CKZ15 v Minister for Immigration

[2017] FCCA 791

FEDERAL CIRCUIT COURT OF AUSTRALIA

CKZ15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 791

Catchwords:
MIGRATION – Application for judicial review – protection application – no matters of principle – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicant: CKZ15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 2567 of 2015

Judgment of: Judge Riethmuller

Hearing date: 29 March 2017

Date of Last Submission: 29 March 2017

Delivered at: Melbourne

Delivered on: 29 March 2017

REPRESENTATION

The Applicant appeared In Person

Solicitors for the First Respondent: DLA Piper Australia

ORDERS

1. The application be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $5,200.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2567 of 2015

CKZ15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered extempore)

1. The applicant in this case is a citizen of Sri Lanka.  The applicant was an unauthorised maritime arrival landing on Christmas Island in July 2012.  In November 2012 he applied for a protection visa, claiming to fear harm from the Sri Lankan Army, the Criminal Investigation Department and other groups supported by the Sri Lankan Government.  The applicant relied upon his status as a young Tamil male from North East Sri Lanka as demonstrating that he would be suspected of links with the Liberation Tigers of Tamil Eelam (“the LTTE”), and on the basis that he would be a failed asylum seeker who departed Sri Lanka illegally.

2. Whilst the delegate accepted part of the applicant’s version of events, the delegate did not accept that the applicant would face a real chance of serious harm.  The applicant sought review by the Refugee Review Tribunal (as it then was).  The applicant ultimately received a hearing before the Tribunal, where he attended assisted by an interpreter and a lawyer.  Various documents, including news articles, were provided to the Tribunal before the hearing.  The Tribunal made its decision in October 2015, affirming the decision of the delegate.

3. The Tribunal sets out in some detail the evidence given by the applicant, from paragraphs [22] to [59] of its decision.  The Tribunal did not assess the applicant as a credible witness, finding his evidence vague and inconsistent with information he previously provided to the Tribunal.  The Tribunal said:

   62. The tribunal found the applicant's evidence at hearing to be vague and inconsistent with information previously provided to the tribunal, with several significant new details and claims being made at the hearing. For example, while the applicant's initial claims referred to two friends disappearing in 2011, neither his written statement nor his evidence to the department at interview, as set out in his decision record, refers to the claimed LTTE connections of those two friends or that the applicant himself went into hiding for several months and received visits to his home from unknown people searching for him before he left Sri Lanka, as he claimed during the hearing. The tribunal finds it difficult to accept that the applicant would have simply forgotten these significant and key details of his claims, as he claimed during the hearing. Nor did the applicant elaborate on why he felt unable to explain his whole story earlier, as he also claimed. The applicant stated he was not on medication or undergoing counselling and the tribunal is satisfied that he was able to effectively participate in the tribunal hearing. Given these and other concerns set out below, the tribunal finds that the applicant is not a credible witness.

4. The Tribunal did not reject all of his evidence, setting out a number of matters that it accepted at paragraphs [63] to [67].  The Tribunal identified again at paragraph [70] that the applicant was only able to give vague and undetailed evidence about a kidnapping event he said took place in 2011. 

5. The Tribunal also had careful regard to the country information, considering it in detail in paragraphs [85] to [109] of its decision.  In substance, the Tribunal concluded that only Tamils who had a high profile were of real interest to the Sri Lankan authorities if returned to Sri Lanka.  The Tribunal said:

   89. The tribunal's assessment of the country information before it, including reports provided by the applicant before and during the hearing, is that it does not indicate that all returnees/failed asylum seekers, or all Tamil returnees are at risk or that it is the act of fleeing and seeking asylum abroad that may put an individual at risk. Rather, it appears that individuals who have a profile of interest to the Sri Lankan authorities and who also happen to be returnees/failed asylum seekers may be of adverse interest to the authorities. In light of its findings regarding the applicant's past circumstances in Sri Lanka the tribunal does not accept that he has a profile of interest and therefore does not accept that the applicant will be of interest to the Sri Lankan authorities upon return. The tribunal does not accept on the evidence before it that all asylum seekers or people returning from overseas are treated badly, jailed and tortured, as claimed by the applicant. Furthermore, given its above assessment the tribunal gives little weight to the applicant's reference to news of an asylum seeker tortured after being deported from the UK in assessing the risk to the applicant as a failed asylum seeker or returnee. While the applicant is likely to face immigration offences for leaving Sri Lanka without permission, as discussed below, the tribunal does not accept on the evidence before it that he will face a real chance or risk of serious or significant harm for this reason.

