Ayr15 v Minister for Immigration & Border Protection

[2015] FCCA 1887

FEDERAL CIRCUIT COURT OF AUSTRALIA

AYR15 v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1887

Catchwords:
MIGRATION – Refugee Review Tribunal.

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), ss.91R, 424A
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
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
WZAPN v Minister for Immigration and Border Protection [2014] FCA 947
Minister for Immigration and Border Protection v WZAPN [2015] HCA 22

Applicant: AYR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1547 of 2015

Judgment of: Judge Emmett

Hearing date: 9 July 2015

Date of Last Submission: 9 July 2015

Delivered at: Sydney

Delivered on: 9 July 2015

REPRESENTATION

The applicant appeared in person with the assistance of a Tamil interpreter.

Solicitor for the Respondents: Mr Liam Dennis
(Sparke Helmore)

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1547 of 2015

AYR15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 9 June 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”).

2. On 1 July 2015, the applicant attended a directions hearing before me. I explained to the applicant that this Court has no power to interfere with the decision of the RRT, unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.

3. 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.

4. 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.

5. The applicant confirmed that he wished to continue with the application for judicial review. 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, as well as submissions in support, by 7 July 2015.

6. 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.

7. 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.

8. 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.”

9. 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.”

10. The first respondent, in written submissions, accurately summarised the background of the applicant’s claims and the RRT’s decision, as follows:

    “Background

    1. The applicant, a citizen of Sri Lankan, arrived in Australia on 24 June 2012 as an offshore entry person (Court Book “CB” 93).  On 18 September 2012, the Minister exercised his discretion under s 46A(2) of the Migration Act 1958 (Cth) (the Act) permitting the applicant to make an application for a Protection (Class XA) visa (CB 92). The applicant subsequently made an application for a protection visa on 26 November 2012 (CB 18). On 7 January 2014, a delegate of the Minister refused to grant the applicant a protection visa (CB 92-107).

    2.   On 17 January 2014, the Refugee Review Tribunal (the Tribunal) received an application for review of the delegate’s decision (CB 108-115, 118-119).  On 5 May 2015, following a hearing on 13 March 2015 (CB 144), the Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa (CB 172-193).

    Applicant’s claims

    3.   The applicant claimed to fear harm on the basis of his Tamil ethnicity, his imputed support of the Liberation Tigers of Tamil Eelam (LTTE) and on the grounds that he would be a failed asylum seeker who departed Sri Lanka illegally.

    4.   In support of these claims the applicant detailed the following incidents:

    i.   His father was tortured by the Sri Lankan army because they suspected him of being connected to with the LTTE.  As a result, his father developed a blood clot and died a month or two after this incident;

    ii.   Around July 2006, the applicant’s brother was detained and tortured and had his leg broken by the Sri Lankan army;

    iii.  Around 2010, the applicant and his family moved to Mullaitivu so that he could earn money as they had no food in the house and needed to survive.  He had problems with the Sinhalese who tore up fishing nets and threatened them.  The Navy would not listen to their complaints.

    iv.  In about August 2010, the Sri Lankan army came to their home and asked him to go to their camp where he was questioned about his connection with the LTTE but he was released, he believes, because his was mother was there begging them to.

    v.    In December 2010, he was detained by the Sri Lankan army at the camp for around two weeks and was ill-treated.  His mother sought help from influential people in the village to secure his release.

    vi.  For the end of 2010 until around 2012 the army would go to their house and intimidate them from time to time.  In 2012, a high ranking person from the army went to their home and told the applicant he needed to come in for questioning by the army. Because his mother was scared that what happened to his father would happen to him, he returned to Udappu when he knew that people had been taken by the army. He was frightened the same would happen to him and so left Sri Lanka to save his life.

    vii.    While he has been in Australia, the applicant’s mother has been questioned by the army about him and assaulted by them.  The army are still looking for him and it is not safe for him to return to Sri Lanka.

