AIA15 v Minister for Immigration

[2015] FCCA 1285

FEDERAL CIRCUIT COURT OF AUSTRALIA

AIA15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1285

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – application for reinstatement – whether the Tribunal put adverse information to the applicant – application dismissed.

Legislation:  

Federal Circuit Court Rules 2001, r.13.01
Immigrants and Emigrants Act 1949 (Sri Lanka)
Migration Act 1958, ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476

SZJIK v Minister for Immigration and Citizenship [2007] FCA 738
SZSML v Minister for Immigration & Anor [2013] FCCA 1253

Applicant: AIA15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 866 of 2015

Judgment of: Judge Street

Hearing date: 13 May 2015

Date of Last Submission: 13 May 2015

Delivered at: Sydney

Delivered on: 13 May 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr M. Glavac
Clayton Utz

ORDERS

1. The application in a case be dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $1500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 866 of 2015

AIA15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by the applicant seeking an order to withdraw the filing of a notice of discontinuance filed by the applicant under r.13.01(1) that discontinued the proceedings commenced in this Court on 30 March 2015. The notice of discontinuance was not filed pursuant to any Court order and the first issue that arises is the extent to which this Court has jurisdiction to make an order reinstating proceedings that have been discontinued.

2. Unlike a superior Court, this Court does not have inherent jurisdiction of the kind identified by Ryan J in SZJIK v Minister for Immigration and Citizenship [2007] FCA 738. However, for the purpose of this application, there is a decision of Judge Driver in SZSML v Minister for Immigration & Anor [2013] FCCA 1253 that expresses the view that there is power in this Court to set aside a notice of discontinuance in exceptional circumstances in order to prevent injustice or abuse of process. I am not satisfied that that decision is clearly wrong and I will follow the same.

3. The applicant had commenced proceedings on 30 March 2015 seeking a Constitutional writ to challenge a decision of the Refugee Review Tribunal on 9 March 2015 affirming a decision of the delegate denying to grant the applicant a protection visa.  The grounds in the application filed are as follows:

   The RRT made an error when deciding that ''cruel or inhumane treatment or punishment' would be ""intentionally inflicted'" upon me if J was placed in jail on remand for up to 2 weeks on my return to Sri Lanka.

   The RRT accepted that the jails were subject to overcrowding and poor conditions; and the RRT accepted that I have scarring that can draw adverse attention.

   The Respondent made an error in Jaw, with the error being a jurisdictional error, by not complying with s.424A and 424AA.

   The Respondent did not raise /or put to me in writing part of parts of the adverse decision for me to comment in writing.

   I intend listening the RRT hearing audio to find out as to whether the RRT has made any other errors in reviewing my protection visa.

4. It is clear that the Tribunal addressed the consequences of the applicant returning to Sri Lanka which was found to be the country of which the applicant was a citizen and his claims were assessed on that basis.

5. In respect of the applicant being a person who illegally departed Sri Lanka and the Tribunal made a finding as to the Immigrants and Emigrants Act 1949, being a law of general application, that it wasn’t applied discriminatorily or for persecution reasons.  The Tribunal addressed the issue of whether the applicant would be exposed to the risk of serious harm by reason of being a person who illegally departed Sri Lanka. 

6. The first paragraph of the application is an impermissible challenge to the finding of fact made by the Tribunal and it does not identify any jurisdictional error. Paragraph 2 of the grounds of application seeks to raise the conditions of the jus which was a matter touched on by the Tribunal and again is an infamous will challenge to the findings of fact by the Tribunal. Paragraph 3 is a generalised allegation of non-compliance with the statutory requirements of s.424A and s.424AA.

7. The applicant did not identify any information in respect of which it was alleged that it was information falling within s.424A or 424AA by reason of being something that the Tribunal should have considered would be the reason or part of the reason for affirming the decision under review. The applicant indicated that this was an assertion of error that a third party had provided to him. It is clear from the Tribunal’s reasons that the Tribunal carefully put to the applicant the matters of concern in relation to the applicant’s credibility and the adverse findings made by the Tribunal as to the applicant’s credibility were open on the material before the Tribunal. Accordingly, there is no jurisdictional error identified by the third paragraph.

