AGP15 v Minister for Immigration

[2015] FCCA 1076

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGP15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1076

Catchwords:
MIGRATION –  Refugee Review Tribunal – Protection (class XA) visa –complementary protection – law of general application – 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, ss.36(2)(a), 36(2)(aa), 476

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

Applicant: AGP15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 798 of 2015

Judgment of: Judge Street

Hearing date: 23 April 2015

Date of Last Submission: 23 April 2015

Delivered at: Sydney

Delivered on: 23 April 2015

REPRESENTATION

There was no appearance by the applicant

Solicitors for the Respondents: Ms K. Erskerie
Sparke Helmore

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 798 of 2015

AGP15

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 with respect to a decision of the Tribunal dated 18 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant has failed to attend.  The matter was listed for hearing at 9:30am.  Albeit that the Court could proceed to deal with the matter through default of appearance by dismissing the matter, it is the case that Mr Erskerie for the first respondent had foreshadowed moving for summary dismissal.  It is appropriate in the circumstances of this case to consider the summary dismissal of the application in default of appearance of the applicant. 

3. The grounds in the application are as follows:

   1. The Tribunal made a jurisdictional error in failing to consider a relevant fact in not giving any evidentiary weight to an arrest issued to the Applicant’s home country.

   2. The Tribunal made a jurisdictional error in denying the Applicant procedural fairness.

   3. The Tribunal made a jurisdictional error as in its decision it relied upon a number of findings and statements for which no evidentiary basis was given.

   4. The Tribunal made a jurisdictional error by failing to take into account relevant considerations when determining the truthfulness of the applicant’s evidence.

   5. The Tribunal made a jurisdictional error in that it erred in fact finding.

4. 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].

5. I agree with the contentions of the first respondent that the grounds identified seek to invite the Court to undertake a merits review of the Tribunal’s decision and are an impermissible challenge to the findings of fact by the Tribunal.  The grounds do not disclose any arguable jurisdictional error.  The grounds do not disclose any failure by the Tribunal to comply with the statutory regime and there is no substance in relation to the contention of a denial of procedural fairness. 

6. The applicant is a citizen of Sri Lanka and his claims were assessed as against that country.  The applicant applied for a protection visa on 22 March 2013 which was refused on 24 September 2013.  The applicant appeared before the Tribunal on 28 January 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his registered migration agent. 

7. The Tribunal carefully identified the relevant law and the claims and evidence of the applicant.  The Tribunal carefully summarised what occurred at the hearing on 28 January 2015 and, relevantly, made adverse findings as follows:

   44. I am not satisfied as to the applicant’s claims that he has a well founded fear of persecution based on his claims. I’m also not satisfied as to the applicant’s credibility in relation to some aspects of his evidence and to some aspects of his claims.

   45. I am not satisfied that the applicant has a well founded fear of persecution on the basis that he is a young Tamil male of the Hindu faith who if he returned to Sri Lanka could be perceived to have an imputed political opinion that he is pro-LTTE or because he left illegally that he could be imputed with a political opinion of being pro-LTTE or anti the Sri Lankan government. The applicant also claimed that he feared harm on the basis that if he returned to Sri Lanka he would be returning as a member of a particular social group as a failed asylum seeker who could be perceived to be a wealthy Tamil because he had lived overseas.

   46. The applicant does not claim that he has ever been a member or supporter of the LTTE. On the evidence and information before the Tribunal the applicant does not have a profile that supports the contention that he would be perceived to be pro LTTE if he returned to Sri Lanka. The 2012 UNHCR eligibility guidelines do not support the applicant’s claims that he would be at risk on the basis of being a Tamil per se. The applicant’s evidence regarding any difficulties he had in relation to the army or the LTTE in Sri Lanka relates to an incident in 2000 were he claims he was questioned and beaten and detained for two days by the Army before he escaped. He then told the Tribunal that shortly after his escape he was questioned by the LTTE about why the army had detained him. Apart from those events in 2000 the applicant claims that he received an arrest warrant in the post at his family home in 2012 and that the army had visited the family home in 2012 and asked questions about him on one occasion. He also claimed that the Army and the LTTE had asked questions about him in 2006 before he left to go to Saudi Arabia.