    Tribunal decision

    5.   The Tribunal was satisfied that the applicant’s evidence in the course of the hearing was “inconsistent, vague and lacking in significant details”, raising doubts about the claims as well as the applicant’s general credibility (CB 178 at [15]).  This was based on inconsistencies identified in the applicant’s evidence (CB 179-180 at [20], [21], [22]).

    6.   The Tribunal accepted as plausible that, following the applicant’s father’s death, the family had difficulties in obtaining food and had to ask others for assistance.  It also accepted as plausible that they had problems with Sinhalese people in relation to fishing nets being torn up and that the navy were of no assistance (CB 180 at [23]).  However, the Tribunal found that the applicant and his family have not suffered serious or significant harm on these bases and that there was not a real chance or real risk of such harm occurring in the future (CB 180 at [23]).

    7.   On the basis of the credibility concerns, the Tribunal rejected the remainder of the applicant’s claims (CB 180 at [24]) and did not accept that the applicant or any member of his family had “any profile of adverse interest to the Sri Lanka authorities or the Karuna group or the United People’s Freedom Alliance” (CB 180 at [24]).

    8.   The Tribunal noted the applicant did not claim that he is, or has even been, an LTTE supporter.  The Tribunal also noted the applicant’s claims that he would be imputed with the political opinion because he was a young Tamil from Udappu and Mullaitivu, a failed asylum seeker being forcibly returned from a Western country and for having departed illegally (CB 181 at [29]).  However, the Tribunal found that those facts do not mean that the applicant would have an adverse profile (CB 181-182 at [30]) and that, based on the country information set out therein, the Tribunal did not accept that the applicant would be imputed with an adverse political opinion for any of his claimed reasons (CB 183-184 at [37]).  The Tribunal was not satisfied that there is a real chance that the applicant faces any harm amounting to persecution or a real risk of significant harm on the basis of being a young Hindu Tamil from the claimed regions, or for any other claimed reason (CB 184 at [38]).

    9.   On the basis of the available information, the Tribunal was not satisfied that the applicant would suffer economic hardship or not being able to get work; or that he would be persecuted on the basis of his Tamil ethnicity alone; or that he would be suspected of being associated with the LTTE merely on the basis of being Tamil or any other basis (CB 184 at [39]).

    10.    The Tribunal found, based on the country information contained therein (CB 184-187 at [40]-[50]), that there is not a real chance that the applicant would suffer harm amounting to persecution on the basis of being a Tamil failed asylum seeker from Udappu and Mullaitivu or a returnee from a Western country as the country information indicated that it was essentially those with an adverse profile who could encounter harm on return (CB 187-188 at [51]).

    11.    With regards to the applicant’s illegal departure, the Tribunal accepted on the basis of the country sources it identified (CB 188-190 at [52]-[58]) that there is a real chance that the applicant may be arrested and imprisoned for a “few days” on remand because he departed the country illegally and that conditions in prison may be crowded and poor (CB 190 at [60]).  However, the Tribunal was not satisfied that the treatment faced by returnees who departed illegally would give rise to persecution as contemplated by s 91R(1)(c) (CB 190-191 at [61]-[62]).  The Tribunal did not accept, having regard cumulatively to what was accepted of the applicant’s profile and circumstances, that the treatment faced by returnees amounted to persecution (CB 191 at [62]).

    12.    Therefore, having considered the evidence “as a whole”, the Tribunal was satisfied that the applicant did not now or in the reasonably foreseeable future, have a well-founded fear of persecution by reason “of his illegal departure, being of Tamil ethnicity from Udappu and Mullaitivu, a failed asylum seeker…or for any other reason” (CB 191 at [63]). Accordingly, the Tribunal was not satisfied that the applicant met s 36(2)(a) of the Act.

