AJX15 v Minister for Immigration
[2015] FCCA 1839
•3 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AJX15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1839 |
| Catchwords: MIGRATION – Refugee Review Tribunal – Protection (Class XA) visa – complementary protection – law of general application – procedural fairness – whether the Tribunal put adverse information to the applicant – application dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476, 499 Migration Regulations 1994 |
| Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 SZTAL v Minister for Immigration and Border Protection [2015] FCCA 54 SZSPE v Minister for Immigration [2014] FCA 267 WZAPN v Minister for Immigration and Border Protection [2014] FCA 947 |
| Applicant: | AJX15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 945 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 3 July 2015 |
| Date of Last Submission: | 3 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2015 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Mr S. Speirs 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 945 of 2015
| AJX15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 19 March 2015, affirming a decision of the delegate not to grant the applicant a Protection (Class XA) visa. The applicant was found to be a national of Sri Lanka, and his claims were assessed against that country.
The applicant appeared before the Tribunal on 2 March 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his migration agent. The application seeking relief under s.75(v) of the Constitution was filed on 7 April 2015 and came before the Court for directions on 7 May 2015, which directions provided a timetable for the applicant to file any amended application or any affidavit evidence on which he wished to rely on or before 28 May 2015.
Beyond the Court book that was marked as an exhibit, no other affidavit evidence was filed by the applicant and the applicant has not amended the application.
Grounds of Review
The application sets out the five paragraphs in support of the alleged errors of law to support a grant of constitutional relief in respect of the decision of the Tribunal. The grounds were not numbered in the application, however for convenience in the reasons below, they are treated as being numbered as follows:
1. The RRT made an error in law, with the error being a jurisdictional error, by not complying with section 424AA and 424A. The RRT failed to accord my application with procedural fairness required by law.
2. Particulars: the RRT did not raise /or put to me in writing parts of the adverse decision for me to comment in writing.
3. The RRT did not give me an opportunity to respond to negative information which it intended to use to refuse my RRT application.
4. The RRT has not considered whether the fact of possible placement of me in the jail for my illegal departure by the Sri Lankan authorities would be intentionally inflicted in circumstances where those authorities knew of the existence of condition of the jail. The RRT erred by failing to apply correct test to determine it.
5. I do not have a RRT hearing audio CDs and I need it in order to find as to whether any other legal errors were made by the RRT.
Applicant’s Submissions
The applicant informed the Court that he had stated to the Tribunal the particular problems he would have if he returned to Sri Lanka, and that he would be re-arrested. The applicant said although the Tribunal had found there would not be any problem, he maintained he would be mistreated because he is a Tamil. The applicant also maintained that there was a court case in Sri Lanka, that there is problem, and that he faces a problem from the police. The applicant maintained that he could not live in Sri Lanka, being a Tamil, and will face frequent problems and harassment from police, and that his life would be in danger, and that his life could not be guaranteed.
In reply the applicant was invited to put any further submissions in support of the application or in answer to the first respondent’s submissions and indicated there was nothing further he wished to say.
First Respondent’s Submissions
The first respondent submitted that, in substance, this was a case where the applicant’s credibility had been rejected by the Tribunal and that there was no jurisdictional error of the kind as identified in the grounds of the application or otherwise. The first respondent summarised the claims for protection advanced by the applicant, who was found to be a Tamil from a family of fishermen. The first claim related to a court case in Sri Lanka involving members of the applicant’s family and neighbours in respect of which the applicant alleged he failed to attend a court hearing, and a warrant was issued for him.
There was also a claim relating to grease devils, which is a popular name given to a ghost which appears at night smeared with grease over its body. The applicant allegedly reported the sightings to the police the next day, and that resulted in harassment and the applicant being threatened by CID. The applicant alleged that, as the CID were looking for him, his life was in danger. The third claim advanced by the applicant concerned his Tamil ethnicity, both in relation to a restriction to his freedom to move at night and the eroding of rights of Tamils in relation to fishing and other rights in favour of Sinhalese Sri Lankans.
