targeted by the authorities. The Tribunal does not accept that the authorities have any interest in the applicant. The Tribunal does not accept that the applicant will be harmed on return through the airport because he is a young Tamil man from Sri Lanka with a skin condition. The Tribunal finds that the applicant is not wanted by the Sri Lankan authorities and will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. The Tribunal finds that the applicant will not be harmed during the questioning process at the airport on return to Sri Lanka.
66. The Tribunal accepts the Sri Lankan authorities will assume the applicant has sought asylum in Australia, having regard to his unlawful departure by boat and the context and circumstances in which he would likely be returned. The Tribunal does not accept, given the confidentiality of the process, that his individual claims will be known. Having regard to the evidence and country information before me, the Tribunal does not accept the authorities will be concerned by the applicant's imputed asylum claim such that there is any real chance any state-actor will be motivated to harm him at any stage of the re-entry and return process, or the charge, remand and bail process, or in the process of imposing legal penalties for his illegal departure, for this reason – taken alone or cumulatively with his being a young male Tamil, with a skin condition, or residence in a western country, either individually or cumulatively.
67. The Tribunal accepts country information provided or cited by the representative (including Amnesty International, Human Rights Watch and Freedom from Torture) reports cases of certain Tamil returnee failed asylum seekers being specifically targeted and harmed by the Sri Lankan authorities. However, as discussed at the hearing, the Tribunal finds these reported instances are relatively isolated (given the volume of Tamil returnees) and are not routine or regular, and turn on the particular profiles of those involved, such as real or imputed LTTE links or ongoing vocal/public/visible government opposition. The Tribunal is not willing to extrapolate from these reports a real chance of such harm to the applicant as a Tamil (and/or) failed asylum seeker, having regard to his circumstances. The Tribunal does not accept that the weight of the evidence before it supports the view that there is any real chance the government will detain, harm, torture or kill the applicant personally due to any assumption that he has criticised the government in the course of seeking asylum, or otherwise arising for seeking asylum. For reasons outlined elsewhere above, the Tribunal has found there is no real chance the applicant, in his circumstances, will be harmed because of any perceived LTTE link.
68. The Tribunal accepts on the basis of the country information provided that the applicant will be questioned by Sri Lankan authorities (including airport immigration officials or CID) at the airport on his return, to establish his identity and entry rights and due to the context of his illegal departure and return. However, having regard to his accepted circumstances, the Tribunal does not accept the applicant faces any real chance of being detained for questioning or otherwise targeted for harm – at the airport or in his home area - due to his race and/or identification as a failed asylum seeker, or any adverse real or imputed political opinion. Having regard to the cumulative accepted evidence, the Tribunal does not accept the applicant will be of adverse interest to the authorities on return to his home area. The Tribunal does not accept the applicant’s submission that the authorities would wait a period of time before seeking to harm him; the Tribunal does not accept that there is any reason for the authorities to want to harm him.
69. Were the applicant to be questioned or monitored briefly at the airport or in his home region by the authorities due to his illegal departure, the Tribunal does not accept this itself amounts to harm or serious harm to him. The Tribunal does not accept that the applicant would be of ongoing or recurrent interest, or that he would face a real chance of serious harm in this context. The Tribunal does not find the weight of evidence before it supports that view.
…
71. For these reasons the Tribunal finds the applicant faces no real chance of serious harm as a returning failed asylum seeker from Australia (or the West or overseas) - regardless of whether seeking asylum is conceived of either as an imputed political opinion, or as an identifying characteristic of any particular social group, in any combination with other characteristics of being a man of Tamil ethnicity, adverse political opinion or imputed LTTE connection or illegal departure.
72. The Tribunal further finds that the applicant does not finds that the applicant does not face a real risk of significant harm for this reason.
The Tribunal addressed the issue of illegal departure and made the following relevant findings:
76. The Tribunal then asked the applicant about bail, and the possibility of paying a fine if convicted of an emigration offence. The Tribunal noted that punishment, if convicted, could be up to 5 years imprisonment and up to a 200,000 rupee fine but country information from DFAT indicates that there is discretion and that the most likely outcome is that the applicant would pay a fine, rather than imprisonment. This information indicates that fines that have been handed out are between 5000 – 50 000 rupees for people departing or attempting to depart Sri Lanka irregularly on boats. The Tribunal noted that this may lead it to conclude that the fine the applicant would have to pay would be similar or not much higher. The Tribunal asked if the applicant was in a position to pay the fine and the amount for bail that may be required. The applicant stated that there was no problem with the payment of a fine. The Tribunal considers that the applicant has the financial capacity to pay for a fine that may be imposed.
…
78. The Tribunal has considered whether a conviction for illegal departure under the Immigrants and Emigrants Act gives rise to a real risk the applicant will suffer significant harm. The country information above indicates that the penalty most likely to be imposed on the applicant is a fine. That is the penalty currently being imposed on persons who have been determined to have illegally departing Sri Lanka.
79. The Tribunal has considered the applicant’s responses to this information and the punishment that he claims he may face on returning to Sri Lanka after illegally departing. The Tribunal notes that the applicant’s family are presently in Sri Lanka, and the Tribunal considers that they will guarantee his bail and thus ensure his quick release from any process required to inform the applicant of the charges he will face. The Tribunal does not consider that the applicant will be required to remain in remand or in jail on return to Sri Lanka due to the manner of his departure from Sri Lanka in 2012.