    13.    With regards to complementary protection, the Tribunal found that, based on its consideration of the evidence as a whole, there was not a real risk that the applicant faced significant harm on any of the claimed bases (CB 191 at [66]).  Further, the Tribunal was not satisfied that any harm faced as a result of being a failed asylum seeker or illegal returnee would amount to significant harm under the definitions (CB 191-192 at [67]-[73]). 

    14. The Tribunal concluded that the applicant did not meet s 36(2)(aa) of the Act and affirmed the decision under review (CB 192-193 at [73]-[77]).”

11. The applicant was unrepresented before the Court this morning, although had the assistance of a Tamil interpreter.

12. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with my directions or otherwise. 

13. The applicant’s application for judicial review, filed on 9 June 2015, stated the ground of review as follows:

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

    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 Protection & Anor [2014] FCA 947 at (30) and (45).”

14. The ground of the application was interpreted for the applicant and the applicant was invited to make submissions in support.

15. The applicant said that he wished to have more time because he wished to provide further evidence. 

16. I asked the applicant what that evidence was, to which the applicant answered “his family card”.  He said that that would prove his identity. 

17. It is apparent from the RRT decision record that it accepted that the applicant is a national of Sri Lanka and that he lived in the village in Udappu. In light of the RRT’s acceptance of the applicant’s identity and his claims regarding the village where he lived, I explained to the applicant that the provision to this Court of his family card could have no relevance to the issue before this Court. For that reason and upon the objection by the solicitor for the first respondent to the applicant’s application for an adjournment, the applicant’s application for an adjournment was refused. 

18. The RRT’s decision record discloses that it explored with the applicant his various claims, and put to him matters of concern that it had about his evidence, and noted the applicant’s responses. 

19. The RRT also identified with particularity the country information to which it had regard, and considered in some detail whether the applicant would be harmed on the basis of his illegal departure from Sri Lanka. 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).

20. Ultimately, for reasons that would appear to be open to it on the evidence and material before it, the RRT concluded that he would not. 

21. The RRT made comprehensive adverse credibility findings in respect of the applicant’s claims to have suffered past harm in Sri Lanka. Those findings would appear to be open to the RRT on the evidence and material before it and for the reasons it gave. 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).

22. To the extent that the applicant relies on WZAPN v Minister for Immigration and Border Protection [2014] FCA 947, that case has been overturned by the High Court of Australia in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22. In particular, the High Court stated at [45]:

    “45. To resolve the question before the Court, it is enough to say, in light of the collocation of threats to life and liberty in s.91R(2)(a), that the question of whether a risk of the loss of liberty constitutes “serious harm” for the purposes of s.91R(1)(b) requires a qualitative judgment. This qualitative judgment will include an evaluation of the nature and gravity of the loss of liberty. Whether the likelihood of detention in any case rises to the level of serious harm instanced by s.91R(2)(a) is a question which invites a consideration of the circumstances and consequences of that detention.”

23. In the circumstances, I accept the first respondent’s submission that there was no error in the RRT’s qualitative assessment of the nature and degree of any harm the applicant may experience as a result of his illegal departure on his return to Sri Lanka.  That finding would appear to be open to the RRT on the evidence and material before it and for the reasons it gave. 

24. Further, the RRT made findings that the laws subjecting the applicant to a potential deprivation of liberty were laws of general application applied in a non-discriminatory manner and serving a legitimate purpose of dealing with people who depart Sri Lanka unlawfully.

25. The RRT was not satisfied that the treatment faced by returnees such as the applicant would give rise to persecution as contemplated in s.91R(1)(c) of the Migration Act 1958 (Cth) (“the Act”), and was not satisfied that ss.91R(1)(a) or 91R(1)(c) in relation to the cumulative test were satisfied.

26. Further, there was no other information before the RRT and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence is not ‘information’ that needs to be put to the applicant (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; and VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

27. In the circumstances, the RRT appears to have complied with its statutory obligations in reaching its conclusions, which were based on findings that it made and to which it applied the correct law. 

28. 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.

29. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed.

30. 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 9 June 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Associate: 

Date:  22 July 2015