AGZ15 v Minister for Immigration

[2015] FCCA 1068

FEDERAL CIRCUIT COURT OF AUSTRALIA

AGZ15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1068

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – whether the Tribunal provided sufficient information under s.424AA – 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
Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958, ss.424AA, 476

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

Applicant: AGZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 842 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

Solicitors for the Applicant: Mr R. Selliah
Rasan T. Selliah & Associates

Solicitors for the Respondents: Ms N. Senanayake
DLA Piper

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant to pay the First Respondent’s costs fixed in the sum of $520.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 842 of 2015

AGZ15

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 of s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 26 February 2015 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The respondent has filed a response to the application and has moved for summary judgment.

3. The application identifies the following grounds:

   1. The Second Respondent failed to take into account relevant material, and/or misunderstood or misdescribed part of the applicant's evidence, and took into account irrelevant material. This led to a failure to consider the applicant's claim that he faced a real chance of serious harm or significant harm from a Sinhalese man/men who is threatening to kill him.

   Particulars

   a. The Second Respondent erroneously perceived an inconsistency in the applicant's evidence as follows:

   i. The Second Respondent erroneously concluded that the applicant said in his entry interview that the Sinhalese man whom the applicant handed over to the police was detained for three days. This is contrary to the applicant's entry interview evidence that the Sinhalese man detained only one day, which he has consistently maintained.

   ii. The Second Respondent failed to take easily available steps to verify from the entry interview tape.

   b. The above errors contributed to the Second Respondent erroneously rejecting the applicant's evidence that it was "that the culprit was detained by the police for three days (as stated in the entry interview) and one day (stated in his protection visa application). This is contrary to the applicant's consistent evidence of his fear of the Sinhalese man provided at the Delegate interview and RRT hearing - which was largely accepted by the Delegate. We intend to provide Transcript of entry interview.

   2. The Second Respondent engaged in jurisdictional error by (1) not advising the applicant that he or she may seek additional time to comment on or respond to the adverse information, as required by s424AA(b)(iii) of the Migration Act 1958 (Cth).

   Particulars

   a. The claim of fear of harm from Sinhalese man/men was not accepted because of the entry interview information such as the culprit was detained by the police three days. The Second Respondent did not ask the applicant additional time to comment it.

   b. The claim of extortion was not accepted because of entry interview information that it was only [B]’s parents who paid the money. The Second Respondent did not ask the applicant additional time to comment it.

   3. We intend to provide additional grounds after obtaining transcripts of entry interview and RRT interview.

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; [2010] HCA 28, at [24]-[25] and [59]-[60].

5. The first respondent identifies that ground 1 fails to identify any arguable jurisdictional error and is, in substance, an impermissible challenge to the findings of fact by the Tribunal.  It was a matter for the Tribunal to determine the credit of the applicant.  For the reasons given in this judgment, the adverse findings by the Tribunal were clearly open.

6. The first respondent submits that the second ground fails to disclose any arguable jurisdictional error and that the information identified by the applicant is not information of a kind that falls within s.424AA. Specifically, the first respondent claims there is not information of a kind that gives rise to a rejection, denial or undermining of the applicant’s claims and is not information that the Tribunal is required to address under s.424AA as being a reason or part of a reason for affirming a decision under review.

7. Mr Selliah, on behalf of the applicant, sought to request an adjournment for the purpose of obtaining the interview, listening to the same and seeking to engage counsel.

8. The Court identified that it was not appropriate to adjourn the matter that is doomed to failure for want of an arguable jurisdictional error.  To do so only unnecessarily increases the costs to the parties and utilises limited Court time. For the reason given these proceedings are clearly doomed to failure and there is no utility in adjourning the proceedings.

9. I accept the first respondent’s submissions that there is no arguable jurisdictional error disclosed by ground 2.

10. The applicant applied for a protection visa on 26 November 2012 which was refused on 31 July 2013 and the applicant sought a review by the Tribunal on 8 August 2013. 

11. The applicant is a citizen of Sri Lanka and his claims were assessed against that country.  The applicant appeared before the Tribunal on 15 January 2015 to give evidence and present arguments and was assisted by an interpreter as well as having the applicant’s adviser in attendance.

