AIF15 v Minister for Immigration
[2015] FCCA 1574
•5 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AIF15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1574 |
| Catchwords: MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – whether law of general application – whether the tribunal engaged in a qualitative assessment – no jurisdictional error. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 MZAPO v Minister For Immigration & Anor [2015] FCCA 96 SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 SZTEQ v the Minister for Immigration and Border Protection [2015] FCAFC 39 SZTFR v Minister for Immigration and Border Protection [2015] FCA 545 Weheliye v Minister for Immigration & Multicultural Affairs [2001] FCA 1222 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | AIF15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 906 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 5 June 2015 |
| Date of Last Submission: | 5 June 2015 |
| Delivered at: | Sydney |
| Delivered on: | 5 June 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondent: | Ms Burnett Clayton Utz |
ORDERS
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $6825.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 906 of 2015
| AIF15 |
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 the Court’s jurisdiction under s.476 of the Migration Act 1994 in respect of a decision of the Tribunal made on 9 February 2015 affirming the decision of the delegate not to grant the applicant a protection visa. The application identified the following grounds:
1. The Tribunal did not address the question of whether being held in remand in Negombo Prison was a deprivation of liberty.
Particulars
a. The Tribunal accepted that the applicant would likely be detained for a period of days upon return to Sri Lanka [48, 52].
b. The Tribunal did not make a finding whether this detention would satisfy s91R(2)(a) Migration Act and be considered a deprivation of liberty
c. In the event that it is found that the Tribunal did in fact address the issue of whether detention in Negombo Prison is a sufficient deprivation of liberty to satisfy s91R(2)
(a) Migration Act, it is submitted that the Tribunal erred by incorrectly applying a qualitative assessment of what constitutes a deprivation of liberty, as per the decision in WZAPN.
2. The Tribunal fell into jurisdictional error by applying the wrong test to determine whether there was a real risk that the applicant would suffer significant harm [ 51]
Particulars
a. The Tribunal found that the applicant is likely to be detained for a few days [52]
b. As a result the applicant will suffer a threat to his liberty which is a significant harm.
c. That the application of the Immigrants and Emigrants Act in Sri Lanka would be applied as a law of general application is irrelevant to considerations under
Complementary Protection.
3. The Tribunal acted unreasonably in failing to consider relevant material at [32-34],the Tribunal failed to consider the claims of the applicant with reference to the Guidance on the assessment of credibility, in particular paragraph 4.5 with respect to claims of a sensitive ·nature. The applicant's credibility was unfairly undermined as a result.
The applicant was found to be a citizen of Sri Lanka, and these claims were assessed against that country.
The applicant applied for a protection visa on 14 January 2013 which was refused by the delegate on 19 September 2013. The applicant appeared before the Tribunal to give evidence on 15 February 2014 and to present arguments and was assisted by an interpreter and also a registered migration agent. Tribunal carefully identified the relevant law and the ministerial direction for which it was required to have regard under s.499.
The Tribunal carefully identified the applicant’s evidence and claims and relevantly found:
44. I have considered whether there is a real chance that the applicant will be harmed because of links to the TNA. In circumstances where the applicant was not a member of the TNA, and his only involvement were occasional jobs four years ago such as driving supporters in his rickshaw, I find that he has no fear of persecution upon return to Sri Lanka for reason of his imputed support of the TNA. Even if I accepted that he subjectively held this fear, there is no country information which supports a fear of persecution based on support of the TNA, unless the person is a high profile activist or supporter, which the applicant does not claim to be. Accordingly I find that the applicant does not have a well-founded fear of serious harm for this reason.
45. In summary, available country information does not suggest that the applicant has a well-founded fear of persecution for reason of his Tamil ethnicity, or because he will be perceived to be a supporter of the TNA/LTTE. I find therefore that the applicant does not have a well-founded fear of persecution for these reasons.