The applicant maintained that his bike was confiscated and that he was not allowed to ride at night. The applicant’s next claim related to his fishing license, and alleged trouble fishing. That trouble is said to have included his father’s boat being accidentally destroyed by some Sinhalese fishermen, and a number of Sinhalese fishermen confronting the applicant and his father, demanding damages and beating his father, and the applicant has fears in relation to fishing because of the Sinhalese in the future.
The applicant also identified a concern, due to his illegal departure and being identified as a failed asylum seeker. The applicant claimed that he would be imputed with a political opinion in opposition to the government because he had made a claim for asylum in Australia, and that he would be likely to be detained under the Immigrants and Emigrants Act 1949 for having departed Sri Lanka illegally, and that he had a raised profile so as to be likely to be subject to greater scrutiny upon return to Sri Lanka because of alleged previous indiscretions relating to the court case in Sri Lanka and the reporting and reporting of the grease devils.
The first respondent identified the adverse findings by the Tribunal in respect of each of those claims. In relation to grounds 1 to 3, in respect of s.424A, the first respondent submitted that the failure to identify any particular information meant there was no substance in relation to the allegation of jurisdictional error.
Further, the first respondent identified the information to which the Tribunal had regard as follows:
16. It is apparent from the decision record that the Tribunal had regard to the following information when considering its reasons for affirming the delegate's decision:
(a) protection visa application;
(b) statement of claims;
(c) pre-hearing Tribunal written submissions;
(d) Tribunal hearing;
(e) independent country information.
(f) entry interview;
(g) delegate's interview.
The respondent submitted that none of the information involved a “rejection, denial or undermining of the applicant’s claims” and for this reason there was no breach of s.424A. In respect of the alleged information identified in paragraph (a) to (d) above, the first respondent also submitted that was information that would be exempt under s.424A(3)(b). In relation to the information referred to in paragraph (e) above, the first respondent submitted that that would be information falling within s.424A(3)(a).
In relation to the delegate’s interview referred to in para.(g) above, the first respondent submitted that the reference to the material was merely repetitious of the delegate’s decision and further it was alleged that the delegate’s decision and the information referred to in it was “incorporated by the reference” and thereby fell within the exception in s.424A(3)(b) consistent with the decision in Minister for Immigration and Citizenship v Chamnam You [2008] FCA 241 at [13].
In this regard, the first respondent referred to the applicant’s submissions dated 25 February 2015 at Court book 166, which it was pointed expressly referred to the delegate’s decision in a number of paragraphs. In so far as ground 1 to 3 concerned s.424AA, the first respondent submitted that the absence of the transcript was fatal to that alleged ground (see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]).
In substance, the first respondent contended that there was no jurisdictional error disclosed by the grounds 1 to 3 of the application, for the above reasons. In relation to ground 4, the first respondent submitted that this was in substance the same assertion that had been advanced and rejected by Judge Driver in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 54, relevantly, at [45]. The Minister also placed reliance on what was said by Yates J in SZSPE v Minister for Immigration [2014] FCA 267 at [49].
The first respondent maintained there is no substance in the assertion that the Tribunal had asked itself the wrong question in considering whether cruel or inhumane treatment or punishment would be intentionally inflicted upon the applicant, and in particular the first respondent relied upon the findings at paras.102-104 by the Tribunal. The first respondent submitted that, insofar as ground 4 advanced an alleged error based on WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, that decision was one which was recently overruled by the High Court.
The first respondent submitted that the Tribunal properly and carefully dealt with the claims in its findings that the Sri Lankan migration laws were laws of general application, which meant that the temporary period of detention to which the applicant was exposed did not give rise to the applicant qualifying for a protection visa. The first respondent also submitted that the decision effectively turned on the adverse credibility findings in respect of the applicant’s claims, which the first respondent alleged were open on the material, and were based on rational grounds arrived at after consideration of the matters that were logically probative to the issue of credibility consistent with the decision in Sutharsan Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547. It was in these circumstances the Minister submitted that:
"upon legally proper rejection of the credibility of an applicant ... there will be no basis for requiring that the RRT do more than forthwith reject the claim for refugee status" (Sellamuthi v MIMIA [ 1999] FCA 24 7 at [24]).