12. The Tribunal carefully identified the relevant law and set out the applicant’s claims and evidence.  The Tribunal carefully identified the claims in the interview on 17 April 2013 and also the submissions that had been received by the delegate.

13. The Tribunal identified that further submissions were received after the hearing on 30 January 2015 and the Tribunal carefully summarised both the applicant’s evidence at the hearing as well as the substance of those submissions.

14. The Tribunal made adverse findings in relation to the credibility of the applicant and relevantly:

    22. Taking these matters together I am not satisfied as to the credibility of the Applicant’s claim that he had a cousin (or brother-in-law) who was detained by the CID on suspicion of LTTE weapons smuggling and who was subsequently abducted. I am not satisfied that the Applicant’s family made ransom payments to the CID or anyone else for this person’s release. Nor am I satisfied that the Applicant himself fell under suspicion of LTTE involvement, either because of his relationship with his cousin or because his family refused to make further ransom payments. I am not satisfied that a political opinion supportive of the LTTE was ever imputed to him for this reason, or that for such a reason he would be imputed with a pro-LTTE political opinion if he were to return to Sri Lanka.

    23. Given these findings about basic elements of the Applicant’s account of his experiences in Sri Lanka, and taking into account the advisor’s submissions on the proper treatment of credibility issues, I am unable to be satisfied as to the credibility of his claims in general.

    24. I have reached these conclusions taking into account the documents submitted by the Applicant which are said to be, relevantly, a supporting letter from St Mary’s Cathedral, Chilaw and a letter from the [GN]’s office in Chilaw reporting a complaint which had been lodged there by his mother. As put him at the hearing there is information to indicate that false or fraudulent documents are readily available in Sri Lanka3 Beyond this general consideration, I find it difficult to understand why a letter from a Catholic church, written in Sinhala, would state that the family of a Tamil Hindu such as the Applicant had been granted membership of their Catholic Congregation. The Applicant’s explanation that his family often loaned their labourers to help with church tasks does little to resolve this conundrum. As to the letter from the [GN], it reports his mother as complaining about the actions of unidentified people in abducting her nephew (presumably [B], although she does not mention him by name) and visiting her house to question her about her son. It makes no reference at all to the CID, alleged ransom payments made for [B], the two incidents in which the Applicant was located at the house or any of the other circumstances claimed by the Applicant. I am not satisfied that the Applicant offered any reasonable explanation for these divergences between the letter and the things he says happened to [B], him and other members of his family. For these reasons I am not satisfied that any significant weight can be placed on either document as support for the Applicant’s claims.

    25. 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.

    26. 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. This does not lead to a conclusion that all Tamils were members of the organization or even that a majority supported it during that period, however, and I am not satisfied the available information indicates that the Sri Lanka authorities presently hold such a view about members of the Tamil minority, nearly six years after the end of the war. Nor am I satisfied that simply because the Applicant is a Tamil - or more specifically because he is a young Tamil male - he would be suspected for that reason of holding a pro-LTTE or anti-government political opinion.

    27. I also accept that if the Applicant were to be returned to Sri Lanka it would most likely be known 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 DFAT4 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 or because they have been living in Australia for an extended period. I am not satisfied that the Applicant would be imputed with a pro-LTTE political opinion for this reason.

    …

    32. 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 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 there is a real chance the Applicant would suffer serious harm because of his ethnicity. Nor am I satisfied that the fact he is a young male would operate to exacerbate the fact of his Tamil ethnicity so as to create such a real chance.

    …

    35. 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.

    36. In this context I have considered the Applicant’s claim that his family shop was attacked by one or more neighbouring Sinhalese who wished to take it over. I note that his claims about this alleged incident are generally vague and that they have varied since he arrived in Australia, including in the significant detail that the culprit was detained by the police for three days (stated in the entry interview) and one day (stated in his protection visa application) Further, given my findings that his evidence in general lacks credibility, I am unable to be satisfied that he was, in fact, ever targeted for harm by Sinhalese in his area as a result of complaining to the police over an incident involving an attack on his father’s shop.