8. The Tribunal carefully summarised its concerns in relation to the credibility of the applicant in paragraph 47 and relevantly found:

   47. I have considered the applicant’s evidence and his claims about these issues and as indicated in these reasons I have significant concerns about the applicant’s credibility in relation to these claims. I have also considered the written submissions on these issues. I have considered the applicant’s claims that he has memory difficulties in considering my assessment of his credibility. I do not accept that the applicant’s often vague and on occasions inconsistent evidence can be attributed to memory difficulties. The applicant’s evidence was often marked by an inability to explain the basis for his claim to fear harm and this was so when asked about his claims based on his Hindu religion where he essentially referred to damage to Hindu temples as being the basis for his claim to fear harm. Equally the applicant’s evidence surrounding his claims about the arrest warrant that he said had been posted to his home was also troubling as the applicant was not able to indicate to the Tribunal why an arrest warrant would have even been issued other than to suggest that he suspected it had something to do with his claim to have escaped from the army in 2000 or that it was an attempt to extort money from him. He told the Tribunal he had not had any difficulties in terms of any extortion attempts when he had returned from Saudi Arabia and he did not claim that any extortion attempts had been made of him. The applicant’s evidence to the Tribunal regarding his claimed detention by the army in 2000 was also marked by inconsistencies in terms of his overall claims in relation to that incident. The applicant claimed memory difficulties when being questioned by the Tribunal about inconsistencies and vagueness in relation to some of his claims. The applicant did not provide the Tribunal with any information regarding his memory difficulties which was only raised by the applicant after the Tribunal raised concerns about the applicant’s credibility. The applicant did not claim to be taking any medication that would have affected his memory .I do not accept the applicant’s claims that memory difficulties are the basis for his often vague and inconsistent evidence. I am not satisfied as to the applicant’s claims that a number of the events occurred as he claims and the applicant’s difficulties in providing evidence to the Tribunal was as a result of that issue rather than any memory difficulties. As indicated there were significant variations between the applicant’s statutory declaration/statement and the written submissions and the applicant’s evidence before the Tribunal about various issues and in particular his claims regarding the Army detention in 2000.

   48. In summary the applicant claimed before the Tribunal that there was only one occasion in 2000 when he was detained and questioned and beaten by the Army and apart from claiming that he was detained on suspicion of having some connection to the LTTE the applicant was not able to explain why he would have been detained on that occasion other than his claim that his home was situated between an LTTE camp and an army camp and the army was suspicious on that basis. As indicated there were variations surrounding the applicant’s claims at various stages since he arrived in Australia and had been interviewed after arrival or during the protection visa application process. I have indicated that the applicant’s evidence before the Tribunal was marked by often vague and inconsistent evidence and including in relation to these particular issues. I have considered the evidence and my assessment of the applicant’s credibility. In all the circumstances and having considered these issues I do not find the applicant’s evidence credible in relation to a number of his claims. I do not accept that the applicant was detained and questioned and beaten by the army as he claimed before the Tribunal and that he was held for two days and that he escaped. I also do not accept the applicant’s claim that he was subsequently questioned by the LTTE after he escaped from the Army. I note that the applicant did not claim that he had ever been charged in relation to any incident relating to his claimed questioning and detention and his claimed escape by the Army arising out of the 2000 incident. I have also considered the applicant’s claim that his home was located between an army camp and an LTTE camp. He told the Tribunal that there was no fighting in his area between the LTTE and the Army in 2000 because a truce was in place. The DFAT Thematic report of October 2014 relating to people with links to the LTTE indicates that the conflict in Sri Lanka was broken only by an internationally brokered ceasefire from 2002 until 2006. That information is not consistent with the applicant’s claim that that was no fighting in 2000 in his village between the army and the LTTE. That issue was raised with the applicant during the Tribunal hearing but he did not engage with the Tribunal about the issue. Having regard to the country information together with my assessment of the applicant’s credibility and my assessment about the applicant’s evidence regarding his claims that he was detained by the army in 2000 I also do not accept that he had an LTTE camp next to his home and that he was detained on suspicion of passing information to the LTTE. The applicant’s claims about the location of an LTTE camp (which according to the applicant was basically a house) and that there was no fighting in his village with an army camp nearby are not credible having regard to all the circumstances involving the conflict in Sri Lanka which did not end until May 2009. The applicant’s claims about the issuing of an arrest warrant and his claim that it had been posted to his home also need to be considered in this context and against this background.

   49. I have considered the applicant’s claim that the Army and the LTTE asked questions about him and 2006 and that was one of the reasons why he “fled” to Saudi Arabia in 2007. Given my assessment of the applicant’s credibility together with my assessment of the applicant’s overall risk profile and the evidence I am not satisfied that the Army or the LTTE asked questions about the applicant in 2006 as he claimed. The applicant provided the Tribunal with only very brief evidence in relation to this claim and issue.

