Alk15 v Minister for Immigration

[2015] FCCA 1896

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALK15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1896

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration And Refugees Division) – Protection (Class XA) visa – complementary protection – whether the Tribunal engaged in a qualitative assessment of the applicant’s claim – application dismissed.

PRACTICE AND PROCEDURE – Application for adjournment – where no utility in granting an adjournment if the proceedings are doomed to failure – application refused.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R, 476

Minister for Immigration and Border Protection v WZAPN [2015] HCA 22
SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947

Applicant: ALK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL (MIGRATION AND REFUGEES DIVISION)

File Number: SYG 1018 of 2015

Judgment of: Judge Street

Hearing date: 10 July 2015

Date of Last Submission: 10 July 2015

Delivered at: Sydney

Delivered on: 10 July 2015

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondents: Ms S. Given
Sparke Helmore

ORDERS

1. The name of the second respondent is the Administrative Appeals Tribunal (Migration and Refugee Division) and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1018 of 2015

ALK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL (MIGRATION AND REFUGEES DIVISION)

Second Respondent

REASONS FOR JUDGMENT

1. 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 11 March 2015 confirming the decision of the delegate not to grant the applicant a protection visa. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.

2. The application identifies the following grounds:

   The RRT has applied the incorrect test pursuant to Section 91R(2) of the Migration Act 1958 Act.

   Particulars

   By proceeding to a qualitative assessment of the nature and degree of the harm experienced by the applicant when asking whether the threat to the applicant’s liberty was sufficiently significant, the reviewer in the present case applied the wrong test in the application of s 91R(2)(a), and thereby fell into jurisdictional error: WZAPN v Minister for Immigration and Border Protect & Another [2014] FCA 947 at (30) and (45)

3. The applicant filed his application on 14 April 2015.  When the matter came before the Court on 14 May 2015, the applicant was given the opportunity to amend his application as well as put on any further affidavit evidence.  The matter was fixed for hearing on 10 July 2014.

4. At the commencement of the hearing, the applicant sought an adjournment, saying that he was suffering from insomnia, that he needed more time and that he wanted time to obtain a lawyer.  The applicant handed up a handwritten letter which is marked exhibit B, indicating that he wanted more time to find a lawyer.  The applicant was asked what steps he had taken to obtain a lawyer.  It appeared that the highest that the applicant had gone was to speak to a friend about obtaining a lawyer.

5. An adjournment was opposed by the first respondent on the grounds that the explanations advanced were entirely unsatisfactory and inadequate, that there was no medical evidence to support any medical ground for an adjournment and that the Court could have no confidence that any adjournment would serve any utility.  Further, it was submitted that the application, given that there had been no amendment, was doomed to failure and in these circumstances there would be no utility in an adjournment.

6. As identified above, the only ground raised in the application was founded upon the decision in WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, which was reversed in the Full Federal Court in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, in respect of which the High Court held the decision of the Full Court was correct in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22. I accept the respondent’s submission that the ground of alleged jurisdictional error cannot succeed.

7. It was in these circumstances that the Court conveyed to the applicant, given the opposition to an adjournment of the respondent, that the Court would proceed to deal with the matter.  I am satisfied that there is no utility in granting an adjournment as the proceedings are clearly doomed for failure.  I accept the first respondent’s submission that the applicant had ample opportunity to obtain a lawyer if he sought to do so and that his explanations were unsatisfactory and inconsistent as well as being implausible.  I also accept the first respondent’s submission that the Court could have no confidence that an adjournment would do anything other than increase the cost to the parties and utilise further limited Court time.

8. It is clear from the Tribunal’s findings that there was a credit issue in relation to the applicant’s claims and evidence.  The applicant appeared before the Tribunal to give evidence, assisted by an interpreter as well as being represented.  The applicant raised the provision of a letter that came into existence in 2013 to the Tribunal which the Tribunal referred to in paras.37 and 38 and, relevantly, later finding in para.52:

   52. …On its face, the letter appears to be not genuine: why would a paramilitary group engaged in criminal activities provide written evidence of its activities, notwithstanding that it might enjoy government protection? Why would the letter be delivered almost twelve months after the applicant had left Sri Lankan, especially if, as the applicant claims, the group had the opportunity to kill him on at least one occasion before his departure. I do not accept that the letter submitted by the applicant represents a genuine threat by the TMVP to kill him.