Tribunal identified the application of the Immigrants and Emigrants Act 1949 as a law of general application that was not applied or enforced in a discriminatory manner, and, relevantly found:
49. I am not satisfied that any problem the applicant may face as a result of being questioned, detained or charged is directed at him for a Convention reason, but are incidents which may be experienced by anyone returning to Sri Lanka. Nor am I satisfied that being questioned, detained or charged amounts to systematic and discriminatory conduct as required by s.91R(1)(c).
50. I have considered each of the applicant’s fears of serious harm amounting to persecution both individually and cumulatively. I do not consider that the applicant has a real chance of serious harm for any of the reasons claimed, or cumulatively, or arising on the evidence. It follows that I am not satisfied that the applicant faces a well-founded fear of persecution for a Convention reason in Sri Lanka now or in the reasonably foreseeable future and that I am not satisfied that the applicant is a refugee under s.36(2)(a) of the Act.
The Tribunal turned to the issue of complementary protection and addressed the possibility of the application of the Immigrants and Emigrants Act and relevantly found:
53. Having considered the applicant’s circumstances and having regard to the October 2014 DFAT country information, I am not satisfied there are substantial grounds to believe that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he would suffer significant harm in terms of s.36(2)(aa) of the Act, specifically that there is a real risk that he would be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, or that he will be subjected to cruel or inhuman treatment or punishment or to degrading treatment or punishment.
The Tribunal found that it was not satisfied that the applicant met the criteria under s.36(2)(a) or s.36(2)(aa) and that the applicant was not a person in respect of whom Australia had protection obligations.
I accept the first respondent’s submission that this is not a case where the Tribunal made a qualitative assessment of the kind which was identified as a jurisdictional error in the decision of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. I accept the first respondent’s submission that the decision WZAPN can be distinguished by reason of cumulative adverse findings made in this case under s.91R(1). I also accept that that decision has been, in effect, overruled as a result of the Full Court’s decision as relevantly in SZTEQ v the Minister for Immigration and Border Protection [2015] FCAFC 39, BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41 and SZTIB Minister for Immigration and Broader Protection [2015] FCAFC 40.
It is in those circumstances that ground 1 fails to identify any jurisdictional error. It is clear that the Tribunal took into account the applicant’s fears in relation to the consequences of the application of the Immigrants and Emigrants Act and made findings that were open to the Tribunal. Further, there is no substance in the proposition that the Tribunal failed to apply the correct test. Having identified the relevant law and having identified correctly the issue in relation to complimentary protection and whether there is a real chance that the applicant will suffer significant harm. Accordingly, there is no substance in relation to ground 1 or ground 2.
Whilst the Tribunal did not refer to the guidance on the assessment of credibility at [32]-[33], I do not accept that the Tribunal failed to have regard to the same. Further, the guidance is not binding on the Tribunal. It is rather an internal guide for assistance in the assessment of credibility. There is no basis to infer that the Tribunal failed to have regard to the guidance in any event. It was a matter for the Tribunal to determine the applicant’s credit. It was open on the material before the Tribunal to come to the findings adverse to the applicant in respect to the applicant’s credit. Those findings cannot be said to lack an evident and intelligible justification, and there is no substance in the proposition that the findings were unreasonable.
Further, there is no substance in the proposition that the applicant’s credibility was unfairly undermined. It is clear the applicant had a genuine hearing, and an adverse decision does not give rise to any basis upon which a fair-minded observer might believe that the Tribunal failed to bring an independent and impartial mind to the determination of the matter on its merits. I am satisfied that the Tribunal complied with its statutory obligations and that the applicant had a review that complied with the requirements of procedural fairness. The grounds of the application are not made out.
I note that the applicant has identified that he is currently undergoing counselling in relation to his own wellbeing and remains adamant in relation to the alleged fears determined by the Tribunal. This Court is not a court of appeal and has no jurisdiction to revisit the findings of fact properly made by the Tribunal. The Court took some time to try and explain to the applicant the limited nature of the jurisdiction of the Court to try and explain the legal determination of the application in this case and the confinement of the Court’s jurisdiction in that regard. The application is dismissed.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 10 June 2015
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