AKP15 v Minister for Immigration and Anor
[2015] FCCA 1205
•7 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AKP15 v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 1205 |
| Catchwords: PRACTICE AND PROCEDURE – Show cause – proceedings dismissed. |
| Legislation: Immigrants and Emigrants Act 1949 (Sri Lanka) |
| Applicant: | AKP15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 975 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 7 May 2015 |
| Date of Last Submission: | 7 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 7 May 2015 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the First Respondent: | Ms B. Rayment Mills Oakley Lawyers |
ORDERS
The application be dismissed under Rule 44.12 of the Federal Circuit Court Rules 2001.
The applicant pay the first respondent’s costs fixed in the sum of $3416.
| FEDERAL CIRCUIT COURT AT SYDNEY |
SYG 975 of 2015
| AKP15 |
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 1958 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 visa. The grounds of the application are as follows:
I lodge this Court application by myself. I had a lawyer until the RRT review and I do not have now a lawyer for this Court matter.
I state herewith the grounds of review and the particulars. I need to listen to the RRT hearing audio CDs to find if any additional legal errors were made by the RRT and any misinterpretation by my interpreter. I need a copy of the RRT hearing audio CDs for these purposes.
Grounds
The RRT did not give me an opportunity to respond to negative information which it intended to refuse my RRT application. The RRT denied me procedural fairness.
Particulars
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.
Particulars: the RRT did not sufficiently raise during the hearing the adverse information on which it relief to refuse my application and did not put to me in writing parts of the adverse information after the hearing and before the RRT made the decision.
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 poor conditions of the jail. The RRT erred by failing to apply correct test to determine it.
The RRT denied me procedural fairness in concluding that my detention on my arrival in Sri Lanka was pursuant to a law of application and it failed to ask whether I would be treated with humanity in the jail.
The first respondent has moved for an immediate show-cause hearing under r.44.12 on the grounds that the application fails to disclose an arguable case. I accept the first respondent’s submissions that the first two paragraphs fail to identify any arguable jurisdictional error. I also accept the first respondent’s submission that it is clear that the applicant had the benefit of a lawyer who provided supplementary submissions to the Tribunal, and I accept the first respondent’s submission that there has been no satisfactory explanation of the steps that the applicant has taken to obtain legal assistance, nor is there any basis upon which the Court could be satisfied there was any utility in an adjournment in relation to the applicant obtaining legal assistance.
Moreover, I am satisfied in this case that the proceedings are, in fact, doomed to failure and that there is no utility in granting an adjournment, as it will only increase the costs between the parties and utilise limited Court time. I accept the first respondent’s submission that the third paragraph under the heading Grounds has no substance, and that it is clear, from the Tribunal’s reasons, that the applicant was given an opportunity to respond to the concerns raised by the Tribunal, particularly paras.64-73.
I also take into account that in this case the decision of the delegate was supplied by the lawyer of the applicant to the Tribunal, and that the adverse findings of the delegate were, clearly, matters upon which the applicant put lengthy submissions to the Tribunal prior to the hearing. I accept the respondent’s submission that there is no substance in the assertion of any denial of procedural fairness by the Tribunal. I accept the first respondent’s submission that the applicant was supplied with a genuine hearing and that the Tribunal complied with s.425 of the Act.
I also accept the first respondent’s submission that this is not a case in which it was necessary for the Tribunal to serve a written notice, and that there is no substance in the first paragraph under the heading Particulars and, in particular, that it is not necessary to provide the applicant with the adverse country information under s.424A(3)(a), nor adverse information provided by the applicant.
I also accept the first respondent’s submission in relation to the provision of the delegate’s submission, which is identified at page 123 of the Court book and taken into account by the Tribunal at paragraph 45. The first paragraph under Particulars fails to disclose any arguable jurisdictional error. In relation to the second paragraph under the heading Particulars, it is clear that the Tribunal complied with its obligations under s.425 of the Act and there is no jurisdictional error disclosed by the second paragraph under Particulars.
I accept the first respondent’s submission that the third paragraph under Particulars is an impermissible challenge to the findings of fact. It is clear, in this case, that the Tribunal has made a finding that the Immigrants and Emigrants Act 1949 was a law of general application. and the third paragraph under the heading Particulars fails to disclose any arguable jurisdictional error.