In relation to ground 5 the first respondent noted the provision of the recording to the applicant and the opportunity provided by the directions for putting on material. The first respondent maintained there was no substance in any of the grounds. The Court took the first respondent to the claims identified in the statement of claims in support of the application for protection, and the first respondent submitted that each of the claims identified by the applicant had been properly identified and dealt with by the Tribunal.
Tribunal’s Reasons
The Tribunal identified the issues in the present case as relevantly comprising assessment of the applicant’s claims and the applicant’s credibility as well as whether the applicant met the refugee criterion and, if not, whether the applicant met the complementary protection criterion. The Tribunal summarised in an attachment to its reasons for decision the criteria for a Protection visa set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 and summarised the refugee criteria and the complementary protection criteria, as well as the s.499 ministerial direction 56.
The Tribunal carefully set out the applicant’s claims, which were correctly set out in the first respondent’s submissions, and the Tribunal made the following relevant findings:
42. However the applicant’s evidence was inconsistent in relation to the purported court case through the process of the application.
…
51. Taking into account the divergent descriptions of the reasons for the court case, the Tribunal is not satisfied that the court case or the arrests that the applicant has claimed actually occurred. Additionally, the omission of the court case from the written statement and the delay in providing the purported court document in spite of having the opportunity to do so after the delegate’s interview, lead the Tribunal not to accept that the applicant or his family members were arrested or that there is an ongoing court case against them. The Tribunal does not accept that the applicant is of any interest to the authorities in Sri Lanka on this basis.
…
57. The applicant remained in Sri Lanka for nine months after having claimed to have reported the sighting. He claimed that the CID was looking for him at least twice a month during that time, but did not find him because he was moving around. Yet he claimed to continue working and staying with his sister and friends in the [X] area and the Tribunal is satisfied that if the CID had been interested in him, they could have found him during that period. The Tribunal does not accept that the applicant was harassed as a result of having reported grease devils, or that the CID was looking for the applicant in relation to having made a report/complaint about grease devils. The Tribunal is not satisfied that the applicant was of any interest to the authorities in Sri Lanka for this reason.
…
60. The Tribunal accepts that the applicant is a Tamil fisherman and that if he returns to Sri Lanka, he would continue in this employment. However, there are no passes required anymore and the Tribunal is not satisfied that the applicant would be required to have a pass or would come to the attention of the navy if he were to return to Sri Lanka now.
Whether the applicant meets the refugee criterion
Court case
61. The Tribunal has also not accepted that there was a dispute or that the applicant or his family members were arrested or that there is an ongoing court case or a warrant for the applicant, or that he has breached bail and his guarantor has been taken instead. The Tribunal finds that there is not a real chance of the applicant facing any harm on the basis of this claim if he returns to Sri Lanka now or in the reasonably foreseeable future. The applicant does not have well-founded fear of persecution on this basis.
Grease devils
62. The Tribunal has not accepted that the applicant is of any interest to the authorities on the basis of having reported the sighting of a grease devil in 2011. The Tribunal finds that there is not a real chance of the applicant facing any harm on the basis of this claim if he returns to Sri Lanka now or in the reasonably foreseeable future. The applicant does not have wellfounded fear of persecution on this basis.
…
64. The Tribunal has not accepted that the applicant has been issued a warrant and as noted, there are no passes required anymore. As a result, there is not a real chance that the applicant would suffer any harm on that basis if he returns to Sri Lanka now or in the reasonably foreseeable future.
67. … The Tribunal is not satisfied that the applicant would suffer any harm as a Tamil fisherman as claimed if he were to return to Sri Lanka now or in the reasonably foreseeable future.
68. The applicant does not have well-founded fear of persecution on the basis of fishing licences or requiring a pass in the past, or on the basis of being a Tamil fisherman.
…
70. Although at the entry interview the applicant claimed his bike would be taken if he went out at night in [X] and that they were asked for bribes, this claim was not pursued and there is no indication that even if it occurred it would result in a real chance of any harm if he returned to Sri Lanka now or in the reasonably foreseeable future.