    37. I note that in the particular circumstances of the Applicant he has claimed his family was reasonably well-off, given that they owned a shop and a coconut farm and employed a number of labourers for these enterprises. As noted above, I am not satisfied that he was ever subjected to threats and harassment by the CID, as he claims, or that he was forced to leave Sri Lanka for fear of being arrested and harmed. Nor am I satisfied that his family was subjected to harassment by neighbouring Sinhalese, forcing them to sell off their business enterprises. I am not satisfied that he was unable, because of his Tamil ethnicity, to lead a normal life in Sri Lanka, including by being gainfully employed, or that his Tamil ethnicity would prevent him from continuing to lead such a life if he were to return. Nor am I satisfied that the fact of his returning to live in an area with a substantial Sinhalese population would expose him to harm from Sinhalese with the active or tacit support of the authorities.

    38. I note, finally, that the Applicant claims to fear harm on the basis that he and his family would be perceived as being wealthy. As noted, I do not accept that he or other members of his family ever experienced harm for such a reason in the past – either through being exposed to ransom demands in respect of his cousin or through pressures from Sinhalese neighbours over their shop and land. There is anything in the information before the Tribunal to indicate that the situation has changed for him or his family in this regard since his arrival in Australia and I am not satisfied there is any reason to believe he would be subjected to such harm if he were to return to Sri Lanka.

15. The Tribunal addressed the issue of being a failed asylum seeker and relevantly made adverse findings:

    47. 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 visits or monitoring in themselves could reasonably be described as harm.

    48. 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, Sumith and Indika Mendis 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 Lasantha Wijeratne, 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.

    49. 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.

16. The Tribunal addressed the issue of unlawful departure and relevantly found the Immigrants and Emigrants Act 1949 to be law of general application which has appropriately adapted me to legitimate national interest and that it was not selectively enforced or enforced in a discriminatory way for a convention reason and made adverse findings as follows:

    55. 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 a moderate sum. I am not satisfied this treatment could reasonably be seen as constituting serious harm for him.

    56. 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 left the country unlawfully and sought asylum in Australia, whether or not this is expressed in terms of harm inflicted because 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.

    57. 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.

17. The Tribunal turned to the issues of complementary protection and made adverse findings as follows:

    59. While I accept that the Applicant would face arrest on charges of leaving the country unlawfully, under a law of general application, and that he would 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. I am not satisfied that imposition of a fine, at the essentially moderate levels indicated by the information before the Tribunal, could reasonably be seen as rising to the level of significant harm in itself. Nor am I satisfied it would reflect any intention by the state authorities to cause severe pain or suffering or extreme humiliation, as required to satisfy the definition of cruel or inhuman treatment or punishment or degrading treatment or punishment.

    60. Further, I am not satisfied, on the basis of the definition of significant harm defined in ss.36(2A) and 5(1) that if the Applicant were to be detained at the airport while he was being questioned and later remanded in custody for a brief period awaiting a bail hearing this would constitute significant harm. I am not satisfied, on the information available to the Tribunal, that he would experience in these circumstances mistreatment which would pose a threat to his life or constitute torture. While I accept that the conditions would be generally cramped, uncomfortable and unsanitary I am not satisfied that he would experience severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied there would be intentional mistreatment involving torture or cruel or inhuman treatment or punishment or the extreme humiliation required for an act or omission to be degrading treatment or punishment amounting to significant harm as contemplated by s.36(2A).

    61. Further, while I have considered the advisor’s comments about what is said to be arbitrary aspects of the enforcement of the Immigrants and Emigrants Act, on the basis of the information before the Tribunal I am not satisfied that the Applicant would suffer any more serious form of penalty for having left the country unlawfully, including through long-term detention on remand awaiting trial or, on conviction, a custodial sentence.

    62. The Applicant has not identified any additional matters which could be relevant to an assessment of Australia’s complementary protection obligations in his case.

    63. Having considered the Applicant’s claims individually and cumulatively I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of his 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 cruel or inhuman treatment or punishment or degrading treatment or punishment.

    64. 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).

1. I am satisfied that the applicant had a genuine hearing.  That the findings made by the Tribunal were open on the material before the Tribunal and that the proceedings were doomed to failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 April 2015