9. The applicant otherwise sought to re-agitate the merits of his application and did not identify any new claim or any ground upon which there was any jurisdictional error by the Tribunal.  Relevantly, the Tribunal found:

   46. The applicant’s evidence is problematic. His claims, as put forward at different stages of processing of his application, contain various discrepancies and omissions. …

   47. Of more concern than discrepancies as to dates or minor details are the fundamental shifts in the applicant’s evidence between his protection visa application, which was prepared with the assistance of a representative, and his evidence at the hearing. …

   …

   49. While I am prepared to accept that some minor discrepancies do not detract from an applicant’s core credibility, in my view the account of this applicant has not been consistent as to core or substantive claims. I consider that there have been significant inconsistencies in relation to important matters, which have not been adequately explained.  Moreover, some of the applicant’s evidence appears to have been altered to overcome problems once they were identified. Overall, I do not consider that the applicant has presented a credible account of the circumstances which he claims led him to leave Sri Lanka.

   50. Because of the extensive problems with the applicant’s evidence I do not accept that he was the target of extortion demands by the Karuna Group, or any other paramilitary group, or the Sri Lankan army, or at all, prior to his departure from Sri Lanka. Because of the major discrepancies in his evidence and the magnitude of the credibility problems, I conclude that he is not, in general, telling the truth about his experiences. Even accepting that the applicant has some memory problems, there is simply no credible basis to his account upon which I can be satisfied that any of his claims are made out.

   …

   53. When I put to the applicant that it was difficult to believe that if the Karuna Group (or whoever was threatening him) had really intended to shoot him they had ample opportunity to do so, he said that he was not in one place; he was moving around. He said that he went to Thailand and Qatar and he had a visa to go to China. …

   …

   55. Overall, I do not accept that the applicant was subjected to extortion, robberies and death threats, as claimed, by any group, for any reason, prior to his departure from Sri Lanka. I do not accept that he left Sri Lanka for the reasons claimed, or that he faces continuing harm of this nature if he returns. In the absence of any credible evidence of having been targeted in the past, I do not accept, on the basis of the available evidence, that there is a real chance or risk that the applicant would be targeted for extortion in the future as a wealthy Tamil. 

   56. I find that the applicant does not have a well-founded fear of persecution for reason simply of his Tamil ethnicity. 

   57. UNHCR’s 2012 Guidelines for assessing the eligibility of Sri Lankans for asylum state that there is no longer a presumption of a requirement for protection simply for reason of Tamil ethnicity and being a prior resident of areas of the country previously under the control of the LTTE, namely the Northern and Eastern Provinces. Tamils are more likely to suffer human rights abuses, but this in turn is more likely if they are suspected of LTTE involvement. The Northern and Eastern Provinces are heavily militarised, although reports indicate that the highly oppressive monitoring and registration regime in place just after the war is being eased. The applicant does not claim to have suffered specific problems, as a Tamil, apart from the claimed threats and extortion, at any time after the end of the civil war in 2009.  Having regard to the independent information, and to the individual circumstances of this applicant, I am not satisfied that there is a real chance that he faces persecution on return to Sri Lanka for reason of his Tamil ethnicity.

   …

   62. I find that the applicant is not at risk of harm of any kind in Sri Lanka, now or in the reasonably forseeable future, because of real or suspected links to the LTTE; or because he is imputed to hold political opinion opposed to the former government.  