   50. I have considered the applicants claim that he fears harm on the basis that he is both a Tamil male and of the Hindu faith. I’ve referred elsewhere in these reasons to the applicant’s evidence and claims in relation to these issues. As indicated the 2012 UNHCR eligibility guidelines do not identify Tamils per se as being at risk on the basis of their ethnic extraction in those guidelines. As well the DFAT country report of October 2014 indicates that the cessation of the forced registration of Tamils suggests the trend of monitoring and harassment of Tamils in day-to-day life has generally eased since the end of the conflict and that the UNHCR eligibility guidelines released in July 2010 indicate that there was no longer a need for group based protection mechanisms or for the presumption of eligibility for Sri Lankan’s of Tamil ethnic extraction originating from the north of the country. The applicant’s evidence was that he had not had any difficulties practising his Hindu faith in Sri Lanka and his claim in relation to fearing harm on the basis of his religion was that he claimed that there had been damage done to Hindu temples . I accept the DFAT country reports of October 2014 (and confirmed in the DFAT February 2015 country report) that assesses that there is little official discrimination on the basis of religion in Sri Lanka and that there are no official laws or policies that discriminate on the basis of religion. The DFAT country report of February 2015 assesses that most members of religious groups in Sri Lanka are able to practice their faith unmolested but that the risk of harassment or violence increases where practitioners attempt to proselytise or to carry out an ethical conversions which generally involves a financial inducement to convert religion. There was no evidence from the applicant that he engaged in that type of religious activity that would put him at risk in accordance with country information. The DFAT country report also refers to attacks on places of worship throughout Sri Lanka between May 2009 in January 2013 and the majority of cases reported were attacks against evangelical Christian churches. The former government established a special police unit to investigate complaints relating to religious matters . I have considered the written submissions filed on behalf of the applicant but I do not accept having regard to all the evidence and the claims and the country information that the applicant has a well founded fear of persecutory harm on the basis that he is a Tamil male of the Hindu faith. The overall DFAT assessment, as indicated, is that most members of religious groups are able to practice their faith unmolested. On the basis of the evidence and information before the Tribunal I do not accept that the applicant has a well founded fear of persecution on the basis of his Tamil ethnic extraction or that he has a well founded fear of persecution on the basis of his Hindu religion.

   51. I have considered the applicant’s claims that because he is a young Tamil male who left Sri Lanka illegally that if he returned to Sri Lanka he could be perceived to have an imputed political opinion that he is pro-LTTE or anti the Sri Lankan government. Based on his profile and his history and the evidence I do not accept the applicant’s claim that he has a well founded fear of persecutory harm on the basis that he is a young Tamil male who would be perceived to have an imputed political opinion of being pro-LTTE or anti the Sri Lankan government. As indicated the applicant does not claim to have been a member or supporter of the LTTE. There is no evidence that would suggest that he is at risk on this basis. The evidence is that the applicant was able to obtain a passport after the claimed incident in 2000 and that he obtained the passport without any difficulty. The evidence is that the applicant was able to travel to Saudi Arabia and return to Sri Lanka and then return to Saudi Arabia without any difficulty. He did not claim that he was questioned or detained in relation to these travel movements. He did not claim that he had been charged in relation to his claim that he had escaped from the army in 2000. He returned to Sri Lanka in December 2011 and lived in his home village for around four months and did not claim that anything happened to him during this time. He did claim that the army had asked about him once in his home village before he left Sri Lanka to come to Australia and he also claimed that an arrest warrant had been posted to his home but he was unable to explain to the Tribunal’s satisfaction why he would be arrested or why an arrest warrant would have been issued for his arrest or why the warrant would have been posted to his home. The applicant had claimed that the warrant document could have been part of a process to extort money from him but that was no evidence before the Tribunal that indicated that any extortion attempt had been made .Having regard to all the circumstances surrounding the applicant’s claim in relation to the arrest warrant and including concerns about the veracity of the document (in the overall context of the applicant’s claims surrounding the document) the Tribunal does not accept that the applicant received an arrest warrant in the mail as he claims. The applicant’s evidence about this issue and the evidence about the document lack credibility. The Tribunal also does not accept the applicant’s claim that the Army attended at his home in 2012 and asked questions about him or told his mother that the applicant needed to be careful as he claimed. The applicant’s evidence about this issue was also inconsistent as to his claims as to who attended at the home. The applicant as indicated elsewhere in these reasons does not have a risk profile consistent with the people identified as at risk in Sri lanka in the 2012 UNHCR eligibility guidelines.

