Atw15 v Minister for Immigration & Border Protection
[2015] FCCA 1830
•2 July 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATW15 v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1830 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.36 Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13 |
| Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 WZAPN v Minister for Immigration and Border Protection [2015] FCA 947 Minister for Immigration and Border Protection v WZAPN [2015] HCA 22 SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39 SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40 BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 4 |
| Applicant: | ATW15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1341 of 2015 |
| Judgment of: | Judge Emmett |
| Hearing date: | 2 July 2015 |
| Date of Last Submission: | 2 July 2015 |
| Delivered at: | Sydney |
| Delivered on: | 2 July 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Mel Newman (Mel Newman & Associates) |
| Solicitor for the Respondents: | Ms Ada Wong (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1341 of 2015
| ATW15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 18 May 2015, the applicant filed an application seeking judicial review of a decision of the Refugee Review Tribunal, dated 5 May 2015 and handed down on 6 May 2015 (“the RRT”).
On 25 June 2015, the applicant attended a directions hearing before me. I explained to the applicant that the role of this Court is very different to that of the RRT and that it was not for this Court to reconsider his claims and make different factual findings or reach different conclusions to the RRT. I also explained to the applicant that at present, the grounds of his application did not identify any error capable of review by this Court.
I further explained to the applicant that, under the Rules of this Court, where the application does not disclose an arguable case for the relief sought, the application may be dismissed forthwith.
At the directions hearing, the applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the applicant the consequences that would flow to him if a costs order was made against him. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The applicant confirmed he wished to continue with his application for judicial review of the RRT’s decision. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 29 June 2015. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 29 June 2015.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in his own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), a copy of which was also given to the applicant, together with a copy of the costs schedule of the Court.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
On 29 June 2015, the applicant filed an Amended Application, prepared by the applicant's solicitor, Mr Newman, who represented the applicant before the Court this morning.
Mr Newman consented to the matter proceeding this morning pursuant to r.44.12 of the Rules. Mr Newman acknowledged that no submissions had been filed by the applicant but that he was in a position to make oral submissions before the Court this morning in support of the Amended Application, on which he relied.
The ground of review detailed in the applicant’s Amended Application, filed on 29 June 2015, is as follows:
“1. The Tribunal accepted the claim by the protection visa applicant that upon his return to Sri Lanka - as an illegal departee - he would be subject to the imposition of a fine of 50,000 rupees, approximating 2/3rds of the average yearly wage but, nevertheless, found the law to be non-discriminatory and in that way non-persecutory. In doing so, the Tribunal erred in law and in fact when it failed to consider that notwithstanding, the law's application was confined to a social class, namely those who placed no faith in the government's protection and who chose to leave clandestinely. Moreover, the Tribunal failed to consider what were the prospects of the applicant's family being able to assist the applicant in paying the fine, failing which a period of imprisonment was probable.”
The first respondent, in written submissions filed on 1 July 2015, accurately summarised the background of the applicant’s claims and the RRT’s decision, as follows:
“Background
3. The applicant is a male citizen of Sri Lanka born on 23 November 1984. The applicant arrived as an illegal maritime arrival on 10 August 2012.
4. The applicant applied for a Protection (Class XA) visa on 26 March 2013. His claims were set out in a statutory declaration accompanying the application which claimed, in summary:
4.1 The applicant claimed to fear harm from Criminal Investigation Department (CID) and opposition supporters because of his support for the Tamil National Alliance (TNA) and work excavating areas which had human remains.
4.2 The applicant claimed that in 1995 he and other family members sustained injuries during an air attack by government troops.
4.3 The applicant claimed that he was rounded up and detained by the CID, army and police for a day in 2001 and 2003 and accused of being a member of the LTTE.
4.4 The applicant claimed he was detained, beaten and interrogated for 9 days in June 2006 by the Karuna group. The applicant claimed he was accused of being a member of the LTTE and was only released after his mother paid a bribe.
4.5 The applicant claimed to fear harm from the CID due to his work excavating and clearing mines in the north. He claimed that the CID would suspect he would disclose the atrocities he saw during his work.
4.6 The applicant claimed that in mid-2012 his brother was nominated for the TNA in the provincial council elections. The applicant allegedly assisted his brother with the campaign for two weeks until he was stopped by the party that 'supported the government'. The applicant claimed that on 17 July 2012 party members who supported the government smashed the applicant's car and physically assaulted him and his brother.
5. The application was refused on 9 December 2013.
6. The applicant applied to the RRT for review of the delegate's decision on 16 December 2013.
7. The applicant and his brother gave oral evidence before the RRT on 24 April 2015. The RRT made its decision on 5 May 2015.