…
81. The Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The Tribunal considers that the laws are not selectively enforced. The Tribunal does not accept the submission that they are selectively enforced against failed asylum seekers, who are placed into the situation of having to depart illegally. The Tribunal considers that the laws are enforced against anyone who breaches them. Accordingly, the Tribunal finds that the Immigration & Emigration Act applies generally to those who breach the provisions, including the imposition of the penalties for breaching this Act, and is not discriminatory on its face or in its intent, and does not differentially impact any particular section of the Sri Lankan population. The Tribunal therefore find that the applicant's very brief remand pending charge and bail will not itself constitute systematic and discriminatory conduct, that s.91R(1)(c) is not met and therefore the conduct is not persecution.
82. The Tribunal finds the chances very remote that the applicant will be sentenced to any term of imprisonment due to his illegal departure. The Tribunal accepts that the applicant will face a financial penalty as prescribed under the Act. The Tribunal considers that the applicant will be able to pay for the lawful financial penalty imposed for his illegal departure. The Tribunal finds there is no real chance he will be unable to pay any financial penalty imposed under Sri Lankan law for his illegal departure, or therefore, that there is any real chance he will face serious or significant harm in the reasonably foreseeable future deriving from any legal penalty being imposed.
…
84. The applicant has stated that his distinctive appearance would place him at risk of being harmed while being held in detention, that the same suspicions about the cause of his appearance would lead to him being harmed by the authorities. The Tribunal has not accepted that the applicant has been targeted by the authorities because of his skins condition. Again, the Tribunal notes that the applicant has previously been able to explain his condition to the authorities, including with appropriate medical information about his circumstances. Having demonstrated this, the Tribunal does not consider that the applicant will be targeted for harm by the authorities while being detained waiting for his matter to come before the court.
85. Even accepting that country information indicates examples of overcrowding and generally poor conditions in prisons in Sri Lanka , the Tribunal finds the chances remote the applicant will be targeted and harmed or seriously harmed for any reason advanced in the context of a very brief stay in remand pending bail. The Tribunal does not accept that the applicant will be personally targeted for harm in the prison, by the authorities generally or the prison guards who would shoot him, as claimed by the applicant. The Tribunal considers that the applicant is remanded for the short period as part of a lawful process applied consistently and without discrimination to those who breach a particular law. The Tribunal does not consider that all prisoners, or prisoners in all the accepted circumstances similar or the same as the applicant, such as the overcrowding and poor conditions, will be intentionally subjected to harm by the authorities during a brief period of remand, the Tribunal finds it speculative and the chances remote that he will face serious harm in this context.
86. Further, the Tribunal has considered these conditions with respect to the complementary protection provisions of the Act. While the applicant may be in overcrowded and poor conditions, the Tribunal does not accept that the applicant will be intentionally harmed by the authorities in these circumstances while waiting for his bail. The Tribunal finds that the applicant does not face a real risk of significant harm while detained on remand.
87. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka as a member of a particular social group of either failed asylum seekers or returnees from a Western country or persons who left Sri Lanka illegally.
88. In these circumstances, the Tribunal finds the applicant faces no real chance of serious harm now or in the reasonably foreseeable future due to his illegal departure, taken alone or in combination with his other accepted circumstances.
89. The Tribunal finds that the applicant’s status as a failed asylum seeker or a returnee who may be charged with improperly departing Sri Lanka does not give rise to substantial grounds for believing that there is a real risk he will suffer significant harm upon being removed from Australia
The Tribunal also addressed the issue of potential discrimination:
92. The Tribunal accepts that the applicant’s appearance would make him stand out and that he could be mocked by people within the community. However the Tribunal does not accept that this treatment constitutes serious or significant harm, as defined. The applicant resides in a predominantly Tamil neighbourhood. The applicant has managed to work and live in his community for an extended period of time with his skin condition. The Tribunal does not accept that the applicant faces any form of harm because of any form of discrimination for any attribute that he has. The Tribunal considers this claim is not made out
In relation to the applicant’s religion the Tribunal made the following findings:
94. The Tribunal does not accept that the applicant will be harmed because of his religion. The Tribunal considers that the applicant was stopped because of his failure to have appropriate identification, not for any reason arising from his practice of his religion. The Tribunal considers that based on the applicant’s evidence, this claim is not made out.
95. Having regard to all the circumstances and findings above, both individually and cumulatively, the Tribunal finds that the applicant does not face a real chance of serious harm in Sri Lanka for a Convention based reason. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention based reason, now or in the reasonably foreseeable future.
It was in those circumstances the Tribunal found both individually and cumulatively that the applicant does not have substantial grounds for believing that there is a real risk of him suffering significant harm upon being removed from Australia, and was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s.36(2)(a), and was not satisfied that the criterion under s.36(2)(a) or 36(2)(aa) had been met.
There is no utility in granting leave to amend the application as the amendment is doomed to failure. There is no utility in granting an adjournment as it will only unnecessarily increase the party’s costs and use limited Court time in circumstances where it is clear the proceedings are doomed to failure. The findings of the tribunal were clearly open and cannot be said to lack an evident and intelligible justification. The applicant had a genuine hearing. 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: 17 April 2015
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Jurisdiction
-
Summary Judgment
0
5
5