6. The Tribunal concluded:

   91. The tribunal finds that the applicant will not be subjected to any detention or interrogation on arrival to Sri Lanka other than the standard questioning and procedures described by DFAT. Taking into account the applicant's circumstances and profile, the tribunal does not accept that such standard questioning and security checks amounts to serious harm or significant harm as set out in s 36(2A). Nor is the tribunal satisfied on the evidence before it that there is a real chance or risk that the applicant would be subjected to serious or significant harm during such questioning either upon his arrival in Sri Lanka or at any other time after he is released from detention upon arrival given that, as noted above, the tribunal does not accept that the applicant has a profile that would be of interest to the Sri Lankan authorities. The tribunal does not accept on the evidence before it that the applicant will be arrested at the airport and made to disappear or that he will be taken and tortured after returning to his village.

   92. The tribunal therefore does not accept that the applicant would face a real chance or risk of serious or significant harm as a result of being a failed asylum seeker or returnee.

7. The Tribunal also considered the potential risk to the applicant if he was returned to Sri Lanka as a person who had departed illegally, and in particular whether or not there would be a period of imprisonment of detention, concluding:

   106. While the above reports refer to harm in detention of Tamils with actual or perceived LTTE associations, the tribunal has found that the applicant does not hold such a profile. The evidence before it suggests that poor prison conditions are not applied in a discriminatory manner against Tamils and the tribunal does not accept that the applicant would face a real chance of serious harm as a result of being a Tamil, a young Tamil male from the East or Kuchchaveli in particular, as a failed asylum seeker, from any actual/imputed political opinion arising from his profile or any other Convention ground while he is imprisoned on remand for a few days after his return to Sri Lanka.

   107. As required by ministerial direction, the tribunal has taken into account the relevant guidance in the PAM (see "Lawful Sanctions Not Inconsistent with the ICCPR; Section 29; Imprisonment/Prison Conditions") including in relation to the circumstances in which harsh detention conditions may amount to significant harm. Given that the applicant will be on remand for no more than a few days maximum, the tribunal finds that the risk that he would face significant harm for the reasons mentioned in the preceding paragraph or any other reason while on remand for this short period is remote.

   108. Furthermore, as raised with the applicant, under Australian legislation, cruel or inhuman treatment or punishment must be intentionally inflicted and degrading treatment or punishment must be intended to cause extreme humiliation. Mere negligence or lack of resources does not suffice to give rise to cruel or inhuman or degrading treatment or punishment under Australian law. Country information indicates that poor prison conditions in Sri Lanka are due to a lack of resources, which the government appears to have acknowledged and is taking steps to improve27 rather than an intention by the Sri Lankan government to inflict severe pain or suffering or to cause extreme humiliation. Accordingly, the tribunal also does not accept that there a real risk that the applicant will suffer significant harm from poor prison conditions while on remand for a short period of time

   109. The tribunal does not accept that any anxiety and discomfort that the applicant would face while on remand between one and several days only, where the evidence indicates that such discomfort and anxiety is not caused by an intention by the authorities to inflict severe pain or suffering or to cause extreme humiliation, amounts to significant harm as set out in s 36(2A) of the Act.

8. The Tribunal also assessed the applicant’s case against the complementary protection provisions. 

9. The applicant relies upon the following grounds of review:

   1. The decision of the Tribunal:

   (a) is affected by an error of law; and

   (b) denied the applicant procedural fairness.

   2. I have made an application for assistance through Victorian Legal Aid and am waiting for a decision.

10. The applicant was not able to articulate any complaint that would fall into either of these two categories beyond saying that he could not understand what his lawyer said to the Tribunal member at the hearing.  There is no evidence about what actually occurred at the hearing, although there was an interpreter present, and the complaint is with respect to the conduct of the applicant’s own lawyer.  It appears that the Tribunal were focused upon the applicant’s evidence and the written submissions rather than oral submissions of the lawyer at the hearing. 

11. The applicant tendered before me some additional media reports from 2015.  It appears that the additional media report is in the same vein as that that was before the Tribunal, and in any event it is not open to the applicant to rely upon further evidence that could have been placed before the Tribunal at the time. 

12. The applicant also provided a report that appears to be from tamilvoice.com made in March 2017 that simply recounts that 25 people who had been returned to Sri Lanka had been arrested for investigations.  This does not appear to be inconsistent with findings that the Tribunal made, and in any event was not evidence before the Tribunal at the time. 

13. The applicant sought to argue that merits review should be undertaken, as he does not agree with the findings of the Tribunal.  Merits review is not open on applications of this type.

14. In the circumstances of this case, where the applicant is not able to indicate any fact or circumstance or argument that could be a basis for judicial review, I must therefore dismiss the current application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  20 April 2017