I accept the first respondent’s submission that the last paragraph is an impermissible challenge to the merits of the application, and that it is clear that the Tribunal took into account the alleged harm concerning return of the applicant to Sri Lanka in respect of which the applicant was found to be a citizen, and his claims were assessed against that country. I am satisfied that the last paragraph under Particulars fails to disclose any arguable jurisdictional error.
I accept the first respondent’s submissions that this was a matter where the applicant had a concern with a particular individual, and it is not one in respect of which it can be said it was a fear of persecution for a Convention reason. I also accept the first respondent’s submissions that the Tribunal, nonetheless, also went on to make findings as to the ability of the applicant to relocate within Sri Lanka, and that such relocation was both reasonable and practicable, and that those findings of fact were clearly open.
I am satisfied that the application fails to disclose any arguable jurisdictional error or any arguable case. I note that the applicant applied for a protection visa on 12 November 2012, which was refused on 30 November 2014. The applicant applied for a review on 10 February 2014. The applicant appeared before the Tribunal on 5 March to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter and that the applicant was also represented by his migration agent, who was, in fact, a lawyer.
I accept the first respondent’s submission there was no issue raised by the applicant before the Tribunal or through his representation that there was any issue in respect of the interpreter and the adequacy of interpretation. I accept the first respondent’s submission that there is no identified matter on which it is suggested that the interpretation is wrong and no alleged material interpretation error by reference to any material matter. The suggestion that the applicant needs to obtain the recording in order to identify alleged error in this case lacks substance, given the representation that the applicant had at the hearing and given the submissions subsequently supplied to the Tribunal through the lawyer on behalf of the applicant which raised no interpretation issue.
I note this is a matter I have taken into account in determining that there was no utility in granting the adjournment. The Tribunal carefully identified the relevant law and had regard to the ministerial direction as required under s.499 of the Act. The Tribunal carefully identified the applicant’s claims and evidence, and identified the lengthy submissions of the applicant provided on 25 March 2014, and the events that occurred and the claims and evidence that was given at the hearing on 5 March 2015.
It is apparent from para.61 and following, at para.61 to 63, that the Tribunal raised with the applicant the matters of adverse concern, and the Tribunal took into account the post-hearing submission provided on 18 March 2015. The Tribunal identified the concerns it had with the applicant’s credibility, relevantly:
87. Although the Tribunal did not conclude that the applicant was necessarily seeking to deceive or invent, it will be seen that his evidence on successive occasions has demonstrated a significant degree of confusion and inconsistency (as highlighted by the delegate in his written decision). The Tribunal concluded that the applicant’s evidence could not necessarily be relied upon. For example, although the applicant's evidence concerning the “grease devils” may be his honest recollection, the Tribunal does not accept as reliable his account of grease-covered men with long springs on their heels and razor nails.
…
92. The Tribunal has a real difficulty with the applicant's evidence about “grease men” or “grease devils”. The Tribunal accepts that from 2011 there have been reports of nocturnal prowlers and attacks involving men variously described as wearing black clothing or covered in grease or with spring heels and so on and the reports provided in the post-hearing submission refer to local hysteria in relation to perceptions of such persons. The reality behind these perceptions is hard to determine but the Tribunal is not satisfied that it actually involved persons covered in grease with one-foot spring heels and razor blades on their fingers, nor that (as the applicant states) they are foreigners brought in by the (former) President to terrorise Tamils. However, the Tribunal accepts that the applicant saw some men drinking with [M] who he believed were criminals and who he identified with “grease men”. It is difficult to attach great significance to this, as according to the applicant [M] was already identified locally as a criminal who consorted with thugs and who had corrupt influence with local police. It was only at hearing before the Tribunal that the applicant stated that his complaint to the police about [M] (after the latter’s visit to his house) had actually included telling them about these men seen with [M] (several months earlier).
…
94. However, the Tribunal had difficulty with the assertion that three days after chasing the applicant away from his premises and telling him not to work for him anymore, [M] came to his home threatening the applicant to return to work for him. Also, it was said, when he had the opportunity [M] (inconsistently with this) forced the applicant to work at the naval camp rather than to resume working for himself. The Tribunal was not satisfied with the applicant's attempted explanations.