…
73. However the Tribunal does not accept that the applicant has been of interest to the authorities in the past, and the Tribunal is not satisfied that there is not a real chance that the applicant would face any harm on the basis of his race if he were to return to Sri Lanka nor or in the reasonably foreseeable future. The applicant does not have a well-founded fear of persecution on this basis.
…
79. The Tribunal does not accept that the applicant will be imputed with a political opinion of opposition to the government because he made an asylum claim in Australia. On his own evidence, he does not have LTTE connections, he is not involved in people smuggling, he does not belong to any other high risk category and the Tribunal has not accepted that he is of any interest to the authorities in Sri Lanka. Even if the applicant is questioned on return to his home area, the Tribunal does not accept that he is otherwise of interest to the authorities in Sri Lanka or that this would lead to a real chance of any harm.
80. The Tribunal finds that the applicant does not face a real chance of harm now or in the reasonably foreseeable future in Sri Lanka as a failed Tamil asylum seeker or Tamil returnee.
…
85. The country information indicates the Sri Lankan departure laws are applied regardless of race to all persons who are returnees and are not applied in a way that is discriminatory or selectively enforced against a particular group of those returnees. The Tribunal is satisfied that the I & E Act is being applied to all persons who have departed Sri Lanka illegally or attempted to depart illegally, regardless of race and that the terms of the law do not have a discriminatory intent or impact and that it is not being applied selectively or in a discriminatory manner for a Convention reason. The Tribunal finds that the I and E Act is a law of general application and does not give rise to persecution under the Refugees Convention.
86. Accordingly the Tribunal is not satisfied that a Convention reason is the essential and significant reason for the applicant facing prosecution or its consequences on the basis of departing illegally or as a failed asylum seeker/returnee. The Tribunal is also not satisfied that any prosecution or its consequences would involve systematic and discriminatory conduct as the I & E Act is a law of general application
The Tribunal noted that it considered the claims individually and cumulatively and relevantly found:
90. The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason if he returns to Sri Lanka now or in the reasonably foreseeable future. The applicant does not meet the refugee criterion.
The Tribunal turned to the issue of complementary protection and relevantly found:
92. On the basis of the findings set out above that the applicant does not face a real chance of any harm in relation to these claims, the Tribunal also finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
…
97. The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a failed asylum seeker/returnee.
…
103. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or amounts to an act which could reasonably be regarded as cruel or inhuman. The Tribunal does not accept that a relatively short period of remand amounts to an act or omission which is intended to cause extreme humiliation which is unreasonable.
104. For the reasons set out above, the Tribunal finds that a short period of remand on return to Sri Lanka does not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm in the form of torture or cruel or inhuman or degrading treatment or punishment.
105. The Tribunal also finds, for the reasons set out above, that there are not substantial grounds for believing there is a real risk the applicant will be arbitrarily killed and the death penalty does not arise on the facts. The evidence before the Tribunal does not indicate that the applicant’s circumstances, will give rise to a real risk of significant harm if he is detained on remand for a relatively short period of time.
106. In relation to a conviction for illegal departure under the I & E Act, the information from DFAT indicates that the penalty most likely to be imposed on the applicant is a fine. Based on this information, the Tribunal finds that the likelihood of a prison sentence is remote and not a real risk.
107. Additionally, the Tribunal is satisfied that none of the consequences of being found to have breached the I & E Act in the applicant’s circumstances would meet any of the definitions of significant harm.
108. The Tribunal finds that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a result of his illegal departure from Sri Lanka.
It was in those circumstances that the Tribunal found that the applicant did not meet the criteria set out in s.36(2)(a) or s.36(2)(aa) and that the applicant was not a person in respect of whom Australia had a protection obligation.