   63. I do not accept that the applicant has a well-founded fear of persecution, or that there is a real risk that he would face significant harm on return to Sri Lanka as a failed Tamil asylum seeker who departed Sri Lanka illegally. The weight of credible information before me does not support a finding that failed asylum seekers (including those who are also Tamils, Tamil males, Tamil males from the north and east of Sri Lanka, Tamils who left by boat, and persons who unsuccessfully claimed asylum in Australia) are, for those reasons alone, imputed with a pro-LTTE opinion, or suspected to have been involved, previously or currently, in supporting the LTTE. Independent information from a range of sources supports this conclusion. I find that there is nothing in the applicant’s background which might lead to him being imputed with an LTTE profile, even in conjunction with his status as a failed Tamil asylum seeker who departed illegally by boat.

   …

   69. As set out above, I do not accept that the applicant has an actual or perceived association with the LTTE. I do not accept that all failed Tamil asylum seekers are imputed with anti-government or pro-LTTE political opinions. After assessing all the evidence and the applicant’s cumulative profile, I find that the applicant will not be imputed with an anti-government political opinion or imputed to be a supporter of the LTTE for any reason, including as a failed asylum seeker, on return to Sri Lanka. I am therefore satisfied that the applicant does not face a real chance of persecution  for a Convention reason when being processed in Sri Lanka as a returned Tamil failed asylum seeker.

   70. … As I have found that this applicant has no actual or suspected links with the LTTE, I find that he is not in the category of returnees who face a real chance or risk of harm at any point after returning to Sri Lanka, either at the airport or when returning to his village.

   …

   73. I find that on return to Sri Lanka the applicant will be detained for questioning about his departure. Security and character checks will be undertaken. …I find that this questioning does not amount serious harm within the meaning of s91R(1)(b) of the Act or significant harm within the meaning of s36(2A) or s.5 of the Act.

   74. I accept that the applicant may be charged with an offence under section 45(1)(b) of the I & E Act because he departed Sri Lanka illegally. Whilst the I&E Act provides for a penalty of imprisonment, the courts have discretion to suspend a sentence of imprisonment or conditionally discharge an offender without conviction. I accept DFAT’s advice that no returnee has ever been given a custodial sentence and as discussed at the hearing, even if the applicant was to be prosecuted under these provisions the likely outcome would be a fine. As I accept the evidence that, in reality, lengthy custodial sentences have, to date, not been imposed for the offence of illegal departure, I find that the possibility of the applicant being subjected to such a penalty is remote and not real, despite the availability of that penalty. There is no evidence before me to indicate that the applicant has used false or fraudulent documents or that he was an organiser or people smuggler. I note that he previously departed Sri Lanka using his passport, so he is not a repeat offender.

   75. DFAT indicates that in most cases bail is granted relatively quickly on a person’s own undertaking and IOM is present while these procedures are undertaken.  The applicant may be remanded in custody while waiting to be granted bail, but the information indicates, and I find that any such period of detention will be short, most likely not more than four days at most. I find that the applicant will be released on bail, with a family member as surety, to appear in court at a future date. I find that, if convicted, he will almost certainly be fined. I do not consider that any of this amounts to Convention persecution, as I find that the elements of the processing of returnees, and any penalties to which the applicant may be subjected, will be applied on a non-discriminatory basis under a law of general application which is not discriminatory on its terms and is applicable to all persons in Sri Lanka. I have considered whether as a Tamil the applicant may be subjected to harsher treatment or penalties, including imprisonment and torture on return; however, I am satisfied on the basis of the weight of the available independent information that failed Tamil asylum seekers returning involuntarily to Sri Lanka after illegal departure, whose circumstances are similar to those of this applicant, are treated in the same way as any other group, and do not face a real chance of mistreatment amounting to persecution for any of the Convention reasons identified.  The available evidence does not indicate that the applicant would be treated more harshly in relation to these offences for a Convention reason, or that these laws would be discriminatorily applied, implemented or enforced against the applicant for a Convention reason. Therefore any harm the applicant fears is not Convention based persecution.