95. Given [M]’s alleged corrupt links with some local police and officers, the Tribunal accepts in essence that when the applicant went to the police to complain about [M] he was taken to a room where [M] was drinking with one or more officers at the adjacent naval camp. He was intimidated and threatened and forced to advise his parents that he had resumed working for [M]. The applicant claims that he was then detained to undertake unpaid forced labour at the camp for three months until he escaped during a tsunami warning in April 2012. The Tribunal did not find it plausible that the Navy would detain the applicant for forced labour for three months in these circumstances (when there is little if any evidence of Tamil forced labour on military bases, especially at a period some time after the end of the civil war) simply on the word of someone alleged to be a local criminal. Although [M] was initially said to be politically influential, when questioned by the delegate the applicant was unable to elaborate on this claim and said he did not know, and he confirmed this at hearing. The Tribunal put to the applicant at hearing, specifically, that it had difficulty with this claim and that he was not kept at the camp and forced to work but that he was simply employed there to do odd jobs after he stopped working for [M]. To this, the applicant replied “yes”.
…
97. The Tribunal does not accept that the armed forces or the authorities as such targeted and detained the applicant or that he would be at any risk from the armed forces or the authorities by reason of this incident. Nor would he be regarded as a dissident or LTTE supporter by reason of his profile or circumstances at the time he left Sri Lanka.
98. The Tribunal is satisfied that the applicant does not have any record or difficulty with the army or police or other authorities generally arising out of his personal circumstances prior to his departure from Sri Lanka. The Tribunal is satisfied that the applicant’s difficulties arise out of employment and personal difficulties with [M], a local figure of some notoriety in a position to act with impunity from local authorities and not essentially and significantly for any Convention reason or reasons. This is consistent with the applicant’s own statements that he fears [M] and, other than that, does not have any problem with the army or police. The Tribunal is satisfied that the local military or police authorities are not seeking the applicant.
99. The Tribunal accepts that there is a risk of further harassment of the applicant by [M] should the applicant return to his village. The Tribunal has therefore carefully considered whether it is reasonable for the applicant to avoid these local difficulties by relocating away from Puttalam. The Tribunal does not accept that [M] has any significant profile or influence outside of the local area where he and the applicant live and where [M] has some corrupt local influence. The Tribunal is not satisfied that [M] would have the intention or means to track the applicant outside that area.
The Tribunal made a finding of there being a reasonable and practical option for the applicant to relocate at para.105 and made an adverse finding in relation to the applicant being a person suspected of LTTE involvement at para.110:
110. The Tribunal has also considered whether the cumulative effect of the applicant's circumstances, ethnicity, place of origin and illegal departure might lead to an imputed political opinion. However after careful consideration of these factors and the relevant country information, the Tribunal is not satisfied that this would be the case. The Tribunal is satisfied that the applicant is not, and would not be, suspected of LTTE involvement.
111. The Tribunal is satisfied that failed Tamil asylum seekers are not for that reason imputed as being pro-LTTE and that there is not systemic targeting of failed asylum seekers. While some people suspected of substantive LTTE links have been detained and mistreated on return, close examination of the relevant material does not demonstrate to the Tribunal’s satisfaction that any adverse attention or mistreatment was due to an application for protection or to ethnicity as such. Nor does the information provided by DFAT support this contention.
The Tribunal relevantly, found that the applicant would be exposed to the application of general law for his illegal departure, which was not disproportionate to or arbitrary in its enforcement and was not applied discriminatory, and was not applied for a Convention reason and did not amount to persecution. In those circumstances, the Tribunal concluded:
121. Having regard to its findings in relation to the matters separately and jointly advanced, the Tribunal has also considered these issues cumulatively and in relation to the totality of the applicant’s circumstances. The Tribunal was satisfied that the applicant does not face a real chance of serious harm amounting to persecution, on return to Sri Lanka now or in the reasonably foreseeable future, for a Convention reason or reasons.
The Tribunal then turned to the issue of complementary protection and, relevantly, concluded:
125. The Tribunal does not accept that any period of lawful detention, however brief, necessarily gives rise to protection obligations under the complementary protection provisions in Australian law.
126. Having regard to all the relevant circumstances, the Tribunal is satisfied that there are not substantial grounds for believing that the applicant would face a real risk of significant harm in the reasonably foreseeable future should he return.
It was in those circumstances the Tribunal concluded the applicant was not a person in respect of whom Australia had a protection obligation and that the applicant failed to meet the criteria under ss.36(2)(a) and 36(2)(aa). I am satisfied that the application fails to disclose any arguable case, and I am clearly satisfied that this is an appropriate case for the application of r.44.12. I am clearly satisfied the application fails to disclose any arguable jurisdictional error. I dismiss the application under r.44.12
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 11 May 2015
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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