Consideration and Findings
In relation to ground 1 to 3 of the application, I accept the first respondent’s submission that the application fails to identify any information to support a jurisdictional error under s.424A. I also accept the first respondent’s submission that the information that was considered in the Tribunal’s reasons are properly identified in paragraph 16 of the submissions of the first respondent quoted above. I also accept that the submission that none of the alleged information, considered by the tribunal including paragraph 16 (f) being the entry interview involved a “rejection, denial or undermining of the applicant’s claims”. I also find that the information in paragraph 16 (a) to (e) and (g) is information that was exempt under either s.424A(3)(b), (ba) and/or s.424A(3)(a). I also find in relation to the delegate’s interview this was not information used by the Tribunal against the applicant and the Tribunal’s reference to the material was repetitious of the delegate’s decision.
I also accept that the delegate’s decision was incorporated by reference so as to fall within the exemption under s.424A(3)(b). I accept that this is supported by the applicant’s submissions which refer to the delegate’s decision in that regard. In relation to s.424AA, this is a case where the applicant was given the opportunity to put on affidavit evidence, including the transcript, and it was pointed out by the first respondent that the recording was provided to the applicant on 2 March 2015. There is no evidentiary basis to find any breach of s.424AA.
I find that there was no breach of s.424AA or s.424A and that grounds 1 to 3 of application are not made out. In relation to ground 4, it is clear that the Tribunal found that the Immigrants and Emigrants Act was applied regardless of race to all persons who are returnees and was not applied in a way that was discriminatory or selectively enforced against a particular group of those returnees. The Tribunal found that the Immigrants and Emigrants Act was a law of general application and that it did not have a discriminatory intent or impact and that it was not applied selectively or in a discriminatory manner for a Convention reason.
The Tribunal found that the Immigrants and Emigrants Act was a law of general application that did not give rise to persecution under the Refugees Convention. The Tribunal found that the prosecution or detention of the applicant would not be for a Convention reason and was satisfied that the prosecution or consequent detention would not involve systematic or discriminatory conduct, as the Immigrants and Emigrants Act was a law of general application. Those findings were clearly open on the material before the Tribunal.
The Tribunal also addressed the consequences of the application of that law, and the Tribunal found that the relatively short period of remand to which the applicant was exposed was not an act or omission by which physical or mental pain or suffering is intentionally inflicted. The Tribunal found that that detention did not amount to an act which could reasonably be regarded as cruel or inhumane, and the Tribunal found that the relatively short period of remand did not amount to an act or omission which is intended to cause extreme humiliation or which is unreasonable. The Tribunal found that the short period of detention did not give rise to substantial grounds for believing that the applicant faces a real risk of significant harm in the form of torture or cruel, inhumane or degrading treatment or punishment.
The Tribunal also found that the most likely penalty to be imposed on the applicant for illegal departure was a fine and that the risk of a prison sentence was remote and not a real risk and the Tribunal found that none of the consequences of the breach of the Immigrants and Emigrants Act would meet the definition of significant harm.
It is in those circumstances the Tribunal found that there were no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm as a result of his illegal departure from Sri Lanka. These findings of fact were open to the Tribunal.
I accept the first respondent’s submission that there is no substance in the proposition that the Tribunal failed to apply the correct test.
I accept the submission that the ground raised by paragraph 4 is, in substance, the same argument that was rejected by Judge Driver in SZTAL v Minister for Immigration and Border Protection [2015] FCCA 54 and given the findings made by the Tribunal in this case, the same reasoning is applicable as identified by Judge Driver. Accordingly, there is no substance in ground 4 of the application.
In relation to the ground 5, no transcript was tendered. It is clear that the applicant was provided with a prerecording from the material identified at page 230 in the Court book.
There is no application for an adjournment and there is no substance in the contention that there is some other ground of error based on the submissions advanced by the applicant.
The applicant’s submissions were all in substance an impermissible challenge to the adverse findings effect made by the Tribunal and did not identify the jurisdictional error.
Conclusions
The applicant has failed to identify any jurisdictional error as alleged in the application.
I find that the applicant had a genuine hearing and that there was no failure by the Tribunal to comply with the statutory regime and no breach of s.424A or s.424AA.
I am satisfied that the Tribunal properly addressed each of the claims and evidence of the applicant. I am satisfied that the adverse credit findings by the Tribunal were open on the material before the Tribunal. I am satisfied that there was no jurisdictional error made by the Tribunal.
The application is dismissed.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 9 July 2015
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