Alx15 v Minister for Immigration

[2015] FCCA 1909

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALX15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1909

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

Applicant: ALX15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1033 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 A. Carr
DLA Piper

ORDERS

1. The name of the second respondent be corrected to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application be dismissed.

3. The applicant pay the first respondent’s costs fixed in the sum of $4000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1033 of 2015

ALX15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

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 13 March 2015 affirming a decision of the delegate not to grant the application for a Protection (Class XA) visa. The applicant was found to be a national of Sri Lanka and a Tamil by ethnicity. The applicant appeared before the Tribunal on 6 January 2015 to give evidence and present arguments and was assisted by an interpreter as well as being represented by his migration agent. The application raises the following ground:

   GROUND ONE:

   The RRT has applied the incorrect test pursuant to Section 91 R(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)

2. At the commencement of the hearing the applicant said, “What I wish to say is I need more time.  Then I will think about going.”  What was said by the applicant was treated as an application for an adjournment, and that adjournment was opposed by the first respondent.  When asked if there was anything the applicant wished to say in support of the adjournment application, no further submission was advanced to justify any adjournment.

3. The application commencing these proceedings was filed on 15 April 2015. On 14 May 2015 the Court made orders providing an opportunity to the applicant to amend his application, to put on affidavit evidence and to serve submissions.  No proper ground for an adjournment was made out and further, there would be no utility in granting an adjournment, given that the ground raised in the application is clearly doomed to failure.  The ground raised in the application sought to rely upon a decision of WZAPN v Minister for Immigration and Border Protection [2014] FCA 947. That decision was overruled by the Full Court in SZTEQ v the Minister for Immigration and Border Protection [2015] FCAFC 39 in respect of which the decision of the Full Court was held to be correct by the High Court of Australia in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22.

4. Further, as the first respondent pointed out, the Tribunal identified that the applicant would not be singled out or treated differently because he had left Sri Lanka and the Tribunal found that any questioning or short period of remand or charge would not be because he is a Tamil, but because he left Sri Lanka illegally.  Relevantly, the Tribunal found:

   38. …The Tribunal is not satisfied that any problems the applicant may face as a result of questioning, charges, cramped and uncomfortable and unsanitary conditions in remand are aimed at the applicant for any Convention reason. The Tribunal considers that these are factors that apply to the general population and not specifically to Tamils. The Tribunal is not satisfied, therefore, that questioning, arrest, and the poor conditions in remand, and the application of a penalty for illegal departure amount to systematic and discriminatory conduct as required by s.91R(1)(c).  

5. It was in these circumstances that the first respondent submitted that the application is doomed to failure and that there is no jurisdictional error by the Tribunal of the kind raised in the application.  I accept the first respondent’s submission that the Tribunal correctly identified the applicant’s claims and evidence. The Tribunal identified concern as to the truthfulness and credibility of the applicant in relation to his evidence and fears of persecution.

6. Relevantly, the Tribunal said:

   15. For the reasons outlined below, the Tribunal did not find the applicant to be a truthful and credible witness regarding his experiences in Sri Lanka and the reasons he fears persecution there.

   16. The applicant’s evidence about the circumstances surrounding the key incident on which his claims are based – the Army’s attempt to recruit him – was vague, inconsistent, implausible and unsupported, including by country information from independent sources.

   …

   23. Considering the significant inconsistencies in the applicant’s evidence on issues central to his claims, the Tribunal is not satisfied that any of the applicant’s claims regarding his experiences in Sri Lanka and the persecution he fears there can be relied upon. The Tribunal does not accept that the applicant ever worked as a fisherman in [Village 2], or that Army personnel tried to recruit him into the Army in April 2012, which he had refused. The Tribunal is not satisfied that it was the fear of being targeted by the Army for this refusal that drove the applicant to depart for Australia illegally, nor that the Army came to the applicant’s family’s home looking for him after his departure, and assaulted and harassed his family prompting them to relocate. As the Tribunal does not accept that the applicant was of interest to the authorities before he left Sri Lanka over his failure to join the Army or any other issue, the Tribunal is not satisfied that, if he returns to Sri Lanka, he will be targeted by the authorities for this reason, as claimed.

   …

   30. The applicant’s adviser has posited that as the applicant is a young Tamil male, who by virtue of his refusal to cooperate with the Sri Lankan Army’s demands, is already perceived as opposing the interests of the government of Sri Lanka. As the Tribunal has not accepted above that the applicant was either asked to work for the Sri Lankan Army or refused to cooperate with the Sri Lankan Army’s demands, as claimed; nor that the authorities were pursuing him as a consequence of this; the Tribunal is not satisfied that the applicant had or has any political profile, imputed or otherwise, or that there is a real chance he would be subjected to serious or significant harm for reasons of his Tamil ethnicity; or imputed political opinion of opposition to the Sri Lankan government, if he returned to Sri Lanka, as claimed. 