9. The Tribunal identified that the Immigrants And Emigrants Act is a law of general application and was not applied in a discriminatory or selective basis or for a convention reason and relevantly found:

   54. The applicant has also claimed to fear harm on the basis that because he has lived overseas and he is a Tamil that he could be at risk of harm as a member of a particular social group of Tamils who’ve lived overseas and who could be perceived to be wealthy and face harm on that basis. The applicant has trained as a goldsmith in Sri Lanka but did not work as a goldsmith in Saudi Arabia. His evidence before the Tribunal was that he had not faced any harm after he had returned from Saudi Arabia either during his return on vacation or after he returned on a more permanent basis in December 2011. I note the written submissions made on behalf of the applicant in relation to this claim . I have considered the applicant’s claims and those submissions and I have also considered the DFAT country report that indicates that there have been incidents of kidnapping for ransom and incidents of kidnapping that appear to be politically motivated but that no particular group has been the target of those attacks and that they do not appear to be ethnically based. The DFAT country report of February 2015 assesses that the number of incidents of extra judicial killings, disappearances and kidnapping for ransom has fallen considerably since the end of the conflict. I have considered the applicant’s claims and the submissions in relation to this issue and the evidence before the Tribunal regarding the applicants overall history. In those circumstances I am not satisfied that the applicant has a well founded fear of persecution or faces a real chance of serious harm on the basis that he could be perceived to be a member of a particular social group of perceived wealthy Tamils who have lived overseas and that he is likely to be the subject of abduction or extortion attempts for any Convention based reason.

   55. The Tribunal accepts that the applicant faces arrest on charges of illegal departure if he returns to Sri Lanka. The Tribunal notes the written submissions made on the applicant’s behalf in relation to this issue. The Tribunal has considered whether the situation of questioning,arrest and detention and including likely detention in jail conditions pending bail determination would cause the applicant to face a real chance of serious harm on this basis. The Tribunal as indicated accepts that jail condition in Sri lanka are poor. The DFAT country report also indicates that DFAT assesses that detainees are not subject to mistreatment during the processing at the airport. The Tribunal has considered the issues but is not satisfied that if the applicant returned to Sri Lanka and faced questioning ,arrest and detention and including in jail conditions for a short period pending a bail determination that he faces a real chance of serious harm as the result of the non-discriminatory enforcement of a law or laws of general application relating to his illegally and unlawfully leaving Sri Lanka. The enforcement of offences under the Immigrants and Emigrants Act would be the application of the law for the valid state objective of border control in Sri Lanka and the country information contained in the DFAT country report of February 2015 indicates that the penalties are not disproportionately applied and not applied for any convention based reason. The enforcement of that law would not involve systematic and discriminatory conduct. As indicated the Tribunal is not satisfied that the applicant has a profile in accordance with the 2012 UNHCR eligibility guidelines which would put him at risk in those circumstances. The 2012 UNHCR eligibility guidelines do not indicate or suggest that the applicant would be singled out for torture or mistreatment because he is a Tamil or for any other convention reason.

   56. The Tribunal has considered the applicant’s claims both individually and cumulatively and is not satisfied that the applicant has a well founded fear of persecution based on his claims should he return to Sri Lanka either now or in the reasonably foreseeable future. The tribunal is not satisfied that there is a real chance that the applicant will face serious harm for a convention based reason if he returns to Sri Lanka either now or in the reasonably foreseeable future

   57. The Tribunal accepts that the applicant will face arrest on charges of illegal departure if he returned to Sri Lanka. The Tribunal has considered whether the situation would put the applicant at a real risk of significant harm if he returns to Sri Lanka. The Tribunal has considered the definition of significant harm contained in s.36(2A) of the Act and the relevant definitions contained in s.5(1) of the Act. The Tribunal has referred to the questioning, arrest and detention processes in relation to people who return to Sri Lanka who’ve left illegally and unlawfully. As indicated the Tribunal accepts the prison conditions in Sri Lanka are poor. However the Tribunal is not satisfied that the detention conditions, including overcrowding and poor conditions generally that the applicant would likely face in jail for a short period (pending a bail determination and release on bail) in relation to detention amount to significant harm as contemplated byS.36(2A) or that the infliction of such treatment would be intentional as required by the Migration Act or that the applicant would be arbitrarily deprived of his life or be subject to the death penalty. The DFAT country report of February 2015 indicates that DFAT assesses that Sri Lankan returnees upon return and during the questioning and processing phase are treated according to standard procedures regardless of ethnic extraction or religion and that detainees are not subject to mistreatment during their processing at the airport. In those circumstances the Tribunal is not satisfied that the arrest and questioning, detention and the likely penalty to be imposed on the applicant (which has been referred to elsewhere in these reasons) would give rise to a real risk of significant harm to the applicant.

1. The Tribunal then turned to the issue of complementary protection and made adverse findings.  Relevant to that:

   60. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

   61. 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).

2. It was in those circumstances that 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) and 36(2)(aa). I am satisfied that the applicant had a genuine hearing. I am satisfied that the findings in the Tribunal were open. I am satisfied that the proceedings are clearly doomed to failure. I am satisfied that the proceedings clearly have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 April 2015