   76. I accept that the situation may be different for returnees who have real or perceived associations with the LTTE either in Sri Lanka or in the Tamil diaspora, or who may have been involved in criminal activities in Sri Lanka. Such people may be detained for longer periods on return, and there are reports that some have been mistreated and subjected to torture. However, there is no evidence before me to suggest that this applicant has outstanding criminal charges or is of interest in relation to any criminal activity; as discussed above, I find that he is not under suspicion of past or present association with the LTTE; I do not consider that there is any aspect of the applicant’s cumulative profile which would cause him to be subjected to a more intensive investigation which might lead to any form of harm.

   …

   78. As discussed above, the country information does not indicate, and I do not accept that the applicant faces significant harm as a Tamil. Nor do I accept that the applicant would be imputed, for any reason, to be an LTTE supporter or to have connections with that organisation, or to be a sympathiser with the LTTE, or to hold political views opposed to the government. Accordingly I find that there is no real risk that he would face harm of any kind for those reasons.

   …

   80. I accept that the applicant may be charged with an offence under the I&E Act because he departed Sri Lanka illegally. Based on the country information I find that he will be released on bail, with a family member as surety, and will face court at a future date. He may be remanded for a short period, either at the airport or at [X] Prison, while waiting to be brought before a magistrate for a bail hearing. This period of detention would normally be twenty four hours but may be for up to four days if he is returned just before a weekend. For reasons discussed above, I do not accept that there are any particular aspects of the applicant’s profile that would result in his being detained for a longer period or subjected to more intensive interrogation. I do not accept that the process outlined above, or the penalty likely to be imposed, or the remand conditions this applicant would most likely face in relation to his illegal departure amounts to any form of significant harm, as defined. There is no suggestion that he would face the death penalty. I am satisfied that there is no real chance that he would face the arbitrary deprivation of life.

   81. I accept that some prisoners and detainees may be at risk of physical mistreatment that could amount to significant harm. However, in recent years there have been a large number of involuntary returnees to Sri Lanka, including Tamil males who unsuccessfully sought asylum in Australia as well as other Western countries. There has been a significant level of interest in such persons both from the media and human rights organisations. There have been few credible or substantiated reports of persons such as the applicant suffering significant harm during any period of detention consequent upon their involuntary return. In these circumstances, I am not satisfied that there is a real risk that the applicant will be subjected to torture, or any other form of physical mistreatment amounting to significant harm – specifically, cruel or inhuman treatment or punishment or degrading treatment or punishment - when he is questioned at the airport or during any period which he may spend in prison or detention on remand upon his return. The applicant has not claimed that he will be unable to pay the fine and I am not satisfied that the scale of the fine, which is the most likely penalty, amounts to significant harm. I find that, to date, a custodial sentence has never been imposed on illegal returnees such as the applicant. I am not satisfied that there is a real risk that this applicant faces a custodial sentence for having departed Sri Lanka illegally.

   82. I accept that conditions in prison or detention may be poor, but the evidence does not suggest that they would pose a real risk to the applicant’s life. The definition of “cruel or inhuman treatment or punishment” in s.5(1) of the Act requires that the pain or suffering be intentionally inflicted on a person. Similarly, “degrading treatment or punishment” is defined to mean an act or omission that causes and is intended to cause extreme humiliation. I am not satisfied that any pain or suffering caused to the applicant by overcrowding and poor and insanitary conditions in prison or on remand would be intentionally inflicted, as required. Nor do I accept that severe overcrowding and poor conditions are intended to cause extreme humiliation.   

   83. I accept that some Tamils may face an elevated risk of certain forms of significant harm in Sri Lanka. However, for the reasons discussed above, I do not consider that the applicant faces harm of any kind for any of the reasons put forward, should he return to Sri Lanka. In so finding, I have considered his claims singularly and cumulatively but am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant's being removed from Australia to a receiving country, namely Sri Lanka, that there is a real risk he will suffer significant harm.  Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

1. It was in those circumstances that the Tribunal found that the applicant was not a person to whom Australia had a protection obligation under the criteria under s.36(2)(a) and certainly 36(2)(aa) had not been met. Those adverse findings by the Tribunal were clearly open.

2. The application fails to identify any jurisdictional error. The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  15 July 2015