The decision of the Tribunal
8. On the basis of country information, the RRT accepted that the applicant was rounded up in 2001 and 2003 by the CID and the family was displaced. It also accepted that the applicant was injured in a bomb blast as a child and was detained for 9 days in 2006 by people he suspected were associated with the Karuna group. However, the RRT did not accept that the applicant faced harm from the Karuna group or other authorities because the conflict had since ended.
9. The RRT accepted that the applicant worked clearing mines but did not accept that he faced any harm from the CID as a result of this work.
10. The RRT accepted that the applicant's brother was nominated in the 2012 elections but did not accept that the applicant or his brother were assaulted on the way back from nominating in the 2012 elections due to their inconsistent accounts. The RRT considered the post hearing submissions of the applicant; but did not accept that they overcame the discrepancies present in their evidence. Further, the RRT did not accept that the applicant made arrangements to leave Sri Lanka as a result of the claimed assault.
11. The RRT did not accept that the applicant had suffered any harm since 2006 or that anyone was looking for him or interested in him.
12. The RRT did not accept that the applicant or his brother were active members of the TNA or that they are interested in politics or would be in the future.
13. The RRT accepted that persons with LTTE associations may be at risk of harm upon return to Sri Lanka, however, did not accept that the applicant had such a profile to put him at risk of harm upon return to Sri Lanka.
14. The RRT accepted that the applicant was a Roman Catholic. The RRT noted that the applicant did not claim that he was taken by Karuna because of his religion. Accordingly, the RRT did not accept that the applicant faced a real chance of serious harm for reasons of his religion in the future.
15. The RRT accepted that the applicant departed illegally and that on the basis of country information, the applicant would be charged, bailed and fined upon return to Sri Lanka. The RRT found that Sri Lanka departure laws are laws of general application and therefore the enforcement of the laws did not constitute persecution.”
Solicitor for the applicant, Mr Newman, made oral submissions that the RRT failed to analyse the applicant's circumstances in Sri Lanka so as to be satisfied of the applicant’s ability to pay a fine of up to 50,000 Sri Lankan Rupees, which, in Mr Newman's submission, is two-thirds of the annual salary of a person in Sri Lanka.
The Court notes that there is no evidence to support such an assertion. However, for the purposes of this hearing, I am prepared to accept that that may well be so.
In the course of Mr Newman's oral submissions this morning, I put to Mr Newman that it appeared that 50,000 Sri Lankan Rupees was approximately $500AUD. Mr Newman maintained his submission that there was no analysis by the RRT as to satisfying itself that there was money back in Sri Lanka, either in the hands of the applicant or his family, to pay such a fine and, further, there was nothing before the RRT to satisfy it as to how the applicant would have the ability to pay such a fine.
Mr Newman submitted that the RRT must set out its reasons for the decision it makes and that the RRT failed to do so in making its finding that the applicant would be able to pay the fine, even the maximum amount of 50,000 Sri Lankan Rupees, and that paying such a fine would not constitute significant harm.
The RRT’s decision record identifies accurately the issue before it as being whether or not the applicant is a person entitled to protection obligations under the refugee criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), or under the complementary protection criterion ground in s.36(2)(aa) of the Act.
The RRT identified in its decision record the following key issues:
i)the credibility of the applicant;
ii)whether Australia had protection obligations under the Refugee Convention to the applicant; and,
iii)whether Australia had obligations under the complementary protection criterion.
The RRT then identified country information to which it had regard and upon which it relied in making its findings. It is well settled that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
The RRT considered the applicant's credibility and ultimately did not accept the applicant's claims to have suffered past persecution or to be at risk of persecution if he was to return to Sri Lanka, or to be at risk of serious or significant harm.
The RRT’s decision record discloses various exchanges that it had with the applicant, and identifies matters of concern about the applicant's evidence that it put to him, and notes his responses.
The RRT’s findings would appear to be open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
In relation to the applicant's return to Sri Lanka as an illegal departee, the RRT considered that issue in the following paragraphs:
“Illegal Departure
70. The tribunal referred to the DFAT information about the treatment of returnees, being questioned at the airport to establish identity, charged under the Immigrants and Emigrants Act (IEA) for illegal departure at the airport and brought before a court to apply for bail. In most cases returnees have been granted bail on personal recognisance immediately by the magistrate, with the requirement for a family member to act as guarantor or sometimes they need to wait until a family member comes to collect them. Eventually the returnee will need to return to Court to face the charges. Generally fines of 5,000 rupees are imposed, although the Negombo magistrate levies fines of around 50,000 to act as a deterrent. Further, DFAT was informed in March 2014 that no returnee who was just a passenger on a people smuggling venture had been given a custodial sentence for departing Sri Lanka illegally.