8. The fourth paragraph, asserting an obligation to put in writing matters to the applicant does not identify any jurisdictional error and it’s clear from the Tribunal’s reasons that the concerns in relation to the credibility of the applicant were clearly raised with the applicant.  The last paragraph fails to identify any jurisdictional error.  The application on its face fails to disclose any jurisdictional error and in those circumstances, declining to set aside the notice of discontinuance is not something that is necessary to prevent an injustice in this case.

9. In this regard, I have taken into account that the Tribunal carefully identified the relevant law and the ministerial direction to which the Tribunal have regard.  The Tribunal carefully set out the claims and evidence of the applicant and that the applicant appeared at a hearing before the Tribunal on 27 January 2015 to give evidence and present arguments which was conducted with the assistance of an interpreter as well as the applicant’s advisor being in attendance.

10. The Tribunal summarised the claims and evidence of the applicant at the hearing as well as identifying the issues that the Tribunal raised with the applicant in relation to his evidence and his claims.  The Tribunal identified the submission received on behalf of the applicant on 29 January 2015 including additional country information and it was in those circumstances the Tribunal came to assess the credibility of the applicant in respect of his claims and relevantly held:

    24. …I have carefully considered the evidence he has provided about these matters but I am not satisfied his claims are credible …

    25. Taking these matters together I am not satisfied as to the credibility of basic elements of the Applicant’s account of his experiences in Sri Lanka. In particular, I am not satisfied that he went to stay in his sister’s house in Hatton out of fear of the army or other authorities. While I accept that he obtained his driving licence in Hatton in June 2005, in order to be able to work in Qatar as a driver, I am not satisfied that his reason for wishing to go to Qatar was that he feared harm from the authorities because he had returned to [T] after living in the [V]. I am not satisfied that he was asked by the head of the CID in [T] to work as a paid informer against the LTTE or that he was detained, beaten and brought before a court on criminal charges after he refused, or that this formed any part of his decision to go to Qatar. I am not satisfied that he was of adverse interest to the authorities after he returned to Sri Lanka in January 2012, that they were searching for him or that they have subsequently approached his family for information about him. Nor am I satisfied that the reason he left Sri Lanka for Australia was a fear that he would be harmed by the authorities over suspicion that he was somehow involved with the LTTE. It follows that I do not accept he has a criminal record or that he is adversely known to the authorities, or that he would be at risk of harm on return for such a reason.

    26. I have reached these conclusions having considered the affidavit said to have been written by the Applicant’s father. As put to him at the hearing the claim it makes that he went to Hatton to obtain his licence in 2006 is inconsistent with the evidence of his licence itself, showing it to have been issued in June 2005. Its claim that the CID came to his house in April 2012 is also inconsistent with his own evidence at the hearing. I have also considered the letter said to have been written by a Methodist Minister in Hatton confirming that the Applicant was arrested. This contains the claim that the Applicant himself is a member of the Methodist church, in obvious conflict with the claim in his protection visa application that he is a member of the Assemblies of God church. Taking these matters together I am not satisfied that any significant weight can

    …

    28. I accept that the information before the Tribunal indicates membership of the LTTE and support for it during the civil war was very largely confined to Sri Lanka’s Tamil population. 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 who has lived in the Northern and Eastern Provinces in areas under LTTE control - he would be suspected for that reason of holding a pro-LTTE or anti-government political opinion.

    29. I 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 DFAT1 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.

    …

    35. 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 lived in the North or East of the country in areas which were formerly under LTTE control 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 who has lived at times in the Northern and Eastern Provinces would operate to exacerbate the fact of his Tamil ethnicity so as to create such a real chance.

    …

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

    …

    46. I accept the Applicant would be subjected to such processes on return. I am not satisfied this would involve him being singled out or targeted in a discriminatory fashion because of his Tamil ethnicity or for any other reason. As I am not satisfied that he has ever been under genuine suspicion of having links with the LTTE, or that there is any reason to believe he would now fall under such suspicion or would be suspected of having committed any crime, I am not satisfied he would be arrested, detained or subjected to harm for this reason. Nor am I satisfied that he falls within any other identified category of persons 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. 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.