   …

   35. …The Tribunal is not satisfied the weight of the evidence establishes that returnees held in remand whilst awaiting bail hearings have been subject to torture or other forms of deliberate mistreatment.

   …

   37. … Further the Tribunal has not accepted that the applicant was either asked to work for the Sri Lankan Army or refused to cooperate with the Sri Lankan Army’s demands, as claimed, so does not have a profile of interest which the authorities might uncover during their review of his records. Having considered the evidence as set out above, the Tribunal is not satisfied the applicant has any particular profile such that there is a real chance of serious harm upon his arrival, even having regard to his illegal departure from Sri Lanka, and the authorities’ awareness that he has applied for asylum in a Western country.

   …

   39. Having considered the independent evidence and the applicant's personal circumstances, the Tribunal is not satisfied that there is a real chance that he would suffer serious harm amounting to persecution on arrival in Sri Lanka, or at any subsequent point, because he is a a Tamil, a failed asylum seeker, or because he left Sri Lanka illegally without proper documentation.

   …

   41. The Tribunal has found above that it is not satisfied the applicant would suffer harm for reasons of his race or ethnicity, actual or imputed political opinion or being a failed asylum seeker. The Tribunal is also not satisfied for the purposes of the Complementary Protection provisions that the applicant will be considered to have any adverse political profile as a result of his claimed refusal to cooperate with the Sri Lanka Army, such that there is a real risk he will suffer significant harm upon his return to Sri Lanka or that there is a real risk that he will suffer significant harm on the basis that he is a young single Tamil male who departed Sri Lanka illegally.

   …

   43. However, the Tribunal does not accept that spending up to a fortnight in such conditions amounts to ‘significant harm’ as defined in subsection 36(2A) of the Migration Act or that such treatment is intentional as is required by the law in Australia.

   44. The Tribunal does not accept that there is a real risk that the applicant will be subjected to ‘torture’ as defined while he is on remand for a relatively short period. The definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act requires that pain or suffering be ‘intentionally inflicted’ on a person and the definition of ‘degrading treatment or punishment’ requires that the relevant act or omission be ‘intended to cause’ extreme humiliation.

   45. Mere negligence or indifference is not sufficient; what is required is an intention to inflict pain or suffering or to cause extreme humiliation. The Tribunal does not accept, on the evidence before it, that the pain or suffering caused by the overcrowding and other problems in prisons in Sri Lanka is ‘intentionally inflicted’ on prisoners as required by the definition of ‘cruel or inhuman treatment or punishment’ in subsection 5(1) of the Migration Act. Neither does the Tribunal accept that the overcrowding and other problems are ‘intended to cause’ extreme humiliation as required by the definition of ‘degrading treatment or punishment’.

   46. Accordingly, the Tribunal is not satisfied that there are 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 he will suffer significant harm when he is questioned at the airport or during any period which he may spend in jail on remand. Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that he will suffer arbitrary arrest and detention, imprisonment, physical assault, torture and possibly death at the hands of the Sri Lankan authorities following his return to Sri Lanka; or a real risk that he will be subject to significant harm upon his return to his village, or indeed, elsewhere in Sri Lanka. The Tribunal finds that there is no real risk that the applicant will suffer significant harm for any other reason or reasons.

   47. Having considered these circumstances, singularly and cumulatively, the Tribunal is 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 would be a real risk that he would suffer harm which would amount to significant harm.

7. It was in those circumstances that the Tribunal concluded that the applicant was not a person in respect of whom Australia had protection obligations and that the applicant did not meet the criteria under ss.36(2)(a) or 36(2)(aa). Those adverse findings by the Tribunal of were clearly open on the material before the Tribunal. The applicant advanced that his life would be in danger if he returned to Sri Lanka and that he could be given no guarantee that he would not be harmed or that he would be taken by the army. This was in essence a repetition of the claims identified by the applicant which were properly addressed by the Tribunal. What was put from the bar table by the applicant was in substance an impermissible merits review in respect of which this Court does not have jurisdiction.

8. There is no substance in the alleged jurisdictional error. I am satisfied that the applicant had a genuine hearing and that there was no jurisdictional error in the conduct of the review by the Tribunal.  The application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  15 July 2015