71. The tribunal accepts that the applicant departed the country illegally as he came by boat not through an authorised airport or a port and without a passport. The tribunal accepts on the basis of the country information that the applicant would be subjected to such processes on return, being charged, bailed and fined up to 50,000 rupees.
72. The tribunal has considered the applicant’s circumstances and does not accept the fine amounts to serious harm because the tribunal considers he would be able to pay the fine because he has earned income in Sri Lanka previously and there is no reason he could not do so in the future. Further he is earning $850 a week in Australia, some of which he has been sending home, and also has the support of his family in Sri Lanka. The tribunal finds given his circumstances and the country information he will be bailed and if needed, his family would provide surety as he is [in] regular contact with them.”
(Citations omitted and emphasis added.)
The key substance of those findings is that generally fines of 5,000 Sri Lankan Rupees are imposed, although fines of 50,000 Sri Lankan Rupees have been made to act as a deterrent. The RRT accepted that the applicant would be subjected to the usual processes regarding illegal deportees where he would be brought before a Sri Lankan Court to apply for bail and he was likely to be subjected to a fine of up to 50,000 Sri Lankan Rupees.
The RRT then considered the applicant's particular circumstances. In considering whether or not such a fine would amount to serious harm to the applicant, the RRT was satisfied that the applicant would be able to pay the fine because he had earned an income in Sri Lanka previously. The RRT was satisfied that there was no reason to assume that the applicant could not do so in the future, especially in circumstances where he is presently earning $850AUD per week in Australia, a portion of which he has been sending home. Further, the RRT found that the applicant has the support of his family in Sri Lanka. The RRT was also satisfied that the applicant’s family would provide surety for him as he is in regular contact with them.
In considering whether the applicant met the complementary protection criterion contained in s.36(2)(aa) of the Act, the RRT again accepted that, as a returnee to Sri Lanka who had departed illegally, the applicant may face being questioned at the airport, being arrested on charges of leaving the country illegally, potentially being remanded for a relatively short period pending a bail hearing and fined up to 50,000 Sri Lankan Rupees for his illegal departure.
The RRT considered whether he was at risk of significant harm as contemplated by s.36(2A) of the Act. However, the RRT found that based on the country information to which it had referred, returnees were not mistreated in such a manner.
The RRT did not accept that questioning at the airport, being charged and bailed, payment of the fine, or being held in remand for a short period, constituted significant harm for the purposes of s.36(2A) of the Act. Ultimately, the RRT found that the applicant would be able to pay the fine, even the maximum amount of 50,000 Sri Lankan Rupees, and that such a fine would not constitute ‘significant harm.’
I did not accept the submission of Mr Newman that the RRT did not provide reasons for its conclusion that the applicant would be able to pay a fine of 50,000 Sri Lankan Rupees and that such payment would not constitute significant harm.
Insofar as the ground of the Amended Application asserts that the RRT erred in failing to consider that, notwithstanding the laws of Sri Lanka, the applicant was confined to a class of persons, namely those who place no faith in the Sri Lanka government's protection and who chose to leave clandestinely, such an assertion is not made out in the face of the RRT’s decision record.
The RRT specifically referred to country information in respect of Sri Lankan citizens who had departed illegally. The RRT noted that it had regard to Australian Department of Foreign Affairs and Trade information about the treatment of returnees being questioned at the airport to establish identity, charged under the Sri Lankan Immigrants and Emigrants Act of illegal departure at the airport, and being brought before a Sri Lankan Court for bail.
In the circumstances, the RRT’s findings and conclusions would appear to be open to it on the evidence and material before it, and for the reasons it gave.
Otherwise, the complaints in the applicant’s Amended Application do not identify any jurisdictional error on the part of the RRT and appears more to be a disagreement with the findings and conclusions of the RRT. The applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Whilst there is no direct mention in the ground of the Amended Application of any reliance on the decision of North J in WZAPN v Minister for Immigration and Border Protection [2015] FCA 947, if such a complaint was intended to be made, such an approach has been overruled by the High Court of Australia in Minister for Immigration and Border Protection v WZAPN & Anor [2015] HCA 22 (endorsing the Full Court of the Federal Court of Australia in SZTEQ v Minister for Immigration and Border Protection [2015] FCAFC 39, SZTIB v Minister for Immigration and Border Protection [2015] FCAFC 40, and BZAFM v Minister for Immigration and Border Protection [2015] FCAFC 41).
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the applicant has raised an arguable case for the relief claimed.
Accordingly, in the exercise of the Court's discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 18 May 2015, should be dismissed with costs.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 21 July 2015
0
10
0