    …

    53. Having considered the relevant country information I am satisfied that Sri Lanka’s Immigrants and Emigrants Act is a law of general application which is appropriate and adapted to meet a legitimate national interest in regulating the movement of persons across the country’s borders. I note the advisor’s assertion that it is, in fact, implemented in a discriminatory fashion and would be so implemented in the case of the Applicant, but I am not satisfied, with respect, that this view is supported by the information available to the Tribunal. On the basis of that information I am satisfied that the sections of the Act which provide penalties including fines and imprisonment for the offence of leaving Sri Lanka other than through an official port, and which involve suspects being arrested and possibly held in remand awaiting a bail hearing, are not enforced selectively or in an arbitrary or discriminatory way on the basis of a Convention reason or any other reason, but are instead applied to all Sri Lankans, regardless of their race or other personal circumstances.

    54. Further, on the basis of the available information concerning the enforcement of this law I am not satisfied there is a real chance that on return to Sri Lanka the Applicant would face more than questioning at the airport on arrival, arrest and detention for a relatively brief period in possibly cramped and unsanitary conditions while on remand awaiting a bail hearing or being subsequently fined an essentially moderate sum if convicted. I am not satisfied that he would face a term of imprisonment on conviction. I find that this treatment, including such a period of detention on remand, would reflect no more than the non-discriminatory enforcement of a law of general application. I do not accept that it would constitute systematic and discriminatory conduct.

11. The Tribunal also addressed the physical issue raised by the applicant:

    55. I have also considered the Applicant’s claim that he has visible scarring which would be noticed by the authorities on his arrival and which would lead them to harm him on suspicion of LTTE involvement. I am prepared to accept that he does have such scarring, as a result of a serious stomach wound he received in an explosion in 1995 while fleeing fighting in Jaffna. I note that DFAT’s ‘Thematic Report on People with Links to the LTTE’ states there are no reports to indicate that, in itself, scarring has provided the basis for a suspicion of LTTE involvement for some years. While I accept that scarring can draw adverse attention to other factors which might be regarded by the authorities as significant, and in this way exacerbate a suspicion that a particular person has had links with the LTTE I am not satisfied that in the absence of such other factors scarring in itself does in fact attract suspicion. As noted above, I am not satisfied there are other aspects of the Applicant’s personal circumstances, such as a prior criminal record, Tamil ethnicity, origins in the North and the East of the country, the fact that he had applied for asylum in Australia or his having left the country unlawfully, which, individually, would cause him to be harmed. Nor am I satisfied that his scarring would have an aggravating or cumulative impact on these circumstances so as to make it more likely that he would be harmed.

12. It was in those circumstances that the Tribunal made adverse findings as follows:

    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. I do not accept that he has a risk profile which is elevated by factors such as his having lived in or travelled to LTTE-controlled areas in the North and East of the country or that he has visible scarring. While I accept that he might be placed on remand for a brief period while awaiting a bail hearing on a charge of leaving the country unlawfully I am not satisfied that this would constitute systematic and discriminatory conduct as required by s.91R(1)(c)

    57. The Applicant 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.

    58. 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.

13. The Tribunal then turned to complementary protection and relevantly found:

    60. 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 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 that being fined such an amount 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.

    61. Further, I am not satisfied, on the basis of the definition of significant harm in ss.36(2A) and 5(1) that if the Applicant were to be detained and arrested at the airport after being questioned and later remanded in custody for a brief period awaiting a bail hearing this treatment would in itself constitute significant harm. On the available information I am not satisfied that in these circumstances he would experience mistreatment which would pose a threat to his life or constitute torture. While I accept that conditions during a brief period on remand might well be cramped, uncomfortable and unsanitary I am not satisfied they would involve him suffering severe pain or suffering or extreme humiliation amounting to cruel or inhuman treatment or punishment or degrading treatment or punishment. Nor am I satisfied he would be intentionally subjected to 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).

    62. I am also not satisfied, on the information before the Tribunal, 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.

    63. The Applicant has not raised any other matters which would be relevant to an assessment of Australia’s complementary protection obligations in his case.

    64. 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.

1. It was in those circumstances the Tribunal found that the applicant was not a person with respect of whom Australia had a protection obligation and was not satisfied that the criteria under ss.36(2)(a) or 36(2)(aa) had been satisfied.

2. This is not a case where there has been identified any arguable jurisdictional error of a kind that would give rise to exercise of the exceptional jurisdiction in order to prevent an injustice or an abuse of process.  The application in the case is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  18 May 2015