AMY15 v Minister for Immigration

[2015] FCCA 1455

FEDERAL CIRCUIT COURT OF AUSTRALIA

AMY15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1455

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – law of general application – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

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

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: AMY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1071 of 2015

Judgment of: Judge Street

Hearing date: 28 May 2015

Date of Last Submission: 28 May 2015

Delivered at: Sydney

Delivered on: 28 May 2015

REPRESENTATION

There was no appearance by the applicant

Solicitors for the Respondents: Ms N. Johnson

ORDERS

1. The proceedings be summarily dismissed.

2. The applicant pay the first respondent’s costs fixed in the sum of $300.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1071 of 2015

AMY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW 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 in respect of a decision of the Tribunal made on 30 March 2015 affirming a decision of the delegate not to grant the applicant a protection (class XA) visa.  The application identifies the following grounds:

   1. The Tribunal misconstrued or misapplied ss.5 and 36(2A) of the Act.

   Particulars

   a. The Tribunal found that the applicant will be imprisoned upon his return to Sri Lanka;

   b. The Tribunal found that prison conditions in Sri Lanka that "are poor and do not meet international standards due to gross overcrowding and the lack of sanitary facilities"; and

   c. At [60] the Tribunal erred in holding 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 of punishment.

2. The matter has been called outside the Court by the pseudonym and by the applicant’s full name with a direction for non-publication.  It was listed at 9.30 am and it is now after 10.30 and the applicant has failed to appear.

3. There is no substance in relation to the application as it is an impermissible challenge to the adverse findings of fact by the Tribunal.  The adverse finding in para.60, as follows, was clearly open on the material before the Tribunal:

   60. 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.

4. The Tribunal correctly identified the relevant issues and set out the applicant’s claims and evidence and relevantly, the Tribunal concluded:

   46. The applicant does not have a well-founded fear of Convention related persecution on the basis of his illegal departure from Sri Lanka or its consequences.

   47. The Tribunal has considered the applicant's claims individually and cumulatively. 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.

5. The applicant was found to be a citizen of Sri Lanka and his claims were assessed against that country.  The Tribunal turned to the issue of complementary protection and relevantly found:

   54. 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.

   …

   61. 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.

   62. As discussed with the applicant at the hearing, the DFAT information set out above indicates that people in the applicant's circumstances, who are not involved in people smuggling and do not have other charges against them, do not face a real risk (on the same level as a real chance) of imprisonment for any significant time on the basis of having breached the I & E Act. The country information available indicates that of the penalties available under the I&E Act (financial and custodial), those convicted have received fines and not prison sentences.

   63. Additionally on the applicant's evidence the Tribunal is satisfied he could pay any fine through his savings in Australia. The Tribunal is satisfied that being fined would not meet any of the definitions of significant harm: the country information does not suggest that the imposition of a fine gives rise to a real risk that the applicant will be arbitrarily killed or subject to the death penalty, or that the applicant would be subjected to pain or suffering by an intentionally inflicted act or omission for any reason included in the definition of torture under the Act. There are no substantial grounds for believing that a fine would amount to an act or omission by which severe physical or mental pain or suffering is intentionally inflicted on the applicant or an act which could reasonably be regarded as cruel or inhuman21 or be intended to cause extreme humiliation which is unreasonable.

   64. 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.

   65. The Tribunal has considered the applicant's claims individually and cumulatively. 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. The applicant does not meet the complementary protection criterion.

6. It was in those circumstances the Tribunal was satisfied that the applicant was not a person to whom Australia has protection obligations and that the criteria under s.36(2)(a) and 36(2)(aa) had not been satisfied.

7. This is an application in which it is appropriate to summarily dismiss the matter taking into account the default appearance.  I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. The proceedings have no reasonable prospect of success and are summarily dismissed.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 May 2015